B-170364(1), APR 13, 1971

B-170364(1): Apr 13, 1971

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PROTESTANT ALLEGED THAT IT WAS DELIBERATELY EXCLUDED FROM BIDDING. THAT INSUFFICIENT COMPETITION WAS OBTAINED FOR PROCUREMENT. THAT AWARD TO COMPANY FOR 120 DAY DELIVERY WAS INCONSISTENT WITH NEED FOR URGENT DELIVERY. NO EVIDENCE EXISTS THAT PROTESTANT WAS PURPOSELY EXCLUDED FROM BIDDING AS FIVE BIDS WERE RECEIVED. THERE WAS ADEQUATE PRICE COMPETITION. IT CAN BE CONCLUDED NONE WERE PREJUDICED THEREBY. TO UNITED UNIVERSAL CORPORATION: REFERENCE IS MADE TO YOUR LETTER OF JULY 15. OF THE RFP PROVIDED THAT DELIVERY OF THE ITEMS WAS REQUIRED WITHIN THIRTY DAYS AFTER DATE OF THE CONTRACT. WHICH WAS CANCELLED IN VIEW OF A PROTEST LODGED BY YOUR CONCERN. AFTER THE AWARD WAS CANCELLED. ADDITIONAL TABLES WERE NEEDED SO THAT THE ACTIVITY DETERMINED THAT A NEW PROCUREMENT SHOULD BE INITIATED.

B-170364(1), APR 13, 1971

BID PROTEST - INSUFFICIENT COMPETITION DENIAL OF PROTEST OF UNITED UNIVERSAL CORP., AGAINST THE AWARD TO TELEDYNE FEDERICK POST COMPANY, UNDER RFP ISSUED BY NAVY REGIONAL PROCUREMENT OFFICE, OAKLAND, CALIF., OF A CONTRACT FOR DRAFTING TABLES. PROTESTANT ALLEGED THAT IT WAS DELIBERATELY EXCLUDED FROM BIDDING, THAT INSUFFICIENT COMPETITION WAS OBTAINED FOR PROCUREMENT, AND THAT AWARD TO COMPANY FOR 120 DAY DELIVERY WAS INCONSISTENT WITH NEED FOR URGENT DELIVERY. NO EVIDENCE EXISTS THAT PROTESTANT WAS PURPOSELY EXCLUDED FROM BIDDING AS FIVE BIDS WERE RECEIVED; THERE WAS ADEQUATE PRICE COMPETITION; AND AS NO OFFEROR PROTESTED AWARD UNDER LONGER SCHEDULE, IT CAN BE CONCLUDED NONE WERE PREJUDICED THEREBY, ALTHOUGH THIS SCHEDULE EFFECTIVELY NEGATED THE 30 DAY DELIVERY DATE AND DIMINISHED THE REQUIREMENT FOR FULL AND EQUAL COMPETITION.

TO UNITED UNIVERSAL CORPORATION:

REFERENCE IS MADE TO YOUR LETTER OF JULY 15, 1970, AND SUBSEQUENT CORRESPONDENCE CONCERNING YOUR PROTEST UNDER REQUEST FOR PROPOSALS (RFP) NO. N66314-70-R-5162, ISSUED BY THE NAVAL REGIONAL PROCUREMENT OFFICE, OAKLAND, CALIFORNIA, ON JUNE 23, 1970, FOR A REQUIREMENT OF DRAFTING TABLES. SECTION 4.2, TIME OF DELIVERY, OF THE RFP PROVIDED THAT DELIVERY OF THE ITEMS WAS REQUIRED WITHIN THIRTY DAYS AFTER DATE OF THE CONTRACT, EXCEPT THAT THE GOVERNMENT RESERVED THE RIGHT TO ACCEPT AN ALTERNATE DELIVERY PERIOD LATER THAN THE REQUIRED DELIVERY SCHEDULE ON THE BASIS OF PRICE.

THE RECORD INDICATES THAT PART OF THE SUBJECT REQUIREMENT HAD BEEN THE BASIS OF AN EARLIER AWARD, DATED MAY 1970, UNDER RFP N00221-70-R 0266, WHICH WAS CANCELLED IN VIEW OF A PROTEST LODGED BY YOUR CONCERN. AFTER THE AWARD WAS CANCELLED, ADDITIONAL TABLES WERE NEEDED SO THAT THE ACTIVITY DETERMINED THAT A NEW PROCUREMENT SHOULD BE INITIATED.

THE SUBJECT REQUIREMENT WAS ASSIGNED A PRIORITY DESIGNATOR 06 BY THE MARE ISLAND NAVAL SHIPYARD UNDER THE UNIFORM MATERIEL MOVEMENT AND ISSUE PRIORITY SYSTEM (UMMIPS) BECAUSE THE DRAFTING TABLES WERE REQUIRED IN CONNECTION WITH A PROJECT OF A CLASSIFIED NATURE WHICH REQUIRED RAPID DEVELOPMENT. IN VIEW THEREOF, AND SINCE DELIVERY WAS REQUIRED BY AUGUST 10, 1970, THE PROCURING ACTIVITY DETERMINED THAT THE PROCUREMENT SHOULD BE NEGOTIATED UNDER THE AUTHORITY OF 10 U.S.C. 2304(A)(2), WHICH PROVIDES THAT SUPPLIES MAY BE PURCHASED BY NEGOTIATION WHEN THE PUBLIC EXIGENCY WILL NOT PERMIT THE DELAY INCIDENT TO ADVERTISING.

THE RECORD INDICATES THAT YOU TELEPHONED THE BUYER FOR THE PROCUREMENT ON JUNE 10, 1970, AND REQUESTED THAT YOUR CONCERN BE ALLOWED TO SUBMIT A PROPOSAL FOR THE REQUIREMENT. YOU WERE INFORMED THAT YOUR FIRM WOULD BE INCLUDED AMONG THOSE SOLICITED FOR THE PROCUREMENT.

ON JUNE 23, 1970, THE PROCURING ACTIVITY SENT THE RFP TO FIFTEEN FIRMS, INCLUDING TWO DISTRIBUTORS OF YOUR FURNITURE, AND INFORMED OFFERORS THAT JULY 2, 1970, WAS THE CLOSING DATE SET FOR RECEIPT OF PROPOSALS. THE PROCUREMENT WAS NOT SYNOPSIZED IN THE COMMERCE DAILY BUSINESS JOURNAL BECAUSE THE TIME PERMITTED FOR RETURN OF THE PROPOSALS WAS LESS THAN 15 DAYS.

ON JUNE 26, 1970, THE NAVAL REGIONAL PROCUREMENT OFFICE RECEIVED A LETTER FROM YOUR CONCERN, IN WHICH YOU STATE THAT YOU AGAIN REQUESTED TO BE ALLOWED TO SUBMIT A PROPOSAL FOR THE PROCUREMENT.

ON JULY 2, 1970, FIVE OFFERS WERE RECEIVED FOR THE REQUIREMENT. SIX COMPANIES, INCLUDING YOUR DISTRIBUTORS, FORWARDED WRITTEN RESPONSES TO THE PROCURING ACTIVITY WHICH INDICATED THAT THEY WERE NOT SUBMITTING PROPOSALS FOR THE PROCUREMENT. NO PROPOSAL WAS RECEIVED FROM YOUR COMPANY.

IN VIEW OF THE NUMBER OF PROPOSALS RECEIVED, THE PROCURING ACTIVITY DETERMINED THAT ADEQUATE COMPETITION HAD BEEN ACHIEVED, AND ON JULY 8, 1970, AWARDED CONTRACT NO. N66314-70-C-5162 TO THE TELEDYNE-FREDERICK POST COMPANY FOR DELIVERY OF THE TABLES WITHIN 120 DAYS.

YOU STATE THAT YOUR CONCERN FAILED TO RECEIVE A PROPOSAL FORM FOR THE PROCUREMENT, DESPITE YOUR REPEATED REQUESTS FOR SUCH DOCUMENT. IN VIEW THEREOF, YOU MAINTAIN THAT THE PROCURING ACTIVITY DELIBERATELY EXCLUDED YOU FROM BIDDING ON THIS PROCUREMENT; THAT SUFFICIENT COMPETITION FOR THE CONTRACT WAS NOT ACHIEVED; AND THAT THE AWARD TO THE COMPANY FOR 120 DAY DELIVERY WAS INCONSISTENT WITH THE ALLEGED NEED FOR URGENT DELIVERY.

THE PROCURING ACTIVITY STATES THAT IT DID NOT DELIBERATELY EXCLUDE YOUR COMPANY FROM SUBMITTING A PROPOSAL UNDER THE PROCUREMENT. IN THIS CONNECTION, IT IS STATED THAT YOUR LETTER OF LATE JUNE 1970, REQUESTING A COPY OF THE RFP HAS NOT BEEN LOCATED AT THE ACTIVITY AND THAT IT MAY HAVE BEEN MISPLACED SINCE IT WAS RECEIVED DURING THE LAST WEEK OF THE FISCAL YEAR, A PERIOD OF PEAK WORKLOAD FOR THE PROCUREMENT OFFICE.

ADDITIONALLY, THE PROCURING ACTIVITY HAS ADVISED US THAT THE BID LIST AND WORKSHEET FORM FOR THE PROCUREMENT CONTAINS THE NAME OF YOUR CONCERN. THE ACTIVITY STATES THAT SUCH ENTRY DOES NOT CONCLUSIVELY INDICATE THAT AN RFP WAS ACTUALLY SENT TO YOUR COMPANY, SINCE A CHECK MARK, SIGNIFYING TRANSMITTAL OF AN RFP BY CLERICAL EMPLOYEES, DOES NOT APPEAR NEXT TO THE NAME OF YOUR CONCERN AS IT DOES FOR ALL OTHER LISTED COMPANIES. NEVERTHELESS, IT WOULD APPEAR THAT THE ENTRY INDICATES AN INTENTION TO COMPLY WITH YOUR REQUEST, SINCE THE ENTRY WAS THE INITIAL STEP FOR TRANSMITTING AN RFP TO YOUR CONCERN FOR THIS PROCUREMENT. IN VIEW THEREOF, AND SINCE THE PROCURING ACTIVITY DID SOLICIT TWO OF YOUR SUPPLIERS FOR THE PROCUREMENT, WE CANNOT CONCLUDE THAT THE ACTIVITY DELIBERATELY DENIED YOUR CONCERN, OR YOUR SUPPLIERS, THE OPPORTUNITY TO SUBMIT PROPOSALS FOR THE REQUIREMENT IN THE MANNER YOU CONTEND. HOWEVER, WE ARE RECOMMENDING TO THE SECRETARY OF THE NAVY THAT GREATER CARE SHOULD BE TAKEN IN FUTURE PROCUREMENTS TO ENSURE THAT SOLICITATIONS ARE FURNISHED TO ALL PROSPECTIVE BIDDERS WHO REQUEST THEM, AND THAT THE STEPS TAKEN IN RESPONSE TO SUCH REQUESTS ARE DOCUMENTED IN THE CONTRACT FILE.

WITH RESPECT TO YOUR COMPLAINT THAT SUFFICIENT COMPETITION WAS NOT OBTAINED FOR THIS PROCUREMENT, THE CONTRACTING OFFICER STATES THAT THERE WAS ADEQUATE PRICE COMPETITION SINCE FIVE OFFERS FROM RESPONSIBLE CONCERNS WERE RECEIVED. IN VIEW THEREOF, AND SINCE TWO OF YOUR DISTRIBUTORS WERE ASKED TO SUBMIT PROPOSALS BUT CHOSE NOT TO QUOTE, WE MUST CONCUR WITH THE CONTRACTING OFFICER'S CONCLUSION.

WITH RESPECT TO YOUR COMPLAINT THAT THE AWARD UNDER THE SUBJECT RFP WAS INCONSISTENT WITH THE ALLEGED NEED FOR URGENT DELIVERY WITHIN 30 DAYS, THE RFP, AS NOTED ABOVE, PROVIDED THAT THE GOVERNMENT COULD ACCEPT A DELIVERY SCHEDULE LATER THAN THE REQUIRED ONE OF 30 DAYS AFTER DATE OF CONTRACT ON THE BASIS OF PRICE. SUCH PROVISION EFFECTIVELY NEGATED THE REQUIRED DELIVERY DATE ESTABLISHED FOR 30 DAYS AFTER AWARD AND DIMINISHED THE REQUIREMENT FOR FULL AND EQUAL COMPETITION FOR THE AWARD. HOWEVER, SINCE NO OFFEROR SUBMITTED A PROTEST CONCERNING THIS SCHEDULE, AND NO OFFEROR WAS APPARENTLY PREJUDICED BY THE FAILURE TO OFFER A LONGER DELIVERY SCHEDULE AT A LOWER PRICE THAN HIS COMPETITORS, WE CANNOT CONCLUDE THAT THE SUBJECT AWARD WAS IMPROPER. HOWEVER, WE ARE RECOMMENDING THAT THE SECRETARY TAKE APPROPRIATE ACTION TO ENSURE THAT FUTURE SOLICITATIONS DO NOT CONTAIN PROVISIONS WHICH RESERVE A RIGHT IN THE GOVERNMENT TO ACCEPT A LATER DELIVERY PERIOD THAN THE REQUIRED DELIVERY SCHEDULE "ON THE BASIS OF PRICE."

FOR THE REASONS SET FORTH ABOVE YOUR PROTEST MUST BE DENIED.