B-172922, AUG 3, 1971

B-172922, AUG 3, 1971

BID PROTEST - NONRECEIPT OF BID EXTENSION DENIAL OF PROTEST BY MERCURY TOOL AND MACHINE CO., INC. AGAINST AWARD OF A CONTRACT TO ANOTHER FIRM UNDER AN IFB ISSUED BY THE ROCK ISLAND ARSENAL FOR THE PROCUREMENT OF ELEVEN "FIXTURE ASSEMBLY, RECEIVERS" FOR END USE ON THE 30 CALIBER M1 RIFLE. PROTESTANT'S LETTER EXTENDING THEIR BID EXPIRATION DATE WAS NOT RECEIVED BY THE CONTRACTING ACTIVITY, AND CONSEQUENTLY THE BID WAS REJECTED. SINCE THE TELEGRAM REQUESTING THE EXTENSION PROVIDED THAT ACQUIENSCENCE WOULD NOT BE EFFECTIVE UNTIL RECEIPT, THE MERE MAILING OF THE LETTER WOULD NOT BE LEGALLY SUFFICIENT. FURTHER, THE COMP. GEN. HAS BEEN UNABLE TO FIND THAT THE ASPR IMPOSES ANY OBLIGATION ON THE CONTRACTING OFFICER TO VERIFY THE FAILURE OF A BIDDER TO EXTEND HIS BID.

TO MERCURY TOOL AND MACHINE CO., INC.:

REFERENCE IS MADE TO YOUR LETTERS OF MAY 10 AND JUNE 9, 1971, WITH ENCLOSURES, PROTESTING THE AWARD OF A CONTRACT TO ANOTHER FIRM UNDER INVITATION FOR BIDS (IFB) DAAF01-71-B-0116 ISSUED BY THE ROCK ISLAND ARSENAL, ROCK ISLAND, ILLINOIS.

THE SUBJECT INVITATION WAS ISSUED ON AUGUST 28, 1970, FOR THE PROCUREMENT OF ELEVEN EACH "FIXTURE ASSEMBLY, RECEIVER" FOR END USE ON THE 30 CALIBER M1 RIFLE (BF). ON OCTOBER 9, 1970, BID OPENING REVEALED OFFERS FROM NINE FIRMS, WITH PRICES BASED ON FIRST ARTICLE APPROVAL, RANGING FROM THE LOWEST UNIT BID OF $475.00, SUBMITTED BY B.A.R. BEARING MFG. CORP. (B.A.R.), TO A HIGH OF $2,145.00 PER UNIT SUBMITTED BY HOPPE TOOL, INC. YOUR FIRM SUBMITTED THE FOURTH LOW BID, AT A UNIT PRICE OF $1,288.00, AND GENERAL ELECTRIC COMPANY, WHICH ULTIMATELY RECEIVED THE AWARD, WAS THE SIXTH LOW BIDDER AT A UNIT PRICE OF $1,738.00.

IN VIEW OF B.A.R.'S VERY LOW BID, VERIFICATION WAS REQUESTED. WHILE THE CONTRACTING OFFICER WAS PROCESSING B.A.R.'S VERIFICATION, HE REQUESTED THE SEVEN LOWEST BIDDERS, WHOSE BIDS WERE TO EXPIRE ON DECEMBER 8, 1970, TO EXTEND THE ACCEPTANCE PERIOD THEREOF TO JANUARY 7, 1971. BOTH B.A.R. AND LOVEQUIST MANUFACTURING CO., THE FIFTH LOW BIDDER, FAILED TO EXTEND BEYOND DECEMBER 8, 1970. THE OTHER FIVE COMPANIES, INCLUDING YOURS, EXTENDED TO JANUARY 7, 1971, AS REQUESTED.

WHILE THE CONTRACTING OFFICER WAS AWAITING THE RESULTS OF A PREAWARD SURVEY ON SERMOR, INC., THE SECOND LOW BIDDER, IT BECAME NECESSARY TO REQUEST ANOTHER EXTENSION OF THE BID ACCEPTANCE PERIOD, SINCE THE PREAWARD SURVEY WOULD NOT BE COMPLETED UNTIL AFTER EXPIRATION OF BIDS ON JANUARY 7, 1971. THE CONTRACTING OFFICER REQUESTED, BY TELEGRAM OF DECEMBER 29, 1970, EXTENSION UNTIL FEBRUARY 6, 1971. ALL FIVE COMPANIES EXTENDED ACCORDINGLY.

UPON RECEIPT OF SERMOR'S PREAWARD SURVEY, DATED JANUARY 20, 1971, FURTHER PROBLEMS RELATED TO THE PROCESSING OF THAT FIRM NECESSITATED ANOTHER EXTENSION. THE CONTRACTING OFFICER'S TELEGRAM OF JANUARY 27, 1971, REQUESTED BID EXTENSIONS UNTIL MARCH 8, 1971. FOUR FIRMS, INCLUDING YOURS, ACQUIESCED IN THE REQUEST BUT IT WAS LEARNED THAT SERMOR DID NOT WISH TO EXTEND.

AS A RESULT, SRM MANUFACTURING CO. (SRM), ORIGINALLY THE THIRD LOW BIDDER, BECAME THE LOW RESPONSIVE BIDDER. ON FEBRUARY 10, 1971, A COMPLETE PREAWARD SURVEY WAS REQUESTED ON SRM AND THE ENSUING SURVEY, DATED FEBRUARY 26, 1971, RECOMMENDED THAT NO AWARD BE GRANTED TO THAT FIRM.

BY TELEGRAM OF FEBRUARY 25, 1971, THE CONTRACTING OFFICER REQUESTED BID EXTENSIONS TO APRIL 7, 1971, FROM THE FOUR REMAINING COMPANIES WHOSE BIDS WERE TO EXPIRE ON MARCH 8. AS OF SUCH DATE EXTENSIONS WERE RECEIVED FROM SRM, GENERAL ELECTRIC COMPANY (GE), AND SKYLINE INDUSTRIES (SKYLINE). IS REPORTED THAT NO EXTENSION WAS RECEIVED FROM YOUR FIRM.

ON MARCH 9, 1971, THE CONTRACTING OFFICER DETERMINED SRM TO BE NONRESPONSIBLE. ON MARCH 16, 1971, SUCH DETERMINATION WAS FORWARDED TO THE SMALL BUSINESS ADMINISTRATION (SBA) IN DALLAS FOR A CERTIFICATE OF COMPETENCY (COC) DETERMINATION. HOWEVER, SRM SUBSEQUENTLY WITHDREW ITS COC APPLICATION, THEREBY LEAVING ONLY THE BIDS OF G.E. AND SKYLINE ELIGIBLE FOR ACCEPTANCE.

BY TELEGRAM OF MARCH 29, 1971, THE CONTRACTING OFFICER REQUESTED BID EXTENSIONS TO MAY 7, 1971, FROM THE FIRMS WHOSE BIDS WERE TO EXPIRE APRIL 7. BOTH G.E. AND SKYLINE EXTENDED ACCORDINGLY. YOUR FIRM WAS NOT REQUESTED TO EXTEND SINCE THE PERIOD FOR ACCEPTANCE OF YOUR BID HAD APPARENTLY EXPIRED ON MARCH 8.

HAVING DETERMINED THAT G.E.'S PRICE WAS FAIR AND REASONABLE, AND THAT G.E. WAS A RESPONSIBLE FIRM ON THE BASIS OF SATISFACTORY PERFORMANCE ON PREVIOUS CONTRACTS, THE CONTRACTING OFFICER CONSUMMATED CONTRACT NO. DAAF01-71-C-0682 WITH THAT FIRM ON APRIL 19, 1971, AND YOU WERE SO NOTIFIED BY A LETTER DATED APRIL 21, 1971.

YOU HAVE PROTESTED THAT YOU COMPLIED WITH ALL REQUESTS BY THE ROCK ISLAND ARSENAL TO EXTEND THE ACCEPTANCE PERIOD UNDER THE SUBJECT IFB, AND YOU HAVE PROVIDED THE CONTRACTING OFFICER WITH COPIES OF YOUR LETTERS ACQUIESCING IN EACH SUCH REQUEST, INCLUDING THE CRUCIAL ONE DATED MARCH 1, 1971, WHICH EXTENDED THE PERIOD FOR ACCEPTANCE OF YOUR BID TO APRIL 7, 1971, AND WHICH THE PROCURING ACTIVITY STATES IT NEVER RECEIVED. YOU CONTEND THAT, IN VIEW OF THE FACT THAT YOU HAD COMPLIED WITH THE THREE PREVIOUS REQUESTS FOR EXTENSION, THE CONTRACTING OFFICER SHOULD HAVE MADE A PHONE CALL TO VERIFY THE SUBMISSION OF YOUR EXTENSION LETTER OF MARCH 1, 1971, BEFORE DISQUALIFYING YOUR BID, SINCE SUCH AN ACTION WOULD HAVE SAVED THE GOVERNMENT $13,000.00.

WE ARE THEREFORE PRESENTED WITH A FACTUAL SITUATION WHEREBY IT IS ALLEGED THAT YOU MAILED YOUR LETTER OF MARCH 1, 1971, BUT IT IS ALSO ESTABLISHED THAT THERE WAS NO RECEIPT BY THE PROCURING ACTIVITY.

ASSUMING YOU MAILED YOUR LETTER OF MARCH 1, 1971, THAT SAME DATE, THE PROCURING ACTIVITY WOULD NOT BE CHARGED WITH NOTICE OF YOUR LETTER ACCEPTING THE EXTENSION REQUEST UNTIL IT WAS ACTUALLY RECEIVED BY THAT ACTIVITY, SINCE THE LANGUAGE OF THE TELEGRAM OF FEBRUARY 25, 1971, REQUESTING EXTENSION OF YOUR BID UNTIL APRIL 7, 1971, PROVIDED THAT YOUR ACQUIESCENCE "MUST BE RECEIVED NO LATER THAN CLOSE OF BUSINESS 8 MARCH 1971." THUS, AS A MATTER OF LAW, WE CANNOT CONCLUDE THAT THE MERE MAILING OF YOUR LETTER WAS SUFFICIENT TO COMPLY WITH THE EXTENSION REQUEST.

AS TO YOUR CONTENTION THAT THE CONTRACTING OFFICER SHOULD HAVE ATTEMPTED TO VERIFY WHETHER YOU DID OR DID NOT SUBMIT THE EXTENSION LETTER IN QUESTION, OUR RESEARCH OF THE ARMED SERVICES PROCUREMENT REGULATION HAS FAILED TO REVEAL ANY SUCH OBLIGATION. IN VIEW THEREOF, AND SINCE THE RECORD INDICATES THAT ONE OR MORE BIDDERS FAILED TO EXTEND THE PERIOD FOR BID ACCEPTANCE ON TWO PREVIOUS OCCASIONS THAT AN EXTENSION WAS REQUESTED, WE ARE UNABLE TO CONCLUDE THAT THE ROCK ISLAND ARSENAL WAS DERELICT IN THIS REGARD AS A MATTER OF LAW.

UNDER THE CIRCUMSTANCES, AND SINCE YOUR BID, AS EXTENDED BY YOUR LETTER OF MARCH 1, HAD EXPIRED ON APRIL 7 AND YOU HAD MADE NO INQUIRY RELATIVE TO ITS FURTHER EXTENSION, WE ARE UNABLE TO SAY THAT THE CONTRACTING OFFICER WAS CHARGEABLE WITH NOTICE WHEN HE MADE AN AWARD ON APRIL 19, THAT YOU MAY STILL HAVE WANTED YOUR BID CONSIDERED FOR AWARD. ACCORDINGLY, IT WOULD APPEAR THAT THE AWARD WAS MADE IN GOOD FAITH, AND WE SEE NO BASIS ON WHICH THE CONTRACT SO AWARDED COULD BE CONSIDERED ILLEGAL. IN VIEW THEREOF, YOUR PROTEST MUST BE DENIED.