B-159787, OCTOBER 11, 1966, 46 COMP. GEN. 285

B-159787: Oct 11, 1966

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CHANGING THE REQUEST FOR PROPOSALS FROM A SOLICITATION ON A BRAND NAME OR EQUAL BASIS TO ONE IN WHICH PROSPECTIVE OFFERORS ARE FREE TO OFFER ITEMS SUITABLE FOR THE NEEDS OF THE GOVERNMENT DOES NOT REQUIRE THE ISSUANCE OF THE AMENDMENT PRESCRIBED BY PARAGRAPHS 3-505/C) AND 3-805.1/E) OF THE ARMED SERVICES PROCUREMENT REGULATION. THE VERBAL INSTRUCTIONS INCIDENT TO THE CHANGE GIVEN AT A PREPROPOSED CONFERENCE SERVING THE SAME PURPOSE AS A WRITTEN AMENDMENT IN THAT ALL PROSPECTIVE OFFERORS WERE PLACED ON NOTICE OF THE CHANGE IN THE TERMS OF THE REQUEST FOR PROPOSALS. IS NOT PREJUDICIAL WHERE THE OFFEROR'S PROPOSAL COULD NOT BE EVALUATED AND INFORMATION TO DETERMINE THE NATURE AND QUALITY OF THE ITEMS OFFERED IS REFUSED THE GOVERNMENT.

B-159787, OCTOBER 11, 1966, 46 COMP. GEN. 285

CONTRACTS - SPECIFICATIONS - CHANGES, REVISIONS, ETC. - AMENDMENT REQUIREMENT. WHEN AN OFFEROR CONSENTING TO THE USE OF NONPROPRIETARY DATA SUBMITTED IN A PRESOLICITATION PRESENTATION FOR THE REDESIGNING OF BACHELOR OFFICERS QUARTERS AND ENLISTED MEN'S BARRACKS REFUSES TO FURNISH SUFFICIENT INFORMATION TO ENABLE OTHER OFFERORS TO SUBMIT PROPOSALS ON EQUIVALENT ARTICLES AND THE GOVERNMENT TO EVALUATE PROPOSALS, CHANGING THE REQUEST FOR PROPOSALS FROM A SOLICITATION ON A BRAND NAME OR EQUAL BASIS TO ONE IN WHICH PROSPECTIVE OFFERORS ARE FREE TO OFFER ITEMS SUITABLE FOR THE NEEDS OF THE GOVERNMENT DOES NOT REQUIRE THE ISSUANCE OF THE AMENDMENT PRESCRIBED BY PARAGRAPHS 3-505/C) AND 3-805.1/E) OF THE ARMED SERVICES PROCUREMENT REGULATION, THE VERBAL INSTRUCTIONS INCIDENT TO THE CHANGE GIVEN AT A PREPROPOSED CONFERENCE SERVING THE SAME PURPOSE AS A WRITTEN AMENDMENT IN THAT ALL PROSPECTIVE OFFERORS WERE PLACED ON NOTICE OF THE CHANGE IN THE TERMS OF THE REQUEST FOR PROPOSALS. CONTRACTS - SPECIFICATIONS - CHANGES, REVISIONS, ETC. - AFTER BID OPENING - PRICE, QUANTITY, OR QUALITY EFFECT. THE FAILURE OF A CONTRACTING OFFICER TO ADVISE AN OFFEROR OF AN INCREASE IN PROCUREMENT NEEDS AFTER PROPOSALS HAD BEEN OPENED, AN INCREASE AFFECTING BOTH PRICE AND QUANTITY, IS NOT PREJUDICIAL WHERE THE OFFEROR'S PROPOSAL COULD NOT BE EVALUATED AND INFORMATION TO DETERMINE THE NATURE AND QUALITY OF THE ITEMS OFFERED IS REFUSED THE GOVERNMENT, AND WHERE THE OFFEROR INDICATED NO WILLINGNESS TO CHANGE POSITION IN CONNECTION WITH ANY REVISED PROPOSAL. CONTRACTS - NEGOTIATION - DISCLOSURE OF PRICES, ETC. THE REFUSAL OF A CONTRACTING OFFICER WHO HAD CONDUCTED CONTRACT NEGOTIATIONS UNDER THE AUTHORITY OF 10 U.S.C. 2304/A) (10) TO FURNISH AN UNSUCCESSFUL BIDDER WITH A BREAKDOWN OF THE PRICES OF THE SUCCESSFUL BIDDER IS CONCURRED IN AS THE FURNISHING OF ONLY THE TOTAL PRICE OF A BID IS JUSTIFIED UNDER PARAGRAPH 3-508.3 (A) (IV) OF THE ARMED SERVICES PROCUREMENT REGULATION IN VIEW OF THE NUMBER OF ITEMS INVOLVED, AND THE WITHHOLDING OF OTHER INFORMATION, SUCH AS PROFIT, OVERHEAD RATE, TRADE SECRETS, MANUFACTURING PROCESSES, ETC; IS PROPER UNDER PARAGRAPH 3 508.3/A) (V). CONTRACTS - AWARDS - NOTICE - TO UNSUCCESSFUL BIDDERS. EVEN THOUGH THE NOTICE OF AWARD OF A CONTRACT WAS NOT ISSUED WITH THE PROMPTNESS CONTEMPLATED BY PARAGRAPH 3-508.3 OF THE ARMED SERVICES PROCUREMENT REGULATION, ABSENT A FINDING OF BAD FAITH ON THE PART OF THE EITHER THE USING ACTIVITY OR THE PROCURING ACTIVITY IN THE CONDUCT OF THE NEGOTIATED PROCUREMENT UNDER THE AUTHORITY OF 10 U.S.C. 2304/A) (10), THE PROPRIETY OF THE AWARD, WHICH ON THE BASIS OF PRICE AND OTHER FACTORS IS RESPONSIVE TO THE NEEDS OF THE GOVERNMENT, IS NOT SUBJECT TO QUESTION.

TO LYNCH AND BAILEY, INC; OCTOBER 11, 1966:

REFERENCE IS MADE TO YOUR LETTER OF JULY 27, 1966, PROTESTING AGAINST THE AWARD OF A CONTRACT TO DOOLITTLE-ALLEN CO. (DOOLITTLE) UNDERREQUEST FOR PROPOSALS (RFP) NO. N00265-6108-2601, ISSUED JUNE 6, 1966, BY THE PURCHASE DIVISION, PHILADELPHIA NAVAL SHIPYARD, PHILADELPHIA, PENNSYLVANIA, FOR THE REDECORATION OF, AND FURNISHING OF FURNITURE, FIXTURES, AND DRAPERIES AND OTHER ACCESSORIES FOR THE BACHELOR OFFICERS QUARTERS (BOQ) AND ENLISTED MEN'S BARRACKS AT THE LAKEHURST NAVAL AIR STATION, LAKEHURST, NEW JERSEY.

THE SUBSTANCE OF YOUR PROTEST IS THAT IN MARCH 1966, AT THE REQUEST OF OFFICIALS AT LAKEHURST, YOU CONCEIVED PLANS AND SPECIFICATIONS FOR REDESIGNING THE LAKEHURST BOQ AND ENLISTED MEN'S BARRACKS; THAT ON APRIL 14, YOU PRESENTED SUCH PLANS, ETC; TO THE GOVERNMENT; THAT ABSENT ANY MARKINGS ON SUCH DATA IDENTIFYING IT AS YOUR PROPERTY, YOU RELUCTANTLY CONSENTED ON MAY 26 TO ITS USE AS THE BASIS OF A FORMAL SOLICITATION OF PROPOSALS, ALTHOUGH IT WAS YOUR ORIGINAL UNDERSTANDING THAT "IF ANOTHER BID WAS REQUIRED IT WOULD ONLY BE THROUGH G.S.A.;" AND THAT YOU WERE NOT NOTIFIED THAT AN AWARD HAD BEEN MADE UNTIL YOU MADE INQUIRY DURING THE WEEK OF JULY 7 REGARDING FAILURE OF THE PROCURING ACTIVITY TO GIVE YOU PROMPT NOTICE OF THE PROCUREMENT AND WERE ADVISED THAT AWARD HAD BEEN MADE ON JUNE 29 TO DOOLITTLE. SPECIFICALLY, YOU PROTEST THE USE OF YOUR DATA; THE THE AWARD TO DOOLITTLE; THE REFUSAL OF THE PROCURING ACTIVITY TO PERMIT YOU TO EXAMINE DOOLITTLE'S PROPOSAL; THE ACTION OF THE PROCURING ACTIVITY IN PERMITTING DOOLITTLE TO CHANGE ITS PROPOSAL AT NO INCREASE IN PRICE TO INCLUDE ADDITIONAL ROOMS FOR WHICH FURNISHINGS WERE REQUIRED; AND THE ALLEGED UNUSUAL PROCEDURE WHEREBY VIRGINIA METAL PRODUCTS, THE MANUFACTURER OF THE ROOM PARTITIONING FOR WHICH THE LAKEHURST OFFICIALS HAD STATED A PREFERENCE, FURNISHED YOU, AFTER THE DEADLINE FOR SUBMISSION OF PROPOSALS, A QUOTATION ON THE PARTITIONING WHICH WAS LOWER THAN AN EARLIER QUOTATION FURNISHED TO YOU BY LAKEHURST THAT YOU HAD INCORPORATED IN YOUR PROPOSAL. IN ADDITION, YOU RELATE VARIOUS CONVERSATIONS BETWEEN YOUR REPRESENTATIVES AND OFFICIALS AT LAKEHURST AND AT THE PROCURING ACTIVITY, BOTH BEFORE AND AFTER THE AWARD, COVERING VARIOUS FACTORS, INCLUDING AN ALLEGED MISTAKE IN THE RFP REGARDING AREAS TO BE CARPETED, WHICH, YOU CONTEND, WAS NOT CALLED TO THE ATTENTION OF OTHER BIDDERS IN TIME TO PERMIT ANY NECESSARY CHANGES IN THEIR PROPOSALS PRIOR TO THE SUBMISSION DEADLINE.

THE RFP, WHICH WAS SENT TO NINE FIRMS, INCLUDED SEVERAL BRAND NAME OR EQUAL PURCHASE DESCRIPTIONS, MANY OF WHICH CITE YOUR CATALOG NUMBERS, AND THE FOLLOWING PERTINENT NOTATION APPEARED ON PAGE 11 OF THE RFP SCHEDULE:

ANY REFERENCE HEREIN TO PARTICULAR MAKES OR MODELS IS INTENDED TO BE DESCRIPTIVE ONLY, BUT NOT RESTRICTIVE. SUCH REFERENCES ARE USED ONLY TO INDICATE ARTICLES WHICH WILL BE SATISFACTORY.

PROSPECTIVE OFFERORS WERE ADVISED ON THE FACE SHEET OF THE RFP THAT PROPOSALS WOULD BE RECEIVED AT THE PHILADELPHIA NAVAL SHIPYARD UNTIL THE CLOSE OF BUSINESS (4:30 P.M.), JUNE 21, 1966, AND ON PAGE 11 OF THE RFP THAT A PREBID (PREPROPOSAL) ORIENTATION WOULD BE CONDUCTED AT LAKEHURST ON JUNE 14, AT WHICH TIME THERE WOULD BE A CONDUCTED TOUR OF THE PREMISES TO BE REDECORATED, DURING WHICH REQUIREMENTS AND DIMENSIONS COULD BE TAKEN AND FLOOR PLANS, DRAWINGS AND FURNITURE LAYOUT WOULD BE FURNISHED TO EACH PROSPECTIVE OFFEROR.

TWO PROPOSALS WERE RECEIVED BY THE PROCURING ACTIVITY, ONE FROM DOOLITTLE QUOTING A PRICE OF $105,345.50 AND THE OTHER FROM YOU QUOTING A PRICE OF $107,420.22. ON JUNE 29, AWARD WAS MADE TO DOOLITTLE ON THE BASIS OF A REVISION OF ITS PROPOSAL, AT A PRICE OF $105,838.51, CITING THE AUTHORITY IN 10 U.S.C. 2304/A) (10) FOR NEGOTIATION OF CONTRACTS BY THE MILITARY DEPARTMENTS WHERE IT IS IMPRACTICABLE TO OBTAIN COMPETITION. IN THIS CONNECTION, THE RECORD BEFORE OUR OFFICE INCLUDES A COPY OF THE DETERMINATION AND FINDINGS BY THE CONTRACTING OFFICER, DATED JUNE 3, 1966, CITING, AS THE BASIS FOR USE OF NEGOTIATION WITHOUT FORMAL ADVERTISING FOR THE PROPOSED CONTRACT, THE AUTHORITY CONTAINED IN 10 U.S.C. 2304/A) (10) RELATING TO IMPRACTICABILITY OF OBTAINING COMPETITION, AS IMPLEMENTED BY PARAGRAPH 3-210.2, ARMED SERVICES PROCUREMENT REGULATION (ASPR). THE FINDINGS INCLUDE A STATEMENT THAT IT WAS IMPOSSIBLE TO DRAFT ADEQUATE SPECIFICATIONS FOR A FORMALLY ADVERTISED BID SINCE THE PROSPECTIVE CONTRACTOR WOULD BE REQUIRED TO SUBMIT SAMPLES OF DRAPERY FABRICS, CARPETS, ETC; WITH HIS PROPOSAL AND TO MAKE CERTAIN DETERMINATIONS, RECOMMENDATIONS, AND FINAL MEASUREMENTS BEFORE SUBMITTING HIS PROPOSAL.

THE REPORT FORWARDED TO OUR OFFICE BY THE DEPARTMENT OF THE NAVY, WHICH WE MUST ACCEPT AS CORRECT ABSENT SUFFICIENT EVIDENCE TO OVERCOME THE PRESUMPTION OF ITS CORRECTNESS, INCLUDES STATEMENTS BY THE CONTRACTING OFFICER AT THE PHILADELPHIA NAVAL SHIPYARD AND BY THE ACTING COMMANDING OFFICER AT LAKEHURST, WHO PARTICIPATED IN THE DISCUSSIONS BETWEEN YOUR REPRESENTATIVE AND OFFICIALS AT LAKEHURST DURING THE PERIOD MARCH THROUGH JUNE 1966, WHICH ARE AT VARIANCE WITH YOUR VERSION OF THE PROCUREMENT PROCEDURES EMPLOYED BY NAVAL PERSONNEL AND OF THE VARIOUS DISCUSSIONS WHICH YOU HAD WITH SUCH PERSONNEL REGARDING THE PROCUREMENT.

IT IS ADMINISTRATIVELY REPORTED THAT YOU CONTACTED A MR. BRITT AT LAKEHURST ON MARCH 29, 1966, ON YOUR OWN VOLITION, OFFERING YOUR SERVICES FOR THE REDECORATING AND FURNISHING OF THE QUARTERS IN QUESTION; THAT PRIOR THERETO, LAKEHURST OFFICIALS HAD SOLICITED TWO OTHER FIRMS REGARDING THE MATTER, BOTH OF WHICH FIRMS SUBMITTED, AS DID YOU, INFORMAL PRESENTATIONS TO THE COMMANDING OFFICERS AT LAKEHURST; AND THAT YOU AND ALL OTHER INTERESTED FIRMS WERE ADVISED INITIALLY THAT NO FUNDS WERE AVAILABLE FOR THE WORK BUT PROPOSALS COULD BE SUBMITTED, IF DESIRED, TO THE CONTRACTING OFFICER AT THE PHILADELPHIA NAVAL SHIPYARD AT NO OBLIGATION TO THE GOVERNMENT. IT IS FURTHER REPORTED THAT YOU WERE NEVER INFORMED THAT YOU WOULD BE FAVORED IN ANY PROCUREMENT BUT WERE ADVISED INSTEAD, AT LEAST TWICE PRIOR TO THE ISSUANCE OF THE RFP, THAT THE PROCUREMENT WAS REQUIRED TO BE PLACED BY THE PHILADELPHIA NAVAL SHIPYARD ON A COMPETITIVE BASIS.

CONCERNING THE USE IN THE RFP, WITH YOUR CONSENT, OF SOME OF THE MATERIAL WHICH YOU HAD INCLUDED IN YOUR INFORMAL PRESENTATION, THE CONTRACTING OFFICER STATES THAT SUCH ACTION WAS PROMPTED BY THE LACK OF SPECIFICATIONS FOR THE REQUIRED SUPPLIES AND SERVICES; THAT YOUR MATERIAL WAS USED ONLY IN PURCHASE DESCRIPTIONS, THE PLANS RELATING TO THE LAYOUT OF THE AREAS TO BE REDECORATED BEING PREPARED BY THE PUBLIC WORKS DEPARTMENT PERSONNEL AT LAKEHURST ON THE BASIS OF THEIR OWN INFORMATION; AND THAT IT WAS ASSUMED AT THE TIME YOUR DESCRIPTIONS WERE USED THAT YOU WOULD MAKE AVAILABLE TO OTHER PROSPECTIVE OFFERORS AND TO THE GOVERNMENT SUCH INFORMATION AS WAS NEEDED FOR THE PREPARATION AND EVALUATION OF OFFERS. IN THIS CONNECTION, THE CONTRACTING OFFICER POINTS TO THE FACT THAT THE USE OF THE WORDS "OR EQUAL" IN THE PURCHASE DESCRIPTIONS, TOGETHER WITH THE NOTATION QUOTED ABOVE FROM PAGE 11 OF THE RFP SCHEDULE, SERVED AS NOTICE TO OTHER PROSPECTIVE OFFERORS THAT THE PROCUREMENT WAS NOT RESTRICTED TO YOUR FURNITURE AND ACCESSORIES. FURTHER, IT IS REPORTED THAT IN THE LIGHT OF YOUR REFUSAL TO REVEAL EITHER TO THE GOVERNMENT OR TO ANY OF THE OTHER PROSPECTIVE OFFERORS ANY INFORMATION ON THE ARTICLES YOU OFFERED, OTHER THAN AS SET FORTH IN THE RFP, TO ENABLE SUCH OFFERORS TO SUBMIT PROPOSALS UPON MERCHANDISE EQUIVALENT TO SUCH ARTICLES, THE LAKEHURST OFFICIALS EXPLAINED TO ALL FIVE PARTICIPANTS IN THE JUNE 14 PREPROPOSAL CONFERENCE AT LAKEHURST, OF WHICH YOU WERE ONE, BUT PARTICULARLY TODOOLITTLE AND THE THREE OTHER FIRMS, THAT THE GOVERNMENT DESIRED THAT EACH INTERESTED FIRM SUBMIT A PROPOSAL BASED UPON WHAT IT THOUGHT WOULD BE SUITABLE FOR REDECORATING THE QUARTERS INVOLVED.

WITH FURTHER REFERENCE TO THE PRESOLICITATION CONFERENCE, IT IS REPORTED THAT ALL PROSPECTIVE OFFERORS WERE ESCORTED THROUGHOUT EACH OF THE AREAS TO BE CARPETED, AND DOOLITTLE WAS THUS APPRISED OF THE LOCATIONS OF THE FOYERS AND LOUNGES AND THE QUANTITY OF CARPETING WHICH WOULD BE REQUIRED THEREFOR. IN THIS CONNECTION, IT IS STATED THAT THE FACT DOOLITTLE HAS DELIVERED ALL OF THE REQUIRED CARPETING UNDER ITS CONTRACT INDICATES THAT THERE WAS NO MISUNDERSTANDING BY DOOLITTLE OF THE WORDING OF THE CARPETING ITEM IN THE RFP.

IN ADDITION TO THE FOREGOING ADMINISTRATIVE STATEMENTS CONCERNING YOUR REFUSAL TO MAKE AVAILABLE TO THE GOVERNMENT OR TO OTHER OFFERORS SUFFICIENT INFORMATION FOR THE EVALUATION AND PREPARATION OF PROPOSALS ON THOSE ITEMS WHICH WERE IDENTIFIED IN THE RFP BY YOUR NAME AND NUMBERS, THE RECORD MADE AVAILABLE TO OUR OFFICE INCLUDES A COPY OF DOOLITTLE'S INITIAL PROPOSAL DATED JUNE 18, 1966, CONTAINING A STATEMENT TO THE EFFECT THAT DOOLITTLE'S ATTEMPTS TO IDENTIFY SUCH ITEMS BY REFERENCE TO LISTINGS PUBLISHED BY THE NATIONAL RETAIL FURNITURE ASSOCIATION AND SIMILAR ORGANIZATIONS, AS WELL AS BY MANY MANUFACTURERS, HAD BEEN UNSUCCESSFUL; THAT DOOLITTLE COMMUNICATED WITH YOU BY TELEPHONE BUT WAS UNABLE TO OBTAIN ANY INFORMATION FROM YOU AS TO THE LOCATION OF YOUR FACTORIES OR PERMISSION TO SEE THE ITEMS; AND THAT SUCH FACTORS WERE DISCUSSED AT THE ORIENTATION AT LAKEHURST ON JUNE 14, AT WHICH DOOLITTLE STATED, IT WAS ADVISED TO SUBMIT A PROPOSAL ON ITS OWN, NOT USING THE STANDARD BID FORM, AND TO SUPPLY MANUFACTURERS' NAMES, QUALITIES, SPECIFICATIONS, AND DECORATING AND LAYOUT RECOMMENDATIONS OF ITS OWN.

REGARDING THE FACT THAT THE FIRST QUESTION MADE BY VIRGINIA METAL PRODUCTS ON THE PARTITIONING, WHICH OFFERORS WERE INSTRUCTED TO USE IN THEIR PROPOSALS, WAS HIGHER THAN ITS SECOND QUOTATION, THE CONTRACTING OFFICER STATES THAT ALL PROSPECTIVE OFFERORS WERE INSTRUCTED TO VERIFY THE QUANTITY OF PARTITIONING SINCE THERE WAS A REDUCED REQUIREMENT CONCERNING THE PARTITIONS WHICH COULD HAVE AFFECTED THE PRICE.

AS TO THE CHANGE WHICH WAS PERMITTED IN DOOLITTLE'S PROPOSAL, THE CONTRACTING OFFICER STATES THAT DOOLITTLE'S PROPOSAL WAS IN OTHER THAN THE COLONIAL DECOR DESIRED BY LAKEHURST. ACCORDINGLY, AND INASMUCH AS THERE AROSE AN ADDITIONAL REQUIREMENT, AFTER THE OPENING OF PROPOSALS, FOR THE DECORATING AND FURNISHING OF THREE ADDITIONAL ROOMS IN THE BOQ, DOOLITTLE WAS PERMITTED TO REVISE ITS PROPOSAL. IT IS FURTHER STATED THAT SINCE DOOLITTLE'S REVISED PROPOSAL COVERING THE ADDITIONAL REQUIREMENT WAS LOWER THAN YOUR INITIAL PROPOSAL COVERING A LESSER NUMBER OF ROOMS, AND SINCE YOUR PROPOSAL WOULD HAVE BEEN HIGH IN ANY EVENT, THE CONTRACTING OFFICER WAS OF THE OPINION THAT NO USEFUL PURPOSE WOULD HAVE BEEN SERVED BY COMMUNICATING WITH YOU REGARDING THE ADDITIONAL PROCEUREMENT NEED. IT IS THE CONTRACTING OFFICER'S VIEW, THEREFORE, THAT YOU WERE IN NO WAY PREJUDICED BY HIS FAILURE TO AFFORD YOU AN OPPORTUNITY TO REVISE YOUR PROPOSAL. IN THIS CONNECTION, YOU ARE ADVISED THAT IN ITS ORIGINAL PROPOSAL DOOLITTLE NOTED THAT ALTHOUGH ITS DRAWINGS OF THE QUARTERS INVOLVED SHOWED 37 BEDROOMS, ITS PROPOSAL PRICE FOR THE BEDROOMS WAS BASED ON 34 BEDROOMS, THE NUMBER REFLECTED IN THE RFP. FURTHER, IN THE REVISED PROPOSAL OFFERING THE COLONIAL DECOR FOR ALL AREAS BUT THE ENLISTED MEN'S QUARTERS, AS REQUESTED BY THE PROCURING ACTIVITY, DOOLITTLE QUOTED A PRICE FOR THE 3 ADDITIONAL BEDROOMS AND, AS JUSTIFICATION FOR ITS INITIAL OFFERING OF CONTEMPORARY DECOR, REFERRED TO ITS STATEMENTS IN ITS ORIGINAL PROPOSAL CONCERNING THE NONAVAILABILITY OF INFORMATION REGARDING THE RFP ITEMS BEARING YOUR NAME AND IDENTIFYING NUMBERS, AND TO THE ADMINISTRATIVE INSTRUCTIONS TO SUBMIT ITS OWN PROPOSAL.

WITH RESPECT TO THE EVALUATION OF YOUR PROPOSAL, THE CONTRACTING OFFICER STATES THAT IN THE ABSENCE OF ANY INFORMATION FROM YOU OTHER THAN THAT SHOWN IN YOUR PROPOSAL, THERE WAS NO WAY OF ASCERTAINING THE NATURE AND QUALITY OF THE ITEMS YOU OFFERED, THE FIRM OF BAILEY JOINER CO; WHICH YOU LISTED AS THE MANUFACTURER OF THE ITEMS, NOT BEING A RECOGNIZED MANUFACTURER. CONVERSELY, DOOLITTLE IS REPORTED TO HAVE GIVEN A COMPLETE DETAILED DESCRIPTION OF EACH ITEM OFFERED INCLUDING EACH MANUFACTURER'S NAME AND SPECIFICATION DESCRIPTIONS RELATING TO THE QUALITY AND CONSTRUCTION OF THE ITEMS, ALL OF WHICH WERE LISTED IN PUBLISHED CATALOGS OF MANUFACTURERS REGISTERED WITH THE NATIONAL ASSOCIATION OF FURNITURE MANUFACTURERS, THUS ENABLING THE PROCURING ACTIVITY TO INTELLIGENTLY EVALUATE THE QUALITY AND PRICE OF THE ITEMS.

REGARDING THE FAILURE OF THE PROCURING ACTIVITY TO GIVE YOU PROMPT NOTICE OF THE AWARD TO DOOLITTLE, IT IS REPORTED THAT NO REASON IS APPARENT FOR SUCH FAILURE, SINCE IT IS THE POLICY OF THE ACTIVITY TO COMPLY WITH THE NOTICE REQUIREMENTS OF ARMED SERVICES PROCUREMENT REGULATION (ASPR) 3- 508.3, BUT IT IS POSSIBLE THAT THE HIGH VOLUME OF FISCAL-YEAR-END PURCHASE TRANSACTIONS ACCOUNTS FOR THE DELAY. CONCERNING THE REFUSAL OF THE PROCURING ACTIVITY TO DISCLOSE TO YOU ANYTHING MORE THAN THE TOTAL PRICE QUOTED BY DOOLITTLE IN ITS PROPOSAL, IT IS REPORTED THAT THE LARGE NUMBER OF ITEMS MADE THE LISTING OF UNIT PRICES IMPRACTICABLE AND THAT OTHER INFORMATION WAS WITHHELD AS CONFIDENTIAL PURSUANT TO ASPR 3-508.3.

REGARDING THE INFORMATION WHICH YOU ALLEGEDLY RECEIVED FROM THE CONTRACTING OFFICER TO THE EFFECT THAT AWARD WOULD BE MADE BY THE COMMANDING OFFICER AT LAKEHURST, THE CONTRACTING OFFICER STATES THAT AT NO TIME DID HE IMPLY TO YOU THAT SUCH OFFICER WOULD SIGN THE AWARD; RATHER, THE CONTRACTING OFFICER STATES THAT YOU WERE INFORMED THE DETERMINATION OF THE TECHNICAL ACCEPTABILITY OF THE DOOLITTLE PROPOSAL WAS MADE BY THE COMMANDING OFFICER AT LAKEHURST AND THAT THE AWARD (WHICH WAS SIGNED BY THE CONTRACTING OFFICER) WAS MADE TO THE LOW RESPONSIVE AND RESPONSIBLE OFFEROR. IN ADDITION, THE ACTING COMMANDING OFFICER AT LAKEHURST STATES THAT AFTER REVIEW OF THE TWO PROPOSALS RECEIVED, THE TECHNICAL RECOMMENDATION TO THE CONTRACTING OFFICER IN PHILADELPHIA WAS MADE BY THE COMMANDING OFFICER AT LAKEHURST AND THAT AT NO TIME DID ANY OFFICIAL AT LAKEHURST MAKE ANY PROMISES TO ANY OFFERORS AS TO AWARD OF A CONTRACT FOR THE PROPOSED PROCUREMENT.

WITH RESPECT TO THE STATUS OF THE CONTRACT WHICH WAS AWARDED TO DOOLITTLE, THE DEPARTMENT OF THE NAVY REPORTS THAT AS OF SEPTEMBER 1, THE CARPETING AND DRAPERY ITEMS HAD BEEN DELIVERED AND INSTALLATION WAS IN PROGRESS; THAT DELIVERY OF THE FURNITURE AND RELATED ITEMS WAS EXPECTED DURING THE WEEK OF SEPTEMBER 1; AND THAT DELIVERY OF THE PARTITIONING MIGHT BE DELAYED UNTIL OCTOBER 15 DUE TO A STRIKE AT THE MANUFACTURER'S PLANT.

ASPR 1-300.1 PROVEDES THAT ALL PROCUREMENTS, WHETHER BY FORMAL ADVERTISING OR BY NEGOTIATION, SHALL BE MADE ON A COMPETITIVE BASIS TO THE MAXIMUM PRACTICABLE EXTENT. ASPR 3-101 AND 3-102/C) PROVIDE, RESPECTIVELY, THAT WHENEVER SUPPLIES ARE TO BE PROCURED BY NEGOTIATION, PRICE QUOTATIONS SHALL BE SOLICITED FROM THE MAXIMUM NUMBER OF QUALIFIED SOURCES AND WHERE A PROPOSED PROCUREMENT APPEARS TO BE NONCOMPETITIVE, THE PURCHASING ACTIVITY IS RESPONSIBLE FOR ASSURING THAT COMPETITIVE PROCUREMENT IS NOT FEASIBLE.

ASPR 3-210.2 SETS FORTH VARIOUS CIRCUMSTANCES IN WHICH THE NEGOTIATION AUTHORITY IN 10 U.S.C. 2304/A) (10) MAY BE USED, INCLUDING CASES IN WHICH SPECIFICATIONS FOR THE PROPERTY OR SERVICES TO BE PROCURED ARE NOT AVAILABLE. ASPR 3-501 REQUIRES THAT WRITTEN REQUESTS FOR PROPOSALS OR QUOTATIONS BE AS COMPLETE AS POSSIBLE AND, AMONG OTHER THINGS, DESCRIBE THE SUPPLIES AND SERVICES TO BE FURNISHED. ASPR 1-1206.5 PROVIDES THAT THE POLICIES AND PROCEDURES PRESCRIBED IN ASPR 1-1206.2 THROUGH 1-1206.4 REGARDING THE USE AND BRAND NAME OR EQUAL PURCHASE DESCRIPTIONS IN ADVERTISED PROCUREMENTS SHALL BE GENERALLY APPLICABLE TO NEGOTIATED PROCUREMENTS AND THAT IF USE OF THE BRAND NAME OR EQUAL CLAUSE PRESCRIBED IN ASPR 1-1206.3/B) IS NOT PRACTICABLE, SUPPLIERS SHALL BE SUITABLY INFORMED THAT PROPOSALS OFFERING PRODUCTS DIFFERENT FROM THE PRODUCTS REFERENCED BY BRAND NAME WILL BE CONSIDERED IF THE CONTRACTING OFFICER DETERMINES THAT SUCH OFFERED PRODUCTS ARE EQUAL IN ALL SIGNIFICANT AND MATERIAL RESPECTS TO THE PRODUCTS REFERENCED.

ASPR 3-505/C) PROVIDES THAT ANY INFORMATION GIVEN TO A PROSPECTIVE OFFEROR CONCERNING A REQUEST FOR PROPOSALS OR REQUEST FOR QUOTATIONS SHALL BE FURNISHED PROMPTLY TO ALL OTHER PROSPECTIVE OFFERORS AS AN AMENDMENT TO THE REQUEST, WHETHER OR NOT A PREPROPOSAL CONFERENCE IS HELD, IF SUCH INFORMATION IS NECESSARY TO OFFERORS IN SUBMITTING PROPOSALS, AND ASPR 3- 805.1/E) REQUIRES THE ISSUANCE TO ALL PROSPECTIVE OFFERORS OF AMENDMENTS COVERING SUBSTANTIAL CHANGES IN THE GOVERNMENT'S REQUIREMENTS.

ASPR 3-508.2 PROVIDES FOR PREAWARD NOTICES OF UNACCEPTABLE OFFERS BUT STATES THAT SUCH NOTICES NEED NOT BE GIVEN WHERE THE PROPOSED CONTRACT IS TO BE AWARDED WITHIN A FEW DAYS AND NOTICE PURSUANT TO ASPR 3-508.3 WOULD SUFFICE.

ASPR 3-508.3, RELATING TO POST AWARD NOTICES TO UNSUCCESSFUL OFFERORS, REQUIRES THAT SUCH NOTICE BE GIVEN PROMPTLY AND INCLUDE THE FOLLOWING INFORMATION:

(I) THE NUMBER OF PROSPECTIVE CONTRACTORS SOLICITED;

(II) THE NUMBER OF PROPOSALS RECEIVED;

(III) THE NAME AND ADDRESS OF EACH OFFEROR RECEIVING AN AWARD,

(IV) THE ITEMS, QUANTITIES, AND UNIT PRICES OF EACH AWARD; PROVIDED THAT, WHERE THE NUMBER OF ITEMS OR OTHER FACTORS MAKES THE LISTING OF UNIT PRICES IMPRACTICABLE, ONLY THE TOTAL CONTRACT PRICE NEED BE FURNISHED; AND

(V) IN GENERAL TERMS, THE REASONS WHY THE OFFEROR'S PROPOSAL WAS NOT ACCEPTED, EXCEPT WHERE THE PRICE INFORMATION IN (IV) ABOVE READILY REVEALS SUCH REASON, BUT IN NO EVENT WILL AN OFFEROR'S COST BREAKDOWN, PROFIT, OVERHEAD RATES, TRADE SECRETS, MANUFACTURING PROCESS AND TECHNIQUES, OR OTHER CONFIDENTIAL BUSINESS INFORMATION BE DISCLOSED TO ANY OTHER OFFEROR.

ASPR 3-807.2/A) REQUIRES SOME FORM OF PRICE OR COST ANLAYSIS IN CONNECTION WITH EVERY NEGOTIATED PROCUREMENT.

THE REPORTED FACTS INDICATE THAT THE USE OF COMPETITIVE PROCEDURES FOR THE PROCUREMENT IN QUESTION WAS IN KEEPING WITH THE PROCUREMENT REGULATIONS. IN ADDITION, ALTHOUGH THE DATA INCLUDED IN YOUR PRESOLICITATION INFORMAL PRESENTATION TO THE LAKEHURST OFFICIALS, WHICH YOU PERMITTED THE GOVERNMENT TO USE, WAS NOT PROPRIETARY, THE ACTION OF SUCH OFFICIALS IN REQUESTING YOUR CONSENT TO THE USE OF SUCH DATA IN THE RFP WAS COMPATIBLE WITH THE PROCEDURE PRESCRIBED IN ASPR 3 507.1, RELATING TO RESTRICTED DATA INCLUDED IN PROPOSALS, WHEREBY THE CONSENT OF THE OFFEROR IS REQUIRED FOR THE USE OF SUCH DATA FOR OTHER THAN EVALUATION OF THE PARTICULAR PROPOSAL. HOWEVER, THE EFFECT OF YOUR REFUSAL TO FURNISH SUFFICIENT INFORMATION ON THE ITEMS BEARING YOUR NAME AND IDENTIFYING NUMBERS FOR THE PURPOSE OF EVALUATION AND PREPARATION OF PROPOSALS WAS TO RENDER SUCH ITEM DESCRIPTIONS VALUELESS, THUS NECESSITATING THE CHANGE FROM A SOLICITATION ON A BRAND NAME OR EQUAL BASIS TO ONE IN WHICH THE PROSPECTIVE OFFERORS WERE FREE TO OFFER ITEMS SUITABLE FOR THE GOVERNMENT'S NEEDS BUT NOT NECESSARILY EQUAL TO THOSE WHICH YOU MIGHT HAVE OFFERED. ALTHOUGH IT IS OUR VIEW THAT THE REGULATIONS REQUIRE THE ISSUANCE OF AN APPROPRIATE AMENDMENT TO THE RFP IN SUCH CIRCUMSTANCES, IT WOULD APPEAR THAT THE VERBAL INSTRUCTIONS GIVEN AT THE PREPROPOSAL CONFERENCE AT LAKEHURST SERVED SUBSTANTIALLY THE SAME PURPOSE AS A WRITTEN AMENDMENT, IN THAT ALL PROSPECTIVE OFFERORS WERE PLACED ON NOTICE OF THE CHANGE IN THE RFP TERMS.

WITH RESPECT TO THE FAILURE OF THE CONTRACTING OFFICER TO ADVISE YOU OF THE INCREASE IN THE PROCUREMENT NEED AFTER THE PROPOSALS HAD BEEN OPENED AND TO AFFORD YOU AN OPPORTUNITY TO SUBMIT A REVISED PROPOSAL, NORMALLY SUCH A CHANGE IN THE GOVERNMENT'S REQUIREMENTS, AFFECTING BOTH PRICE AND QUANTITY, WOULD NECESSITATE SUCH NOTICE TO YOU AS WELL AS TO DOOLITTLE REGARDLESS OF YOUR STANDING PRICE WISE ON THE BASIS OF THE ORIGINAL PROPOSALS. IN THIS CASE, HOWEVER, WE ARE ADVISED THAT YOUR PROPOSAL WAS INCAPABLE OF EVALUATION DUE TO YOUR REFUSAL TO SUPPLY SUFFICIENT INFORMATION ON WHICH THE GOVERNMENT COULD MAKE A DETERMINATION AS TO THE NATURE AND THE QUALITY OF THE ITEMS OFFERED BY YOU, AND THERE IS NO INDICATION THAT YOU WOULD HAVE BEEN WILLING TO CHANGE YOUR POSITION IN THIS RESPECT IN CONNECTION WITH ANY REVISED PROPOSAL. ACCORDINGLY, IT WOULD APPEAR THAT YOU WERE IN NO WAY PREJUDICED BY THE CONTRACTING OFFICER'S ACTION. FURTHER, THE ONLY OTHER OFFEROR, DOOLITTLE, WAS APPRISED OF THE CHANGE AND SUBMITTED A REVISED PROPOSAL, WHICH, AS HAS BEEN NOTED, WAS LOWER THAN YOUR ORIGINAL PROPOSAL.

AS TO THE REFUSAL OF THE CONTRACTING OFFICER TO FURNISH YOU WITH A BREAKDOWN OF DOOLITTLE'S PRICES, WE MUST CONCUR WITH THE VIEW OF THE CONTRACTING OFFICER THAT THE FURNISHING OF ONLY THE TOTAL PRICE WAS JUSTIFIED UNDER ASPR 3-508.3/A) (IV) IN VIEW OF THE NUMBER OF ITEMS INVOLVED AND THAT THE WITHHOLDING OF OTHER INFORMATION WAS PROPER UNDER ASPR 3-508.3/A) (V).

IN THE CIRCUMSTANCES, WHILE IT IS REGRETTABLE THAT THE NOTICE OF THE AWARD TO DOOLITTLE WAS NOT ISSUED TO YOU WITH THE PROMPTNESS CONTEMPLATED BY THE PROCUREMENT REGULATIONS AND IN COMPLIANCE WITH THE PROCEDURES NORMALLY EMPLOYED BY THE PROCURING ACTIVITY, OR THAT THERE MIGHT HAVE BEEN SOME MISUNDERSTANDING ON YOUR PART AS TO THE PROCEDURES EMPLOYED IN NEGOTIATED PROCUREMENTS, WE ARE UNABLE TO FIND THAT THERE WAS ANY BAD FAITH ON THE PART OF EITHER THE USING ACTIVITY OR THE PROCURING ACTIVITY IN THE CONDUCT OF THE PROCUREMENT. ACCORDINGLY, IT IS OUR VIEW THAT THERE IS NO LEGAL BASIS TO QUESTION THE AWARD TO DOOLITTLE AT THE INCREASED PRICE IN ITS REVISED PROPOSAL, WHICH ON THE BASIS OF PRICE AND OTHER FACTORS, WAS FOUND TO BE RESPONSIVE TO THE GOVERNMENT'S NEEDS. THEREFORE, YOUR PROTEST MUST BE DENIED.