B-170362, NOV. 24, 1970

B-170362: Nov 24, 1970

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

TO THE RICHARDS CORPORATION: REFERENCE IS MADE TO YOUR LETTER OF JULY 9. RECEIPT IS ALSO ACKNOWLEDGED OF YOUR LETTER OF SEPTEMBER 10. PROPOSALS WERE REQUESTED FOR FURNISHING 27 SPLIT STAGE LIGHT TABLES IN ACCORDANCE WITH OOAMA ATTACHMENT OONE 68-15A. THE TYPE DESIGNATION WAS AR-125B. WAS EXTENDED TO JULY 24. THE PROPOSALS RECEIVED TIMELY WERE REVIEWED AND THE LOW OFFEROR AT THAT TIME WAS SYSTEMS RESEARCH & DEVELOPMENT AT A PRICE OF $3. YOUR OFFER WAS IN THE AMOUNT OF $3. IT IS REPORTED THAT AS A RESULT OF SUGGESTIONS CONTAINED IN YOUR PROPOSAL. THE RFP WAS AMENDED TO INCORPORATE SUGGESTED REVISIONS AND ESTABLISH A NEW CLOSING DATE OF AUGUST 26. THAT ALL FIRMS ON THE ORIGINAL BIDDERS' LIST WERE AGAIN SOLICITED AND ADVISED OF THE REVISED SPECIFICATIONS AND OF THE NEW CLOSING DATE.

B-170362, NOV. 24, 1970

BID PROTEST - PROCEDURES PROPRIETY DENIAL OF PROTEST OF PREVIOUS SOLE SOURCE SUPPLIER AGAINST PROCEDURES USED IN A NEGOTIATED AND AN ADVERTISED PROCUREMENT FOR SPLIT LIGHT TABLES CONFORMING TO MILITARY SPECIFICATIONS AND AWARDS TO LOW OFFEROR, INTERGRAPHIC SYSTEMS RESEARCH BY HILL AIR FORCE BASE.

TO THE RICHARDS CORPORATION:

REFERENCE IS MADE TO YOUR LETTER OF JULY 9, 1970, PROTESTING AGAINST THE CONTRACTING PROCEDURES FOLLOWED BY HILL AIR FORCE BASE, UTAH, IN PROCURING PHOTO-INTELLIGENCE EQUIPMENT UNDER REQUEST FOR PROPOSALS (RFP) NO. F42600- 69-R-4784 AND INVITATION FOR BIDS (IFB) NO. F42600-70 B-2606. RECEIPT IS ALSO ACKNOWLEDGED OF YOUR LETTER OF SEPTEMBER 10, 1970.

BY RFP NO. -4784, ISSUED JUNE 17, 1969, PROPOSALS WERE REQUESTED FOR FURNISHING 27 SPLIT STAGE LIGHT TABLES IN ACCORDANCE WITH OOAMA ATTACHMENT OONE 68-15A, DATED MAY 20, 1969. THE TYPE DESIGNATION WAS AR-125B. THE INITIAL CLOSING DATE FOR RECEIPT OF PROPOSALS OF JULY 17, 1969, WAS EXTENDED TO JULY 24, 1969, AT THE REQUEST OF A SOURCE ON THE BIDDERS' LIST. THE PROPOSALS RECEIVED TIMELY WERE REVIEWED AND THE LOW OFFEROR AT THAT TIME WAS SYSTEMS RESEARCH & DEVELOPMENT AT A PRICE OF $3,150 EACH. YOUR OFFER WAS IN THE AMOUNT OF $3,609 EACH. IT IS REPORTED THAT AS A RESULT OF SUGGESTIONS CONTAINED IN YOUR PROPOSAL, THE RFP WAS AMENDED TO INCORPORATE SUGGESTED REVISIONS AND ESTABLISH A NEW CLOSING DATE OF AUGUST 26, 1969; THAT ALL FIRMS ON THE ORIGINAL BIDDERS' LIST WERE AGAIN SOLICITED AND ADVISED OF THE REVISED SPECIFICATIONS AND OF THE NEW CLOSING DATE. A REVIEW OF PROPOSALS FOLLOWING THE CLOSING DATE OF AUGUST 26, 1969, REVEALED THAT SYSTEMS RESEARCH & DEVELOPMENT WAS THE LOW OFFEROR AT $3,250 EACH; THAT INTERGRAPHIC, INC., QUOTED A PRICE OF $3,980 EACH; AND THAT YOUR FIRM QUOTED A PRICE OF $4,520 EACH.

IT IS REPORTED THAT THE PROPOSALS OF INTERGRAPHIC, SYSTEMS RESEARCH, AND THAT OF YOUR FIRM WERE SUBMITTED TO THE COGNIZANT ENGINEERING ACTIVITY FOR EVALUATION ON AUGUST 28, 1969, AND THAT ON SEPTEMBER 15, 1969, THE ENGINEERING ACTIVITY ADVISED THE PROCURING ACTIVITY THAT THE PROPOSALS OF INTERGRAPHIC AND YOUR FIRM WERE ACCEPTABLE BUT THAT THE PROPOSAL OF SYSTEMS RESEARCH WAS UNACCEPTABLE FOR SEVERAL REASONS.

THE RECORD INDICATES THAT ON SEPTEMBER 23, 1969, THE PROCURING ACTIVITY WAS ADVISED THAT THERE WAS AN ADDITIONAL REQUIREMENT FOR 41 LIGHT TABLES OF THE SAME TYPE AS CALLED FOR IN THE RFP; THAT ON OCTOBER 14, 1969, THE RFP WAS AMENDED INCREASING THE QUANTITY FROM 27 TO 68 AND ESTABLISHING A NEW CLOSING DATE OF OCTOBER 30, 1969. A REVIEW OF THE PROPOSALS AFTER THE OCTOBER 30, 1969, CLOSING DATE REVEALED THAT YOUR FIRM WAS THE LOW OFFEROR AT A PRICE OF $3,770 EACH AND THAT INTERGRAPHIC QUOTED A PRICE OF $3,780 EACH. IT IS REPORTED THAT AS A RESULT OF AN OVERSIGHT, THE RFP AMENDMENT WHICH INCREASED THE QUANTITY FAILED TO CONTAIN THE PRESERVATION AND PACKAGING REQUIREMENTS PERTAINING TO THE ADDED QUANTITY OF 41, WHICH WERE LEVEL A/A FOR THE 35 UNITS TO BE SHIPPED OVERSEAS AND LEVEL C/C FOR THE SIX TO BE SHIPPED FOR DOMESTIC USE; THAT ON NOVEMBER 4, 1969, THE RFP WAS AMENDED TO IDENTIFY THESE REQUIREMENTS AND ESTABLISH A NEW CLOSING DATE OF NOVEMBER 11, 1969; AND THAT AS A RESULT OF THIS CHANGE YOUR FIRM INCREASED YOUR UNIT PRICE FROM $3,770 TO $3,805 AND INTERGRAPHIC INCREASED ITS UNIT PRICE FROM $3,780 TO $3,820.

IN VIEW OF THE LAPSE OF TIME FROM THE INITIAL CLOSING DATE AND THE NUMBER OF CHANGES MADE TO THE RFP, IT WAS DEEMED APPROPRIATE TO ALLOW OFFERORS TO REVIEW THEIR PROPOSALS AND SUBMIT FINAL OFFERS. THEREFORE, IN ACCORDANCE WITH PARAGRAPH 3-805 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR), ALL OFFERORS WERE REQUESTED BY LETTER DATED NOVEMBER 12, 1969, TO SUBMIT THEIR FINAL OFFERS BY NOVEMBER 28, 1969. YOUR FIRM DID NOT REVISE ITS PRICE AND IT REMAINED AT $3,805. INTERGRAPHIC REDUCED ITS UNIT PRICE FROM $3,820 TO $3,780. HOWEVER, AN EVALUATION INDICATED THAT YOUR FIRM WAS THE OVERALL LOW OFFEROR BECAUSE OF A 1/2-PERCENT, 20-DAY PROMPT PAYMENT DISCOUNT OFFER AND A PROPOSED PRICE OF $4,550 FOR DATA, COMPARED TO NET DISCOUNT TERMS, AND $5,700 FOR DATA OFFERED BY INTERGRAPHIC.

AN AWARD TO YOUR FIRM WAS PREPARED AND SUBMITTED TO THE LOCAL OFFICE OF THE JUDGE ADVOCATE GENERAL FOR LEGAL REVIEW ON DECEMBER 8, 1969. HOWEVER, THE REVIEWING ATTORNEY DETECTED A DISCREPANCY IN THE INSPECTION REQUIREMENTS STATED IN THE RFP AND THOSE STATED IN THE PURCHASE REQUEST. THE RFP SPECIFIED THE INSPECTION REQUIREMENTS OF MIL I-45208A, WHEREAS THE STANDARD ASPR INSPECTION CLAUSE WAS SPECIFIED ON THE PURCHASE REQUEST BY THE COGNIZANT AIR FORCE QUALITY ASSURANCE ACTIVITY. IN RESPONSE TO THE QUESTION AS TO WHETHER THE INSPECTION REQUIREMENTS COULD BE UPGRADED TO MIL-I-45208A, THE QUALITY ASSURANCE ACTIVITY ADVISED THE PROCURING ACTIVITY THAT THE ASPR INSPECTION REQUIREMENTS WERE SUFFICIENT AND THAT THE RFP OVERSTATED SUCH REQUIREMENTS.

ON DECEMBER 10, 1969, ALL OFFERORS WERE CONTACTED AND INFORMED THAT THE MIL-I-45208A INSPECTION REQUIREMENT WOULD BE DELETED FROM THE RFP, THAT THE STANDARD ASPR CLAUSE WOULD REMAIN, AND THAT A NEW CLOSING DATE OF DECEMBER 18, 1969, HAD BEEN ESTABLISHED. YOUR FIRM DID NOT CHANGE ITS UNIT PRICE BECAUSE OF THE CHANGE IN THE INSPECTION REQUIREMENTS; HOWEVER, INTERGRAPHIC DID REDUCE ITS UNIT PRICE FROM $3,780 TO $3,749 PLUS A REDUCTION IN DATA PRICE FROM $5,700 TO $3,000. THIS REDUCTION IN PRICES MADE INTERGRAPHIC THE LOW OFFEROR ON THE LIGHT TABLES. A PRE AWARD SURVEY CONDUCTED BY THE DEFENSE CONTRACT ADMINISTRATION SERVICES ON INTERGRAPHIC RESULTED IN A RECOMMENDATION OF NO AWARD DUE TO LACK OF PRODUCTION, FACILITIES AND EQUIPMENT, AND QUALITY ASSURANCE CAPABILITY. SINCE INTERGRAPHIC WAS A SMALL BUSINESS CONCERN, THE MATTER WAS REFERRED TO THE SMALL BUSINESS ADMINISTRATION (SBA) FOR REVIEW UNDER ITS CERTIFICATE OF COMPETENCY PROCEDURES. HOWEVER, AS A RESULT OF COORDINATION BETWEEN SBA, THE PREAWARD SURVEY MONITOR, AND THE PROCURING ACTIVITY IN THE MANNER CONTEMPLATED BY ASPR 1-705.4(E), THE NO AWARD RECOMMENDATION WAS WITHDRAWN IN FAVOR OF A RECOMMENDATION OF AWARD TO INTERGRAPHIC. IN VIEW OF THE FOREGOING, SBA WAS NOT REQUIRED TO DETERMINE THE CAPACITY OF INTERGRAPHIC TO PERFORM THE CONTRACT. ON APRIL 6, 1970, A CONTRACT FOR FURNISHING THE LIGHT TABLES WAS AWARDED TO INTERGRAPHIC.

IN YOUR LETTERS OF JULY 9 AND SEPTEMBER 10, 1970, FIVE REASONS ARE GIVEN AS TO WHY YOU BELIEVE THE ACTIONS TAKEN BY THE DEPARTMENT OF THE AIR FORCE UNDER RFP -4784 WERE CLEARLY DISCRIMINATORY TO YOUR FIRM.

FIRST, YOU CONTEND THAT HILL AIR FORCE BASE BEGAN TO DEVELOP ALTERNATE SOURCES FOR DIRECT VIEWING LIGHT TABLES, WHICH PREVIOUSLY HAD BEEN VIRTUALLY SOLE SOURCE TO YOUR FIRM, AS SOON AS IT ASSUMED PROCUREMENT RESPONSIBILITY. WE UNDERSTAND THAT A SPECIFICATION WHICH WOULD PERMIT COMPETITIVE PROCUREMENT OF THE LIGHT TABLES WAS PREPARED AT THE OGDEN AIR MATERIEL AREA (OOAMA) IN MARCH 1967, 4 MONTHS PRIOR TO OOAMA'S ASSUMPTION OF PROCUREMENT RESPONSIBILITY OF PHOTOGRAPHIC EQUIPMENT FOR THE DEPARTMENT OF DEFENSE. IN VIEW OF ASPR 3-102(C) REQUIRING THAT NEGOTIATED PROCUREMENTS BE ON A COMPETITIVE BASIS TO THE MAXIMUM PRACTICAL EXTENT, WE MUST REJECT THIS BASIS OF PROTEST.

SECOND, YOU MAINTAIN THAT THE SPECIFICATIONS AS WRITTEN WERE BASED ON THE PERFORMANCE AND CATALOG DESCRIPTION OF YOUR FIRM'S EQUIPMENT. YOU CONTEND THAT THE SPECIFICATIONS ARE CLEARLY INADEQUATE FOR STRICT COMPETITIVE PROCUREMENT OF YOUR FIRM'S MIM-347100 LIGHT TABLE OR EQUAL. YOU STATE THAT THE SUCCESSFUL OFFEROR, INTERGRAPHIC, REQUESTED CONTRACT CHANGES WITHIN 30 DAYS AFTER AWARD FOR ITEMS WHICH ARE STANDARD ON YOUR FIRM'S EQUIPMENT. YOU ALSO MAINTAIN THAT THE INCLUSION OF FOUR MOTORIZED FILM TRACKS INSTEAD OF TWO AND THE MID SPOOL LOOP TAKE UP SYSTEM IN THE RFP SPECIFICATIONS ARE CLEARLY EXCESSIVE TO THE PURCHASE REQUEST REQUIREMENT AND THAT THESE ADDITIONS INCREASED THE LIST PRICE BY ABOUT $800 PER TABLE.

IT IS REPORTED THAT NO PROPRIETARY DATA OBTAINED FROM YOUR FIRM OR ANY OTHER SOURCE WAS USED IN DEVELOPING THE SPECIFICATIONS FOR THE SUBJECT RFP. IN HIS SUPPLEMENTAL REPORT, THE CONTRACTING OFFICER STATES THAT IT IS TRUE THAT THE SPECIFICATIONS MAY NOT BE ADEQUATE FOR STRICT COMPETITIVE PROCUREMENT OF YOUR FIRM'S MIM-347100 LIGHT TABLE OR EQUAL, BUT THAT IT WAS NOT INTENDED TO PROCURE THAT SPECIFIC MODEL LIGHT TABLE OR ONE EQUAL THERETO. HE CONCLUDES THAT THE SPECIFICATION AS WRITTEN IS CONSIDERED TECHNICALLY ADEQUATE TO COVER AN AR-125B TYPE TABLE WHICH IS THE SUBJECT OF THIS PROCUREMENT. IN REGARD TO THE CHANGES REQUESTED BY INTERGRAPHIC, IT IS REPORTED THAT THE CONTRACTOR REQUESTED TWO CHANGES, ONE OF WHICH WAS TO INCREASE THE LENGTH OF THE TABLE FROM 60 TO 66 INCHES, WHICH WAS PERMITTED; THAT THE OTHER REQUEST WAS REALLY A SUGGESTION THAT THE PROCURING ACTIVITY INCORPORATE A TORQUE REVERSAL DEVICE; AND THAT INTERGRAPHIC WAS INFORMED THAT SUCH A DEVICE WAS REQUIRED BY THE SPECIFICATIONS AND THAT THE ACTIVITY EXPECTED IT TO BE A PART OF THEIR LIGHT TABLE WITHOUT A CONTRACT MODIFICATION. IN REGARD TO THE NEED FOR FOUR MOTORIZED FILM TRACKS AND THE MID-SPOOL TAKE UP SYSTEM, THE CONTRACTING OFFICER STATES THAT THESE TWO FEATURES ARE ESSENTIAL TO THE NEEDS OF THE GOVERNMENT.

THIRD, YOU STATE THAT EXTRAORDINARY EFFORTS WERE MADE BY THE PROCURING ACTIVITY TO AWARD THE CONTRACT RESULTING TO INTERGRAPHIC. IN THIS REGARD, YOU CONTEND THAT HILL AIR FORCE BASE WAS NOT JUSTIFIED IN REOPENING NEGOTIATIONS SUBSEQUENT TO ITS LETTER OF NOVEMBER 12, 1969, ESTABLISHING A FINAL DATE FOR OFFERS UNDER A COMPETITIVE PROPOSAL; AND THAT THE REOPENING WAS BASED UPON A CLEARLY MINOR MODIFICATION TO THE SPECIFICATIONS, THE DELETION OF MIL-I-45208A INSPECTION REQUIREMENTS. IT IS OBSERVED THAT THESE INSPECTION REQUIREMENTS WERE INCLUDED IN VIRTUALLY ALL PRIOR CONTRACTS FOR SIMILAR EQUIPMENT; THAT SUCH INSPECTION WAS REQUIRED IN IFB NO. F42600-70-B-2606, UNDER WHICH YOU HAVE ALSO SUBMITTED A PROTEST; AND THAT THE SUBJECT MIL INSPECTION REQUIREMENTS WERE INCLUDED IN SUBSEQUENT HILL AIR FORCE BASE CONTRACTS FOR NAVY REQUISITIONS. BECAUSE THE PROPOSALS OF INTERGRAPHIC AND YOUR FIRM WERE EXTREMELY CLOSE AND PRICE NEGOTIATIONS HAD BEEN FORMALLY CLOSED, YOU MAINTAIN THAT DELETION OF THE MIL-I-45208A INSPECTION REQUIREMENT SHOULD NOT HAVE BEEN PERMITTED. SUPPORT OF THIS POSITION, YOU STATE THAT THE PRACTICAL DIFFERENCES BETWEEN THE TWO INSPECTION CLAUSES ARE CLEARLY MINOR; THAT THE CONTRACTING OFFICER USED POOR JUDGMENT BY REOPENING NEGOTIATIONS ON THE BASIS OF A MINOR CHANGE; AND THAT THE PRICE REVISIONS RESULTING FROM REOPENING WERE UNRELATED TO THE CHANGE IN INSPECTION REQUIREMENTS. ALSO, YOU CLAIM THAT HILL AIR FORCE BASE PERSONNEL STATED THAT OOAMA QUALITY CONTROL PERSONNEL OPPOSED THE DELETION AND THAT THE NAVY SUBSEQUENTLY INSISTED ON THE INCLUSION OF THE MIL-I-45208A INSPECTION REQUIREMENT.

THE AIR FORCE HAS ADVISED US THAT WHEN IT WAS DISCOVERED THAT THE PURCHASE REQUEST CONTAINED THE STANDARD ASPR INSPECTION REQUIREMENTS, WHEREAS THE RFP CONTAINED THE MORE RIGID INSPECTION REQUIREMENTS OF MIL I- 45208A, THE AIR FORCE QUALITY ASSURANCE ACTIVITY WHICH ESTABLISHED THE STANDARD ASPR INSPECTION REQUIREMENTS WAS CONTACTED TO DETERMINE IF THE INSPECTION REQUIREMENT SHOULD BE UPGRADED TO MIL-I-45208A. HOWEVER, THAT ACTIVITY REMAINED FIRM IN ITS CONVICTION THAT THE STANDARD ASPR CLAUSE WAS SUFFICIENT AND THAT THE LEVEL OF INSPECTION CONTEMPLATED BY MIL-I-45208A WAS UNNECESSARY FOR THE TABLE COVERED BY THE SUBJECT RFP. SPECIFICALLY, IT IS REPORTED THAT OOAMA QUALITY CONTROL PERSONNEL DID NOT OPPOSE DELETION OF THE MIL-I-45208A INSPECTION REQUIREMENT AND THAT THE PROCURING ACTIVITY IS CURRENTLY IN RECEIPT OF THREE SEPARATE NAVY PURCHASE REQUESTS FOR LIGHT TABLES WHICH SPECIFY THE STANDARD ASPR INSPECTION CLAUSE.

WHILE THIS DISCREPANCY AS TO INSPECTION REQUIREMENTS WAS NOT RESOLVED PRIOR TO THE CUTOFF DATE OF NOVEMBER 28, 1969, THE ACTIONS OF THE PROCURING ACTIVITY IN DELETING THE MORE RIGID INSPECTION REQUIREMENT AND IN REOPENING NEGOTIATIONS ON THE BASIS THAT THE STANDARD ASPR INSPECTION REQUIREMENTS WERE SUFFICIENT CONSTITUTE A PROPER EXERCISE OF NEGOTIATION RESPONSIBLITY. SEE ASPR 3-505 AND 3-805.1(B) AND (E). ALSO, COMPARE 48 COMP. GEN. 583 (1969). MOREOVER, THE DIFFERENCE BETWEEN THE REQUIREMENTS OF THE STANDARD ASPR INSPECTION CLAUSE AND THOSE OF MIL-I-45208A IS NOT MINOR SINCE THE MIL IS A MORE STRINGENT INSPECTION SYSTEM WITH MORE GOVERNMENT CONTROLS HAVING A COST IMPACT ON OFFERS. WHILE WE CANNOT RELATE THE TOTAL PRICE REDUCTION BY INTERGRAPHIC TO THE CHANGE IN INSPECTION REQUIREMENTS, INTERGRAPHIC HAS INDICATED THAT THE REDUCTION IN INSPECTION LEVEL DID ENABLE IT TO REDUCE ITS PRICE.

FOURTH, YOU ARGUE THAT SINCE THERE IS A DIFFERENCE OF LESS THAN $27 BETWEEN THE PRICE QUOTED BY YOUR FIRM AND THAT QUOTED BY INTERGRAPHIC, IT IS CLEAR THAT NO EVALUATION WAS MADE OF THE EQUIPMENTS OFFERED OR TO THE PRIOR PERFORMANCE AND PROVEN CAPABILITY OF YOUR COMPANY IN THE PRODUCTION OF THE EQUIPMENT. WHILE THE AMOUNT OF $36.97 (NOT $27) REPRESENTS A SMALL DIFFERENCE BETWEEN YOUR PRICE PROPOSAL AND THAT OF INTERGRAPHIC, IT WAS THE OPINION OF THE PROCURING ACTIVITY THAT OFFERORS WERE REQUIRED TO MEET ONLY THE REQUIREMENTS OF THE SPECIFICATIONS AND NOT THE OPERATIONAL OR QUALITY CHARACTERISTICS OF A COMPETITOR'S PRODUCT. MOREOVER, THERE WAS NO REASON TO BELIEVE THAT INTERGRAPHIC WOULD NOT PRODUCE AN ACCEPTABLE TABLE SINCE IT HAD SUBMITTED SUFFICIENT TECHNICAL INFORMATION WITH ITS PROPOSAL TO DEMONSTRATE ITS CAPABILITIES TO PRODUCE AN ACCEPTABLE PRODUCT MEETING THE SPECIFICATIONS OF THE RFP. FINALLY, REGARDING THE RFP, YOU ALLEGE THAT YOUR FIRM HAS BEEN DENIED THE OPPORTUNITY TO REVIEW THE DOCUMENTS SUBMITTED BY OFFERORS AND TO INSPECT THE FIRST ARTICLE SUBMITTED FOR TESTING BY INTERGRAPHIC. THE CONTRACTING OFFICER REPORTS THAT BY LETTER DATED JULY 1, 1970, YOUR FIRM WAS ADVISED THAT THE TABLE SUBMITTED BY INTERGRAPHIC FOR FIRST ARTICLE APPROVAL WAS NOT THE PROPERTY OF THE GOVERNMENT AND THAT, THEREFORE, THE PROCURING ACTIVITY WAS NOT AT LIBERTY TO ALLOW YOUR FIRM'S REPRESENTATIVE TO INSPECT IT WHILE IT WAS IN THE ACTIVITY'S POSSESSION UNDERGOING TESTS. YOUR FIRM ALSO WAS ADVISED THAT IF IT WISHED TO PURSUE THE REVIEW MATTER UNDER THE FREEDOM OF INFORMATION ACT, 5 U.S.C. 552, THE SPECIFIC DOCUMENTS DESIRED TO REVIEW SHOULD BE IDENTIFIED SO THAT YOUR REQUEST COULD BE PROCESSED FOR SUBMITTAL TO PROPER AUTHORITY FOR DETERMINATION OF YOUR REVIEW RIGHTS.

IN FURTHER REGARD TO YOUR CONTENTION THAT THE PROCURING ACTIVITY WAS NOT JUSTIFIED IN REOPENING NEGOTIATIONS SUBSEQUENT TO ITS LETTER OF NOVEMBER 12, 1969, ESTABLISHING A CUTOFF DATE OF NOVEMBER 28, 1969, FOR MODIFICATIONS OF PROPOSALS, IT SHOULD BE NOTED THAT 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 CONTRARY TO THE LAW IF THE PROCUREMENT WERE BEING ACCOMPLISHED BY FORMAL ADVERTISING. SEE 47 COMP. GEN. 279, 284 (1967). THEREFORE, SINCE YOUR FIRM WAS GIVEN AN EQUAL OPPORTUNITY TO MODIFY YOUR PROPOSAL, WE WOULD NOT BE JUSTIFIED IN QUESTIONING THE NEGOTIATION PROCEDURES UTILIZED.

YOU ALSO QUESTION THE ADMINISTRATION OF A PROCUREMENT OF A SPECIFIED QUANTITY OF FILM VIEWING LIGHT TABLES UNDER IFB NO. -2606, ISSUED BY THE DIRECTORATE OF PROCUREMENT AND PRODUCTION, OGDEN AIR MATERIEL AREA, HILL AIR FORCE BASE, UTAH.

THE RECORD INDICATES THAT SIX BIDS, INCLUDING ONE FROM YOUR FIRM, WERE RECEIVED IN RESPONSE TO IFB -2606; THAT THE LOWEST BID WAS SUBMITTED BY LASER SCIENCES, INC.; AND THAT CONTRACT NO. F42600-71-C 0119 WAS AWARDED TO LASER ON JULY 15, 1970.

YOU QUESTION THE EXTENSION OF THE BID OPENING DATE FROM MARCH 13, 1970, TO APRIL 9, 1970, BY FOUR SEQUENTIAL AMENDMENTS. THE RECORD SHOWS THAT THE AMENDMENTS WERE ISSUED IN CONSONANCE WITH ASPR 2-208 AS FOLLOWS:

"2-208 AMENDMENT OF INVITATION FOR BIDS.

"(A) IF AFTER ISSUANCE OF AN INVITATION FOR BIDS, BUT BEFORE THE TIME FOR BID OPENING, IT BECOMES NECESSARY TO MAKE CHANGES IN QUANTITY, SPECIFICATIONS, DELIVERY SCHEDULES, OPENING DATES, ETC., OR TO CORRECT A DEFECTIVE OR AMBIGUOUS INVITATION, SUCH CHANGES SHALL BE ACCOMPLISHED BY ISSUANCE OF AN AMENDMENT TO THE INVITATION FOR BIDS, USING STANDARD FORM 30 (SEE 16-101), WHETHER OR NOT A PRE-BID CONFERENCE IS HELD. THE AMENDMENT SHALL BE SENT TO EVERYONE TO WHOM INVITATIONS HAVE BEEN FURNISHED AND SHALL BE DISPLAYED IN THE BID ROOM.

"(B) BEFORE ISSUING AN AMENDMENT TO AN INVITATION FOR BIDS, THE PERIOD OF TIME REMAINING UNTIL BID OPENING AND THE NEED FOR EXTENDING THIS PERIOD BY POSTPONING THE TIME SET FOR OPENING MUST BE CONSIDERED. WHERE ONLY A SHORT TIME REMAINS BEFORE THE TIME SET FOR BID OPENING, CONSIDERATION SHOULD BE GIVEN TO NOTIFYING BIDDERS OF AN EXTENSION OF TIME BY TELEGRAM OR TELEPHONE. SUCH NOTIFICATION SHOULD BE CONFIRMED IN THE AMENDMENT.

"(C) ANY INFORMATION GIVEN TO A PROSPECTIVE BIDDER CONCERNING AN INVITATION FOR BIDS SHALL BE FURNISHED PROMPTLY TO ALL OTHER PROSPECTIVE BIDDERS, AS AN AMENDMENT TO THE INVITATION, WHETHER OR NOT A PRE-BID CONFERENCE IS HELD, IF SUCH INFORMATION IS NECESSARY TO THE BIDDERS IN SUBMITTING BIDS ON THE INVITATION OR IF THE LACK OF SUCH INFORMATION WOULD BE PREJUDICIAL TO UNINFORMED BIDDERS. NO AWARD SHALL BE MADE ON THE INVITATION UNLESS SUCH AMENDMENT HAS BEEN ISSUED IN SUFFICIENT TIME TO PERMIT ALL PROSPECTIVE BIDDERS TO CONSIDER SUCH INFORMATION IN SUBMITTING OR MODIFYING THEIR BIDS."

SINCE THE AMENDMENTS WERE OF THE SUBSTANCE STATED IN THE REGULATIONS, THAT IS, EFFECTING CHANGES IN SPECIFICATIONS OR BID OPENING DATE DUE TO THE POSTAL SLOWDOWN, WE FIND NO BASIS TO QUESTION THE APRIL 9 OPENING DATE.

WHILE YOU MAINTAIN THAT THE LIGHT TABLES SHOULD HAVE BEEN PROCURED UNDER A NEGOTIATED REQUEST FOR PROPOSALS, NO REASONS ARE GIVEN FOR SUCH POSITION. IT IS REPORTED THAT THE TYPE II LIGHT TABLE SPECIFIED IN IFB - 2606 WAS PREVIOUSLY PROCURED UNDER NEGOTIATED RATHER THAN ADVERTISED PROCEDURES BUT THAT SINCE COMPETITIVE PROPOSALS WERE RECEIVED, THE AGENCY BELIEVED THAT THE NEXT REQUIREMENT SHOULD BE PROCURED BY FORMAL ADVERTISING PROCEDURES. WE FIND NO BASIS TO DISAGREE WITH THE USE OF FORMAL ADVERTISING UNDER THESE CIRCUMSTANCES.

UNDER THE IFB, AWARD WAS TO BE MADE TO THE BIDDER WHOSE BID WOULD RESULT IN THE LOWEST ULTIMATE COST TO THE GOVERNMENT AFTER PRICE AND OTHER FACTORS, INCLUDING LOGISTIC COST, ARE CONSIDERED. LOGISTIC AND IMPACT COST FACTORS WERE TO BE DETERMINED ON THE BASIS OF "REAL-COST DATA" FURNISHED BY THE BIDDER. THE DATA SUPPLIED BY LASER WITH ITS BID WAS SUFFICIENT TO ENABLE THE AIR FORCE TO DETERMINE ITS REAL BID COSTS. WHILE THIS REVIEW DELAYED THE AWARD, IT WAS IMPERATIVE, FOR LOGISTIC SUPPORT PURPOSES, TO ASCERTAIN THE COST IMPACT IF THE LASER PRODUCT WAS INTRODUCED INTO THE SYSTEM. SEE, IN THIS REGARD, B 166315, AUGUST 15, 1969.

WE CAREFULLY CONSIDERED YOUR OTHER POINTS OF PROTEST AND WE DO NOT FEEL THAT THEY RELATE TO THE LEGALITY OF THE AWARDS MADE UNDER THE SOLICITATIONS. WE RECOGNIZE THAT THE NEGOTIATED PROCUREMENT INVOLVED CONSIDERABLE DELAYS WITH ATTENDANT DIFFICULTIES AFFECTING ALL PARTIES. HOWEVER, WE FIND NO PATENT IMPROPRIETIES IN THE PROCEDURES FOLLOWED.

FOR THE REASONS SET FORTH ABOVE, YOUR PROTEST IS DENIED.