B-170622(2), OCT. 7, 1970

B-170622(2): Oct 7, 1970

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THEREFORE A PROVISION IN A REQUEST FOR PROPOSALS THAT REQUIRES AUTOMATIC REJECTION FOR ANY DEVIATIONS IS TOO INFLECIBLE AND SHOULD BE REVISED. SECRETARY: REFERENCE IS MADE TO THE LETTER OF SEPTEMBER 11. WE ARE ENCLOSING A COPY OF OUR DECISION OF TODAY DENYING NORTHROP'S PROTEST. STATES THAT AN OFFER WHICH DEVIATES FROM THE REQUIRED DELIVERY SCHEDULE WILL BE REJECTED AS NONRESPONSIVE. 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 A RADICAL VIOLATION OF THE LAW IF THE PROCUREMENT WERE BEING ACCOMPLISHED BY FORMAL ADVERTISING. *** " THE REQUIREMENT IN 10 U.S.C. 2304(G). FOR NEGOTIATING WITH ALL OFFERORS WITHIN A COMPETITIVE RANGE IS APPLICABLE TO PROCUREMENTS NEGOTIATED UNDER THE AUTHORITY OF 10 U.S.C. 2304(A)(2).

B-170622(2), OCT. 7, 1970

BID PROTEST - DEVIATIONS - DELIVERY SCHEDULE LETTER TO SECRETARY OF THE NAVY ADVISING THAT OFFER WHICH DEVIATES FROM THE REQUIRED DELIVERY SCHEDULE MAY NOT NECESSARILY BE OUT OF COMPETITIVE RANGE, THEREFORE A PROVISION IN A REQUEST FOR PROPOSALS THAT REQUIRES AUTOMATIC REJECTION FOR ANY DEVIATIONS IS TOO INFLECIBLE AND SHOULD BE REVISED.

TO MR. SECRETARY:

REFERENCE IS MADE TO THE LETTER OF SEPTEMBER 11, 1970, FROM THE DEPUTY COMMANDER, PURCHASING, REFERENCE: 0232, DEPARTMENT OF THE NAVY, FURNISHING OUR OFFICE WITH A REPORT ON THE PROTEST FROM NORTHROP CAROLINA, INCORPORATED, AGAINST THE AWARD OF A CONTRACT UNDER REQUEST FOR PROPOSALS NO. N00104-70-R-2535(21.5). WE ARE ENCLOSING A COPY OF OUR DECISION OF TODAY DENYING NORTHROP'S PROTEST.

PARAGRAPH 6.73 OF THE "TIME OF DELIVERY" PROVISION IN THE RFP, STATES THAT AN OFFER WHICH DEVIATES FROM THE REQUIRED DELIVERY SCHEDULE WILL BE REJECTED AS NONRESPONSIVE. WE INVITE YOUR ATTENTION TO A STATEMENT IN 47 COMP. GEN. 279, 284 (1967), AS FOLLOWS:

" *** 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 A RADICAL VIOLATION OF THE LAW IF THE PROCUREMENT WERE BEING ACCOMPLISHED BY FORMAL ADVERTISING. *** "

THE REQUIREMENT IN 10 U.S.C. 2304(G), FOR NEGOTIATING WITH ALL OFFERORS WITHIN A COMPETITIVE RANGE IS APPLICABLE TO PROCUREMENTS NEGOTIATED UNDER THE AUTHORITY OF 10 U.S.C. 2304(A)(2). IN CONNECTION WITH WHAT CONSTITUTES A COMPETITIVE RANGE THE RULE IS THAT A PROPOSAL MUST BE CONSIDERED TO BE WITHIN A COMPETITIVE RANGE UNLESS IT IS SO TECHNICALLY INFERIOR OR OUT OF LINE WITH REGARD TO PRICE THAT MEANINGFUL NEGOTIATIONS ARE PRECLUDED. SEE 48 COMP. GEN. 314 (1968).

THE STANDARD WHICH PARAGRAPH 6.73 SEEMS TO IMPOSE IS THAT ANY DEVIATION FROM THE REQUIRED DELIVERY SCHEDULE WILL MAKE AN OFFER NONRESPONSIVE AND REQUIRE REJECTION OF THE OFFER. IT DOES NOT AUTOMATICALLY FOLLOW THAT IF AN OFFEROR'S PROPOSED DELIVERY SCHEDULE DEVIATES FROM THE REQUIRED SCHEDULE, THIS MEANS THAT THE OFFEROR CANNOT MEET THE REQUIRED SCHEDULE. FOR EXAMPLE IN THE SITUATION WHERE THE LOW OFFEROR'S PROPOSED DELIVERY SCHEDULE DEVIATES FROM THE REQUIRED DELIVERY SCHEDULE, NEGOTIATIONS WITH SUCH AN OFFEROR MIGHT REVEAL THAT THE OFFEROR WOULD FURNISH THE ITEMS WITHIN THE REQUIRED PERIOD AT A HIGHER PRICE THAN THAT QUOTED IN THE INITIAL OFFER, WHICH MIGHT STILL BE LOW COMPARED TO OTHER OFFERS. THE PURPOSE OF THIS DISCUSSION IS TO INDICATE THAT AN OFFER WHICH DEVIATES FROM THE REQUIRED DELIVERY SCHEDULE MAY NOT NECESSARILY BE OUT OF THE COMPETITIVE RANGE. IT SEEMS THAT PARAGRAPH 6.73 IN ITS PRESENT FORM IS TOO INFLEXIBLE IN AUTOMATICALLY REQUIRING REJECTION OF AN OFFER FOR ANY DEVIATION FROM THE REQUIRED DELIVERY SCHEDULE.

AS INDICATED IN OUR DECISION TO NORTHROP, IT IS OUR VIEW THAT THE REJECTION OF THIS OFFER WITHOUT NEGOTIATIONS WAS PROPER IN THIS CASE SINCE THE RECORD INDICATED THAT IN ANY EVENT THIS OFFEROR WOULD NOT BE ABLE TO MEET THE REQUIRED SCHEDULE.

WE ARE RETURNING ENCLOSURE (5), SUBMITTED WITH THE REPORT FROM YOUR DEPARTMENT.