B-171713(1), MAY 13, 1971

B-171713(1): May 13, 1971

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WHEN OFFERORS WERE REQUESTED TO SUBMIT BEST AND FINAL OFFERS PRIOR TO CLOSE OF BUSINESS ON DECEMBER 21. PROTESTANT'S TWX WAS SENT TO FORT MACARTHUR UNDER THE ERRONEOUS ASSUMPTION THAT IT WOULD BE FORWARDED TO THE CONTRACTING OFFICER. THERE IS NO BASIS TO DISTURB THE AWARD TO B. & F. SINCE THE CONTRACTING OFFICER WAS ACTING IN GOOD FAITH AND WITHOUT NOTICE OF THE CIRCUMSTANCES SURROUNDING THE SUBMISSION OF PROTESTANT'S TWX. THE SUBJECT REQUEST FOR PROPOSALS WAS ISSUED ON NOVEMBER 6. A CONTRACT WAS AWARDED TO F. & B. ALL UNSUCCESSFUL OFFERORS WERE NOTIFIED OF THE CONTRACT AWARD. A REPRESENTATIVE OF YOUR FIRM CONTACTED THE CONTRACTING AGENCY TO DETERMINE THE STATUS OF PROPOSAL EVALUATION AND HE WAS ADVISED OF THE CONTRACT AWARD.

B-171713(1), MAY 13, 1971

BID PROTEST - FINAL OFFER - NONRECEIPT DECISION DENYING PROTEST OF ZERO MANUFACTURING COMPANY AGAINST AWARD OF CONTRACT TO F. & B. MANUFACTURING COMPANY UNDER AN RFP ISSUED BY THE NAVAL ORDNANCE STATION, LOUISVILLE, KY., FOR A QUANTITY OF CONTAINERS. WHEN OFFERORS WERE REQUESTED TO SUBMIT BEST AND FINAL OFFERS PRIOR TO CLOSE OF BUSINESS ON DECEMBER 21, 1970, PROTESTANT'S TWX WAS SENT TO FORT MACARTHUR UNDER THE ERRONEOUS ASSUMPTION THAT IT WOULD BE FORWARDED TO THE CONTRACTING OFFICER. HOWEVER, THERE IS NO BASIS TO DISTURB THE AWARD TO B. & F., SINCE THE CONTRACTING OFFICER WAS ACTING IN GOOD FAITH AND WITHOUT NOTICE OF THE CIRCUMSTANCES SURROUNDING THE SUBMISSION OF PROTESTANT'S TWX.

TO ZERO MANUFACTURING CO.:

WE REFER TO YOUR LETTER OF JANUARY 18, 1971, AND SUBSEQUENT CORRESPONDENCE, PROTESTING AGAINST THE AWARD OF A CONTRACT TO F. & B. MANUFACTURING COMPANY UNDER REQUEST FOR PROPOSALS N00197-71-R-0007 ISSUED BY THE NAVAL ORDNANCE STATION, LOUISVILLE, KENTUCKY.

THE ADMINISTRATIVE REPORT FURNISHED OUR OFFICE BY THE DEPUTY COMMANDER, PURCHASING, NAVAL SUPPLY SYSTEMS COMMAND, BY LETTER OF FEBRUARY 19, 1971, WITH ENCLOSURES, CONTAINS THE FOLLOWING FACTS PERTINENT TO YOUR PROTEST. THE SUBJECT REQUEST FOR PROPOSALS WAS ISSUED ON NOVEMBER 6, 1970, AND REQUESTED OFFERS FOR FURNISHING A QUANTITY OF 360 MK 372 MOD 6 CONTAINERS. SIX OFFERORS RESPONDED; AFTER EVALUATION, THE CONTRACTING OFFICER BY MESSAGES DATED DECEMBER 16, 1970, REQUESTED BEST AND FINAL OFFERS FROM EACH FIRM PRIOR TO THE CLOSE OF BUSINESS ON DECEMBER 21, 1970. WITH THE EXCEPTION OF YOUR FIRM AND ANOTHER OFFEROR, ALL SOURCES SUBMITTED TIMELY RESPONSES. SUBSEQUENTLY, A CONTRACT WAS AWARDED TO F. & B. MANUFACTURING COMPANY ON JANUARY 12, 1971, AS THE LOW RESPONSIBLE OFFEROR. BY LETTER DATED JANUARY 12, 1971, ALL UNSUCCESSFUL OFFERORS WERE NOTIFIED OF THE CONTRACT AWARD.

ON JANUARY 13, 1971, A REPRESENTATIVE OF YOUR FIRM CONTACTED THE CONTRACTING AGENCY TO DETERMINE THE STATUS OF PROPOSAL EVALUATION AND HE WAS ADVISED OF THE CONTRACT AWARD. AT THIS TIME, THE CONTRACTING AGENCY WAS FIRST ADVISED THAT YOUR FIRM HAD SUBMITTED A TWX ON THE MORNING OF DECEMBER 21 WHICH, IF IT HAD BEEN RECEIVED, WOULD HAVE MADE YOUR FIRM THE LOW OFFEROR. SPECIFICALLY, YOU ADVISE IN YOUR LETTER OF JANUARY 18, 1971, THAT THE CONTRACTING OFFICER'S TWX WAS RECEIVED FROM NO. 213-548-0913, WHICH IS THE NUMBER OF FORT MACARTHUR, SAN PEDRO, CALIFORNIA, AND THAT YOU RESPONDED TO THIS NUMBER, ASSUMING THAT THE MESSAGE WOULD BE FORWARDED TO THE CONTRACTING OFFICER. HOWEVER, IT APPEARS THAT WHILE FORT MACARTHUR RELAYS MESSAGES RECEIVED FROM MILITARY INSTALLATIONS, IT DOES NOT ACCEPT MESSAGES FROM COMMERCIAL COMPANIES. IN THIS CONNECTION, WE NOTE THAT THERE IS NO CONCLUSIVE EVIDENCE THAT YOUR TWX WAS EVER RECEIVED BY FORT MACARTHUR, AS IS EVIDENCED BY YOUR SUBSEQUENT ATTEMPTS TO VERIFY RECEIPT.

ASSUMING, AS YOU CONTEND, THAT YOU WERE MISLED, NO BASIS IS PRESENTED FOR OUR OFFICE TO DISTURB THE AWARD OF CONTRACT TO F. & B. MANUFACTURING COMPANY, SINCE THE CONTRACTING OFFICER WAS ACTING IN GOOD FAITH AND WITHOUT NOTICE OF THE CIRCUMSTANCES SURROUNDING THE SUBMISSION OF YOUR TWX. IN THIS REGARD, YOU WILL NOTE FROM AN EXAMINATION OF THE CLAUSE, ENTITLED "LATE OFFERS AND MODIFICATIONS OR WITHDRAWALS (1968, DECEMBER)," INCLUDED IN THE REQUEST FOR PROPOSALS, ONE OF THE ESSENTIAL CONDITIONS THAT MUST BE MET BEFORE A LATE MODIFICATION MAY BE CONSIDERED IS THAT IT BE RECEIVED BEFORE AN AWARD IS MADE. SEE, ALSO, ASPR 2-303.2; CF. B- 169728, JULY 17, 1970. WE ARE, HOWEVER, BRINGING THE FOREGOING MATTERS TO THE ATTENTION OF THE SECRETARY OF THE NAVY FOR APPROPRIATE ACTION.