B-171232, FEB 10, 1971, 50 COMP GEN 547

B-171232: Feb 10, 1971

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THE OTHER FROM A CONCERN WHOSE PROPOSAL UNDER THE AMENDMENT WAS AN INITIAL OFFER WHICH IS BEING CONSIDERED FOR PARTIAL AWARD OF A PROPOSED LOW COMBINATION AWARD - WILL NOT BE QUESTIONED. UNTIMELY SUBMITTED INITIAL PROPOSALS WILL NOT BE ADMITTED INTO THE AWARD COMPETITION. 1971: REFERENCE IS MADE TO A LETTER DATED JANUARY 5. IT WAS PROPOSED TO MAKE AWARDS TO AT LEAST TWO SOURCES OF SUPPLY WHICH QUALIFIED AS SMALL BUSINESS CONCERNS AND QUOTED ON VARIOUS SPECIFIED ALTERNATE QUANTITIES OF 60 MM. AMENDMENT NO. 0001 WAS ISSUED TO CHANGE THE REQUIREMENT TO A QUANTITY OF 4. SUBMITTED A LATE PROPOSAL AND WAS INFORMED BY THE PROCURING ACTIVITY THAT THE PROPOSAL WOULD NOT BE CONSIDERED FOR AWARD. THE 18 RESPONDING FIRMS WERE ADVISED THAT NEGOTIATIONS WOULD BE CONDUCTED UNTIL AUGUST 25.

B-171232, FEB 10, 1971, 50 COMP GEN 547

CONTRACTS - NEGOTIATION - LATE PROPOSALS AND QUOTATIONS - ACCEPTANCE IN GOVERNMENT'S INTEREST THE PROPRIETY OF CONSIDERING TWO PROPOSALS UNDER AN AMENDMENT TO A SMALL BUSINESS SET-ASIDE FOR FIN ASSEMBLIES THAT CHANGED QUANTITIES AND DELIVERY RATES - ONE PROPOSAL FROM A CONCERN WHOSE LATE OFFER HAD BEEN REJECTED, THE OTHER FROM A CONCERN WHOSE PROPOSAL UNDER THE AMENDMENT WAS AN INITIAL OFFER WHICH IS BEING CONSIDERED FOR PARTIAL AWARD OF A PROPOSED LOW COMBINATION AWARD - WILL NOT BE QUESTIONED. THE TWO LATE OFFERORS HAVING EXPENDED CONSIDERABLE TIME AND EFFORT IN COMPETING FOR THE PROCUREMENT, AND THE URGENT NEED FOR THE SUPPLIES NOT WARRANTING THE REOPENING OF THE NEGOTIATIONS, THE DESIRABILITY OF APPLYING THE LATE BID CONCEPT TO THE NEGOTIATING AREA IN THESE CIRCUMSTANCES APPEARS APPROPRIATE EVEN THOUGH, GENERALLY, UNTIMELY SUBMITTED INITIAL PROPOSALS WILL NOT BE ADMITTED INTO THE AWARD COMPETITION.

TO THE SECRETARY OF THE ARMY, FEBRUARY 10, 1971:

REFERENCE IS MADE TO A LETTER DATED JANUARY 5, 1971, AMCGC-P, FROM THE ARMY MATERIAL COMMAND, CONCERNING REQUEST FOR PROPOSALS NO. DAAA09 71-R- 0024, DATED JULY 24, 1970, A TOTAL SMALL BUSINESS SET-ASIDE ISSUED BY THE ARMY AMMUNITION PROCUREMENT AND SUPPLY AGENCY, JOLIET, ILLINOIS. IT WAS PROPOSED TO MAKE AWARDS TO AT LEAST TWO SOURCES OF SUPPLY WHICH QUALIFIED AS SMALL BUSINESS CONCERNS AND QUOTED ON VARIOUS SPECIFIED ALTERNATE QUANTITIES OF 60 MM, M2, FIN ASSEMBLIES.

THE REQUEST FOR PROPOSALS ORIGINALLY SPECIFIED A REQUIREMENT FOR 4,950,000 UNITS. ON AUGUST 7, 1970, AMENDMENT NO. 0001 WAS ISSUED TO CHANGE THE REQUIREMENT TO A QUANTITY OF 4,050,000 UNITS, TO BE DELIVERED AT A RATE OF 450,000 UNITS PER MONTH OVER A 9-MONTH PERIOD. ON AUGUST 14, 1970, 18 FIRMS RESPONDED WITH TIMELY PROPOSALS; ONE FIRM, R. L. POHLMAN COMPANY, SUBMITTED A LATE PROPOSAL AND WAS INFORMED BY THE PROCURING ACTIVITY THAT THE PROPOSAL WOULD NOT BE CONSIDERED FOR AWARD.

ON AUGUST 19, 1970, THE 18 RESPONDING FIRMS WERE ADVISED THAT NEGOTIATIONS WOULD BE CONDUCTED UNTIL AUGUST 25, 1970 (R. L. POHLMAN COMPANY WAS NOT INVITED TO PARTICIPATE IN THOSE NEGOTIATIONS). WHILE THE FINAL OFFERS SUBMITTED ON AUGUST 25, 1970, WERE BEING CONSIDERED AND EVALUATED, THE PROCURING OFFICE WAS ADVISED BY THE ARMY MUNITIONS COMMAND THAT THE PREVIOUSLY REPORTED REQUIREMENT FOR 4,050,000 UNITS WAS BEING REVIEWED AND WAS SUBJECT TO CHANGE. IT WAS THEN DETERMINED THAT A TOTAL QUANTITY OF 4,164,400 UNITS WOULD BE REQUIRED. IN ACCORDANCE WITH THIS DETERMINATION, AMENDMENT NO. 0002 TO THE REQUEST FOR PROPOSALS WAS ISSUED SEPTEMBER 23, 1970, SPECIFYING 4,164,400 UNITS, TO BE DELIVERED AT A RATE OF 400,000 UNITS PER MONTH OVER AN 11 MONTH PERIOD COMMENCING FEBRUARY 1971, BASED UPON THE ASSUMPTION THAT AWARDS WOULD BE MADE BY OCTOBER 30, 1970. THE ALTERNATE A THROUGH E QUANTITIES WOULD PERMIT COMBINATION AWARDS TOTALING 4,164,400 UNITS, SUCH AS AWARDS TO TWO CONCERNS OFFERING TO FURNISH THE ALTERNATE C QUANTITY OF 2,082,200 UNITS, OR AWARDS TO TWO CONCERNS, ONE QUOTING ON THE ALTERNATE A QUANTITY OF 1,064,400 UNITS, AND THE OTHER QUOTING ON THE ALTERNATE E QUANTITY OF 3,100,000 UNITS.

AMENDMENT NO. 0002 WAS SENT TO THE ORIGINAL 18 OFFERORS, WITH INSTRUCTIONS TO SUBMIT FINAL REVISED PROPOSALS BY OCTOBER 2, 1970, FOR AWARDS BY OCTOBER 30, 1970. ON OCTOBER 2, 1970, 16 PROPOSALS WERE RECEIVED, 15 OF WHICH WERE FROM FIRMS THAT HAD RESPONDED TO THE BASIC REQUEST FOR PROPOSALS. IN ADDITION, AN OFFER WAS RECEIVED FROM STILE CRAFT MANUFACTURERS, INCORPORATED, A FIRM THAT HAD NOT RESPONDED TO THE BASIC SOLICITATION. STILE-CRAFT SUBMITTED A COMPLETE PROPOSAL ON OCTOBER 2, 1970, WITH A TRANSMITTAL LETTER STATING THAT IT HAD RECEIVED THE PROCUREMENT PACKAGE IN EARLY AUGUST 1970, BUT DID NOT HAVE SUFFICIENT TIME TO REPLY BY AUGUST 14, 1970.

THE OCTOBER 2 PROPOSAL SUBMITTED BY STILE-CRAFT WAS EVALUATED LOW, BASED ON AWARD OF ONE ALTERNATE TO STILE-CRAFT AND ANOTHER ALTERNATE TO UNECO MANUFACTURING COMPANY. THE CONTRACTING OFFICER DECIDED THAT IT WAS PROPER TO INCLUDE STILE-CRAFT IN THE AWARD CONSIDERATION, ALTHOUGH THAT COMPANY HAD NOT PARTICIPATED IN THE INITIAL PROPOSAL SUBMISSION. HOWEVER, THE CONTRACTING OFFICER DECIDED THAT IT WAS ALSO PROPER TO REOPEN NEGOTIATIONS IN ORDER TO INCLUDE R. H. POHLMAN COMPANY, THE INITIAL LATE PROPOSER, IN THE NEGOTIATIONS FOR THE REVISED (AMENDMENT NO. 0002) QUANTITIES.

ACCORDINGLY, NEGOTIATIONS WERE REOPENED OCTOBER 5, 1970, AND CLOSED OCTOBER 9, 1970. THIS TIME BOTH STILE-CRAFT AND POHLMAN WERE INVITED TO PARTICIPATE IN THE NEGOTIATIONS. OFFERED PROPOSALS WERE REEVALUATED, AND IT WAS DETERMINED THAT THE GOVERNMENT'S BEST INTERESTS WOULD BE SERVED BY MAKING AWARDS FOR THE SAME ALTERNATES TO STILE-CRAFT AND UNECO.

BY OCTOBER 22, 1970, PRE-AWARD SURVEYS HAD BEEN COMPLETED ON BOTH STILE- CRAFT AND UNECO IN ANTICIPATION OF COMPLETING AWARD ACTION BY OCTOBER 30, 1970. HOWEVER, ON OCTOBER 22, 1970, MR. F. G. ARKOOSH, PRESIDENT, WILKINSON MANUFACTURING COMPANY, A CURRENT SUPPLIER FOR THE M2 FIN ASSEMBLY AND A COMPETITOR ON THIS PROCUREMENT, CONTACTED THE PURCHASING OFFICE AND INDICATED THAT HE WANTED TO REOPEN NEGOTIATIONS, SINCE HE CONCLUDED THAT HIS FIRM WAS NOT LOW. ON THE SAME DAY, MR. ARKOOSH SENT A TELETYPE TO THE PURCHASING OFFICE OFFERING TO REDUCE WILKINSON'S UNIT PRICE ON THE ALTERNATE PROPOSED FOR AWARD TO UNECO.

BASED ON THE OFFERED REDUCTION, THE CONTRACTING OFFICER DETERMINED THAT WILKINSON WOULD BE LOW ON THAT ALTERNATE. HE THEREUPON REOPENED NEGOTIATIONS OCTOBER 27, 1970, FOR A PERIOD 7 DAYS, UNTIL NOVEMBER 3, 1970.

ON NOVEMBER 5, 1970, AFTER EVALUATION OF THE LATEST "BEST AND FINAL" OFFERS, A TELETYPE WAS SENT BY THE PURCHASING OFFICE TO ALL THE APPARENTLY UNSUCCESSFUL OFFERORS, LISTING WILKINSON AND STILE-CRAFT AS THE "APPARENTLY SUCCESSFUL OFFERORS" IN ACCORDANCE WITH ARMED SERVICES PROCUREMENT REGULATION (ASPR) 3-508.2(B) FOR NEGOTIATED SMALL BUSINESS SET -ASIDE AWARDS.

ON NOVEMBER 13, 1970, HOWEVER, MR. ARKOOSH, PRESIDENT OF WILKINSON, ALLEGED A MISTAKE IN COMPUTING ITS UNIT PRICE ON THE ALTERNATE ON WHICH THE FIRM WAS LOW. MR. ARKOOSH ADVISED THAT THE PRICE SHOULD BE INCREASED BY $0.05 PER UNIT, WHICH WOULD BRING ITS UNIT PRICE TO THE FIGURE WILKINSON HAD QUOTED IN ITS PRIOR PROPOSALS ON THAT ALTERNATE. WORKSHEETS WERE FURNISHED SHOWING THAT A MATERIAL COST FIGURE OF $0.03740 USED IN COMPUTING WILKINSON'S PRICE IN THE OCTOBER 1970 ROUND OF NEGOTIATIONS HAD BEEN COMPUTED AT $0.003740 IN ARRIVING AT ITS LATEST REDUCED PRICE. QUOTE FROM THE MATERIAL SUPPLIER WAS ALSO FURNISHED TO THE CONTRACTING OFFICER. MR. ARKOOSH STATED THAT THE PRIOR QUOTED PRICE REPRESENTED ONLY THE BASIC COST OF THE ITEM AND THAT WILKINSON COULD NOT ACCEPT A CONTRACT AT THE LOWER FIGURE. THE RECORD SHOWS THAT EVEN AT THE HIGHER PRICE, WILKINSON AND STILE-CRAFT WOULD STILL BE THE LOWEST COMBINATION.

IN THE MEANTIME, WE WERE REQUESTED TO CONDUCT AN INVESTIGATION OF THE AWARD SELECTION PROCEDURES FOLLOWED ON THIS PROCUREMENT. IN THIS REGARD, WE WERE SPECIFICALLY REQUESTED TO CONSIDER THE QUESTION WHETHER BOTH STILE -CRAFT AND WILKINSON ARE ELIGIBLE SMALL BUSINESS CONCERNS. ALSO, A QUESTION WAS RAISED WHETHER AN OFFICIAL OF WILKINSON WAS A FORMER CONTRACTING OFFICER AT THE JOLIET, ILLINOIS, PROCUREMENT OFFICE AND, IF SO, WHETHER THERE WERE GROUNDS FOR SUSPECTING THAT HIS FIRM RECEIVED PREFERENTIAL TREATMENT ON THIS PROCUREMENT. FINALLY, WE WERE ASKED TO CONSIDER WHETHER THE PURPOSE OF THE PROCUREMENT, TO MAINTAIN AT LEAST TWO SOURCES OF SUPPLY, WOULD BE FRUSTRATED BY THE FACT THAT THE TWO PROSPECTIVE CONTRACTORS ARE PLANNING TO SUBCONTRACT TO EACH OTHER. WERE ADVISED THAT STILE-CRAFT HAS BEEN THE PRINCIPAL SUBCONTRACTOR FOR WILKINSON ON THIS ITEM IN THE PAST, AND IT WAS SUGGESTED THAT IF, FOR ANY REASON, ONE OF THESE COMPANIES COULD NOT PERFORM, NEITHER OF THESE COMPANIES WOULD BE ABLE TO PERFORM ON THIS CONTRACT.

THE RECORD SHOWS THAT BY LETTERS OF NOVEMBER 10, 1970, AND DECEMBER 3, 1970, RESPECTIVELY, THE SMALL BUSINESS ADMINISTRATION REGIONAL OFFICERS CONCERNED DETERMINED THAT BOTH STILE-CRAFT AND WILKINSON ARE ELIGIBLE SMALL BUSINESS CONCERNS FOR THIS PROCUREMENT. UNDER 15 U.S.C. 637(B)(6) SUCH DETERMINATIONS ARE BINDING ON OUR OFFICE.

AS TO WHETHER AN OFFICIAL OF WILKINSON WAS A FORMER CONTRACTING OFFICER AT THE JOLIET PROCUREMENT INSTALLATION, THE FILE CONTAINS A LETTER DATED NOVEMBER 27, 1970, FROM MR. FRED G. ARKOOSH, IN WHICH HE STATES THAT TO THE BEST OF HIS KNOWLEDGE NEITHER HE NOR ANY OTHER EMPLOYEE OF WILKINSON HAS EVER WORKED FOR THE UNITED STATES ARMY AMMUNITION PROCUREMENT (APSA) AND SUPPLY AGENCY; THAT MR. ARKOOSH WHILE SERVING ON ACTIVE DUTY WAS ASSIGNED TO THE ST. LOUIS ORDNANCE DISTRICT, BUT THAT HIS SERVICE WAS COMPLETED IN 1946. THE FILE ALSO CONTAINS A STATEMENT FROM THE CONTRACTING OFFICER THAT: "IN NO WAY OR AT ANY TIME HAS WILKINSON MFG. CO. RECEIVED ANY SPECIAL OR PREFERENTIAL TREATMENT. ALL OFFERORS HAVE BEEN TREATED IN THE SAME MANNER."

WITH REGARD TO THE RELATIONSHIP BETWEEN STILE-CRAFT AND WILKINSON, THE CONTRACTING OFFICER REPORTS IT IS TRUE THAT WILKINSON DOES INTEND TO PURCHASE CARTRIDGE HOUSINGS FROM STILE-CRAFT AND STILE-CRAFT DOES INTEND TO PURCHASE FINS FROM WILKINSON. BASED ON HIS INVESTIGATION, THE CONTRACTING OFFICER HAS CONCLUDED THAT STILE-CRAFT IS CAPABLE OF MANUFACTURING THE FINS IN-HOUSE, AND THAT WILKINSON CAN PURCHASE THE CARTRIDGE HOUSING FROM AN ALTERNATE SOURCE, R. L. POHLMAN.

THE CONTRACTING OFFICER RECOMMENDS THAT IMMEDIATE AWARDS BE MADE. HOWEVER, HE REQUESTS A DECISION AS TO WHETHER THE ALTERNATE IN QUESTION MAY BE AWARDED TO WILKINSON AND, IF SO, AT WHAT PRICE.

YOUR DEPUTY GENERAL COUNSEL (AMC) RECOMMENDS AGAINST ANY AWARD ON THE ALTERNATE TO WILKINSON. HE STATES THAT THE EVIDENCE OF MISTAKE HAS BEEN EXAMINED AND THAT, IN HIS OPINION, THE OFFEROR HAS NOT CLEARLY AND CONVINCINGLY ESTABLISHED HIS INTENDED PRICE SO AS TO PERMIT CORRECTION, AND THEREFORE THAT THE PROPOSAL SHOULD BE DISREGARDED. THIS OPINION WAS CONFIRMED BY MEMORANDUM OF FEBRUARY 1, 1971.

COUNSEL WOULD PERMIT AWARD TO STILE-CRAFT UNDER THIS PROCUREMENT, ALTHOUGH HE BELIEVES THAT THE CONTRACTING OFFICER ERRED IN PERMITTING STILE-CRAFT AND POHLMAN TO PARTICIPATE IN THE PROCUREMENT AFTER ISSUANCE OF THE SECOND AMENDMENT, SINCE NEITHER OF THESE FIRMS HAD SUBMITTED TIMELY INITIAL PROPOSALS. HE STATES THAT WHILE HE IS AWARE OF GAO DECISIONS SANCTIONING REOPENING OF NEGOTIATIONS UPON RECEIPT OF LATE MODIFICATIONS OFFERING SIGNIFICANT REDUCTIONS IN PRICES, HE IS NOT AWARE OF ANY DECISION PERMITTING CONSIDERATION OF A PROPOSAL NOT SUBMITTED INITIALLY IN A TIMELY MANNER. BUT HE ALSO POINTS OUT THAT AN ARGUMENT CAN BE MADE THAT THE SECOND AMENDMENT, WHICH CHANGED QUANTITIES AND DELIVERY DATES, WAS IN THE NATURE OF A NEW PROCUREMENT, THUS JUSTIFYING ACCEPTANCE OF WHAT WERE ORDINARILY LATE PROPOSALS. COUNSEL FEELS THAT WHETHER THIS ARGUMENT HAS MERIT OR NOT, IT IS NOW TOO LATE IN THE PROCUREMENT PROCESS TO REFUSE TO CONSIDER THESE TWO PROPOSALS, AND HE RECOMMENDS THAT THEY BE PERMITTED TO CONTINUE TO COMPETE IN THE PROCUREMENT.

IN THIS CONNECTION, HE SUGGESTS THE POSSIBILITY OF REOPENING NEGOTIATIONS WITH ALL COMPETITORS ONE FINAL TIME WITH A SHORT CLOSING DATE. HOWEVER, HE RECOMMENDS AGAINST THIS COURSE OF ACTION ON THE BASIS THAT THE IDENTITY OF THE LOW OFFERORS HAS BEEN DISCLOSED AND TO REOPEN NEGOTIATIONS AT THIS POINT WOULD BE TANTAMOUNT TO CONDUCTING AN AUCTION. HE ALSO FEELS THAT THE AWARD HAS ALREADY BEEN LONG DELAYED AND THAT THE OTHER OFFEROR (STILE- CRAFT), WHO WOULD BE IN LINE FOR AN AWARD BUT FOR THE ALLEGATION OF MISTAKE BY A COMPETITOR, COULD PROPERLY CLAIM PREJUDICE. ACCORDINGLY, COUNSEL PROPOSES THAT THE CONTRACTING OFFICER DISREGARD WILKINSON'S OFFER ON THE ALTERNATE ON WHICH IT ALLEGED MISTAKE AND MAKE IMMEDIATE AWARDS ON THE BASIS OF THE NEXT LOW COMBINATION. OUR DECISION ON THE MATTER IS REQUESTED.

IN VIEW OF THE URGENT NEED FOR THIS PROCUREMENT, WE AGREE THAT IMMEDIATE AWARDS SHOULD BE MADE. WE MUST RECOGNIZE THAT THE PRIME PURPOSE OF THE PROCUREMENT PROCESS IS TO SATISFY THE GOVERNMENT'S REQUIREMENTS FOR SUPPLIES AND SERVICES IN A TIMELY AND EFFECTIVE MANNER. TO CONTINUE TO CONDUCT ADDITIONAL ROUNDS OF NEGOTIATIONS TO THE POINT WHERE THE TIMELINESS OF THE PROCUREMENT IS ADVERSELY AFFECTED DOES NOT APPEAR TO BE IN THE GOVERNMENT'S BEST INTERESTS. WE THEREFORE AGREE THAT A FURTHER ROUND OF NEGOTIATIONS SHOULD NOT BE HELD AT THIS POINT. WE ALSO AGREE THAT CORRECTION SHOULD NOT BE PERMITTED ON THE WILKINSON PROPOSAL ON THE BASIS THAT THE STANDARDS FOR PERMITTING CORRECTION HAVE NOT BEEN MET.

REGARDING THE PROPOSALS SUBMITTED BY STILE-CRAFT AND POHLMAN, COUNSEL'S ANALYSIS OF OUR PRIOR DECISIONS IS CORRECT. WHILE WE HAVE SANCTIONED OPENING OF NEGOTIATIONS UPON RECEIPT OF LATE MODIFICATIONS OFFERING SIGNIFICANT REDUCTIONS IN PRICES, WE HAVE NOT RULED ON THE QUESTION OF PERMITTING CONSIDERATION OF PROPOSALS NOT SUBMITTED INITIALLY IN A TIMELY MANNER. THUS IN 47 COMP. GEN. 279 (1967) WE CRITICIZED THE REFUSAL OF A CONTRACTING OFFICER TO ENTER INTO NEGOTIATIONS WHEN HE HAD THE OPPORTUNITY TO DO SO AND WAS OFFERED A PRICE IN A LATE MODIFICATION CONSIDERABLY BELOW THE PRICE HE INTENDED TO ACCEPT. IN THAT CASE, HOWEVER, THE OFFEROR QUOTING THE LOWER PRICE HAD SUBMITTED A TIMELY INITIAL PROPOSAL; AND OUR DECISION WAS BASED ON THE CONCEPT THAT THE SIGNIFICANTLY LOWER, ALBEIT LATE, MODIFICATION CAST SUBSTANTIAL DOUBT THAT AWARD WITHOUT DISCUSSION WOULD RESULT IN FAIR AND REASONABLE PRICES WITHIN THE PROVISO OF 10 U.S.C. 2304(G).

AS YOU KNOW, THE LATE BID CONCEPT WHICH IMPLIES THE ESTABLISHMENT OF DEFINITE CUT-OFF POINTS HAS BEEN APPLIED BY THE DEPARTMENT OF DEFENSE TO THE COMPETITIVE NEGOTIATING AREA FOR A NUMBER OF YEARS. ASPR 3-506. (THE INSTANT RFP INCLUDES THE STANDARD LATE BID CLAUSE AT ASPR 2 306.) OUR OFFICE HAS NEVER DISAPPROVED OF THE USE OF A LATE BID CLAUSE IN COMPETITIVE NEGOTIATED PROCUREMENTS. IN FACT, WE HAVE RECOGNIZED THE DESIRABILITY OF TRANSLATING THE LATE BID CONCEPT TO THE NEGOTIATING AREA IN APPROPRIATE CIRCUMSTANCES. SEE B-161782, MARCH 25, 1968. ALTHOUGH ASPR 3-506(C) RECOGNIZES AN EXCEPTION TO THE LATE BID RULE WHERE IT IS DETERMINED THAT CONSIDERATION OF A LATE PROPOSAL IS OF EXTREME IMPORTANCE TO THE GOVERNMENT, THE CONTRACTING OFFICER IS REQUIRED IN SUCH CASES TO RESOLICIT ALL RESPONSIBLE FIRMS WHO HAVE SUBMITTED PROPOSALS. ASPR 3- 506(C). GENERALLY, HOWEVER, OFFERORS WHO HAVE FAILED TO SUBMIT TIMELY INITIAL PROPOSALS WILL NOT BE ADMITTED INTO THE AWARD COMPETITION. THINK THIS IS A NECESSARY RULE FROM AN ADMINISTRATIVE STANDPOINT. AWARD SELECTION COULD NOT PROCEED IN AN ORDERLY FASHION IF CONTRACTING OFFICERS WERE CONSTANTLY REQUIRED TO CONSIDER NEW INITIAL PROPOSALS AT VARIOUS STAGES OF THE COMPETITION. THERE IS ALSO THE CONSIDERATION OF FAIRNESS TO THE COMPETING OFFERORS WHO HAVE SUBMITTED TIMELY PROPOSALS.

OF COURSE, AS YOUR COUNSEL SUGGESTS, THE ARGUMENT CAN BE MADE IN THIS CASE THAT THE SECOND AMENDMENT, WHICH CHANGED QUANTITIES AND DELIVERY RATES, WAS IN THE NATURE OF A NEW PROCUREMENT. IN ANY EVENT, THE CONTRACTING OFFICER PERMITTED BOTH STILE-CRAFT AND POHLMAN TO PARTICIPATE IN THE PROCUREMENT, AND UNDOUBTEDLY BY THIS TIME THEY HAVE EXPENDED MUCH TIME AND EFFORT IN THE COMPETITION. IN THE CIRCUMSTANCES, WE THINK THAT THESE FIRMS SHOULD BE CONSIDERED FOR AWARD.

ACCORDINGLY, WE BELIEVE THAT AWARDS SHOULD BE MADE ON THE NEXT LOW COMBINATION AS PROPOSED BY YOUR COUNSEL. WE UNDERSTAND THAT THIS WILL RESULT IN AWARDS TO STILE-CRAFT AND DELTA MANUFACTURING COMPANY. THEREFORE, WE SEE NO NEED TO CONSIDER THE QUESTION WHETHER AWARDS TO BOTH STILE-CRAFT AND WILKINSON WOULD FRUSTRATE THE STATED PURPOSE OF THE PROCUREMENT TO MAINTAIN AT LEAST TWO INDEPENDENT SOURCES OF SUPPLY FOR THE ITEM.

INDIVIDUAL PRICES ARE NOT STATED HEREIN BECAUSE OF THE RESTRICTIONS PLACED UPON THE PUBLIC DISCLOSURE OF PRICES QUOTED BY OFFERORS DURING THE NEGOTIATION OF A PROCUREMENT.