B-166285(1), JAN. 13, 1970

B-166285(1): Jan 13, 1970

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DENYING PROTEST AGINST AWARD OF NEGOTIATED CONTRACT BY DEFENSE CONSTRUCTION SUPPLY AGENCY TO FAIRCHILD HILLER CORPORATION FOR FURNISHING 21 FAN MOTOR ASSEMBLIES ON BASIS THAT PROTESTANT WAS NOT LOW NOR A MANUFACTURER WITHIN WALSH-HEALEY PUBLIC CONTRACTS ACT. A REVIEW OF THE NEGOTIATED PROCUREMENT PROCEDURES WHICH CULMINATED IN AWARD TO LOW OFFEROR UNDER SECOND ROUND NEGOTIATIONS AND BEFORE DETERMINATION OF MANUFACTURER STATUS WAS MADE BY DEPARTMENT OF LABOR DOES NOT INDICATE ANY IMPROPRIETY. INCORPORATED: REFERENCE IS MADE TO YOUR LETTER (WITH ENCLOSURE) OF APRIL 24. THE REQUEST FOR PROPOSALS (RFP) WAS ISSUED ON DECEMBER 19. INITIAL OFFERS WERE RECEIVED FROM YOUR COMPANY AND FAIRCHILD HILLER ON JANUARY 20.

B-166285(1), JAN. 13, 1970

BID PROTEST--NEGOTIATED PROCEDURES DECISION TO TYCO, INC; DENYING PROTEST AGINST AWARD OF NEGOTIATED CONTRACT BY DEFENSE CONSTRUCTION SUPPLY AGENCY TO FAIRCHILD HILLER CORPORATION FOR FURNISHING 21 FAN MOTOR ASSEMBLIES ON BASIS THAT PROTESTANT WAS NOT LOW NOR A MANUFACTURER WITHIN WALSH-HEALEY PUBLIC CONTRACTS ACT. A REVIEW OF THE NEGOTIATED PROCUREMENT PROCEDURES WHICH CULMINATED IN AWARD TO LOW OFFEROR UNDER SECOND ROUND NEGOTIATIONS AND BEFORE DETERMINATION OF MANUFACTURER STATUS WAS MADE BY DEPARTMENT OF LABOR DOES NOT INDICATE ANY IMPROPRIETY, UNFAIRNESS OR ILLEGALITY.

TO TYCO, INCORPORATED:

REFERENCE IS MADE TO YOUR LETTER (WITH ENCLOSURE) OF APRIL 24, 1969, AND TO SUBSEQUENT CORRESPONDENCE, PROTESTING THE ACTION OF THE DEFENSE SUPPLY AGENCY (DSA) IN AWARDING A CONTRACT TO FAIRCHILD HILLER CORPORATION UNDER REQUEST FOR PROPOSALS NO. DSA700-69-R-4597, ISSUED BY THE DEFENSE CONSTRUCTION SUPPLY CENTER (DCSC), COLUMBUS, OHIO.

THE REQUEST FOR PROPOSALS (RFP) WAS ISSUED ON DECEMBER 19, 1968, PURSUANT TO THE NEGOTIATION AUTHORITY IN 10 U.S.C. 2304 (A) (10). THE RFP SOLICITED OFFERS ON 21 FAN MOTOR ASSEMBLIES, MANUFACTURED OR SUPPLIED UNDER FAIRCHILD HILLER PART NUMBER 202686. INITIAL OFFERS WERE RECEIVED FROM YOUR COMPANY AND FAIRCHILD HILLER ON JANUARY 20, 1969. FAIRCHILD'S OFFERED UNIT PRICE FOR THE SPECIFIED PRODUCT WAS $1,023.83, WHILE TYCO OFFERED THE FAN MOTOR ASSEMBLIES UNDER TYCO PART NUMBER 2500-126D AT $1,011 PER UNIT. IT IS REPORTED THAT THE TYCO PROPOSAL INCLUDED CERTAIN DATA WHICH WAS EVALUATED BY THE AGENCY TO DETERMINE THE ACCEPTABILITY OF THE PRODUCT OFFERED BY TYCO. YOUR ALTERNATE PART WAS DETERMINED TO BE ACCEPTABLE AND ON FEBRUARY 11, 1969, THE CONTRACTING OFFICER REQUESTED THE BALTIMORE DISTRICT OFFICE OF THE DEFENSE CONTRACT ADMINISTRATION SERVICES (DCAS) TO PERFORM A PREAWARD SURVEY ON YOUR COMPANY.

THE SURVEY WAS COMPLETED ON FEBRUARY 22, 1969, AND ON MARCH 10, 1969, THE SURVEY REVIEW BOARD OF THE BALTIMORE DISTRICT MET TO CONSIDER THE REPORT. THE BOARD UNANIMOUSLY AGREED TO RECOMMEND THAT NO AWARD BE MADE TO TYCO BECAUSE TYCO WAS DEEMED NOT TO BE A MANUFACTURER WITHIN THE MEANING OF THE WALSH-HEALEY PUBLIC CONTRACTS ACT (41 U.S.C. 35-45).

THE RECORD REVEALS THAT ON MARCH 18, 1969, YOU WERE TELEPHONICALLY ADVISED THAT YOUR OFFER HAD BEEN REJECTED. THE CONTRACTING OFFICER HAD ON THAT SAME DAY DETERMINED THAT TYCO WAS INELIGIBLE FOR AN AWARD. THE CONTRACTING OFFICER'S WRITTEN DETERMINATION OF INELIGIBILITY INDICATES THAT THIS CONCLUSION WAS BASED UPON THE NEGATIVE PREAWARD SURVEY. THE RECORD FURTHER INDICATES THAT, WHEN INFORMED OF THESE FACTS, YOU PROTESTED THIS ACTION AND REQUESTED THAT THE CASE BE SUBMITTED TO THE SECRETARY OF LABOR FOR REVIEW. ACCORDINGLY, THE CONTRACTING OFFICER PREPARED A WRITTEN REPORT, ALSO DATED MARCH 18, 1969, CONCERNING YOUR PROTEST. ATTACHED TO THIS WRITTEN STATEMENT WERE FOUR EXHIBITS: YOUR OFFER, THE COMPLETE PREAWARD SURVEY, THE CONTRACTING OFFICER'S DETERMINATION OF INELIGIBILITY, AND A RESUME OF THE MARCH 18 TELEPHONE CONVERSATION.

THIS REPORT WAS FORWARDED, ALSO ON MARCH 18, 1969, TO THE DIRECTOR OF DSA BY THE COUNSEL OF DCSC ON BEHALF OF THAT ACTIVITY'S COMMANDER. THE COVER LETTER STATES: "THIS REPORT IS FORWARDED FOR TRANSMISSION TO THE SECRETARY OF LABOR PURSUANT TO ASPR 12-604 (A)."

IT FURTHER APPEARS FROM THE RECORD THAT ON MARCH 21, 1969, A TELEPHONE CONVERSATION OCCURRED BETWEEN AN OFFICIAL OF DCAS, BALTIMORE DISTRICT, AND A LEGAL REPRESENTATIVE OF DCSC. ON MARCH 24, 1969, A TELEGRAM WAS SENT BY THE COMMANDER, DCSC, TO THE COMMANDER, DCAS, BALTIMORE DISTRICT. THIS WIRE REFERENCED THE PREAWARD SURVEY AND THE MARCH 21 TELEPHONE CONVERSATION AND CONTINUED AS FOLLOWS:

"1. REFERENCE IS MADE TO PREAWARD SURVEY DCRP-DB-69-02-27 IN WHICH NO AWARD WAS RECOMMENDED ON THE BASIS THAT TYCO, INC; WAS NOT A MANUFACTURER. REFERENCE IS FURTHER MADE TO TELEPHONE CONVERSATION OF 21 MARCH 1969 BETWEEN MR. HARRY WRIGHT, DCASD BALTIMORE AND MR. T. E. REYNOLDS, LEGAL OFFICE, DCSC.

"2. IT IS REQUESTED THAT THE UNDERSIGNED BE FURNISHED A STATEMENT THAT THE PREAWARD SURVEY REVEALED TYCO HAD NO MANUFACTURING EQUIPMENT OR FACILITIES FOR THE MANUFACTURE OF THE PARTICULAR OR SIMILAR SUPPLIES, AND HAS MADE NO ARRANGEMENTS FOR SPACE, EQUIPMENT OR PERSONNEL TO PERFORM THE MANUFACTURING OPERATIONS REQUIRED FOR THE FULFILLMENT OF THE CONTRACT (ASPR 12-603.1)."

THE RESPONSE TO THE ABOVE REQUEST WAS IN A LETTER DATED MARCH 25, 1969, TO THE COMMANDER, DCSC, WHICH READS:

"2. SUBJECT PRE-AWARD SURVEY REVEALED THAT TYCO, INCORPORATED HAS NO MANUFACTURING EQUIPMENT OR FACILITIES AND HAS MADE NO ARRANGEMENTS FOR SPACE, EQUIPMENT OR PERSONNEL TO MANUFACTURE THE BID ITEM OR SIMILAR SUPPLIES AT HIS NORFOLK, VIRGINIA LOCATION. THE SURVEY REPORT FURTHER INDICATES THAT APPROXIMATELY 99% OF THE WORK EFFORT WOULD BE SUBCONTRACTED TO OTHER FIRMS.

"3. IN VIEW OF THE ABOVE, TYCO, INCORPORATED DOES NOT QUALIFY AS A MANUFACTURER PER ASPR 12-603.1."

INASMUCH AS THE ACCEPTANCE PERIOD APPLICABLE TO THE FAIRCHILD HILLER OFFER WAS DUE TO EXPIRE ON MARCH 21, 1969, THE CONTRACTING OFFICER REQUESTED THAT COMPANY TO GRANT AN EXTENSION. SEE PARAGRAPH 2-407.9 (B) (1) OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) WHICH IS MADE APPLICABLE TO PROCUREMENTS BY NEGOTIATION BY ASPR 12-604 (A) AND 3-509. THIS PARAGRAPH SPECIFICALLY AUTHORIZES SUCH ACTION WHEN A PROTEST IS RECEIVED BEFORE AWARD AND THE ACCEPTANCE PERIODS OF OTHER OFFERORS WHO MIGHT BECOME ELIGIBLE FOR AWARD MIGHT EXPIRE PRIOR TO RESOLUTION OF THE PROTEST. FAIRCHILD HILLER RESPONDED TO THIS REQUEST BY LETTER DATED MARCH 20, 1969, IN WHICH THE COMPANY ACQUIESCED IN AN EXTENSION OF 60 DAYS FROM THE DATE OF THE LETTER. IN ADDITION, FAIRCHILD HILLER OFFERED A PRICE REDUCTION TO $890 PER UNIT IF AWARD WERE MADE WITHIN 30 DAYS OF THE DATE OF THE LETTER, AND TO $1,018.83 IF IT RECEIVED AN AWARD DURING THE SECOND HALF OF THE SPECIFIED 60-DAY EXTENSION PERIOD.

IN VIEW OF THE FACT THAT THIS REDUCTION MADE THE FAIRCHILD HILLER OFFER LOWER THAN TYCO'S BY $121 PER UNIT, THE CONTRACTING OFFICER DETERMINED THAT IT WOULD BE IN THE BEST INTEREST OF THE GOVERNMENT TO CONDUCT NEGOTIATIONS WITH THE TWO OFFERORS. THIS ACTION IS SUPPORTED ON THE BASIS OF OUR HOLDING IN 47 COMP. GEN. 279 (1967) AT 283, 284:

"WHILE THE PROVISIONS OF ASPR 3-506 OPERATE TO PRECLUDE, IN THE SPECIFIED CIRCUMSTANCES, ACCEPTANCE OF A LATE OFFER OR MODIFICATION AS SUCH, THEY DO NOT, AND WERE NEVER INTENDED TO, PRECLUDE THE OPENING-UP OF NEGOTIATIONS WITH ALL OFFERORS COMPETITIVELY SITUATED UPON THE RECEIPT OF A LATE MODIFICATION TO A TIMELY OFFER WHICH FAIRLY INDICATES THAT SUCH NEGOTIATIONS WOULD PROVE TO BE HIGHLY ADVANTAGEOUS TO THE GOVERNMENT. THAT CONNECTION, IT SHOULD BE NOTED THAT THE PROVISIONS OF ASPR 3-506 HAVE NO GREATER WEIGHT OR FORCE THAN THOSE OF ASPR 3-805.1. NEGOTIATION PROCEDURES, UNLIKE THOSE REQUIRED FOR FORMAL ADVERTISING, ARE DESIGNED TO BE FLEXIBLE AND INFORMAL. THESE PROCEDURES PROPERLY PERMIT THE CONTRACTING OFFICER TO DO THINGS IN THE AWARDING OF A NEGOTIATED CONTRACT THAT WOULD BE A RADICAL VIOLATION OF THE LAW IF THE PROCUREMENT WERE BEING ACCOMPLISHED BY FORMAL ADVERTISING. * * * CERTAINLY, IF ASPR AUTHORIZES THE CONSIDERATION OF AN INITIALLY NONRESPONSIVE OFFER IT OUGHT NOT, A FORTIORI, TO PRECLUDE THE OPENING-UP OF NEGOTIATIONS UPON THE RECEIPT OF A LATE PRICE MODIFICATION TO A RESPONSIVE TIMELY PROPOSAL. ASPR 3-506 DOES NOT, IN OUR OPINION, REQUIRE THAT ANOMALOUS RESULT."

ACCORDINGLY, BY TELEGRAM OF MARCH 28, 1969, BOTH COMPANIES WERE REQUESTED TO ADVISE DCSC BY THE CLOSE OF BUSINESS, APRIL 3, 1969, WHETHER "DELIVERY AND PRICE OFFERED IN YOUR PROPOSAL IS YOUR BEST AND FINAL OFFER." FAIRCHILD HILLER ANSWERED IN A TELEGRAM DATED APRIL 2, 1969, WHICH CONFIRMED ITS OFFER AS CONTAINED IN THE LETTER OF MARCH 20, 1969. TYCO'S RESPONSE WAS BY TELEGRAM DATED APRIL 3, 1969, IN WHICH ITS UNIT PRICE WAS REDUCED TO $887, CONDITIONED UPON AWARD VIA TWX TO TYCO BY THE CLOSE OF BUSINESS, APRIL 4, 1969. ALTERNATIVELY,TYCO OFFERED A REDUCTION TO $921 PER UNIT WITH AN EXTENSION OF THE ACCEPTANCE TIME PERIOD TO APRIL 20, 1969.

THE CONTRACTING OFFICER'S STATEMENT RELATIVE TO THESE DEVELOPMENTS IS AS FOLLOWS:

"7. SINCE TYCO'S PROTEST WAS PENDING BEFORE THE LABOR DEPARTMENT, IT WAS NOT ADMINISTRATIVELY FEASIBLE TO ACCEPT TYCO'S LOW OFFER OF $887.00 BY 4 APRIL 1969, THE DAY FOLLOWING THE CLOSING OF NEGOTIATIONS. THEREFORE, THE OFFER OF $890.00 BY FAIRCHILD WAS THE LOWEST RECEIVED AS A RESULT OF THE SECOND ROUND OF NEGOTIATIONS AND IT WAS DETERMINED THAT THIS PRICE WAS FAIR AND REASONABLE AND SHOULD BE ACCEPTED. IT WAS NOT DEEMED ADVISABLE TO CONDUCT A THIRD ROUND OF NEGOTIATIONS IN AN ATTEMPT TO SECURE A POSSIBLE $3.00 SAVINGS PER UNIT FOR A TOTAL CONTRACT SAVINGS OF $63.00 DUE TO THE ADMINISTRATIVE COSTS INVOLVED PLUS THE POSSIBLE LOSS OF THE $2541.00 TOTAL REDUCTION ALREADY REALIZED FROM THE SECOND ROUND OF NEGOTIATIONS ($1011 - $890 $121 X 21). ACCORDINGLY, THE DEPARTMENT OF LABOR WAS ADVISED THAT AN AWARD WOULD NOT BE MADE TO TYCO AS IT WAS NO LONGER THE LOW OFFEROR. BY LETTER OF 11 APRIL 1969 (WITH PRIOR ORAL ADVICE OF THE DECISION) THE DEPARTMENT OF LABOR DECLINED TO MAKE A DETERMINATION OF THE MERITS OF THE TYCO PROTEST."

ON APRIL 7, 1969, THE DEPUTY DIRECTOR OF PROCUREMENT AND PRODUCTION, DCSC, FORWARDED TO DSA HEADQUARTERS A SUPPLEMENTAL REPORT BY THE CONTRACTING OFFICER; THE COVER LETTER TO DSA STATED:

"1. REFERENCE IS MADE TO LETTER, THIS CENTER, DATED 18 MARCH 1969, TRANSMITTING THE CONTRACTING OFFICER'S REPORT INDICATING THAT TYCO, INC. DID NOT QUALIFY AS A MANUFACTURER UNDER THE WALSH-HEALEY ACT.

"2. AS INDICATED BY THE ENCLOSED SUPPLEMENTAL REPORT, THIS CENTER RECEIVED A VOLUNTARY PRICE REDUCTION FROM FAIRCHILD HILLER. A SECOND ROUND OF NEGOTIATIONS WAS CONDUCTED AND AS A RESULT THEREOF, FAIRCHILD HILLER IS NOW THE LOW OFFEROR. THIS CENTER PROPOSES THAT THE AWARD UNDER THE SUBJECT SOLICITATION BE MADE TO FAIRCHILD HILLER.

"3. ACCORDINGLY, IT IS REQUESTED THAT THIS CENTER BE ADVISED BY TELEPHONE WHETHER OR NOT THE AWARD TO FAIRCHILD HILLER CORPORATION MAY BE PROCESSED."

IT APPEARS THAT WHEN THE SUPPLEMENTAL REPORT REACHED DSA, A TELEPHONE CONVERSATION TOOK PLACE BETWEEN A MEMBER OF THE OFFICE OF COUNSEL, DSA, AND A REPRESENTATIVE OF THE LABOR DEPARTMENT. THE OUTCOME OF THESE EVENTS WAS A LETTER DATED APRIL 11, 1969, FROM THE ACTING ADMINISTRATOR, WAGE AND HOUR AND PUBLIC CONTRACTS DIVISIONS, TO MISS SARAH F. WILLIAMS, OFFICE OF COUNSEL, DSA. THE LETTER READS:

"IN A RECENT TELEPHONE CONVERSATION WITH MR. ARNOLD REICH OF MY STAFF, YOU STATED THAT DUE TO RECENT NEGOTIATIONS TYCO, INC. IS NO LONGER LOW OFFEROR ON REQUEST FOR PROPOSALS DSA-700-69-R-4597. SINCE A DETERMINATION OF THE FIRM'S ELIGIBILITY IS NOT MATERIAL TO THE AWARD OF THE CONTRACT IN QUESTION, NO FURTHER ACTION IN THIS MATTER APPEARS NECESSARY ON THE PART OF THE WHPC DIVISIONS.

"THE FILE YOU ENCLOSED IS RETURNED HEREWITH." THE RECORD DISCLOSES THAT THIS DISPOSITION OF YOUR PROTEST BY THE DEPARTMENT OF LABOR WAS COMMUNICATED TO YOU BY THE CONTRACTING OFFICER IN A LETTER DATED APRIL 14, 1969. THE FORMAL AWARD OF A CONTRACT TO FAIRCHILD HILLER OCCURRED ON APRIL 10, 1969, AT A UNIT PRICE OF $890.

YOUR LETTER OF APRIL 24, 1969, FORWARDED TO US A COPY OF YOUR LETTER DATED APRIL 23, 1969, TO DCSC. THE APRIL 23 LETTER LISTS SIX PARTICULARS IN WHICH THE ACTIONS OF THE PROCUREMENT AGENCY ARE ASSERTED TO HAVE BEEN IMPROPER, UNFAIR, AND ILLEGAL. THE APRIL 24, 1969, LETTER FURTHER ELABORATES ON SOME OF THESE POINTS. FURTHER DISCUSSION OF YOUR CONTENTIONS WAS CONTAINED IN SUBSEQUENT CORRESPONDENCE, ESPECIALLY YOUR JULY 11, 1969, REBUTTAL TO THE ADMINISTRATIVE REPORT.

WE HAVE REVIEWED ALL THE RELEVANT DOCUMENTS, AND WE CONCLUDE THAT THE CONTRACT AWARDED TO FAIRCHILD HILLER UNDER THIS RFP IS NOT SUBJECT TO LEGAL OBJECTION BY OUR OFFICE. NOT ALL THE CONTENTIONS MADE BY YOU RAISE SPECIFIC LEGAL QUESTIONS. HOWEVER, TO THE EXTENT THAT ALL THE MATTERS OF WHICH YOU COMPLAIN ARE ASSERTED GENERALLY TO EVIDENCE DISCRIMINATION AGAINST YOUR COMPANY, WE ARE NOT PERSUADED THAT THE ACTIONS OF THE PROCUREMENT OFFICIALS AT DCSC OR AT DSA HEADQUARTERS INDICATE THE ALLEGED DISCRIMINATION.

YOU HAVE ARGUED THAT YOU ARE A MANUFACTURER OF THE FANS WHILE FAIRCHILD HILLER IS NOT. WE STATED IN OUR LETTER TO YOU ON NOVEMBER 26, 1969, THAT WE DO NOT HAVE THE AUTHORITY TO REVIEW DETERMINATIONS AS TO WHETHER PARTICULAR FIRMS ARE MANUFACTURERS OR REGULAR DEALERS UNDER THE WALSH- HEALEY PUBLIC CONTRACTS ACT. ACCORDINGLY, A RECITATION OF YOUR CONTENTIONS ON THIS POINT WOULD SERVE NO USEFUL PURPOSE.

A MAJOR COMPLAINT IS THAT THE DEPARTMENT OF LABOR DID NOT RULE UPON YOUR MARCH 18 PROTEST. IT IS ARGUED THAT THAT DEPARTMENT WAS DEPRIVED OF THE OPPORTUNITY TO MAKE ITS DECISION BECAUSE THE CONTRACTING OFFICER DECIDED, SUBSEQUENT TO YOUR PROTEST, TO CONDUCT A ROUND OF NEGOTIATIONS. HOWEVER, WE HAVE OBSERVED THAT SUCH ACTION ON THE PART OF THE CONTRACTING OFFICER WAS IN CONSONANCE WITH AND JUSTIFIED BY OUR DECISION AT 47 COMP. GEN. 279 BECAUSE OF FAIRCHILD HILLER'S VOLUNTARY PRICE REDUCTION ON MARCH 20, 1969. INCIDENTALLY, WE FIND NO CLEAR EVIDENCE THAT SUCH REDUCTION WAS NOT VOLUNTARY.

IN THIS VEIN, YOU MAKE TWO ADDITIONAL POINTS: THAT THE COMMANDER OF DCSC IN EFFECT PROMISED YOU ON MARCH 11, 1969, TO HOLD UP ANY AWARD UNTIL THE LABOR DEPARTMENT HAD RULED UPON YOUR PROTEST, AND THAT THE CONTRACTING OFFICER FAILED TO FOLLOW THE PROCEDURES IN ASPR 2-407.9 RELATIVE TO THE HANDLING OF YOUR MARCH 18 PROTEST. WITH RESPECT TO THE FIRST ALLEGATION, WE HAVE ONLY YOUR HEARSAY REPRESENTATIONS OF WHAT THE COMMANDER SAID. HOWEVER, WE BELIEVE THAT ANY STATEMENTS BY THE COMMANDER MUST BE INTERPRETED IN THE LIGHT OF THE CIRCUMSTANCES THEN EXISTING. AT THAT TIME, THE DCAS RECOMMENDATION HAD NOT YET BEEN RECEIVED BY DCSC, AND TYCO WAS THE LOW OFFEROR. NO DISCUSSIONS UNDER 10 U.S.C. 2304 (G) HAD BEEN CONDUCTED, AND AN AWARD ON THE BASIS OF INITIAL PROPOSALS WAS THE APPARENT EXPECTATION BY DCSC. WE DO NOT THINK THAT DCSC CONTEMPLATED THAT TYCO WOULD LOSE ITS POSITION AS THE LOW OFFEROR. THE ONLY PROSPECTIVE BASIS FOR DENYING AN AWARD TO TYCO WAS AN UNFAVORABLE RESPONSIBILITY DETERMINATION. OF COURSE, SUCH A DETERMINATION WOULD IN THESE CIRCUMSTANCES DEPEND ALMOST EXCLUSIVELY ON THE RESULTS OF THE DCAS SURVEY. WE THINK THAT ANY REPRESENTATIONS CONCERNING DCSC'S PROPOSED ACTIONS IN THE MATTER WERE NECESSARILY BASED ON THE ASSUMPTION THAT THE STATUS QUO WOULD BE UNCHANGED EXCEPT FOR THE QUESTION OF RESPONSIBILITY. WE ARE UNABLE TO CONSTRUE THE COMMANDER'S STATEMENTS AS A PROMISE TO PRESERVE TYCO'S POSITION AS THE LOW OFFEROR. TO THE CONTRARY, IN OUR OPINION, THE ALLEGED STATEMENTS WERE CONTINGENT UPON ALL OTHER RELEVANT FACTORS REMAINING THE SAME.

WE BELIEVE THAT THIS CONSTRUCTION OF THE COMMANDER'S PROMISE IS SUPPORTED BY YOUR STATEMENT, ON PAGE 9 OF YOUR JULY 11 LETTER, THAT THE COMMANDER EXPRESSLY MENTIONED THAT AN AWARD MIGHT HAVE TO BE MADE "IF THE SURVEY TOOK TOO LONG, CONSIDERING THE URGENCY OF THE ITEM." SEE ASPR 2-407.9 (B) (3) (I). THIS INDICATES TO US THAT THE COMMANDER FORESAW THAT FUTURE EVENTS MIGHT REQUIRE AN AWARD PRIOR TO FINAL RESOLUTION OF THE QUESTION OF TYCO'S RESPONSIBILITY, AND THAT THEREFORE HE DID NOT DESIRE TO BIND HIS ACTIVITY IRREVOCABLY TO A GIVEN COURSE OF ACTION WITHOUT REGARD TO FUTURE EVENTS. CONSEQUENTLY, WE CANNOT AGREE WITH YOUR INTERPRETATION OF THE COMMANDER'S STATEMENTS.

CONCERNING YOUR SECOND ARGUMENT, ASPR 12-604 (A) PROVIDES:

"(A) THE RESPONSIBILITY FOR APPLYING THE ELIGIBILITY REQUIREMENTS SET FORTH IN 12-601 AND 12-603 RESTS, IN THE FIRST INSTANCE, WITH THE PROCURING CONTRACTING OFFICER. THE DEPARTMENT OF LABOR DOES NOT CONDUCT PRE-AWARD INVESTIGATIONS, NOR RENDER FINAL DETERMINATIONS OF ELIGIBILITY UNTIL THE PROCURING CONTRACTING OFFICER HAS INITIALLY DETERMINED WHETHER THE ELIGIBILITY REQUIREMENTS HAVE BEEN MET. WHEN THE ELIGIBILITY OF A BIDDER OR OFFEROR IS CHALLENGED BEFORE AWARD, IT SHOULD BE TREATED IN A MANNER SIMILAR TO A PROTEST BEFORE AWARD (SEE 2 407.9 AND 3-509). THE PROCURING CONTRACTING OFFICER SHOULD MAKE AN INITIAL DETERMINATION AND SHOULD PROCESS THE PROTEST IN ACCORDANCE WITH APPLICABLE PROCEDURES FOR SUBMISSION TO THE DEPARTMENT OF LABOR FOR A FINAL DETERMINATION." YOU SPECIFICALLY REFER TO THAT PORTION OF ASPR 2-407.9 (A) WHICH STATES: "IF THE PROTEST IS ORAL AND THE MATTER CANNOT OTHERWISE BE RESOLVED, WRITTEN CONFIRMATION OF THE PROTEST SHALL BE REQUESTED." YOU ARGUE THAT THE CONTRACTING OFFICER'S FAILURE TO REQUEST WRITTEN CONFIRMATION OF YOUR TELEPHONIC PROTEST ON MARCH 18 "DENIED THE GOVERNMENT AS WELL AS TYCO THE ACCESS TO SUPPLYING AND THE GOVERNMENT RECEIVING ADDITIONAL INFORMATION THAT WOULD HAVE ALLOWED AN UNDERSTANDING AND A MORE PROMPT AWARD AT AN ULTIMATE LOWER PRICE."

THE RECORD SUBSTANTIATES YOUR CONTENTION THAT THE CONTRACTING OFFICER DID NOT REQUEST WRITTEN CONFIRMATION OF YOUR MARCH 18 PROTEST. HOWEVER, THE RECORD IS EQUALLY CLEAR THAT YOUR ORAL PROTEST RECEIVED PROMPT ATTENTION AND THAT YOUR REQUEST FOR REFERRAL OF THE MATTER TO LABOR WAS HONORED. DUE TO THE CIRCUMSTANCES RELATED ABOVE, THE DEPARTMENT DID NOT RENDER A DECISION ON YOUR APPEAL. THEREFORE, YOUR ARGUMENT THAT THE CONTRACTING OFFICER'S FAILURE TO COMPLY WITH ASPR 2 407.9 (A) DEPRIVED YOU OF THE OPPORTUNITY TO PRESENT TO THE LABOR DEPARTMENT INFORMATION ESTABLISHING YOUR STATUS AS A MANUFACTURER IS ACADEMIC.

CONCERNING YOUR COMPLAINT THAT YOU DID NOT RECEIVE THE COMPLETE POST- AWARD NOTICE REQUIRED BY ASPR 3-508.3, WE STATED TO YOU IN OUR DECISION DATED JUNE 5, 1969, RELATIVE TO YOUR PROTEST OF ANOTHER DCSC PROCUREMENT, THAT THE POST AWARD NOTICE TO UNSUCCESSFUL OFFERORS IS A PROCEDURAL REQUIREMENT WHOSE VIOLATION WILL NOT INVALIDATE AN OTHERWISE PROPERLY AWARDED CONTRACT, CITING B-161513, JULY 24, 1967.

YOU CRITICIZE THE AGENCY'S REFUSAL TO ACCEPT YOUR LOWER OFFER. WE THINK THE REFUSAL IS FULLY JUSTIFIED BY THE FACT THAT AT NO TIME WERE YOU AFFIRMATIVELY FOUND TO BE A RESPONSIBLE OFFEROR. ASPR 1-902 REQUIRES THAT CONTRACTS BE AWARDED ONLY TO RESPONSIBLE PROSPECTIVE CONTRACTORS.

FINALLY, WE CONSIDER YOUR ALLUSIONS TO ASPR 2-304 AND 3-505 (C) TO BE INAPPROPRIATE TO THIS CASE. ASPR 2-304 IS CONCERNED WITH THE MODIFICATION OR WITHDRAWAL OF BIDS UNDER A FORMALLY ADVERTISED PROCUREMENT. ASPR 3-505 (C), WHILE APPLICABLE TO "INFORMATION" FURNISHED TO A PROSPECTIVE CONTRACTOR IN A PROCUREMENT BY NEGOTIATION, IS LIKEWISE NOT GERMANE TO THIS CASE SINCE THE RECORD FAILS TO SHOW THAT THE CONTRACTING OFFICER COMMUNICATED ANY INFORMATION TO FAIRCHILD HILLER IN CONNECTION WITH THE REQUEST FOR AN EXTENSION OF ITS ACCEPTANCE PERIOD. INSOFAR AS THE REQUEST MAY BE VIEWED AS ADVISING FAIRCHILD HILLER THAT THE AWARD HAD NOT BEEN MADE, WE DO NOT BELIEVE THAT SECTION 3-505 WAS INTENDED TO APPLY TO SUCH INFORMATION AND WE FURTHER OBSERVE THAT SUCH INFORMATION WAS ALREADY KNOWN BY YOU.