B-159454, AUG. 17, 1966

B-159454: Aug 17, 1966

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INC.: REFERENCE IS MADE TO YOUR PROTEST BY LETTER DATED JUNE 13. YOUR PROTEST IS CONCERNED WITH THE WASHER-EXTRACTORS ONLY. THE OPEN POCKET REQUIREMENT WAS STATED TO BE AN EXCEPTION TO THE MILITARY SPECIFICATION. THE OVERALL SPACE AVAILABLE FOR INSTALLATION WAS STATED TO BE LENGTH 120 INCHES. BIDDERS WERE CAUTIONED AS FOLLOWS: "BID OFFERING MACHINES IN EXCESS OF THE ABOVE SIZES FOR ITEM NO. 1 WILL BE CONSIDERED NON-RESPONSIVE AND WILL BE REJECTED.'. WHICH WAS RECEIVED IN OUR OFFICE ON JUNE 16. YOU CONTENDED THAT THE IFB SPECIFICATIONS WERE RESTRICTIVE. WHICH PROVIDES THAT THE TYPE II COMMERCIAL LAUNDRY WASHER- EXTRACTOR MAY BE EITHER END OR SIDE LOADING WITH DIVIDED CYLINDER AND THAT THE SIZE 375 MAY HAVE TWO.

B-159454, AUG. 17, 1966

TO G. A. BRAUN, INC.:

REFERENCE IS MADE TO YOUR PROTEST BY LETTER DATED JUNE 13, 1966, AND SUBSEQUENT CORRESPONDENCE, AGAINST ANY CONTRACT AWARD UNDER INVITATIONS FOR BIDS (IFB) NO. N0068166B0058, DATED MAY 19, 1966, AND NO. N0068166B0077, DATED JUNE 21, 1966, ISSUED BY THE MARINE CORPS BASE, CAMP PENDLETON, CALIFORNIA.

BOTH IFBS COVER THE SAME PROCUREMENT ITEMS, TWO COMMERCIAL LAUNDRY WASHER -EXTRACTORS AND TWO COMMERCIAL CABINET-TYPE LAUNDRY PRESSES, AND BOTH SPECIFY CAMP PENDLETON AS THE PLACE OF BID OPENING. YOUR PROTEST IS CONCERNED WITH THE WASHER-EXTRACTORS ONLY.

IN THE EARLIER IFB, WHICH SPECIFIED A BID OPENING DATE OF JUNE 16, THE PURCHASE DESCRIPTION OF THE WASHER-EXTRACTOR CALLED FOR A TYPE II, SIDE LOADING, OPEN POCKET MACHINE WITH TWO CYLINDER COMPARTMENTS, SIZE 375 (375 -POUND DRY WEIGHT CAPACITY), IN ACCORDANCE WITH MILITARY SPECIFICATION NO. MIL-W-43001A, DATED SEPTEMBER 30, 1963. THE OPEN POCKET REQUIREMENT WAS STATED TO BE AN EXCEPTION TO THE MILITARY SPECIFICATION. IN ADDITION, ON PAGE 6 OF THE BID SCHEDULE, THE OVERALL SPACE AVAILABLE FOR INSTALLATION WAS STATED TO BE LENGTH 120 INCHES, WIDTH 75 INCHES, HEIGHT 86 INCHES, AND BIDDERS WERE CAUTIONED AS FOLLOWS:

"BID OFFERING MACHINES IN EXCESS OF THE ABOVE SIZES FOR ITEM NO. 1 WILL BE CONSIDERED NON-RESPONSIVE AND WILL BE REJECTED.'

IN A LETTER DATED JUNE 13, FROM YOUR NORWALK, CALIFORNIA, OFFICE, WHICH WAS RECEIVED IN OUR OFFICE ON JUNE 16, YOU CONTENDED THAT THE IFB SPECIFICATIONS WERE RESTRICTIVE, IN THAT THE REQUIREMENTS FOR SIDELOADING, OPEN POCKET, AND TWO COMPARTMENT CYLINDERS ELIMINATED FROM COMPETITION THE END LOADING, THREE POCKET MACHINES MANUFACTURED BY YOU AND BY FOUR OTHER CONCERNS, ALL OF WHICH MEET THE REQUIREMENTS OF MILITARY SPECIFICATION NO. MIL-W-43001A, WHICH PROVIDES THAT THE TYPE II COMMERCIAL LAUNDRY WASHER- EXTRACTOR MAY BE EITHER END OR SIDE LOADING WITH DIVIDED CYLINDER AND THAT THE SIZE 375 MAY HAVE TWO, THREE, OR FOUR CYLINDER COMPARTMENTS. FURTHER, YOU STATED THAT ALTHOUGH THE IFB HAD BEEN MAILED TO BIDDERS ON MAY 27, YOU HAD NOT OBTAINED COPIES UNTIL JUNE 11, AFTER YOU HAD BEEN INFORMED ON JUNE 8 BY YOUR NORTHERN CALIFORNIA DISTRIBUTOR OF THE PROCUREMENT, AND YOU CITED A 1964 CAMP PENDLETON PROCUREMENT OF SIDE LOADING MACHINES, WHICH WAS THE SUBJECT OF OUR DECISION B-154385, DATED JULY 30, 1964, IN WHICH WE POINTED OUT THAT YOUR PROTEST OF A SIMILAR NATURE MIGHT MORE PROPERLY HAVE BEEN MADE BEFORE THE AWARD. ACCORDINGLY, YOU REQUESTED THAT THE BID OPENING BE EXTENDED FOR AT LEAST 30 DAYS TO ALLOW FOR CONSIDERATION OF YOUR CONTENTIONS.

UPON REVIEW OF THE MATTER, HEADQUARTERS, UNITED STATES MARINE CORPS, WHICH HAD BEEN INFORMED OF YOUR LETTER OF JUNE 13, INSTRUCTED THE CONTRACTING OFFICER AT CAMP PENDLETON TO CANCEL THE ORIGINAL IFB AND TO READVERTISE THE PROCUREMENT IN COMPLIANCE WITH MILITARY SPECIFICATION NO. MIL-W-43001A. ACCORDINGLY, ON JUNE 21, BIDDERS WERE NOTIFIED OF THE CANCELLATION OF THE IFB, AND COPIES OF THE SECOND IFB, SPECIFYING A BID OPENING DATE OF JUNE 28, WERE MAILED TO ALL BIDDERS ON THE PRIOR MAILING LIST.

IN THE SECOND IFB, THE PURCHASE DESCRIPTION OF THE WASHER-EXTRACTOR CITED MILITARY SPECIFICATION NO. MIL-W-43001B, DATED DECEMBER 1, 1965, AND PROVIDED THAT THE MACHINE SHOULD BE SIZE 400 (400-POUND DRY WEIGHT CAPACITY), SHOULD BE SIDE LOADING ONLY, DUE TO SPACE LIMITATIONS, AND SHOULD HAVE TWO CYLINDER COMPARTMENTS. THE LANGUAGE ON PAGE 6 OF THE BID SCHEDULE REGARDING AVAILABLE SPACE AND THE REJECTION OF BIDS OFFERING MACHINES IN EXCESS OF SUCH DIMENSIONS WAS IDENTICAL TO THE LANGUAGE ON PAGE 6 OF THE BID SCHEDULE IN THE ORIGINAL IFB. BY AMENDMENT NO. 1, ISSUED JUNE 22, HOWEVER, THE REQUIREMENT FOR TWO CYLINDER COMPARTMENTS WAS DELETED FROM THE PURCHASE DESCRIPTION.

IN A LETTER DATED JUNE 23, FROM YOUR NORWALK OFFICE TO THE CONTRACTING OFFICER, A COPY OF WHICH WAS RECEIVED IN OUR OFFICE ON JUNE 27, YOU PROTESTED THAT THE SECOND IFB WAS ALSO RESTRICTIVE IN THAT ONLY SIDE LOADING MACHINES WERE TO BE FURNISHED. FURTHER, YOU ALLEGED THAT THE AVAILABLE SPACE DIMENSIONS STATED ON PAGE 6 OF THE BID SCHEDULE WERE THE DIMENSIONS OF A SIDE LOADING MACHINE AND DID NOT REPRESENT THE ENTIRE SPACE AVAILABLE FOR THE INSTALLATION OF THE MACHINES. ACCORDINGLY, YOU REQUESTED THAT THE SECOND IFB BE CANCELLED AND THAT CORRECTIONS BE MADE UNDER INVITATIONS ALLOWING SUFFICIENT TIME FOR YOU TO PRESENT AN INTELLIGENT BID.

UPON REVIEW OF THE SECOND IFB, HEADQUARTERS, UNITED STATES MARINE CORPS, INSTRUCTED THE CONTRACTING OFFICER TO FOLLOW THE SPECIFICATIONS SET FORTH IN MILITARY SPECIFICATION NO. MIL-W-43001A, CITED IN THE ORIGINAL IFB. ACCORDINGLY, ON JUNE 28, THE PROCURING ACTIVITY DISPATCHED BY TELEGRAM TO YOU AND TO ALL OF THE OTHER BIDDERS AMENDMENT NO. 2 TO THE SECOND IFB CHANGING THE PURCHASE DESCRIPTION OF THE WASHER-EXTRACTOR TO READ," TYPE II, END OR SIDE LOADING, DIVIDED CYLINDER, SIZE 400, WITH TWO, THREE OR FOUR CYLINDER COMPARTMENTS; " SUBSTITUTING "THE OVERALL SPACE AVAILABLE FOR INSTALLATION OF EACH OF ITEM 1 IS SHOWN ON PAGE 6 OF THE SCHEDULE" FOR THE NOTATION THAT SIDE LOADING WAS REQUIRED DUE TO SPACE LIMITATIONS; AND SUBSTITUTING FOR THE WARNING NOTATION ON PAGE 6 OF THE BID SCHEDULE REGARDING BIDS OFFERING MACHINES IN EXCESS OF SUCH DIMENSIONS THE STATEMENT "BIDS OFFERING MACHINES WHICH CANNOT BE INSTALLED AND OPERATED WITHIN THE SPACE LIMITATIONS SPECIFIED WILL BE CONSIDERED NONRESPONSIVE AND WILL BE REJECTED.' ADDITIONALLY, THE TIME OF BID OPENING WAS EXTENDED TO 11:00 A.M., PACIFIC DAYLIGHT SAVING TIME, JUNE 29.

ON JUNE 28, IN FOUR TELEGRAMS ADDRESSED TO THE PROCURING ACTIVITY, TWO FROM YOUR NORWALK OFFICE AND TWO FROM YOUR HOME OFFICE IN SYRACUSE, NEW YORK, YOU ACKNOWLEDGED RECEIPT OF AMENDMENTS NO. 1 AND NO. 2 BUT REQUESTED A FURTHER EXTENSION OF THE BID OPENING DATE ON THE BASIS THAT IT WAS IMPOSSIBLE FOR YOU TO SUBMIT IN ONE DAY A TIMELY WRITTEN BID UNDER THE AMENDED IFB. FURTHER, YOU STATED THAT YOU COULD CONFORM TO THE TOTAL CUBIC FOOTAGE OF THE DESIGNATED AVAILABLE SPACE BUT NOT TO THE LENGTH, DEPTH AND HEIGHT SPECIFIED ON PAGE 6 OF THE BID SCHEDULE.

ON JUNE 29, THE TWO BIDS WHICH WERE RECEIVED, ONE FROM AMERICAN LAUNDRY MACHINERY, INCORPORATED (AMERICAN), AND THE OTHER FROM ARTHUR J. SANDERS CO. (SANDERS), WERE OPENED AS SCHEDULED. AMERICAN'S BID WAS REJECTED INASMUCH AS THE EQUIPMENT OFFERED COULD NOT BE INSTALLED AND OPERATED IN THE DESIGNATED AVAILABLE SPACE. SANDER'S BID OFFERED EQUIPMENT, WITH DIMENSIONS OF 116 INCHES BY 75 INCHES BY 82 INCHES, WHICH MET ALL OF THE IFB REQUIREMENTS.

ON JUNE 30, AWARD WAS MADE TO SANDERS WITH THE APPROVAL OF THE HEAD OF THE PROCURING ACTIVITY, AND IN ACCORDANCE WITH ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2-407.9 (B) (3) (I) AND (III) SUCH ACTION WAS SUPPORTED BY A WRITTEN FINDINGS AND DETERMINATION BY THE CONTRACTING OFFICER STATING THAT THE PROCUREMENT NEED WAS URGENT AND THAT PROMPT AWARD WAS OTHERWISE ADVANTAGEOUS TO THE GOVERNMENT. IN HIS FINDINGS, THE CONTRACTING OFFICER STATED THAT THE TWO WASHER EXTRACTORS IN QUESTION WERE REQUIRED TO REPLACE TWO WASHERS WHICH HAD BEEN REMOVED FROM SERVICE AT THE BASE LAUNDRY IN APRIL 1966 DUE TO OBSOLESCENCE; THAT FOLLOWING THE REMOVAL OF THE TWO OBSOLESCENT WASHERS, THE LAUNDRY HAD BEEN REQUIRED TO OPERATE A NIGHT SHIFT AT INCREASED ADMINISTRATIVE COSTS (NIGHT WAGES BEING HIGHER THAN DAY WAGES) IN ORDER TO MEET THE DEMAND FOR LAUNDRY SERVICE AT THE BASE, WHICH HAD INCREASED FROM 592,669 POUNDS IN JANUARY 1966 TO 945,540 POUNDS IN JUNE 1966; THAT THE DEMAND FOR LAUNDRY SERVICE WAS EXPECTED TO INCREASE FURTHER IN JULY 1966 BECAUSE OF NORMAL SEASONAL REQUIREMENTS AND BECAUSE OF AN INCREASE IN MILITARY POPULATION; AND THAT SATISFACTORY LAUNDRY SUPPORT FOR THE BASE MILITARY PERSONNEL COULD NOT BE PROVIDED UNLESS THE WASHER CAPABILITY OF THE BASE LAUNDRY WERE INCREASED BY PROMPT PROCUREMENT OF THE WASHER-EXTRACTORS. PURSUANT TO ASPR 2-407.9, THE CONTRACTING OFFICER NOTIFIED YOU BY LETTER DATED JUNE 30 OF THE AWARD.

IN A LETTER DATED JULY 5, YOU STATE THAT YOU HAD BEEN INFORMED BY THE CONTRACTING OFFICER AT CAMP PENDLETON THAT THE MATTER WOULD BE REFERRED TO HEADQUARTERS IN WASHINGTON, D.C., FOR CONSIDERATION AND APPROPRIATE ACTION. ACCORDINGLY, AND SINCE OUR OFFICE HAD ADVISED YOU THAT OUR DECISION WOULD BE MADE KNOWN UPON CONCLUSION OF DEVELOPMENT OF ALL THE FACTS AND CIRCUMSTANCES, YOU QUESTION THE AWARD BY THE CONTRACTING OFFICER, STATING IT WAS NOT ON A FAIR BASIS SINCE YOU HAD NOT BEEN ACCORDED AN OPPORTUNITY TO BID. THEREFORE, YOU CONTEND "THE ABOVE BID SHOULD BE WITHDRAWN AND HELD FOR RE-BID ON A FAIR AND JUST BASIS.' IN A LETTER DATED JULY 7, YOU CONTEND THAT THE PROCUREMENT WAS OBVIOUSLY SET UP TO MAKE IT IMPOSSIBLE FOR YOU TO BID AND WAS ESTABLISHED SO THAT IT WOULD BE CONVENIENT FOR SOME COMPETITOR TO RECEIVE THE AWARD; THAT YOU HAD NOTIFIED OUR OFFICE IN SUFFICIENT TIME TO INVESTIGATE OR HOLD UP THE BID; THAT THE CONTRACTING OFFICER HAD COMPLETELY DISREGARDED YOUR REQUEST FOR EXTENSION OF BIDDING TIME; AND THAT THE AWARD IS NOT IN THE INTEREST OF THE GOVERNMENT BECAUSE IT ELIMINATES COMPETITIVE BIDDING. THEREFORE, AND ON THE BASIS THAT THE SAME CIRCUMSTANCES HAD OCCURRED PREVIOUSLY AT CAMP PENDLETON (PRESUMABLY IN THE 1964 PROCUREMENT CITED IN YOUR LETTER OF JUNE 13), YOU REQUEST THAT OUR OFFICE HOLD UP THE AWARD.

WITH RESPECT TO THE PLACE AT WHICH BIDS WERE TO BE OPENED, IT IS REPORTED THAT AT NO TIME WAS CAMP PENDLETON INSTRUCTED TO FORWARD THE PROCUREMENT TO HEADQUARTERS, UNITED STATES MARINE CORPS, FOR BID OPENING, AND IT IS POINTED OUT THAT ALL PROCUREMENT DOCUMENTS CLEARLY SHOW THAT THE PROCUREMENT WAS BEING HANDLED BY CAMP PENDLETON.

BY LETTER DATED JULY 18, HEADQUARTERS, UNITED STATES MARINE CORPS, HAS FORWARDED TO OUR OFFICE A REPORT FROM THE CONTRACTING OFFICER AT CAMP PENDLETON IN WHICH IT IS STATED THAT THE SPACE DIMENSIONS OF 120 INCHES BY 75 INCHES BY 86 INCHES SET FORTH IN THE BID SCHEDULE REPRESENT THE ACTUAL MAXIMUM SPACE AVAILABLE IN LENGTH, WIDTH, AND HEIGHT FOR THE INSTALLATION AND OPERATION OF THE WASHER-EXTRACTORS. IN THIS CONNECTION, THE CONTRACTING OFFICER MAKES THE FOLLOWING PERTINENT STATEMENTS:

"* * * THE DISTANCE FROM THE DECK TO THE OVERHEAD HOT AND COLD WATER AND STEAM PIPES IS 102 INCHES. THE 16 INCH SPACE BETWEEN THE MAXIMUM HEIGHT OF THE MACHINE AND THE UTILITY PIPES IS THE NECESSARY MINIMUM SPACE REQUIRED FOR MAINTENANCE ADJUSTMENT, AND REPAIR OF MACHINES AND MAINTENANCE OF PIPES. MAINTENANCE WORK ON, AND ADJUSTMENT OF MOTORS AND COMPONENTS LOCATED ON OR ACCESSIBLE FROM THE TOP OF WASHER EXTRACTORS, REGARDLESS OF MAKE OR MODEL, IS NECESSARY AT THE BASE LAUNDRY. RAISING THE PIPE LINES TO PROVIDE NECESSARY SPACE TO MAINTAIN EQUIPMENT IN EXCESS 86 INCHES IN HEIGHT INVOLVED MAJOR STRUCTURAL CHANGES. IN REFERENCES (C) AND (D) BIDDERS WERE INVITED TO INSPECT THE INSTALLATION SITE. THE PROTESTOR, G. A. BRAUN, INC. DID NOT SEND A REPRESENTATIVE TO INSPECT THE INSTALLATION AT ANY TIME OR TO INSPECT TRADE-IN EQUIPMENT OFFERED, ALTHOUGH MR. ROCCO ALBANESE, ITS REGIONAL MANAGER, HAS AN OFFICE IN THE LOS ANGELES AREA. THE BRAUN MACHINE, DESCRIBED IN MR. ALBANESE'S LETTER OF 23 JUNE 1966, A COPY OF WHICH HAS BEEN TRANSMITTED, IS 98 INCHES LONG, 78 INCHES DEEP AND 94 INCHES HIGH, AND CANNOT BE INSTALLED, OPERATED AND MAINTAINED WITHIN THE SPACE LIMITATIONS.'

IT IS THE POSITION OF HEADQUARTERS, UNITED STATES MARINE CORPS, THAT SINCE THE GOVERNMENT COULD NOT BE EXPECTED OR REQUIRED TO MAKE SUCH EXTENSIVE CHANGES TO THE LAUNDRY PLANT IN ORDER TO ACCOMMODATE EQUIPMENT WHICH DOES NOT FIT THE AVAILABLE INSTALLATION SPACE, THE PROVISION IN THE IFB REGARDING REJECTION OF BIDS OFFERING MACHINES WHICH COULD NOT BE INSTALLED, OPERATED AND MAINTAINED WITHIN THE DESIGNATED SPACE LIMITATIONS WAS A FAIR AND PROPER REQUIREMENT.

IT IS WELL SETTLED THAT EXCEPT TO THE EXTENT THAT A REQUIREMENT IS IMPOSED DIRECTLY OR INDIRECTLY BY, OR IS IN CONFLICT WITH, THE LAW, THIS OFFICE CANNOT DIRECT THE TERMS, CONDITIONS OR SPECIFICATIONS WHICH ARE TO BE INCLUDED IN AN INVITATION FOR BIDS. THE FACT THAT A BIDDER MAY BE UNWILLING OR UNABLE TO MEET CERTAIN REQUIREMENTS OF THE ADVERTISED SPECIFICATIONS WHICH HAVE BEEN DETERMINED TO REFLECT OR DESCRIBE THE GOVERNMENT'S NEEDS, IS NOT SUFFICIENT TO WARRANT THE CONCLUSION THAT SUCH SPECIFICATIONS ARE UNDULY RESTRICTIVE OF COMPETITION. IN THIS REGARD WE STATED IN 36 COMP. GEN. 251, 252:

"THERE IS NO REQUIREMENT THAT THE UNITED STATES PURCHASE EQUIPMENT MERELY BECAUSE IT IS OFFERED AT A LOWER PRICE, WITHOUT INTELLIGENT REFERENCE TO THE PARTICULAR NEEDS TO BE SERVED; NOR IS THE GOVERNMENT TO BE PLACED IN THE POSITION OF ALLOWING BIDDERS TO DICTATE SPECIFICATIONS WHICH WILL PERMIT ACCEPTANCE OF EQUIPMENT WHICH DOES NOT, IN THE CONSIDERED JUDGMENT OF THE CONTRACTING AGENCY, REASONABLY MEET THE AGENCY'S NEED.' FURTHER, AS YOU WERE ADVISED IN OUR DECISION TO YOU OF JULY 30, 1964, IF A SPECIFIED REQUIREMENT IS NECESSARY TO MEET THE GOVERNMENT'S NEEDS, THE FACT THAT ONLY ONE SOURCE IS AVAILABLE WOULD NOT MAKE PROCUREMENT FROM THAT SOURCE ILLEGAL. WE DO NOT FIND THE REQUIREMENT FOR A WASHER HAVING DIMENSIONS SUITABLE TO THE AVAILABLE SPACE TO BE UNREASONABLE OR THE RESULT OF ARBITRARY OR CAPRICIOUS ADMINISTRATIVE ACTION, AND WE CONCUR THEREFORE IN THE MARINE CORPS' POSITION IN SUCH MATTER.

CONCERNING THE MATTER OF THE TIME ALLOWED FOR SUBMISSION OF BIDS AFTER THE ISSUANCE OF AMENDMENT NO. 2 TO THE SECOND IFB, THE CONTRACTING AGENCY POINTS OUT THAT TWO BIDDERS WERE ABLE TO SUBMIT TIMELY BIDS AND ALSO TIMELY ACKNOWLEDGE RECEIPT OF THE TELEGRAPHIC AMENDMENT IN QUESTION, AND THAT SINCE YOU APPARENTLY DO NOT MANUFACTURE EQUIPMENT WHICH WILL MEET THE SPACE LIMITATIONS, AN EXTENSION OF THE TIME FOR OPENING BIDS WOULD NOT HAVE ENABLED YOU TO OFFER ANY EQUIPMENT OF YOUR MANUFACTURE IN RESPONSE TO THE IFB AND WOULD HAVE MERELY DELAYED THE AGENCY IN SECURING MUCH-NEEDED EQUIPMENT.

ASPR 2-208 (B), RELATING TO AMENDMENTS OF INVITATIONS FOR BIDS, PROVIDES THAT BEFORE AN AMENDMENT IS ISSUED, THE PERIOD OF TIME REMAINING UNTIL BID OPENING AND THE NEED FOR EXTENDING SUCH PERIOD BY POSTPONING THE TIME SET FOR BID OPENING MUST BE CONSIDERED; ALSO, WHERE ONLY A SHORT TIME REMAINS BEFORE THE TIME SET FOR BID OPENING, CONSIDERATION SHOULD BE GIVEN TO NOTIFYING BIDDERS OF AN EXTENSION OF TIME BY TELEGRAM OR TELEPHONE AND SUCH NOTIFICATION SHOULD BE CONFIRMED IN THE AMENDMENT. CONSIDERING THE FACT THAT ONLY ONE ADDITIONAL DAY WAS ALLOWED FOR SUBMISSION OF BIDS AFTER THE TELEGRAPHIC AMENDMENT OF JUNE 28 WAS ISSUED UNDER THE SECOND IFB, IT IS OUR VIEW THAT NORMALLY A LONGER EXTENSION OF THE BID SUBMISSION PERIOD WOULD BE REQUIRED BY ASPR 2-208 (C). HOWEVER, IN THE LIGHT OF YOUR STATEMENT IN ONE OF YOUR TELEGRAMS OF JUNE 28 TO THE PROCURING ACTIVITY THAT YOU WERE AT THAT TIME UNABLE TO CONFORM TO THE LENGTH, DEPTH, AND HEIGHT REQUIREMENTS SET FORTH IN THE IFB, AND ABSENT ANY EVIDENCE THAT YOU MANUFACTURE A MACHINE WHICH DOES CONFORM TO SUCH REQUIREMENTS, IT WOULD APPEAR THAT FURTHER POSTPONEMENT OF BID OPENING WOULD NOT HAVE ENABLED YOU TO SUBMIT A RESPONSIVE BID AND, THEREFORE, YOU WERE NOT PREJUDICED BY THE ACTION OF THE PROCURING ACTIVITY IN THIS REGARD.

WITH RESPECT TO THE FACT THAT THE AWARD TO THE ONLY RESPONSIVE BIDDER WAS MADE WITHOUT AWAITING OUR DECISION ON YOUR PROTEST, SUCH ACTION IS AUTHORIZED AND, AS STATED ABOVE, WAS TAKEN ONLY AFTER APPROVAL BY THE HEAD OF THE PROCURING ACTIVITY AND ISSUANCE OF A WRITTEN FINDINGS AND DETERMINATION BY THE CONTRACTING OFFICER, PURSUANT TO ASPR 2-407.9 (B) (3) (I) AND (III).

IN THE CIRCUMSTANCES AND SINCE IT IS OUR VIEW THAT THE SIZE LIMITATIONS WERE A BONA FIDE PROCUREMENT REQUIREMENT, WE ARE UNABLE TO CONCLUDE THAT THE IFB WAS UNDULY RESTRICTIVE OR THAT THE AWARD WAS OTHER THAN IN SUBSTANTIAL ACCORD WITH THE APPLICABLE PROCUREMENT REGULATIONS. ACCORDINGLY, YOUR PROTEST IS DENIED.