B-169653(2), JUL. 29, 1970

B-169653(2): Jul 29, 1970

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FOURTH LOW OFFEROR WHO PROTESTS CANCELLATION OF PORTION OF SOLICITATION WHEN PURCHASE DESCRIPTION AND SPECIFICATIONS WERE FOUND INADEQUATE MUST HAVE PROTEST DENIED SINCE CANCELLATION OF LOT AND REISSUANCE OF REPLACEMENT DOES NOT DIFFER FROM ISSUANCE OF SAME REVISED SOLICITATION IN THE FORM OF AN AMENDMENT WITHIN ASPR 3-805.1(E). FURTHER AN ATTEMPT TO NEGOTIATE SUCH CHANGE WITH ONE OF OFFERORS WOULD HAVE BEEN PREJUDICIAL TO OTHERS. INC.: REFERENCE IS MADE TO YOUR TELEGRAM OF MAY 21. LOT II IS NOT INVOLVED IN YOUR PROTEST. FOURTEEN PROPOSALS WERE RECEIVED ON LOT I. THE LOW PROPOSAL OF AERO TECH WAS REJECTED BECAUSE A PREAWARD SURVEY REPORT DISCLOSED THAT THE OFFEROR LACKED. A PREAWARD SURVEY WAS THEN CONDUCTED OF THE PLANT AND FACILITIES OF THE OFFEROR WHO SUBMITTED THE SECOND LOWEST PROPOSAL ON LOT I AND IT WAS DISCOVERED THAT SUCH OFFEROR DID NOT UNDERSTAND THE SCOPE OF THE REQUIREMENTS OF THE SPECIFICATIONS.

B-169653(2), JUL. 29, 1970

BID PROTEST -- NEGOTIATED -- CANCELLATION AND RESOLICITATION V AMENDMENT DECISION DENYING PROTEST OF A.C.E.S., INC., AGAINST CANCELLATION OF PORTION OF REQUEST FOR PROPOSALS FOR REPAIR OF HELICOPTER TAILBOOMS AND ASSEMBLIES FOR NAVAL AIR STATION. FOURTH LOW OFFEROR WHO PROTESTS CANCELLATION OF PORTION OF SOLICITATION WHEN PURCHASE DESCRIPTION AND SPECIFICATIONS WERE FOUND INADEQUATE MUST HAVE PROTEST DENIED SINCE CANCELLATION OF LOT AND REISSUANCE OF REPLACEMENT DOES NOT DIFFER FROM ISSUANCE OF SAME REVISED SOLICITATION IN THE FORM OF AN AMENDMENT WITHIN ASPR 3-805.1(E). FURTHER AN ATTEMPT TO NEGOTIATE SUCH CHANGE WITH ONE OF OFFERORS WOULD HAVE BEEN PREJUDICIAL TO OTHERS.

TO A.C.E.S., INC.:

REFERENCE IS MADE TO YOUR TELEGRAM OF MAY 21, 1970, PROTESTING THE ACTION OF THE NAVAL AIR STATION, CORPUS CHRISTI, TEXAS, IN CANCELING LOT I OF DEPARTMENT OF THE NAVY REQUEST FOR PROPOSALS (RFP) NO. N00216 70-R-0079, AS AMENDED. LOT II IS NOT INVOLVED IN YOUR PROTEST.

THE RFP REQUESTED PROPOSALS UNDER LOT I FOR FURNISHING THE NECESSARY SERVICES AND MATERIALS FOR THE REPAIR OF UH-1 AND AH-1G HELICOPTER TAIL BOOMS AND ASSEMBLIES. FOURTEEN PROPOSALS WERE RECEIVED ON LOT I, THE PRICES RANGING FROM A LOW OF $315,200 TO A HIGH OF $2,742,608. YOUR FIRM SUBMITTED THE FOURTH LOWEST PROPOSAL RECEIVED ON THAT LOT. THE LOW PROPOSAL OF AERO TECH WAS REJECTED BECAUSE A PREAWARD SURVEY REPORT DISCLOSED THAT THE OFFEROR LACKED, AMONG OTHER THINGS, THE TECHNICAL CAPABILITY AND PRODUCTION CAPABILITY NECESSARY FOR MEETING THE REQUIRED DELIVERY SCHEDULE. A PREAWARD SURVEY WAS THEN CONDUCTED OF THE PLANT AND FACILITIES OF THE OFFEROR WHO SUBMITTED THE SECOND LOWEST PROPOSAL ON LOT I AND IT WAS DISCOVERED THAT SUCH OFFEROR DID NOT UNDERSTAND THE SCOPE OF THE REQUIREMENTS OF THE SPECIFICATIONS.

IT IS REPORTED THAT SINCE THERE WAS A WIDE RANGE IN THE PRICES QUOTED BY THE OFFERORS ON LOT I, THE CONTRACTING OFFICER DECIDED TO CONTACT SOME OF THE OFFERORS FOR THE PURPOSE OF DETERMINING WHETHER THEY UNDERSTOOD THE FULL SCOPE OF THE SPECIFICATIONS FOR LOT I. SINCE SEVERAL FIRMS DID NOT UNDERSTAND THE SPECIFICATIONS, THE CONTRACTING OFFICER DETERMINED THAT LOT I OF THE RFP PERTAINING TO TAILBOOM REPAIR SHOULD BE CANCELED ON THE BASIS THAT THE SPECIFICATIONS WERE DEFECTIVE AND THAT THE TAILBOOM REPAIR WORK REQUIREMENTS SHOULD BE RETURNED TO THE REQUISITIONING ACTIVITY, ARMY AERONAUTICAL DEPOT MAINTENANCE CENTER (ARADMAC) WITH A REQUEST THAT THE ACTIVITY OBTAIN A BETTER PURCHASE DESCRIPTION AND SPECIFICATIONS AS REQUIRED BY PARAGRAPH 2-404.1(B)(I) OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR). IT IS REPORTED THAT THE PURCHASE DESCRIPTION AND SPECIFICATIONS WERE DEFECTIVE IN MANY WAYS, SOME OF WHICH WERE CONCERNED WITH A LACK OF INFORMATION REGARDING PRESHOP ANALYSIS, WORKBOOKS, USE OF JIGS AND FIXTURES, PAINTING, PRIMING, WHAT CONSTITUTES CRASH DAMAGE AND BATTLE DAMAGE, AND WHAT WOULD NOT BE CONSIDERED CRASH AND/OR BATTLE DAMAGE.

YOU CONTEND IN YOUR TELEGRAM THAT LOT I OF THE RFP SHOULD NOT HAVE BEEN CANCELED BY THE CONTRACTING OFFICER. YOU STATE THAT YOUR INTERPRETATION OF ASPR IS THAT IT REQUIRES THAT A PROCUREMENT COVERED BY A REQUEST FOR PROPOSALS, INCLUDING ANY CHANGES, BE NEGOTIATED WITH A RESPONSIBLE BIDDER. YOU DO NOT CITE ANY PARTICULAR PROVISION OF ASPR IN SUPPORT OF YOUR CONTENTION. ALSO, YOU DO NOT STATE WHAT ITEMS SHOULD BE THE SUBJECT OF NEGOTIATIONS BUT, APPARENTLY, YOU HAVE IN MIND THE ITEMS OF WORK WHICH THE PURCHASE DESCRIPTION AND SPECIFICATIONS FAILED TO ADEQUATELY DESCRIBE.

ASPR 3-805.1(E), RELATING TO THE SELECTION OF OFFERORS FOR NEGOTIATION AND AWARD, READS IN PERTINENT PART AS FOLLOWS:

"(E) WHEN, DURING NEGOTIATIONS, A SUBSTANTIAL CHANGE OCCURS IN THE GOVERNMENT'S REQUIREMENTS OR A DECISION IS REACHED TO RELAX, INCREASE OR OTHERWISE MODIFY THE SCOPE OF THE WORK OR STATEMENT OF REQUIREMENTS, SUCH CHANGE OR MODIFICATION SHALL BE MADE IN WRITING AS AN AMENDMENT TO THE REQUEST FOR PROPOSAL OR REQUEST FOR QUOTATIONS, AND A COPY SHALL BE FURNISHED TO EACH PROSPECTIVE CONTRACTOR. *** "

THERE APPEARS TO BE NO QUESTION THAT THE REVISION OF THE PURCHASE DESCRIPTION AND SPECIFICATIONS FOR LOT I WILL HAVE THE EFFECT OF SUBSTANTIALLY INCREASING THE GOVERNMENT'S WORK REQUIREMENTS. THEREFORE, THE CONTRACTING OFFICER WAS REQUIRED BY THE CITED ASPR TO AMEND THE REQUEST FOR PROPOSALS AND FURNISH A COPY TO EACH OFFEROR. HOWEVER, AS INDICATED IN PRIOR DECISIONS, WE SEE NO BASIS HERE FOR CONSIDERING THE CANCELLATION OF LOT I OF THE ORIGINAL SOLICITATION AND THE ISSUANCE OF A REPLACEMENT AS DIFFERING IN ANY SUBSTANTIAL OR MATERIAL WAY FROM THE ISSUANCE OF THE SAME REVISED SOLICITATION IN THE FORM OF AN AMENDMENT TO THE ORIGINAL. 49 COMP. GEN. -- (B-169054, JUNE 11, 1970). ALSO, WE BELIEVE THAT AN ATTEMPT TO NEGOTIATE THE CONTEMPLATED CHANGES IN THE SPECIFICATIONS WITH ONE OF THE OFFERORS WOULD HAVE BEEN PREJUDICIAL TO THE OTHER OFFERORS SINCE A CONTRACT AFTER NEGOTIATION OFFERED TO THAT PARTICULAR OFFEROR WOULD NOT BE THE SAME AS OFFERED THE OTHER OFFERORS UNDER THAT SOLICITATION.

PARAGRAPH 10(B) OF THE "SOLICITATION INSTRUCTIONS AND CONDITIONS" OF THE SOLICITATION PROVIDES THAT THE GOVERNMENT RESERVES THE RIGHT TO REJECT ANY AND ALL OFFERS. IN B-159291, AUGUST 2, 1966, WHICH ALSO INVOLVED A NEGOTIATED PROCUREMENT, IT WAS STATED AS FOLLOWS:

" *** THE AUTHORITY TO REJECT ALL BIDS (OFFERS) IS EXTREMELY BROAD, INVOLVING PRIMARILY A MATTER OF ADMINISTRATIVE JUDGMENT, AND WE WILL NOT UNDERTAKE TO QUESTION ITS EXERCISE HERE IN THE ABSENCE OF A CLEAR SHOWING OF ABUSE OF DISCRETION. *** "

THE ABOVE RULE WOULD BE EQUALLY APPLICABLE TO THIS CASE. IN THE PRESENT CASE IT IS UNCONTRADICTED THAT THE SPECIFICATIONS FOR LOT I DID NOT ADEQUATELY DESCRIBE THE REQUIRED SERVICES. THE RECORD INDICATES THAT THE PRICE RANGE OF THE OFFERS RECEIVED ON LOT I WAS VERY WIDE. THIS WIDE RANGE OF THE OFFERS RECEIVED ON LOT I APPEARS TO ESTABLISH THE FACT THAT THE SPECIFICATIONS DID NOT CLEARLY SET FORTH THE REQUIRED SERVICES. THESE CIRCUMSTANCES, AND IN VIEW OF THE BROAD DISCRETION PLACED WITH ADMINISTRATIVE AGENCIES IN SUCH MATTERS, WE CANNOT CONCLUDE THAT THE REJECTION OF ALL BIDS RECEIVED ON LOT I WAS ARBITRARY AND CAPRICIOUS.

FOR THE REASONS STATED, YOUR PROTEST IS DENIED.