B-168945, MAR. 24, 1970

B-168945: Mar 24, 1970

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PROTEST OF UNSOLICITED OFFEROR TO CONTRACTING OFFICER'S REFUSAL TO REOPEN PROCUREMENT FOR RECEIPT OF ADDITIONAL PROPOSAL WAS PROPERLY DENIED SINCE INADVERTENT FAILURE TO SOLICIT OFFER FROM PROSPECTIVE OFFEROR CANNOT BE CONSIDERED SUFFICIENTLY COGENT REASON TO REQUIRE RESOLICITATION OF OFFERS. NO LEGAL JUSTIFICATION IS FOUND FOR OBJECTION TO ACTION TAKEN. INC.: REFERENCE IS MADE TO YOUR TELEGRAM OF JANUARY 30. WHICH WAS MARKED "CONFIDENTIAL. " WAS ISSUED ON DECEMBER 31. THE PROCUREMENT WAS INITIATED TO SATISFY AN URGENT REQUIREMENT OF THE NAVAL SHIPS ENGINEERING CENTER. PROPOSALS THEREFORE WERE REQUIRED TO BE SUBMITTED BY JANUARY 15. THE PROCUREMENT WAS NOT SYNOPSIZED IN THE COMMERCE BUSINESS DAILY DUE TO ITS CLASSIFIED NATURE AND THE URGENCY OF THE REQUIREMENT.

B-168945, MAR. 24, 1970

CONTRACTS--NEGOTIATION--REQUESTS FOR PROPOSALS--FAILURE TO SOLICIT UPON RECEIPT OF THREE ACCEPTABLE PROPOSALS FOR AMPLIFIERS WITH ASSIGNED 02 PRIORITY AND FURTHER NEGOTIATION WITH ALL OFFERORS, PROTEST OF UNSOLICITED OFFEROR TO CONTRACTING OFFICER'S REFUSAL TO REOPEN PROCUREMENT FOR RECEIPT OF ADDITIONAL PROPOSAL WAS PROPERLY DENIED SINCE INADVERTENT FAILURE TO SOLICIT OFFER FROM PROSPECTIVE OFFEROR CANNOT BE CONSIDERED SUFFICIENTLY COGENT REASON TO REQUIRE RESOLICITATION OF OFFERS, NOR TO SET ASIDE AWARD WHERE ADEQUATE COMPETITION HAS BEEN RECEIVED AND, IN VIEW OF HIGH PRIORITY AND URGENT NEED FOR SUPPLIES, NO LEGAL JUSTIFICATION IS FOUND FOR OBJECTION TO ACTION TAKEN.

TO MICROWAVE ASSOCIATES (WEST), INC.:

REFERENCE IS MADE TO YOUR TELEGRAM OF JANUARY 30, 1970, PROTESTING AGAINST AN AWARD TO ANY OTHER OFFEROR UNDER REQUEST FOR PROPOSALS (RFP) NO. N00189-70-R-0101, ISSUED BY THE NAVAL SUPPLY CENTER, NORFOLK, VIRGINIA.

THE SOLICITATION, WHICH WAS MARKED "CONFIDENTIAL," WAS ISSUED ON DECEMBER 31, 1969, TO SOLICIT PROPOSALS FOR PROCUREMENT OF 120 TRAVELING WAVE TUBE AMPLIFIERS, WITH ASSOCIATED TECHNICAL DATA, IN ACCORDANCE WITH CLASSIFIED SPECIFICATIONS. THE PROCUREMENT WAS INITIATED TO SATISFY AN URGENT REQUIREMENT OF THE NAVAL SHIPS ENGINEERING CENTER, NORFOLK DIVISION, WITH AN ASSIGNED PRIORITY OF 02, AND PROPOSALS THEREFORE WERE REQUIRED TO BE SUBMITTED BY JANUARY 15, 1970. THE PROCUREMENT WAS NOT SYNOPSIZED IN THE COMMERCE BUSINESS DAILY DUE TO ITS CLASSIFIED NATURE AND THE URGENCY OF THE REQUIREMENT.

THE RFP WAS ISSUED TO SEVEN FIRMS AFTER RECEIPT OF APPROPRIATE SECURITY CLEARANCES AND THREE PROPOSALS WERE RECEIVED IN RESPONSE THERETO. AFTER COMPLETION ON JANUARY 20, 1970, OF EVALUATION BY THE NAVAL SHIPS ENGINEERING CENTER, NORFOLK DIVISION, OF THE THREE TECHNICAL PROPOSALS RECEIVED, ALL OF WHICH WERE FOUND ACCEPTABLE, NEGOTIATIONS WERE CONDUCTED BY THE NAVAL SUPPLY CENTER WITH THE THREE OFFERORS BETWEEN JANUARY 22 AND JANUARY 30, 1970.

AT APPROXIMATELY 5:00 P.M; JANUARY 30, 1970, MR. P. MARTIN, A REPRESENTATIVE OF MICROWAVE ASSOCIATES, INC; TELEPHONED THE CONTRACTING OFFICER AND STATED THAT HE HAD JUST THAT AFTERNOON LEARNED OF THE PROCUREMENT AND REQUESTED THAT THE RFP BE REOPENED IN ORDER TO ALLOW HIS FIRM AN OPPORTUNITY TO SUBMIT A PROPOSAL. MR. MARTIN WAS INFORMED THAT THE CONTRACTING OFFICER DID NOT HAVE AUTHORITY TO REOPEN THE RFP FOR THE SOLE PURPOSE OF RECEIVING A PROPOSAL FROM THE FIRM.

ON FEBRUARY 2, 1970, PROTESTS AGAINST THE CONTRACTING OFFICER'S REFUSAL TO REOPEN THE PROCUREMENT FOR RECEIPT OF AN ADDITIONAL PROPOSAL WERE LODGED WITH THE GENERAL ACCOUNTING OFFICE AND THE PROCURING AGENCY. FEBRUARY 3, 1970, AFTER BEING APPRISED OF THE SUBJECT PROTEST, THE NAVAL SHIPS ENGINEERING CENTER REAFFIRMED THE URGENCY OF THE REQUIREMENT FOR THE AMPLIFIERS AND REQUESTED THAT PROCUREMENT ACTION BE EXPEDITED. THIS REAFFIRMATION OF URGENCY WAS TELEPHONICALLY REFERRED TO HIGHER AUTHORITY, THE OFFICE OF DEPUTY COMMANDER, PURCHASING, AT THE NAVAL SUPPLY SYSTEMS COMMAND, AND AUTHORITY WAS GRANTED TO CONTINUE WITH AWARD ACTION UNDER THE RFP. ON FEBRUARY 3, 1970, THE GENERAL ACCOUNTING OFFICE WAS NOTIFIED OF THE NEED FOR AN IMMEDIATE AWARD AND ON FEBRUARY 5, 1970, AWARD WAS MADE TO THE LOW OFFEROR, WATKINS-JOHNSON COMPANY, FOR THE TOTAL QUANTITY OF ALL REQUIREMENTS SET FORTH IN THE SOLICITATION.

YOUR PROTEST IS BASED UPON THE CONTENTION THAT YOU WERE NOT SOLICITED ALTHOUGH YOU WERE CURRENTLY A QUALIFIED SOURCE SUPPLYING INDENTICAL OR SIMILAR TRAVELING WAVE TUBE AMPLIFIERS UNDER SEVERAL OTHER NAVY CONTRACTS; THAT WHEN YOUR INTEREST BECAME KNOWN YOUR OFFER SHOULD HAVE BEEN CONSIDERED; AND FINALLY THAT YOU WOULD BE ABLE TO OFFER A HIGHLY COMPETITIVE PRICE AND A MORE THAN ADEQUATE DELIVERY SCHEDULE.

THE CONTRACTING OFFICER REPORTS THAT THE BIDDER'S MAILING LIST USED FOR THIS SOLICITATION WAS DEVELOPED BY THE CONTRACT NEGOTIATOR FROM THE NORFOLK NAVAL SUPPLY SERVICE PURCHASE DEPARTMENT'S ESTABLISHED BIDDER'S MAILING LIST BASED ON THE BIDDER'S MAILING LIST APPLICATIONS RECEIVED FROM PROSPECTIVE CONTRACTORS, AND THAT YOUR STANDARD FORM 129 APPLICATION ON FILE AT THE NORFOLK OFFICE DOES NOT INDICATE AN INTEREST IN BIDDING ON PROCUREMENTS OF "AMPLIFIERS." IT IS FURTHER REPORTED THAT NO LIST OF PROSPECTIVE SUPPLIERS WAS RECEIVED FROM THE SHIPS ENGINEERING CENTER, AND THAT COGNIZANT PERSONNEL OF THE SUPPLY SERVICE WERE WITHOUT ANY KNOWLEDGE OF YOUR INTEREST IN THE SUBJECT PROCUREMENT, OR OF YOUR CAPABILITY TO PRODUCE THE AMPLIFIERS SOLICITED.

ALTHOUGH IT IS REGRETTABLE THAT YOUR FIRM WAS NOT SOLICITED AND DID NOT LEARN OF THE PROCUREMENT IN SUFFICIENT TIME TO PREPARE AND SUBMIT A TIMELY PROPOSAL, THERE IS NO INDICATION IN THE RECORD THAT THERE WAS ANY CONSCIOUS OR DELIBERATE INTENTION TO EXCLUDE YOU OR ANY OTHER INTERESTED FIRM FROM PARTICIPATING IN THE PROCUREMENT. WE HAVE HELD THAT THE INADVERTENT FAILURE TO SOLICIT AN OFFER FROM ONE PROSPECTIVE OFFEROR CANNOT BE CONSIDERED A SUFFICIENTLY COGENT REASON TO REQUIRE RESOLICITATION OF BIDS OR OFFERS, OR TO SET ASIDE AN AWARD WHERE, AS HERE, ADEQUATE COMPETITION HAS BEEN RECEIVED. IN THE ABSENCE OF A RESOLICITATION OF PROPOSALS A PROPOSAL FROM YOU WOULD BE A LATE PROPOSAL UNDER THE PROVISIONS OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) 3 -506, WHICH FURTHER PROVIDES IN PARAGRAPH (C) THAT LATE PROPOSALS SHALL NOT BE CONSIDERED FOR AWARD EXCEPT WHERE ONLY ONE PROPOSAL IS RECEIVED; WHERE, THE SECRETARY CONCERNED DETERMINES THAT CONSIDERATION OF A LATE PROPOSAL IS OF EXTREME IMPORTANCE TO THE GOVERNMENT; OR WHERE THE PROPOSAL WAS SENT BY MAIL OR TELEGRAPH IN TIME TO HAVE BEEN RECEIVED BEFORE THE REQUIRED TIME AND IS ENTITLED TO BE CONSIDERED UNDER THE TERMS OF ASPR 2- 303. UNDER THE ASPR IT WOULD ALSO HAVE BEEN NECESSARY, IN THE EVENT THE PROCUREMENT HAD BEEN REOPENED FOR SUBMISSION OF A PROPOSAL BY YOU, TO RESOLICIT THE FIRMS WHICH HAD SUBMITTED ACCEPTABLE PROPOSALS. IN VIEW OF THE HIGH PRIORITY AND URGENT NEED FOR THE SUPPLIES WE FIND NO LEGAL JUSTIFICATION FOR OBJECTION TO THE ACTION TAKEN.

IN THE CIRCUMSTANCES, WE DO NOT FEEL THAT WE CAN PROPERLY REFUSE TO REGARD THE AWARD MADE AS A VALID AND PROPER ONE, AND YOUR PROTEST IS THEREFORE DENIED.