B-167478, OCT. 28, 1969

B-167478, OCT. 28, 1969

NEGOTIATION--LATE PROPOSALS AND QUOTATIONS--REJECTION PROPRIETY UNDER AIR FORCE REQUEST FOR PROPOSALS (RFP) ON MODULAR RELOCATION FACILITIES ITEMS, PROPOSAL OF LOW OFFEROR WHICH WAS MAILED ON CLOSING DATE AND RECEIVED 2 DAYS LATER, WAS PROPERLY REFUSED CONSIDERATION SINCE IT WAS PROTESTANT'S RESPONSIBILITY TO MAIL PROPOSAL IN TIME FOR OPENING, AND UNDER PERTINENT REGULATIONS--- INCORPORATED INTO SUBJECT RFP -- LATE PROPOSAL MAY BE CONSIDERED ONLY IF IT IS DETERMINED LATE RECEIPT WAS DUE TO DELAY IN MAILS, OR SOLELY TO MISHANDLING BY GOVERNMENT AFTER RECEIPT. MOREOVER, EXCEPTION IN ARMED SERVICES PROCUREMENT REGULATION 3-506 (C) (II) -- AUTHORIZING CONSIDERATION OF LATE PROPOSALS THAT ARE OF EXTREME IMPORTANCE TO GOVT; SUCH AS TECHNICAL OR SCIENTIFIC BREAKTHROUGHS -- HAS NEVER BEEN JUSTIFIED ON BASIS OF PRICE ADVANTAGE IF OTHER AVAILABLE PRICE IS REASONABLE.

TO QED MODULAR BUILDINGS, INC.:

WE REFER TO YOUR LETTER AND TELEGRAM OF JULY 11, 1969, TO THIS OFFICE, AND COPIES OF LETTERS TO OTHER GOVERNMENT OFFICIALS DATED JULY 29 AND AUGUST 15, SETTING FORTH YOUR PROTEST AGAINST THE AWARD OF CONTRACTS TO ANY OTHER FIRMS UNDER REQUESTS FOR PROPOSALS (RFP) NOS. F09603-69-R-2641 AND F09603-69-R-3156, ISSUED BY ROBINS AIR FORCE BASE, GEORGIA.

THE FIRST PART OF YOUR PROTEST CONCERNS RFP NO. F09603-69-R-2641. THIS RFP, ISSUED PURSUANT TO 10 U.S.C. 2304 (A) (2), ON MARCH 3, 1969, AS AMENDED, SOLICITED PROPOSALS ON 13 ITEMS OF MODULAR RELOCATABLE SCHOOL FACILITIES FOR USE OUTSIDE THE CONTINENTAL UNITED STATES. AMENDMENT 0003 TO THE RFP FIXED THE CLOSING DATE FOR RECEIPT OF PROPOSALS AT 2400 HOURS, EST, APRIL 10, 1969, IN ROBINS AIR FORCE BASE, GEORGIA. PARAGRAPH 8 OF THE SOLICITATION INSTRUCTIONS AND CONDITIONS, ENTITLED ,LATE OFFERS AND MODIFICATIONS OR WITHDRAWALS," AMONG OTHER THINGS, PROVIDED:

"/A) OFFERS AND MODIFICATIONS OF OFFERS (OR WITHDRAWALS THEREOF, IF THIS SOLICITATION IS ADVERTISED) RECEIVED AT THE OFFICE DESIGNATED IN THE SOLICITATION AFTER THE EXACT HOUR AND DATE SPECIFIED FOR RECEIPT WILL NOT BE CONSIDERED UNLESS: (1) THEY ARE RECEIVED BEFORE AWARD IS MADE; AND EITHER (2) THEY ARE SENT BY REGISTERED MAIL, OR BY CERTIFIED MAIL FOR WHICH AN OFFICIAL DATED POST OFFICE STAMP (POSTMARK) ON THE ORIGINAL RECEIPT FOR CERTIFIED MAIL HAS BEEN OBTAINED, OR BY TELEGRAPH IF AUTHORIZED, AND IT IS DETERMINED BY THE GOVERNMENT THAT THE LATE RECEIPT WAS DUE SOLELY TO DELAY IN THE MAILS, OR DELAY BY THE TELEGRAPH COMPANY, FOR WHICH THE OFFEROR WAS NOT RESPONSIBLE; OR (3) IF SUBMITTED BY MAIL (OR BY TELEGRAM IF AUTHORIZED) IT IS DETERMINED BY THE GOVERNMENT THAT THE LATE RECEIPT WAS DUE SOLELY TO MISHANDLING BY THE GOVERNMENT AFTER RECEIPT AT THE GOVERNMENT INSTALLATION; PROVIDED, THAT TIMELY RECEIPT AT SUCH INSTALLATION IS ESTABLISHED UPON EXAMINATION OF AN APPROPRIATE DATE OR TIME STAMP (IF ANY) OF SUCH INSTALLATION, OR OF OTHER DOCUMENTARY EVIDENCE OF RECEIPT (IF READILY AVAILABLE) WITHIN THE CONTROL OF SUCH INSTALLATION OR OF THE POST OFFICE SERVING IT. HOWEVER, A MODIFICATION OF AN OFFER WHICH MAKES THE TERMS OF THE OTHERWISE SUCCESSFUL OFFER MORE FAVORABLE TO THE GOVERNMENT WILL BE CONSIDERED AT ANY TIME IT IS RECEIVED AND MAY THEREAFTER BE ACCEPTED.'

TWO PROPOSALS WERE TIMELY RECEIVED. HOWEVER, YOUR PROPOSAL, WHICH WAS NOT MAILED UNTIL APRIL 10, 1969, THE CLOSING DATE FOR RECEIPT OF PROPOSALS, WAS RECEIVED AT ROBINS AIR FORCE BASE ON APRIL 12, 1969. LETTER OF MAY 29, 1969, THE CONTRACTING OFFICER ADVISED YOU THAT YOUR PROPOSAL WAS NOT CONSIDERED FOR AWARD BECAUSE IT ARRIVED LATE. ALTHOUGH YOUR PROPOSAL WAS LOW AT $4,080,813, AWARD WAS MADE ON JULY 8, 1969, TO MODULUX INCORPORATED FOR THE AMOUNT OF $4,226,119.92.

IN YOUR LETTER OF JULY 11, 1969, YOU ALLEGE THAT YOUR PROPOSAL WAS TENDERED ON THE DAY OF THE BID OPENING THROUGH CERTIFIED MAIL, AND YOU CONTEND THAT IT WAS RESPONSIVE TO THE RFP BECAUSE IT WAS RECEIVED BEFORE ANY AWARD HAD BEEN MADE, AND PROTEST THE AWARD MADE AT A HIGHER PRICE THAN YOURS.

ARMED SERVICES PROCUREMENT REGULATION (ASPR) 3-505 REQUIRES THAT REQUESTS FOR PROPOSALS CONTAIN A CLAUSE NOTIFYING THE PROSPECTIVE OFFERORS THAT LATE PROPOSALS OR MODIFICATIONS TO PROPOSALS RECEIVED AFTER THE DATE FOR SUBMISSION HAS PASSED WILL NOT BE CONSIDERED. HERE, YOUR PROPOSAL ARRIVED ON APRIL 12, 1969, TWO DAYS SUBSEQUENT TO THE CLOSING DATE SPECIFIED BY AMENDMENT 0003, DATED MARCH 28, 1969. ASPR 3 505 (A) REQUIRES CONTRACTING OFFICERS TO TREAT SUCH LATE PROPOSALS OR MODIFICATIONS IN THE SAME MANNER THAT THEY WOULD BE TREATED UNDER ADVERTISED PROCUREMENT. SEE B-151944, MARCH 18, 1969. UNDER PARAGRAPH 8 OF THE RFP, WHICH IS IN ACCORDANCE WITH PERTINENT REGULATIONS, YOUR LATE PROPOSAL COULD HAVE BEEN CONSIDERED FOR AWARD ONLY IF IT WAS DETERMINED THAT LATE RECEIPT WAS DUE SOLELY TO DELAY IN THE MAILS, OR SOLELY TO MISHANDLING BY THE GOVERNMENT AFTER RECEIPT AT THE INSTALLATION.

POST OFFICE DEPARTMENT FORM 1510, DATED APRIL 14, 1969, DISCLOSES THAT YOUR CERTIFIED LETTER CONTAINING THE PROPOSAL (ASSIGNED CERTIFIED NO. 676253), WAS MAILED APRIL 10, 1969, AT 1500 HOURS, IN SAN PABLO, CALIFORNIA. THE RECORD CONTAINS A SUMMARY OF CONVERSATION WITH A REPRESENTATIVE OF THE POST OFFICE ABOUT THE POSSIBILITY FOR A DOCUMENT WHICH IS MAILED FROM CALIFORNIA ON APRIL 10, 1969, TO ARRIVE BY MIDNIGHT ON THE SAME DAY AT ROBINS AIR FORCE BASE. IT IS STATED THAT REGARDLESS OF HOW A DOCUMENT IS MAILED, IT COULD NOT MEET THE TRUCKS DELIVERING THE MAIL FROM ATLANTA TO ROBINS AIR FORCE BASE ON THE SAME DAY. THEREFORE, AND SINCE IT WAS YOUR RESPONSIBILITY TO SEE THAT THE PROPOSAL WAS PROPERLY MAILED IN TIME TO REACH THE DESIGNATED OFFICE BEFORE THE TIME FIXED FOR OPENING, THE CONTRACTING OFFICER ACTED PROPERLY IN REFUSING TO CONSIDER YOUR LATE PROPOSAL. SEE B-159928, NOVEMBER 10, 1966.

AN EXCEPTION TO THE LATENESS RULE IS PERMISSIBLE WHEN A DETERMINATION IS MADE AT THE SECRETARIAL LEVEL THAT CONSIDERATION OF A LATE PROPOSAL IS OF "EXTREME IMPORTANCE TO THE GOVERNMENT, AS FOR EXAMPLE WHERE IT OFFERS SOME IMPORTANT TECHNICAL OR SCIENTIFIC BREAKTHROUGH.' SEE ASPR 3-506 (C) (II). IT HAS NEVER BEEN CONSIDERED THAT A MERE PRICE ADVANTAGE JUSTIFIES APPLICATION OF THIS EXCEPTION WHERE THE PRICE OTHERWISE AVAILABLE IS REASONABLE. SINCE THE MODULAR RELOCATABLE SCHOOL FACILITIES ARE TO BE PROCURED IN ACCORDANCE WITH DRAWINGS AND SPECIFICATIONS FURNISHED BY THE GOVERNMENT, THERE CAN BE NO QUESTION OF OFFERING ANY TECHNICAL OR SCIENTIFIC BREAKTHROUGH AS CONTEMPLATED BY THE REGULATION. SEE 46 COMP. GEN. 42.

THE SECOND PART OF YOUR PROTEST CONCERNS RFP NO. F09603-69-R-3156. THIS RFP SOLICITED PROPOSALS ON ITEMS 1 THROUGH 4 CONSISTING OF RELOCATABLE MEDICAL FACILITIES, AND WAS ISSUED ON APRIL 24, 1969. THE RFP WAS OPENED ON MAY 26, 1969, AND YOUR PROPOSAL APPEARED TO BE THE LOWEST RECEIVED. THE BASIS OF A PRE-AWARD SURVEY CONDUCTED BY THE DEFENSE CONTRACT ADMINISTRATION SERVICES REGION (DCASR/-SAN FRANCISCO PURSUANT TO ASPR 1- 905.4, IT WAS DETERMINED THAT YOU COULD NOT BE CONSIDERED A RESPONSIBLE CONTRACTOR FOR THE PROCUREMENT.

YOUR LETTERS OF JULY 29 AND AUGUST 15, TAKE ISSUE WITH THE CONTRACTING OFFICER'S DETERMINATION OF QED'S NONRESPONSIBILITY. HOWEVER, BY LETTER OF SEPTEMBER 22, 1969, THE CHIEF, CONTRACTOR RELATIONS BRANCH, DEPARTMENT OF THE AIR FORCE, ADVISED US THAT THE SUBJECT RFP HAD BEEN CANCELLED PURSUANT TO DIRECTION OF AIR FORCE LOGISTICS COMMAND, APPARENTLY ON THE BASIS OF INSUFFICIENCY OF AVAILABLE FUNDS. SINCE THE RIGHT OF CANCELLATION IS EXPRESSLY RESERVED IN PARAGRAPH 10 (B) OF THE STANDARD FORM 33-202 OF THE RFP, AND WE FIND NO INDICATION THAT THE ACTION TAKEN WAS ARBITRARY OR OTHERWISE IMPROPER, FURTHER ACTION BY OUR OFFICE IN THE MATTER WOULD NOT APPEAR TO BE LEGALLY JUSTIFIED.

THE DEPARTMENT OF THE AIR FORCE FURTHER ADVISES THAT FUTURE PROCUREMENT OF MEDICAL FACILITIES OF THIS TYPE WILL BE CONDUCTED BY WRIGHT-PATTERSON AIR FORCE BASE. SINCE IT IS PRESUMED THAT YOU WILL BE GIVEN AN OPPORTUNITY TO PARTICIPATE IN ANY FUTURE PROCUREMENT, THERE APPEARS TO BE NO PROPER BASIS FOR FURTHER CONSIDERATION OF YOUR PROTEST BY THIS OFFICE AT THIS TIME.