B-170364(2), APR 13, 1971

B-170364(2): Apr 13, 1971

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WHERE AN AWARD IS TO BE BASED ON PRICE. IT IS ESSENTIAL TO THE CONCEPT OF EQUAL COMPETITION THAT THE SOLICITATION SET OUT THE LATEST ACCEPTABLE DELIVERY SCHEDULE. SECRETARY: ENCLOSED IS A COPY OF OUR DECISION OF TODAY. THE CIRCUMSTANCES SURROUNDING THE COMPANY'S ALLEGED FAILURE TO RECEIVE A SOLICITATION FOR THE PROCUREMENT INDICATE THAT GREATER CARE SHOULD BE TAKEN IN FUTURE PROCUREMENTS TO ENSURE THAT BIDDERS' REQUESTS FOR COPIES OF PROCUREMENT FORMS ARE ANSWERED. THAT THE ACTIONS TAKEN IN RESPONSE TO SUCH REQUESTS ARE DOCUMENTED IN THE CONTRACT FILE. THE ACTIVITY CAN NOT AFFIRMATIVELY STATE WHETHER A COPY OF THE RFP WAS ACTUALLY SENT TO THE BIDDER. THE PROCURING ACTIVITY WAS UNABLE TO LOCATE A LETTER DATED JUNE 24.

B-170364(2), APR 13, 1971

BID PROTEST - DELIVERY SCHEDULE - EQUAL COMPETITION IN CONNECTION WITH THE PROTEST OF UNITED UNIVERSAL CORP., AGAINST THE AWARD OF A CONTRACT TO TELEDYNE FREDERICK POST CO., UNDER AN RFP ISSUED BY THE NAVY REGIONAL PROCUREMENT OFFICE, OAKLAND, CALIF., THE COMP. GEN. ADVISES THAT FUTURE SOLICITATIONS SHOULD NOT CONTAIN PROVISIONS WHICH RESERVE THE RIGHT OF THE GOVERNMENT TO ACCEPT A LATER DELIVERY PERIOD THAN THE REQUIRED SCHEDULE "ON THE BASIS OF PRICE". WHERE AN AWARD IS TO BE BASED ON PRICE, RATHER THAN EARLY DELIVERY, IT IS ESSENTIAL TO THE CONCEPT OF EQUAL COMPETITION THAT THE SOLICITATION SET OUT THE LATEST ACCEPTABLE DELIVERY SCHEDULE.

TO MR. SECRETARY:

ENCLOSED IS A COPY OF OUR DECISION OF TODAY, DENYING THE PROTEST OF UNITED UNIVERSAL CORPORATION UNDER REQUEST FOR PROPOSAL (RFP) NO. N66314- 70-R-5162, ISSUED BY THE NAVAL REGIONAL PROCUREMENT OFFICE, OAKLAND, CALIFORNIA.

WHILE WE DENIED THE COMPANY'S PROTEST, THE CIRCUMSTANCES SURROUNDING THE COMPANY'S ALLEGED FAILURE TO RECEIVE A SOLICITATION FOR THE PROCUREMENT INDICATE THAT GREATER CARE SHOULD BE TAKEN IN FUTURE PROCUREMENTS TO ENSURE THAT BIDDERS' REQUESTS FOR COPIES OF PROCUREMENT FORMS ARE ANSWERED, AND THAT THE ACTIONS TAKEN IN RESPONSE TO SUCH REQUESTS ARE DOCUMENTED IN THE CONTRACT FILE.

IN THIS REGARD THE PROCURING ACTIVITY HAS STATED THAT THE PROTESTANT CONTACTED ONE OF THE ACTIVITY'S EMPLOYEES NEARLY TWO WEEKS PRIOR TO THE RELEASE OF THE SUBJECT RFP AND REQUESTED A COPY OF THE SUBJECT SOLICITATION. HOWEVER, THE ACTIVITY CAN NOT AFFIRMATIVELY STATE WHETHER A COPY OF THE RFP WAS ACTUALLY SENT TO THE BIDDER. ADDITIONALLY, THE PROCURING ACTIVITY WAS UNABLE TO LOCATE A LETTER DATED JUNE 24, 1970, IN WHICH THE COMPANY STATES THAT IT AGAIN REQUESTED A COPY OF THE RFP, EVEN THOUGH THE ACTIVITY STATES THAT IT HAS A PHOTOCOPY OF THE CERTIFIED MAIL RECEIPT FOR THE LETTER.

YOUR ATTENTION IS ALSO DIRECTED TO THAT PART OF OUR DECISION WHEREIN WE NOTE THAT THE ALTERNATE DELIVERY PROVISION IN THE RFP EFFECTIVELY NEGATED THE REQUIRED DELIVERY DATE OF 30 DAYS. IN THIS CONNECTION ASPR 1-305.4(C) PROVIDES THAT ALTERNATE DELIVERY PROVISIONS MAY BE USED WHERE DELIVERY BY A CERTAIN TIME IS DESIRED, BUT NOT ESSENTIAL, AND DELIVERY BY A SPECIFIED LATER TIME IS NECESSARY. IN THE SUBJECT CASE BIDDERS WERE NOT INFORMED WHAT DELIVERY DATE WAS ESSENTIAL TO THE GOVERNMENT, THAT IS, A DATE BEYOND WHICH NO BIDDER COULD OFFER DELIVERY WITHOUT HIS OFFER BEING CONSIDERED NONRESPONSIVE. WHERE AN AWARD IS TO BE BASED UPON PRICE, RATHER THAN UPON EARLY DELIVERY, WE BELIEVE IT IS ESSENTIAL TO THE CONCEPT OF EQUAL COMPETITION THAT THE SOLICITATION SET OUT THE LATEST ACCEPTABLE DELIVERY SCHEDULE. WHILE WE CANNOT CONSIDER THE INSTANT CONTRACT TO HAVE BEEN IMPROPERLY AWARDED BECAUSE OF SUCH DEFECT, WE RECOMMEND THAT REMEDIAL ACTION BE TAKEN TO ENSURE THAT FUTURE SOLICITATIONS DO NOT CONTAIN PROVISIONS WHICH RESERVE THE RIGHT OF THE GOVERNMENT TO ACCEPT A LATER DELIVERY PERIOD THAN THE REQUIRED DELIVERY SCHEDULE "ON THE BASIS OF PRICE."