B-165898, FEB. 10, 1969

B-165898, FEB. 10, 1969

TO MR. SECRETARY:

WE REFER TO THE PROTEST OF PARZEN RESEARCH, INC., WESTBURY, NEW YORK, CONCERNING THE REJECTION BY THE NAVAL ELECTRONIC SYSTEMS COMMAND (NAVELEX) OF ITS LATE PROPOSAL SUBMITTED UNDER REQUEST FOR PROPOSALS (RFP) NO. N00039-69-R-2016 (Q). THIS PROTEST WAS THE SUBJECT OF A REPORT DATED JANUARY 24, 1969, FROM THE DIRECTOR OF CONTRACTS, NAVELEX.

THE REFERENCED SOLICITATION WAS ISSUED ON OCTOBER 17, 1968, AS THE FIRST STEP OF A TWO STEP FORMAL ADVERTISEMENT AND REQUESTED THE SUBMISSION OF TECHNICAL PROPOSALS FOR ELF/VLF/LF/MF RECEIVER MULTICOUPLERS TO BE RECEIVED BY 4:30 P.M. ON NOVEMBER 18, 1968. MODIFICATIONS ONE THROUGH THREE TO THE RFP MADE VARIOUS CLARIFICATIONS OF THE TECHNICAL REQUIREMENTS AND EXTENDED THE CLOSING DATE TO 4:30 P.M. ON MONDAY, DECEMBER 2, 1968. ON NOVEMBER 22, 1968, A FURTHER CLARIFICATION OF THE TECHNICAL REQUIREMENTS WAS SENT BY TELEGRAM TO ALL POTENTIAL OFFERORS, INDICATING THAT A CONFIRMING AMENDMENT WOULD FOLLOW. THE CONFIRMING AMENDMENT, MODIFICATION 0004, IDENTICAL IN WORDING TO THE TELEGRAM OF NOVEMBER 22, WAS SENT ON FRIDAY, NOVEMBER 29, 1968, TO THE PROTESTOR AS WELL AS TO OTHER PROSPECTIVE OFFERORS. ACKNOWLEDGEMENT OF RECEIPT OF THE MODIFICATION WAS REQUIRED. THE RECORD ALSO INDICATES THAT THE PROPOSAL OF PARZEN WAS HAND DELIVERED TO THE DUTY OFFICER, NAVELEX, AT 5:55 P.M. ON MONDAY, DECEMBER 2, 1968.

THE PROTESTING OFFEROR STATES THAT IT RECEIVED THE FINAL MODIFICATION AT ABOUT NOON ON THE DUE DATE, DECEMBER 2, AND THAT ITS MESSENGER LEFT BY AIRPLANE IN SUFFICIENT TIME TO DELIVER THE PROPOSAL ON TIME BUT HIS AIRPLANE WAS 1-1/2 HOURS LATE DUE TO AIR TRAFFIC IN WASHINGTON.

IT IS THE POSITION OF THE PROCURING ACTIVITY THAT UNDER THE ABOVE CIRCUMSTANCES THE PROPOSAL OF PARZEN WAS LATE AND DOES NOT QUALIFY FOR CONSIDERATION UNDER STEP II. HOWEVER, IN ACCORDANCE WITH ARMED SERVICES PROCUREMENT REGULATION (ASPR) 3-506, THE LATE PROPOSAL WAS OPENED AND EVALUATED BY ENGINEERING PERSONNEL OF NAVELEX TO DETERMINE WHETHER THE LATE PROPOSAL WAS OF EXTREME IMPORTANCE TO THE GOVERNMENT AS OFFERING A TECHNOLOGICAL OR SCIENTIFIC BREAKTHROUGH, BUT A NEGATIVE CONCLUSION WAS REACHED.

THIS OFFICE HAS IN THE PAST CONSIDERED A SIMILAR SITUATION AND CONCLUDED THAT THE LATE BID REGULATIONS NEED NOT BE FOLLOWED TO THE LETTER ON THE FIRST STEP OF A TWO STEP PROCUREMENT. SEE 45 COMP. GEN. 24 IN WHICH WE STATED:

"CONSIDERING THE NATURE OF THE SOLICITATION IN THIS CASE -- THAT IT WAS FOR UNPRICED TECHNICAL PROPOSALS WHICH REMAIN IN THE SOLE KNOWLEDGE OF THE GOVERNMENT AND THE INDIVIDUAL PROPOSERS ON WHICH NO ACTION IS INTENDED OR CAN BE TAKEN EXCEPT EVALUATION OF THE TECHNICAL MERITS -- WE SEE NO VALID REASON FOR A STRICT CUTOFF DATE EXCEPT TO PREVENT DELAY OR INTERFERENCE WITH THE ORDERLY AND EXPEDITIOUS EVALUATION OF SUCH PROPOSALS. SINCE IN THIS INSTANCE IT APPEARS THAT THE DYNATRONICS' PROPOSAL WAS IN FACT REVIEWED AND EVALUATED, FOR THE PURPOSE OF DETERMINING WHETHER IT CONTAINED AN IMPORTANT SCIENTIFIC OR TECHNICAL BREAKTHROUGH JUSTIFYING ITS CONSIDERATION EVEN IF REGARDED AS A LATE PROPOSAL, AND SINCE IT DOES NOT APPEAR THAT THIS REVIEW DELAYED THE EVALUATION OF OTHER PROPOSALS, WE CONCLUDE THAT REFUSAL TO CONSIDER IT AS A TIMELY PROPOSAL, IN THE CIRCUMSTANCES HERE PRESENT, WOULD SERVE NO PROPER PURPOSE TO THE GOVERNMENT AND WOULD IMPOSE AN IMPROPER AND UNWARRANTED HARDSHIP ON DYNATRONICS, INCORPORATED.' SEE ALSO B-160324, FEBRUARY 16, 1967, TO YOUR PREDECESSOR.

FOR THE REASONS STATED IN THE ABOVE DECISION WE BELIEVE THAT ANY FURTHER NECESSARY EVALUATION OF THE PARZEN PROPOSAL SHOULD BE COMPLETED AND AN OPPORTUNITY AFFORDED TO THE FIRM TO BID ON THE SECOND PHASE OF THE PROCUREMENT IF SUCH EVALUATION IS FAVORABLE.