B-173953(3), DEC 3, 1971

B-173953(3): Dec 3, 1971

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READ: ENCLOSED IS A COPY OF OUR DECISION OF TODAY TO THE ATTORNEYS REPRESENTING GOLDEN INDUSTRIES. FIFTY PERCENT OF THE PROCUREMENT WAS SET ASIDE FOR LABOR SURPLUS AREA CONCERNS PURSUANT TO THE CLAUSE "NOTICE OF LABOR SURPLUS AREA SET-ASIDE (1970 JUN)" (ARMED SERVICES PROCUREMENT REGULATION 1-804.2(B)(1)). WHICH IS ESSENTIALLY THE SAME AS THE CLAUSE APPEARING IN FEDERAL PROCUREMENT REGULATIONS (FPR) 1-1.804.2. WE WERE UNABLE TO CONCLUDE THAT THE REJECTION WAS IMPROPER. CHARACTERIZE THE REQUIREMENT FOR SUBMISSION OF THE CERTIFICATE AS ONE OF RESPONSIVENESS AS TO WHICH THE CRITICAL TIME IS BID OPENING OR CLOSING DATE FOR RECEIPT OF PROPOSALS. WE HAVE QUESTIONED THE ADVISABILITY OF THUS APPLYING THE CONCEPT OF RESPONSIVENESS IN NEGOTIATED PROCUREMENTS.

B-173953(3), DEC 3, 1971

BID PROTEST DENIED - RECOMMENDED CHANGE IN REGULATION FORWARDING COPY OF DECISION OF TODAY DENYING THE PROTEST OF GOLDEN INDUSTRIES, INC., UNDER AN RFP ISSUED BY THE ARMY AMMUNITION PROCUREMENT AND SUPPLY AGENCY. GAO HAS SUGGESTED THAT THE ARMED SERVICES PROCUREMENT REGULATION BE AMENDED TO DISTINGUISH BETWEEN FORMALLY ADVERTISED AND NEGOTIATED PROCUREMENTS IN THIS REGARD.

TO MR. PHILIP G. READ:

ENCLOSED IS A COPY OF OUR DECISION OF TODAY TO THE ATTORNEYS REPRESENTING GOLDEN INDUSTRIES, INC., DENYING ITS PROTEST UNDER A REQUEST FOR PROPOSALS ISSUED BY THE DEPARTMENT OF THE ARMY. FIFTY PERCENT OF THE PROCUREMENT WAS SET ASIDE FOR LABOR SURPLUS AREA CONCERNS PURSUANT TO THE CLAUSE "NOTICE OF LABOR SURPLUS AREA SET-ASIDE (1970 JUN)" (ARMED SERVICES PROCUREMENT REGULATION 1-804.2(B)(1)), WHICH IS ESSENTIALLY THE SAME AS THE CLAUSE APPEARING IN FEDERAL PROCUREMENT REGULATIONS (FPR) 1-1.804.2.

THE PROTEST OF GOLDEN INDUSTRIES AROSE FROM THE REJECTION BY THE CONTRACTING OFFICER OF A CERTIFICATE OF ELIGIBILITY SUBMITTED AFTER THE CLOSING DATE FOR RECEIPT OF PROPOSALS DURING NEGOTIATIONS PRECEDING THE AWARD OF THE NON-SET-ASIDE PORTION. IN VIEW OF THE APPLICABLE REGULATIONS AND OUR DECISION 47 COMP. GEN. 543 (1968), QUOTED IN THE ENCLOSED DECISION, WE WERE UNABLE TO CONCLUDE THAT THE REJECTION WAS IMPROPER. THESE AUTHORITIES, AS DOES PARAGRAPH (D) OF FPR 1-1.804.2, CHARACTERIZE THE REQUIREMENT FOR SUBMISSION OF THE CERTIFICATE AS ONE OF RESPONSIVENESS AS TO WHICH THE CRITICAL TIME IS BID OPENING OR CLOSING DATE FOR RECEIPT OF PROPOSALS.

BY LETTER OF TODAY TO THE SECRETARY OF DEFENSE, COPY ENCLOSED, WE HAVE QUESTIONED THE ADVISABILITY OF THUS APPLYING THE CONCEPT OF RESPONSIVENESS IN NEGOTIATED PROCUREMENTS. WE BELIEVE THE VIEWS EXPRESSED IN THAT LETTER ARE EQUALLY APPLICABLE TO PROCUREMENTS BY THE CIVILIAN AGENCIES OF GOVERNMENT, AND WE THEREFORE SUGGEST THAT REVISION OF THE FEDERAL PROCUREMENT REGULATIONS TO ACCOMPLISH THE SAME PURPOSE WOULD BE APPROPRIATE.

WE WOULD APPRECIATE THE BENEFIT OF YOUR VIEWS IN THIS MATTER AT THE EARLIEST PRACTICABLE DATE.