B-171482, MAR 17, 1971

B-171482: Mar 17, 1971

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ALTHOUGH OCEAN DATA WAS GIVEN MORE OPPORTUNITIES TO REDUCE ITS PRICE PROPOSALS THAN TOLIS CAIN. THE TWO COMPETITIVELY SITUATED OFFERORS WERE APPRISED OF THE COMMON CUT-OFF DATE. THE DISCLOSURE OF PRICING INFORMATION TO TOLIS CAIN DURING THE COURSE OF NEGOTIATIONS WHILE IMPROPER WAS NOT PREJUDICIAL. THE RFP WAS ISSUED ON NOVEMBER 24. WHICH AUTHORIZES THE NEGOTIATION OF CONTRACTS WHERE THE PUBLIC EXIGENCY WILL NOT PERMIT THE DELAY INCIDENT TO FORMAL ADVERTISING. THE COURSE OF THE PROCUREMENT CAN BE SUMMARIZED FROM THE BNDD REPORT ON THE PROTEST SUBMITTED TO OUR OFFICE AS FOLLOWS: "SIX PROPOSALS WERE TIMELY RECEIVED. HEREINAFTER REFERRED TO AS 'TOLIS CAIN' *** WERE CONSIDERED BY OUR DATA SYSTEMS DIVISION (ADMO) TO BE WITHIN A TECHNICALLY-ACCEPTABLE ZONE OF CONSIDERATION.

B-171482, MAR 17, 1971

BID PROTEST - NEGOTIATIONS - IMPROPER DISCLOSURE OF INFORMATION DENIAL OF PROTEST OF TOLIS CAIN CORPORATION AGAINST THE AWARD OF A NEGOTIATED CONTRACT FOR DEVELOPMENT AND DESIGN OF A COMPUTERIZED METHODOLOGY TO IMPLEMENT THE PROVISIONS OF THE COMPREHENSIVE DRUG ABUSE PREVENTION AND CONTROL ACT OF 1970 ISSUED BY THE BUREAU OF NARCOTICS AND DANGEROUS DRUGS TO OCEAN DATA SYSTEMS, INC., LOW OFFEROR. ALTHOUGH OCEAN DATA WAS GIVEN MORE OPPORTUNITIES TO REDUCE ITS PRICE PROPOSALS THAN TOLIS CAIN, THE LATTER FIRM HAD ADEQUATE OPPORTUNITY TO COMPETE AND, IMPORTANTLY, THE TWO COMPETITIVELY SITUATED OFFERORS WERE APPRISED OF THE COMMON CUT-OFF DATE. THE DISCLOSURE OF PRICING INFORMATION TO TOLIS CAIN DURING THE COURSE OF NEGOTIATIONS WHILE IMPROPER WAS NOT PREJUDICIAL, PROVIDING NO SUBSTANCE UPON WHICH TO AFFIRM THE PROTEST, SINCE ANY COMPETITIVE ADVANTAGE OCCURING FROM THE DISCLOSURE CAME TO BENEFIT THE PROTESTANT AND NOT OCEAN DATA.

TO MR. DANIEL M. REDMOND:

WE REFER TO YOUR LETTER DATED DECEMBER 9, 1970, ON BEHALF OF TOLIS CAIN CORPORATION (TOLIS CAIN), AND LETTERS OF DECEMBER 8, 10 AND 17, 1970, FROM THE FIRM, PROTESTING AGAINST THE AWARD OF A CONTRACT TO OCEAN DATA SYSTEMS, INC. (OCEAN DATA), UNDER REQUEST FOR PROPOSALS (RFP) NO. BNDD-71- 8, ISSUED BY THE DEPARTMENT OF JUSTICE, BUREAU OF NARCOTICS AND DANGEROUS DRUGS (BNDD), WASHINGTON, D.C.

THE RFP WAS ISSUED ON NOVEMBER 24, 1970, ON THE BASIS OF A DETERMINATION AND FINDINGS UNDER THE AUTHORITY OF 41 U.S.C. 252(C)(2), WHICH AUTHORIZES THE NEGOTIATION OF CONTRACTS WHERE THE PUBLIC EXIGENCY WILL NOT PERMIT THE DELAY INCIDENT TO FORMAL ADVERTISING. THE RFP SOLICITED OFFERS FOR THE DEVELOPMENT AND DESIGN OF A COMPUTERIZED METHODOLOGY TO IMPLEMENT THE PROVISIONS OF THE COMPREHENSIVE DRUG ABUSE PREVENTION AND CONTROL ACT OF 1970 (PUBLIC LAW 91-513). THE COURSE OF THE PROCUREMENT CAN BE SUMMARIZED FROM THE BNDD REPORT ON THE PROTEST SUBMITTED TO OUR OFFICE AS FOLLOWS:

"SIX PROPOSALS WERE TIMELY RECEIVED, BUT ONLY TWO, THOSE FROM OCEAN DATA SYSTEMS, INC., HEREINAFTER REFERRED TO AS 'OCEAN DATA' AND TOLIS CAIN CORPORATION, HEREINAFTER REFERRED TO AS 'TOLIS CAIN' *** WERE CONSIDERED BY OUR DATA SYSTEMS DIVISION (ADMO) TO BE WITHIN A TECHNICALLY-ACCEPTABLE ZONE OF CONSIDERATION. SINCE TECHNICAL ADEQUACY WAS A PREREQUISITE FOR AWARD, AND SINCE NEGOTIATIONS WITH THE OTHER FOUR OFFERORS WERE CONSIDERED UNLIKELY TO PRODUCE TECHNICAL ADEQUACY, NEGOTIATIONS WERE CONDUCTED ONLY WITH OCEAN DATA AND TOLIS CAIN.

"THE INITIAL PROPOSAL RECEIVED FROM OCEAN DATA WAS A FIRM FIXED PRICE, AS REQUIRED BY THE REQUEST FOR PROPOSAL. TOLIS CAIN'S PROPOSAL WAS NOT A FIRM FIXED PRICE, BUT CONTAINED A CONTINGENCY FACTOR FOR COMMERCIAL COMPUTER TIME THAT WOULD HAVE IMPOSED ADDITIONAL LIABILITY ON THE GOVERNMENT OF BETWEEN $6800 AND $9750 ***

"OCEAN DATA'S INITIAL PRICE WAS $95,536.94; TOLIS CAIN'S WAS $74,380.67, PLUS THE CONTINGENCY FACTOR MENTIONED ABOVE. BOTH OF THOSE PRICES WERE ABOVE THE $70,000 TO $80,000 RANGE SUGGESTED BY THE TECHNICAL PERSONNEL OF OUR DATA SYSTEMS DIVISION AS BEING WHAT THE PROCUREMENT SHOULD COST, AND HENCE WERE CONSIDERED BY THE CONTRACTING PERSONNEL TO BE UNREASONABLE. BASED ON HIS PAST EXPERIENCE WITH PROPOSALS OF THIS NATURE, MR. ARNOLD SINGER, CHIEF, CONTRACTING BRANCH, WHO NEGOTIATED THIS CONTRACT ON BEHALF OF THE CONTRACTING OFFICER, FELT THAT BOTH PROPOSALS COULD BE REDUCED IN PRICE THROUGH NEGOTIATIONS. ***

"ON DECEMBER 4, 1970, OCEAN DATA TELEPHONED MR. SIDNEY SECULAR, A CONTRACT SPECIALIST FOR THE BUREAU OF NARCOTICS AND DANGEROUS DRUGS, AND ASKED ABOUT THE STATUS OF THEIR PROPOSAL. OCEAN DATA WAS ADVISED THAT THEIRS WAS ONE OF TWO TECHNICALLY ACCEPTABLE PROPOSALS, BUT THAT THEIR PRICE WAS HIGHER THAN THE BUREAU'S ESTIMATED PRICE RANGE. OCEAN DATA WAS NOT TOLD WHAT THAT PRICE RANGE WAS, NOR WERE THEY TOLD WHO THEIR COMPETITION WAS OR WHAT PRICE THE COMPETITION HAD OFFERED. LATER THAT DAY, OCEAN DATA CALLED BACK AND ORALLY OFFERED TO REDUCE THEIR PRICE WITHOU REDUCING THE LEVEL OR QUALITY OF THEIR EFFORT. *** OCEAN DATA'S OVERALL REDUCTION WAS FROM $95,536.94 TO $83,500.00, BUT OCEAN DATA ADVISED MR. SECULAR THAT THIS PRICE WAS NOT FINAL AND WAS STILL OPEN TO NEGOTIATION.

"ON DECEMBER 7, 1970, REPRESENTATIVES OF OCEAN DATA IN RESPONSE TO A TELEPHONE CALL FROM MR. SINGER, CAME TO THE BUREAU OF NARCOTICS AND DANGEROUS DRUGS HEADQUARTERS TO DISCUSS THEIR PROPOSAL FURTHER. OCEAN DATA'S REPRESENTATIVES ARRIVED AT APPROXIMATELY 3:26 P.M., AND WERE ADVISED BY MR. SINGER THAT THEIR PROPOSAL WAS TECHNICALLY ACCEPTABLE BUT THAT THEIR PRICE WAS STILL TOO HIGH. THEY WERE NOT ADVISED OF THE PRICE AT WHICH BNDD DATA SYSTEMS TECHNICAL PERSONNEL HAD EVALUATED THIS CONTRACTUAL EFFORT. OCEAN DATA AGREED TO CONSIDER THEIR PRICE PROPOSAL FURTHER AND TO ADVISE MR. SINGER ACCORDINGLY.

"AS SOON AS THE OCEAN DATA REPRESENTATIVES LEFT HIS OFFICE, MR. SINGER TELEPHONED MR. CAIN OF TOLIS CAIN AND ADVISED HIM THAT HIS FIRM'S PROPOSAL WAS TECHNICALLY ACCEPTABLE, BUT THAT IT CONTAINED A CONTINGENCY - A POTENTIAL COST ELEMENT TO THE GOVERNMENT - FOR COMMERCIAL COMPUTER TIME THAT WAS CONTRARY TO THE TERMS OF THE REQUEST FOR PROPOSAL. THE REQUEST FOR PROPOSAL PROVIDED THAT SUCH COMPUTER TIME SHOULD NOT BE CHARGED TO THE GOVERNMENT. MR. CAIN WAS REQUESTED TO ADVISE THE BUREAU (MR. SINGER) AS TO HIS WILLINGNESS TO REMOVE THIS CONTINGENCY FROM TOLIS CAIN'S PROPOSAL AND TO NEGOTIATE FURTHER PRICE REDUCTIONS. MR. CAIN STATED THAT HE WOULD CONSIDER THESE MATTERS AND CALL BACK. MR. CAIN TELEPHONED MR. SINGER SHORTLY THEREAFTER AND AGREED TO REMOVE THE CONTINGENCY FACTOR AND RESTATED HIS PROPOSAL PRICE AS $74,380.57, BUT ADVISED MR. SINGER THAT THIS WAS NOT NECESSARILY A FINAL PRICE. *** MR. CAIN WAS NOT ADVISED AS TO WHO HIS COMPETITION WAS, WHAT THEIR PRICE WAS, OR OF THE FACT THAT THE BUREAU'S DATA SYSTEMS TECHNICAL PERSONNEL HAD SUGGESTED A $70,000 TO $80,000 RANGE AS A REASONABLE PRICE, BUT HE WAS ADVISED THAT HIS COMPETITOR DID HAVE 'A WAY TO GO' IN ORDER TO BRING ITS PRICE DOWN TO A LEVEL COMMENSURATE WITH THE UNDISCLOSED PRICE WHICH THE BUREAU HAD ESTIMATED THAT THE PROJECT SHOULD COST.

"MEANWHILE, OCEAN DATA'S REPRESENTATIVES RETURNED AND ADVISED MR. SINGER THAT THEY WOULD FURTHER REDUCE THEIR PROPOSAL TO $74,000 *** OCEAN DATA FURTHER STATED THAT THIS STILL WAS NOT NECESSARILY THEIR BEST AND FINAL PRICE. AT THIS TIME, MR. SINGER ADVISED OCEAN DATA THAT HE REQUIRED A BEST AND FINAL OFFER IN ORDER TO CONCLUDE NEGOTIATIONS. HE ESTABLISHED 5:00 P.M. ON DECEMBER 7, 1970, (THE SAME DAY) AS THE CUT OFF TIME FOR SUBMISSION OF PROPOSALS. MR. SINGER THEN IMMEDIATELY TELEPHONED MR. CAIN OF TOLIS CAIN TO ADVISE HIM OF THE CUT-OFF TIME AND TO ADVISE HIM THAT TOLIS CAIN COULD SUBMIT A TELEPHONIC MODIFICATION OF ITS PROPOSAL BEFORE 5:00 P.M., WITH WRITTEN CONFIRMATION OF THEIR BID TO FOLLOW IMMEDIATELY THEREAFTER. DURING THIS CONVERSATION MR. SINGER INDICATED TO MR. CAIN THAT HIS EARLIER TENTATIVE OFFER OF $74,380.57 WAS SEVERAL HUNDRED DOLLARS HIGHER THAN THAT OF THE LOW BIDDER. THE CONVERSATION WAS CONCLUDED, HOWEVER, WITH THE UNDERSTANDING THAT ALL OFFERS TO THAT TIME HAD BEEN TENTATIVE AND THAT 'FINAL' BIDS WERE TO BE SUBMITTED BY 5:00 P.M. THAT SAME DAY.

"BEFORE 5:00 P.M., OCEAN DATA DELIVERED A SEALED ENVELOPE TO THE CONTRACTING OFFICER, PRESUMABLY CONTAINING OCEAN DATA'S FINAL PRICE PROPOSAL. RECEIPT OF THIS ENVELOPE AND ITS RETENTION UNOPENED WERE WITNESSED BY MR. SECULAR.

"AT APPROXIMATELY 5:00 P.M., MR. CAIN TELEPHONED AND ORALLY FURNISHED HIS FINAL PRICE TO MR. SINGER, WITH MR. SECULAR, TO THE KNOWLEDGE OF MR. CAIN, LISTENING ON ANOTHER EXTENSION. TOLIS CAIN'S FINAL PRICE WAS $69,500. WHILE MESSRS. CAIN AND SECULAR WERE STILL ON THE LINE, MR. SINGER OPENED OCEAN DATA'S ENVELOPE WITH MR. SECULAR OBSERVING, AND READ THEIR FINAL PRICE OF $67,000. AT NO TIME PRIOR TO AWARD WAS OCEAN DATA ADVISED OF TOLIS CAIN'S PRICE. ***

"ON DECEMBER 8, 1970, TOLIS CAIN PROTESTED AWARD TO ANYONE OTHER THAN THEMSELVES. HOWEVER, BECAUSE OF THE URGENCY OF HAVING A CONTRACTOR COMMENCE PERFORMANCE IMMEDIATELY DUE TO THE DEADLINE ESTABLISHED BY PUBLIC LAW 91-513, BECAUSE OCEAN DATA'S FINAL PRICE WAS BOTH LOWER AND REASONABLE, AND IN ACCORDANCE WITH FPR 1-2.407-8(B)(4), AWARD WAS MADE TO OCEAN DATA AS LOW RESPONSIBLE AND RESPONSIVE OFFEROR NOTWITHSTANDING THE PROTEST."

TOLIS CAIN HAS PROVIDED OUR OFFICE WITH A CHRONOLOGICAL SUMMARY OF NEGOTIATIONS, WHICH CONFLICTS IN SEVERAL RESPECTS WITH THE ABOVE-QUOTED VERSION OF THE NEGOTIATIONS SUPPLIED BY BNDD. OUR REVIEW OF THE RECORD DISCLOSES NO EVIDENCE CONSIDERED TO BE SUFFICIENTLY CONVINCING TO OVERCOME THE CORRECTNESS OF THE FACTS AS REPORTED TO OUR OFFICE BY BNDD. HOWEVER, ALTHOUGH IN THESE CIRCUMSTANCES SUCH CONFLICTS WOULD BE RESOLVED IN FAVOR OF BNDD (SEE B-170181, FEBRUARY 22, 1971), OUR FINDINGS DO NOT NECESSARILY DISREGARD THE PROTESTANT'S VERSION OF THE NEGOTIATIONS.

INITIALLY, TOLIS CAIN CONTENDS THAT "INASMUCH AS THE TWO FIRMS WERE EQUALLY QUALIFIED TECHNICALLY*** , IT IS BELIEVED THAT NEGOTIATIONS SHOULD HAVE BEEN CONDUCTED WITH THE LOW BIDDER (TOLIS CAIN)." FPR 1 3.805-1 CONTAINS THE COMPETITIVE NEGOTIATION PROCEDURES TO BE UTILIZED BY CONTRACTING OFFICIALS. THAT REGULATION INSOFAR AS PERTINENT TO THE RESOLUTION OF THE PROTEST PROVIDES:

"(A) AFTER RECEIPT OF INITIAL PROPOSALS, WRITTEN OR ORAL DISCUSSIONS SHALL BE CONDUCTED WITH ALL RESPONSIBLE OFFERORS WHO SUBMITTED PROPOSALS WITHIN A COMPETITIVE RANGE, PRICE AND OTHER FACTORS CONSIDERED, EXCEPT THAT THIS REQUIREMENT NEED NOT NECESSARILY BE APPLIED TO:

"(5) PROCUREMENTS IN WHICH IT CAN BE CLEARLY DEMONSTRATED FROM THE EXISTENCE OF ADEQUATE COMPETITION OR ACCURATE PRIOR COST EXPERIENCE WITH THE PRODUCT OR SERVICE THAT ACCEPTANCE OF THE MOST FAVORABLE INITIAL PROPOSAL WITHOUT DISCUSSION WOULD RESULT IN A FAIR AND REASONABLE PRICE: PROVIDED, THAT THE REQUEST FOR PROPOSALS CONTAINS A NOTICE TO ALL OFFERORS OF THE POSSIBILITY THAT AWARD MAY BE MADE WITHOUT DISCUSSION OF PROPOSALS RECEIVED AND, HENCE, THAT PROPOSALS SHOULD BE SUBMITTED INITIALLY ON THE MOST FAVORABLE TERMS, FROM A PRICE AND TECHNICAL STANDPOINT, WHICH THE OFFEROR CAN SUBMIT TO THE GOVERNMENT. ***

"(B) WHENEVER NEGOTIATIONS ARE CONDUCTED WITH MORE THAN ONE OFFEROR, NO INDICATION SHALL BE GIVEN TO ANY OFFEROR OF A PRICE WHICH MUST BE MET TO OBTAIN FURTHER CONSIDERATION SINCE SUCH PRACTICE CONSTITUTES AN AUCTION TECHNIQUE WHICH MUST BE AVOIDED. LIKEWISE, NO OFFEROR SHALL BE ADVISED OF HIS RELATIVE STANDING WITH OTHER OFFERORS AS TO PRICE OR BE FURNISHED INFORMATION AS TO THE PRICES OFFERED BY OTHER OFFERORS. AFTER RECEIPT OF PROPOSALS, NO INFORMATION REGARDING THE NUMBER OR IDENTITY OF THE OFFERORS PARTICIPATING IN THE NEGOTIATIONS SHALL BE MADE AVAILABLE TO THE PUBLIC OR TO ANY ONE WHOSE OFFICIAL DUTIES DO NOT REQUIRE SUCH KNOWLEDGE. WHENEVER NEGOTIATIONS ARE CONDUCTED WITH SEVERAL OFFERORS WHILE SUCH NEGOTIATIONS MAY BE CONDUCTED SUCCESSIVELY, ALL OFFERORS SELECTED TO PARTICIPATE IN SUCH NEGOTIATIONS (SEE SEC 1 3.805-1(A)) SHALL BE OFFERED AN EQUITABLE OPPORTUNITY TO SUBMIT SUCH PRICE, TECHNICAL, OR OTHER REVISIONS IN THEIR PROPOSALS AS MAY RESULT FROM THE NEGOTIATIONS. ALL SUCH OFFERORS SHALL BE INFORMED OF THE SPECIFIED DATE (AND TIME IF DESIRED) OF THE CLOSING OF NEGOTIATIONS AND THAT ANY REVISIONS TO THEIR PROPOSALS SHOULD BE SUBMITTED BY THAT DATE. IN ADDITION, ALL SUCH OFFERORS SHALL BE INFORMED THAT AFTER THE SPECIFIED DATE FOR THE CLOSING OF NEGOTIATIONS, NO INFORMATION (OTHER THAN PRE-AWARD NOTICE OF UNACCEPTABLE PROPOSALS OR OFFERS) WILL BE FURNISHED TO ANY OFFEROR UNTIL AWARD HAS BEEN MADE. FOR THE REQUIREMENTS AND LIMITATIONS CONCERNING THE FURNISHING OF INFORMATION AFTER AWARDS HAVE BEEN MADE SEE SEC 1-3.103."

THE REGULATION REQUIRES THAT DISCUSSIONS OR NEGOTIATION BE CONDUCTED WITH ALL OFFERORS WITHIN THE COMPETITIVE RANGE UNLESS THE DETERMINATION IS MADE TO AWARD ON AN INITIAL PROPOSAL BASIS. ALTHOUGH PARAGRAPH 10(G) OF THE RFP INSTURCTIONS AND CONDITIONS, IN CONSONANCE WITH THE REGULATION, PERMITTED AWARD ON AN INITIAL PROPOSAL BASIS, BNDD DETERMINED THAT TOLIS CAIN AND OCEAN DATA WERE WITHIN THE COMPETITIVE RANGE AND THAT THERE SHOULD BE NEGOTIATIONS. MORE SPECIFICALLY, NEGOTIATION WAS NECESSARY WITH TOLIS CAIN TO ELIMINATE THE COMMERCIAL COMPUTER TIME CONTINGENCY FACTOR IN ORDER TO BRING ITS PRICE IN LINE WITH THE BNDD ESTIMATE, WHILE NEGOTIATIONS WITH OCEAN DATA WERE NECESSARY TO ATTEMPT TO REDUCE ITS PRICE WITHIN THE ESTIMATE TO AN AMOUNT MORE FAVORABLE TO BNDD. WE VIEW BNDD'S ACTION IN RELYING ON THOSE BASES FOR NEGOTIATIONS WITH THE TWO COMPETITIVELY-SITUATED OFFERORS TO HAVE BEEN STRICTLY IN ACCORDANCE WITH THE REQUIREMENTS OF THE REGULATION.

FURTHER, TOLIS CAIN HAS PROTESTED THAT IT "WAS FORCED INTO AN AUCTION OR BARTER SITUATION AS A RESULT OF THE CONTRACTING OFFICER'S CONTINUED ACCEPTANCE OF REPEATED PRICE REDUCTIONS BY A COMPETITOR" IN CONTRAVENTION OF THE ABOVE-QUOTED FPR 1-3.805-1(B). EXPANDING ON THIS BASIS, TOLIS CAIN CONTENDS THAT IT "RECEIVED ONLY ONE OPPORTUNITY TO REDUCE ITS PRICE" WHILE OCEAN DATA "WAS AFFORDED THREE SEPARATE OPPORTUNITIES TO REDUCE HIS PRICE." FINALLY, IMPLIED IN TOLIS CAIN'S CONTENTION CONCERNING THE ALLEGED IMPROPER AUCTION WAS THE DISCLOSURE BY BNDD TO TOLIS CAIN DURING THE COURSE OF NEGOTIATIONS OF THE FIRM'S RELATIVE PRICE POSITION.

A READING OF TOLIS CAIN'S CHRONOLOGICAL SUMMARY OF NEGOTIATIONS TOGETHER WITH BNDD'S ACCOUNT DISPROVES THE CLAIM THAT IT WAS AFFORDED ONLY ONE OPPORTUNITY TO SUBMIT REDUCTIONS IN PRICE DURING THE NEGOTIATION PERIOD. WE REFER TO TOLIS CAIN'S REAFFIRMATION OF THE ORIGINAL OFFER OF $74,380.57 SUBSEQUENT TO THE AGREEMENT TO ELIMINATE THE CONTINGENCY FACTOR FROM THE OFFER.

THE RECORD DOES INDICATE THAT OCEAN DATA WAS AFFORDED MORE OPPORTUNITIES TO REDUCE ITS OFFER PRICE THAN TOLIS CAIN. HOWEVER, THAT DOES NOT TAINT THE CONDUCT OF NEGOTIATIONS BY BNDD. IN 48 COMP. GEN. 536, 540 (1969), WE HELD, AS FOLLOWS: " *** UNDER THE RULES APPLICABLE TO NEGOTIATED PROCUREMENT, NEGOTIATIONS MAY BE CONDUCTED AT DIFFERENT TIMES WITH DIFFERENT OFFERORS. WHEN THIS IS DONE, THE RULES ALSO REQUIRE, IN FAIRNESS TO ALL, THAT A COMMON CUTOFF DATE BE SET FOR ALL. *** " AT PAGE 541 OF THE DECISION WE STATED:

" *** WE DO NOT AGREE THAT THIS CONSTITUTES AN AUCTION TECHNIQUE. IN A SENSE, THE VERY CONDUCT OF NEGOTIATIONS AFTER RECEIPT OF INITIAL PROPOSALS MAY BE ARGUED TO RESEMBLE AN AUCTION TECHNIQUE, BUT THIS IS WHAT THE LAW CALLS FOR. THERE IS NOTHING INHERENTLY ILLEGAL FROM A PROCUREMENT STANDPOINT IN AN AUCTION, AND IT IS USED SUCCESSFULLY IN PROPERTY DISPOSAL PROCEDURES. WE BELIEVE THAT UNTIL A COMMON CUTOFF DATE FOR FURTHER MODIFICATION OF PROPOSALS IS ESTABLISHED FOR ALL OFFERORS IT CANNOT BE SAID THAT NEGOTIATIONS HAVE CLOSED OR THAT MODIFICATIONS MADE EITHER VOLUNTARILY OR AS A RESULT OF GOVERNMENT REQUEST SHOULD NOT BE CONSIDERED. *** "

SINCE IT IS CLEAR FROM THE RECORD THAT THE TWO COMPETITIVELY-SITUATED OFFERORS WERE APPRISED OF A COMMON CUTOFF DATE, WHICH IS THE DATE ESTABLISHED FOR THE CLOSE OF NEGOTIATIONS, WE FIND NO IMPROPER ACTION IN THE FACT THAT BNDD AFFORDED OCEAN DATA MORE OPPORTUNITIES TO REDUCE ITS PRICE PROPOSAL THAN TOLIS CAIN. IN FACT, ALL OF OCEAN DATA'S PRICE REDUCTIONS RESULTED FROM THE VERY TYPE OF NEGOTIATIONS WHICH THE REGULATION CONTEMPLATES.

WE HAVE HELD THAT THE DISCLOSURE OF PRICES DURING THE NEGOTIATION PERIOD IS IN VIOLATION OF THE PROCUREMENT REGULATION. B-170142, OCTOBER 22, 1970. SEE, ALSO, B-151976, OCTOBER 15, 1963; AND B-168130, JANUARY 14, 1970. HOWEVER, WHERE PRICING INFORMATION IS IMPROPERLY DISCLOSED TO ONE PARTY, AS IT WAS TO TOLIS CAIN, AND THAT PARTY IS PROVIDED WITH AN OPPORTUNITY TO IMPROVE ITS OFFER AFTER SUCH DISCLOSURE, IT WILL NOT BE HEARD TO COMPLAIN LATER THAT THE DISCLOSURE WAS IMPROPER, SINCE AS WAS STATED IN B-170142, SUPRA, ANY COMPETITIVE ADVANTAGE WHICH MAY HAVE RESULTED FROM THE IMPROPER DISCLOSURE ACCRUED TO THE BENEFIT OF THE RECIPIENT OF THE INFORMATION, NOT TO THE OTHER OFFEROR. THE FACT THAT THE RECIPIENT OF THE INFORMATION FAILED TO SECOND GUESS THE AMOUNT THAT THE OTHER OFFEROR WOULD DEDUCT FROM ITS OFFER IS NOT IMPORTANT.

BNDD HAS RECOGNIZED THE IMPROPRIETY OF ITS ACTIONS WITH REGARD TO THE LATTER ASPECT OF THE PROTEST AND WE ANTICIPATE THAT DISCLOSURES OF THIS TYPE WILL BE AVOIDED IN THE FUTURE. IN ANY EVENT, IN VIEW OF THE FOREGOING, THE PROTEST OF TOLIS CAIN IS DENIED.