B-172152, AUG 5, 1971, 51 COMP GEN 85

B-172152: Aug 5, 1971

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A FORMAL AMENDMENT TO THE LETTER REQUEST FOR TECHNICAL PROPOSALS SHOULD HAVE BEEN ISSUED TO COVER REVISIONS IN THE SPECIFICATIONS AS REQUIRED BY PARAGRAPH 3-805.1(E) OF THE ARMED SERVICES PROCUREMENT REGULATION IN ORDER TO GIVE ACCEPTABLE OFFERORS AN OPPORTUNITY TO MODIFY THEIR PROPOSALS. THE CONTRACT AWARDED WILL NOT BE DISTURBED FOR THE OMISSION WAS NOT PREJUDICIAL AS THE TECHNICAL PROPOSALS OF THE OFFERORS WHO DURING NEGOTIATIONS UNDER THE FIRST-STEP OF THE PROCUREMENT HAD MADE THEIR PROPOSALS ACCEPTABLE INDICATE THE OFFERORS PRIOR TO BIDDING ON THE SECOND-STEP HAD AMPLE OPPORTUNITY TO INTELLIGENTLY CONSIDER THE SPECIFICATION REVISIONS AND THUS IN EFFECT HAD INCORPORATED THEM IN THEIR SECOND-STEP BID.

B-172152, AUG 5, 1971, 51 COMP GEN 85

BIDS - TWO-STEP PROCUREMENT - SPECIFICATIONS - REVISION - FORMAL AMENDMENT REQUIREMENT ALTHOUGH PRIOR TO THE ISSUANCE OF THE SECOND STEP OF A TWO-STEP PROCUREMENT FOR THE DESIGN, FABRICATION, AND INSTALLATION OF A DEFENSE TEST CHAMBER, A FORMAL AMENDMENT TO THE LETTER REQUEST FOR TECHNICAL PROPOSALS SHOULD HAVE BEEN ISSUED TO COVER REVISIONS IN THE SPECIFICATIONS AS REQUIRED BY PARAGRAPH 3-805.1(E) OF THE ARMED SERVICES PROCUREMENT REGULATION IN ORDER TO GIVE ACCEPTABLE OFFERORS AN OPPORTUNITY TO MODIFY THEIR PROPOSALS, THE CONTRACT AWARDED WILL NOT BE DISTURBED FOR THE OMISSION WAS NOT PREJUDICIAL AS THE TECHNICAL PROPOSALS OF THE OFFERORS WHO DURING NEGOTIATIONS UNDER THE FIRST-STEP OF THE PROCUREMENT HAD MADE THEIR PROPOSALS ACCEPTABLE INDICATE THE OFFERORS PRIOR TO BIDDING ON THE SECOND-STEP HAD AMPLE OPPORTUNITY TO INTELLIGENTLY CONSIDER THE SPECIFICATION REVISIONS AND THUS IN EFFECT HAD INCORPORATED THEM IN THEIR SECOND-STEP BID. HOWEVER, A RECURRENCE OF THE CIRCUMSTANCES OF THIS PROCUREMENT SHOULD BE PREVENTED. BIDS - TWO-STEP PROCUREMENT - TECHNICAL PROPOSALS - MULTIPLE - SPECIFICATION COMPLIANCE IN A TWO-STEP PROCUREMENT, WHERE PURSUANT TO PARAGRAPH 2-503.1(A)(X) OF THE ARMED SERVICES PRUCREMENO GRTEHE- THE ARMED SERVICES PROCUREMENT REGULATION, THE LETTER REQUEST FOR PROPOSALS AUTHORIZED AND ENCOURAGED OFFERORS TO SUBMIT MULTIPLE TECHNICAL PROPOSALS PRESENTING BASIC APPROACHES, THE OFFERORS BECAUSE OF THE FLEXIBILITY OF THE PROCUREMENT NEED ONLY SUBMIT PROPOSALS WHICH COMPLY WITH THE BASIC REQUIREMENTS OF THE SPECIFICATIONS RATHER THAN PROPOSALS BASED ON STRICT COMPLIANCE WITH ALL DETAILS OF THE SPECIFICATIONS, AND IT IS THE RESPONSIBILITY OF THE PROCURING AGENCY TO DETERMINE THE ACCEPTABILITY OF A TECHNICAL PROPOSAL. BIDS - TWO-STEP PROCUREMENT - USE BASIS - SPECIFICATIONS DEFICIENT THE DETERMINATION OF HOW BEST TO SATISFY THE GOVERNMENT'S REQUIREMENTS IS WITHIN THE AMBIT OF SOUND ADMINISTRATIVE DISCRETION, SUBJECT TO COMPLIANCE WITH LAW AND IMPLEMENTING REGULATIONS, AND AS THE GOVERNMENT'S AUTHORITY TO PURCHASE IS BROAD AND COMPREHENSIVE, EXTENDING NOT ONLY TO THE SUBJECT MATTER OF THE PURCHASE BUT ALSO TO THE MODE OF PURCHASE, THE TWO-STEP FORMAL METHOD OF PROCUREMENT PRESCRIBED BY PARAGRAPH 2-502(A)(I) MAY BE USED WHEN SPECIFICATIONS ARE NOT SUFFICIENTLY DEFINITE AND COMPLETE. BIDS - TWO-STEP PROCUREMENT - PREPOSAL CONFERENCES AND SITE SURVEYS THE PROVISIONS OF PARAGRAPHS 3-504 AND 3-504.2 OF THE ARMED SERVICES PROCUREMENT REGULATION WHICH SET FORTH THE PROCEDURE FOR PROPOSAL CONFERENCES DO NOT PRECLUDE CONDUCTING MORE THAN ONE PREPROPOSAL CONFERENCE OR SITE SURVEY SO LONG AS OFFERORS ARE TREATED EQUALLY AND SUPPLIED SUBSTANTIALLY SIMILAR INFORMATION. THEREFORE, WHERE NO ADDITIONAL INFORMATION TO THAT DISCLOSED AT THE ORIGINAL SITE SURVEY WAS PRESENTED AT A LATER SITE SURVEY UNDER A TWO-STEP PROCUREMENT CONDUCTED FOR THE BENEFIT OF THE SUCCESSFUL OFFEROR UNABLE TO BE REPRESENTED AT THE PROPOSAL CONFERENCE AND SITE SURVEY, THERE IS NO BASIS FOR HOLDING THERE WAS NONCOMPLIANCE WITH THE PROVISIONS.

TO CLYDE, MECHAM & PRATT, AUGUST 5, 1971:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 15, 1971, AND PRIOR CORRESPONDENCE, ON BEHALF OF MALLORY ENGINEERING, INC. (MALLORY), PROTESTING AGAINST THE AWARD OF A CONTRACT TO THE ENVIRONMENTAL TECHNOLOGY CORPORATION (ENVIRONMENTAL) FOR THE DESIGN, FABRICATION, AND INSTALLATION OF A DEFENSIVE TEST CHAMBER, UNDER INVITATION FOR BIDS (IFB) NO. DAAD09-71 -B-0029, THE SECOND STEP OF A TWO-STEP FORMAL ADVERTISED PROCUREMENT, ISSUED BY THE ARMY DESERET TEST CENTER, SALT LAKE CITY, UTAH.

FOR THE REASONS HEREINAFTER STATED, THE PROTEST OF MALLORY IS DENIED.

THE FIRST-STEP LETTER REQUEST FOR TECHNICAL PROPOSALS (LRTP) WAS ISSUED ON JUNE 10, 1970. THE LRTP PROVIDED THAT THE CHAMBER INCLUDE ALL OPERATIONAL AND PERFORMANCE REQUIREMENTS AS CONTAINED IN THE ATTACHED SPECIFICATIONS. PRIOR TO THE CLOSING DATE FOR RECEIPT OF TECHNICAL PROPOSALS, TWO AMENDMENTS CLARIFIED AND MODIFIED THE SPECIFICATIONS, AND TWO AMENDMENTS CORRECTED ERRONEOUS REFERENCES IN THE SPECIFICATIONS. PREPROPOSAL BRIEFING AND SITE SURVEY WAS CONDUCTED ON JUNE 22, 1970, FOR SEVERAL INTERESTED FIRMS, INCLUDING MALLORY, AND AT A LATER DATE, SITE SURVEYS WERE HELD FOR TWO MORE FIRMS, ONE OF WHICH WAS ENVIRONMENTAL. FOUR PROPOSALS WERE RECEIVED AND FORWARDED FOR TECHNICAL EVALUATION. THE EVALUATION COMMITTEE CONCLUDED THAT ALL FOUR TECHNICAL PROPOSALS WERE REASONABLY SUSCEPTIBLE OF BEING MADE ACCEPTABLE. ON SEPTEMBER 29, 1970, AFTER THE OFFERORS HAD SUBMITTED REVISIONS TO THEIR PROPOSALS, THE FOUR TECHNICAL PROPOSALS WERE DETERMINED TO BE ACCEPTABLE.

PRIOR TO THE ISSUANCE OF THE SECOND-STEP INVITATION, EFFECTIVE OCTOBER 20, 1970, THE SPECIFICATIONS WERE AGAIN REVISED. HOWEVER, WITHOUT FORMALLY ISSUING AN AMENDMENT TO THE LRTP AND THEREBY AFFORDING THE FOUR OFFERORS AN OPPORTUNITY TO SUBMIT MODIFICATIONS TO THEIR PROPOSALS THEREON, THE SECOND-STEP IFB WAS ISSUED ON NOVEMBER 9, 1970, REFERENCING THE REVISED SPECIFICATIONS. BIDS WERE OPENED ON JANUARY 11, 1971, AND WERE ABSTRACTED AS FOLLOWS:

ENVIRONMENTAL TECHNOLOGY CORPORATION $914,600

MALLORY ENGINEERING, INC. 1,009,961

LATER ENGINEER CORPORATION 1,120,349

THE BOEING CO. (LOWEST ALTERNATE OF THREE) 2,524,868

ON APRIL 13, 1971, AN AWARD WAS MADE TO ENVIRONMENTAL, AS THE LOWEST RESPONSIVE, RESPONSIBLE BIDDER.

YOU CONTEND THAT, IN VIOLATION OF THE PROVISIONS OF THE LRTP AND THE TWO- STEP FORMAL ADVERTISING REQUIREMENTS CONTAINED IN PARAGRAPH 2-503.1 ET SEQ., OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR), FINAL BIDS WERE NOT BASED UPON THE TECHNICAL PROPOSALS PREVIOUSLY SUBMITTED IN STEP ONE. IN SUPPORT OF THIS CONTENTION, YOU POINT OUT THAT FINAL BIDS WERE BASED NOT ONLY UPON THE ACCEPTED TECHNICAL PROPOSAL, BUT ALSO UPON THE OCTOBER 20 SPECIFICATION REVISIONS MADE AFTER THE COMPLETION OF THE FIRST-STEP NEGOTIATIONS. COROLLARY THERETO IS YOUR ALLEGATION THAT THESE POST NEGOTIATION REVISIONS TO THE SPECIFICATIONS WERE SUBSTANTIVE AND MATERIAL CHANGES IN THE PROJECT SPECIFICATIONS AND, AS SUCH, THE LRTP SHOULD HAVE BEEN AMENDED AND ALL OFFERORS GIVEN AN OPPORTUNITY TO REVISE THEIR PROPOSALS TO REFLECT A CONSIDERATION OF THE CHANGED REQUIREMENTS.

AT FIRST, WE OBSERVE THAT THE SECOND-STEP BIDS WERE NOT TO BE BASED SOLELY UPON THE ACCEPTABLE TECHNICAL PROPOSALS SUBMITTED BY OFFERORS. WHILE THE LRTP DID ADVISE PROSPECTIVE OFFERORS THAT THEIR SECOND-STEP BIDS WERE TO BE BASED UPON THE FIRST-STEP TECHNICAL PROPOSALS, THE IFB SCHEDULE ALERTED BIDDERS THAT THE CHAMBER WAS TO BE DESIGNED, FABRICATED AND INSTALLED "IN ACCORDANCE WITH SPECIFICATION DD 20526-3 67 DATED 21 MAY 1970 AND REVISED 20 OCTOBER 1970, AND THE BIDDERS ACCEPTABLE TECHNICAL PROPOSAL." THIS LANGUAGE IS IN COMPLIANCE WITH ASPR 2-503.2(III) WHICH STATES THAT THE SECOND-STEP IFB WILL PROMINENTLY STATE THAT THE SUPPLIES WILL BE IN ACCORDANCE WITH THE SPECIFICATIONS AS WELL AS THE BIDDER'S ACCEPTED TECHNICAL PROPOSAL.

WE NEED NOT DECIDE WHETHER THE OCTOBER 20 REVISION TO THE SPECIFICATIONS EFFECTED SUBSTANTIVE AND MATERIAL CHANGES, SINCE THE CONTRACTING OFFICER HAS ADMITTED THE SUBSTANTIVE NATURE OF A MAJOR PORTION OF THE REVISIONS IN A REPORT TO OUR OFFICE. DESPITE THE FACT THAT STEP ONE NEGOTIATIONS HAD CLOSED AND ALL PROPOSALS HAD BEEN DECLARED ACCEPTABLE WHEN THE SPECIFICATION REVISIONS WERE DECIDED UPON, IT IS OUR VIEW THAT THESE REVISIONS SHOULD HAVE BEEN ACCOMPLISHED BY THE ISSUANCE OF A FORMAL AMENDMENT TO THE LRTP FOLLOWED BY A REQUEST TO ALL OFFERORS TO REVISE THEIR PROPOSALS IN LIGHT OF THE MATERIAL CHANGES IN THE SPECIFICATIONS. IN THIS REGARD, IT MUST BE KEPT IN MIND THAT THE FIRST STEP OF A TWO-STEP FORMALLY ADVERTISED PROCUREMENT IS A NEGOTIATION PROCESS WHEREBY THROUGH DISCUSSIONS, CHANGES, ETC., TECHNICAL PROPOSALS ARE FOUND ACCEPTABLE FOR THE SECOND-STEP BIDDING PROCESS. SEE 50 COMP. GEN. 346 (1970). THEREFORE, IN ACCORDANCE WITH ASPR 3-805.1(E), WHERE, AS HERE, A SUBSTANTIAL CHANGE OCCURS IN THE GOVERNMENT'S REQUIREMENTS, SUCH CHANGE SHOULD BE MADE IN WRITING AS AN AMENDMENT TO THE REQUEST FOR PROPOSALS AND A COPY FURNISHED TO EACH PROSPECTIVE CONTRACTOR. A LOGICAL EXTENSION OF THIS REQUIREMENT IS THE NECESSITY FOR OFFERORS, UPON BEING APPRISED OF THE CHANGE, TO BE GIVEN A CHANCE TO SUBMIT REVISED PROPOSALS WHICH TAKE INTO ACCOUNT THE SPECIFICATION CHANGES. SEE 46 COMP. GEN. 285, 293 (1966); B- 169045, MARCH 30, 1970; AND B-170216, SEPTEMBER 10, 1970.

ALTHOUGH WE ARE ADVISING THE SECRETARY OF THE ARMY BY LETTER OF TODAY, TO TAKE STEPS TO PREVENT A RECURRENCE OF THESE CIRCUMSTANCES, WE FIND NO BASIS UPON WHICH TO DISTURB THE AWARD TO ENVIRONMENTAL. A REVIEW OF THE RECORD CLEARLY ESTABLISHED THAT MALLORY WAS NOT PREJUDICED BY THE ARMY'S ACTIONS. ALL OFFERORS, INCLUDING MALLORY, HAD SUBMITTED ACCEPTABLE PROPOSALS AND WERE ADVISED THAT THE SPECIFICATION HAD BEEN REVISED EFFECTIVE OCTOBER 20, 1970, AS STATED ABOVE, BY THE BIDDING SCHEDULE AND ALSO BY THE COVER SHEET TO THE SPECIFICATION WHICH IN CAPITAL LETTERS STATES "REVISED 20 OCTOBER 1970." FURTHERMORE, ALL SECTIONS OF THE SPECIFICATIONS WHICH WERE AMENDED WERE PRECEDED BY AN ASTERISK TO DRAW PARTICULAR ATTENTION TO THEIR REVISED PROVISIONS, OR IN SOME CASES, DELETIONS. THE ARMY DETERMINED THAT ADDITIONAL RESPONSES TO OTHERWISE ACCEPTABLE PROPOSALS WOULD SERVE NO USEFUL PURPOSE SINCE ALL TECHNICAL PROPOSALS INDICATED THAT THE OFFERORS' UNDERSTANDING, TECHNICAL CAPACITY AND DESIGN PHILOSOPHY WERE ACCEPTABLE.

MOREOVER, UNDER THIS TYPE OF PROCUREMENT, ALL OFFERORS, PRIOR TO BIDDING, HAD AMPLE OPPORTUNITY TO INTELLIGENTLY CONSIDER THE SPECIFICATION REVISIONS. IN EFFECT, EACH ACCEPTABLE OFFEROR INCORPORATED THE REVISIONS IN HIS BID WHEN HE RESPONDED TO THE SECOND STEP.

FURTHERMORE, PARAGRAPH 3 OF THE IFB'S INSTRUCTIONS AND CONDITIONS PROVIDED A MEANS WHEREBY MALLORY COULD HAVE RAISED QUESTIONS REGARDING THE SPECIFICATIONS, AS FOLLOWS:

3. EXPLANATION TO OFFERORS. ANY EXPLANATION DESIRED BY AN OFFEROR REGARDING THE MEANING OR INTERPRETATION OF THE SOLICITATION, DRAWINGS, SPECIFICATIONS, ETC., MUST BE REQUESTED IN WRITING AND WITH SUFFICIENT TIME ALLOWED FOR A REPLY TO REACH OFFERORS BEFORE THE SUBMISSION OF THEIR OFFERS. ***

WITH RESPECT TO THIS ASPECT OF YOUR PROTEST, WE FIND NO LEGAL BASIS TO DISTURB THE AWARD MADE TO ENVIRONMENTAL. CF. 50 COMP. GEN. 246 (1970); AND 46 ID., SUPRA.

YOU NEXT CONTEND THAT ENVIRONMENTAL'S TECHNICAL PROPOSAL WAS FRAUGHT WITH "SUBSTANTIAL DEVIATIONS) FROM THE MINIMUM REQUIREMENTS OF THE SPECIFICATIONS" AND, THEREFORE, NOT RESPONSIVE TO THE ARMY'S REQUIREMENTS. IN A REPORT TO OUR OFFICE, WHICH WAS FURNISHED TO YOU, THE CONTRACTING OFFICER DISCUSSED, IN DETAIL, MALLORY'S TECHNICAL OBJECTIONS AND CONCLUDED THAT ENVIRONMENTAL'S PROPOSAL WAS PROPERLY DETERMINED TO BE ACCEPTABLE AND CONFORMED TO THE SPECIFICATIONS. ALTHOUGH, IN AT LEAST ONE INSTANCE, ENVIRONMENTAL DID NOT CONFORM TO A PARTICULAR REQUIREMENT, THE ARMY CONSIDERED THAT ENVIRONMENTAL HAD SHOWN ORIGINALITY AND ESSENTIAL CONFORMANCE TO THE SPECIFICATIONS BY MODIFYING ITEMS COMMERCIALLY AVAILABLE TO RENDER ITS PROPOSAL ACCEPTABLE.

THE RESPONSIBILITY FOR DETERMINING THE ACCEPTABILITY OF A TECHNICAL PROPOSAL IS THAT OF THE PROCURING ACTIVITY. SEE 40 COMP. GEN. 35, 38 (1960). IN THE ABSENCE OF ANY UNDUE ADVANTAGE, NOT SHOWN HERE, OUR OFFICE HAS NO BASIS UPON WHICH TO QUESTION THE ACCEPTABILITY OF A PARTICULAR PROPOSAL. SEE B-168138, FEBRUARY 17, 1970. WITH PARTICULAR REGARD TO THIS TWO-STEP PROCUREMENT, THE LRTP AUTHORIZED AND ENCOURAGED OFFERORS TO SUBMIT MULTIPLE TECHNICAL PROPOSALS PRESENTING DIFFERENT BASIC APPROACHES. SEE ASPR 2-503.1(A)(X). WE HAVE CONSIDERED THE EFFECT OF SUCH FLEXIBILITY IN PROCUREMENTS CONTAINING SIMILAR CLAUSES AND HAVE HELD THAT OFFERORS NEED ONLY SUBMIT TECHNICAL PROPOSALS IN A TWO-STEP PROCUREMENT WHICH COMPLY WITH THE BASIC REQUIREMENTS OF THE SPECIFICATIONS RATHER THAN ON THE BASIS OF STRICT COMPLIANCE WITH ALL THE DETAILS OF THE SPECIFICATIONS. SEE 50 COMP. GEN. 337 (1970), AND CASES CITED THEREIN. IN VIEW OF THE ABOVE, WE WILL INTERPOSE NO OBJECTION TO THE AWARD MADE TO ENVIRONMENTAL.

NEXT, YOU CLAIM THAT THE UTILIZATION OF THE TWO-STEP FORMAL ADVERTISING METHOD OF PROCUREMENT WAS NOT JUSTIFIED. WE DO NOT AGREE. BOTH OUR OFFICE AND THE COURTS HAVE RECOGNIZED THAT THE AUTHORITY OF THE GOVERNMENT TO PURCHASE IS BROAD AND COMPREHENSIVE, EXTENDING NOT ONLY TO THE SUBJECT MATTER OF THE PURCHASE BUT ALSO TO THE MODE OF PURCHASE. WE HAVE CONSISTENTLY HELD THAT THE DETERMINATION OF HOW BEST TO SATISFY THE GOVERNMENT'S REQUIREMENTS IS WITHIN THE AMBIT OF SOUND ADMINISTRATIVE DISCRETION, SUBJECT, OF COURSE, TO PROPER EXERCISE, IN COMPLIANCE WITH LAW AND IMPLEMENTING REGULATIONS. SEE 50 COMP. GEN. 346 (1970). THE SPECIFIC BASIS FOR YOUR OBJECTION CONCERNS THE INDEFINITE NATURE OF THE SPECIFICATIONS. THAT VERY FACT FULFILLS ONE OF THE FIVE CONDITIONS REQUIRED FOR THE USE OF THE TWO-STEP FORMAL ADVERTISING MODE OF PROCUREMENT. SEE ASPR 2-502(A)(I) WHICH STATES THAT TWO-STEP FORMAL ADVERTISING SHALL BE USED WHEN SPECIFICATIONS ARE NOT SUFFICIENTLY DEFINITE OR COMPLETE.

WITH RESPECT TO YOUR CONTENTIONS REGARDING THE ARMY'S FAILURE TO DELETE DAVIS-BACON ACT, 40 U.S.C. 276A, PROVISIONS EXPLICITLY IN STEP TWO, WE BELIEVE THE ARMY'S BASIS THEREFOR TO BE UNOBJECTIONABLE, AS FOLLOWS:

THE REQUEST FOR TECHNICAL PROPOSAL STATES AS FOLLOWS: "PROPOSERS ARE NOTIFIED THAT A MINOR PORTION OF THE WORK IS CONSIDERED TO BE CONSTRUCTION, SUCH AS FOUNDATION, SLAB AND OTHER MISCELLANEOUS WORK, AND COULD BE PHYSICALLY OR FUNCTIONALLY SEPARATED FROM THE OTHER WORK CALLED FOR BY THE CONTRACT, THEREFORE, CONSTRUCTION AND LABOR STANDARDS FOR CONTRACTS INVOLVING CONSTRUCTION WILL PREVAIL (ASPR 18-700)." PRIOR TO THE ISSUANCE OF STEP 2, IT WAS DETERMINED IN ACCORDANCE WITH ASPR 12-106.2 AND ASPR 18-701(A)(3) THAT CONSTRUCTION LABOR STANDARDS AND CLAUSES WERE NOT APPLICABLE BECAUSE THE CONSTRUCTION AND NONCONSTRUCTION PORTIONS OF THE WORK WERE SO MERGED THAT IT COULD NOT BE SEGREGATED. THEREFORE CONSTRUCTION LABOR STANDARDS AND PROVISIONS WERE NOT INCLUDED IN THE STEP 2, INVITATION FOR BIDS. SINCE THESE PROVISIONS WERE NOT INCLUDED, THE PRESIDENT'S ACTION OF 23 FEBRUARY 1971 SUSPENDING THE DAVIS-BACON ACT IS WITHOUT EFFECT.

YOUR FINAL CONTENTION DEALS WITH THE FACT THAT AN UNANNOUNCED PRIVATE CONFERENCE OR SITE SURVEY WAS AFFORDED ENVIRONMENTAL WHICH, IT IS ALLEGED, VIOLATED THE PROVISIONS OF THE LRTP, AND VERBAL INSTRUCTIONS FROM THE CONTRACTING OFFICER TO BIDDERS ATTENDING THE SCHEDULED PREPROPOSAL CONFERENCE AND SITE SURVEY THAT, IN EFFECT, NO FURTHER CONFERENCE OR SITE SURVEY WOULD BE ALLOWED. YOU MAINTAIN THAT ANY INFORMATION REVEALED TO ENVIRONMENTAL WAS NOT MADE KNOWN TO OTHER PROSPECTIVE OFFERORS, TO THEIR DETRIMENT.

THE CONTRACTING OFFICER REPORTS THAT TWO POTENTIAL OFFERORS, INCLUDING ENVIRONMENTAL, VISITED THE SITE WITH THE APPROVAL OF THE CONTRACTING OFFICER AFTER THE PREPROPOSAL CONFERENCE AND SITE SURVEY ON THE DATE SET FORTH IN THE SOLICITATION. OUR REVIEW OF THE PERTINENT LRTP LANGUAGE REVEALS NO PROHIBITION AGAINST SUCH A SITE SURVEY. FURTHER, THE ARMY, IN A REPORT TO OUR OFFICE, JUSTIFIED THE LATE SITE SURVEY AS FOLLOWS:

*** ENVIRONMENTAL TECHNOLOGY CORPORATION WASN'T REPRESENTED AT THE PREPROPOSAL CONFERENCE AND SITE SURVEY OF 22 JUNE 1970. THE CONTRACTING OFFICER AGREED TO CONDUCT A LATE SITE SURVEY FOR ENVIRONMENTAL TECHNOLOGY CORPORATION. IN CONDUCTING THE LATE SITE SURVEY, THE CONTRACTING OFFICER GUARANTEED THE EQUAL TREATMENT ENVISIONED BY OUR PROCUREMENT SYSTEM OF FREE, FULL AND EQUAL COMPETITION, IN THAT HE FURNISHED ENVIRONMENTAL TECHNOLOGY CORPORATION THE SAME OPPORTUNITY WHICH WAS GIVEN TO THE OTHER POTENTIAL BIDDERS WHO ATTENDED THE PREPROPOSAL CONFERENCE AND SITE SURVEY 22 JUNE 1970. THE SAME INFORMATION WHICH WAS FURNISHED TO THE POTENTIAL BIDDERS AT THE 22 JUNE 1970 PREPROPOSAL CONFERENCE AND SITE SURVEY WAS RECEIVED BY ENVIRONMENTAL TECHNOLOGY CORPORATION AT THE TIME THE LATE SITE SURVEY WAS CONDUCTED. NO ADDITIONAL INFORMATION TO THAT DISCLOSED AT THE ORIGINAL SITE SURVEY WAS PRESENTED TO ENVIRONMENTAL TECHNOLOGY CORPORATION. IT SHOULD ALSO BE NOTED THAT ASPR 2-502(A)(1) PERMITS ANY NECESSARY DISCUSSION OF THE TECHNICAL ASPECTS OF THE REQUIREMENT IN ORDER TO INSURE MUTUAL UNDERSTANDING BETWEEN EACH SOURCE AND THE GOVERNMENT. BELIEVE THAT THE PROVISIONS OF ASPR 3-504 AND 3-504.2 WHICH SET FORTH THE PROCEDURES FOR PREPROPOSAL CONFERENCES DO NOT PRECLUDE THE CONDUCTING OF MORE THAN ONE PREPROPOSAL CONFERENCE OR SITE SURVEY SO LONG AS OFFERORS ARE TREATED EQUALLY AND SUPPLIED SUBSTANTIALLY SIMILAR INFORMATION. THERE IS NO INDICATION OFFERORS WERE NOT SO TREATED IN THIS INSTANCE. THEREFORE, WE FIND NO BASIS TO OBJECT TO THE LATER SITE SURVEY CONDUCTED FOR THE BENEFIT OF ENVIRONMENTAL. ACCORDINGLY, YOUR PROTEST MUST BE DENIED.