B-174113, APR 5, 1972

B-174113, APR 5, 1972

BID PROTEST - ALLEGED IMPROPER SOLICITATION - EXCESSIVE DELAY IN AWARD - REIMBURSEMENT OF BID PREPARATION COSTS AND DAMAGES DECISION DENYING THE PROTEST OF RADIATION INTERNATIONAL, INC., MOBILE SYSTEMS INTERNATIONAL, AND TELEDYNE INET AGAINST THE AWARD OF A CONTRACT TO BOGUE ELECTRIC MANUFACTURING COMPANY (BEM) UNDER AN RFP ISSUED BY THE ARMY ENGINEER DIVISION, HUNTSVILLE, ALABAMA. IN THIS CASE: 1. THE CONTRACTING OFFICER'S DECISION TO RESOLICIT THE PROCUREMENT WAS NOT UNREASONABLE SINCE THE MODIFICATIONS SEEM TO HAVE RESOLVED SOME OF THE AMBIGUITIES COMPLAINED OF. 2. THE PROVISIONS OF 10 U.S.C. 2304(A)(2) ALLOW NEGOTIATION WHEN THE PUBLIC EXIGENCY WILL NOT PERMIT THE DELAY INCIDENT TO ADVERTISING. FURTHER, THE CHANGE WAS MADE PURSUANT TO A DETERMINATION AND FINDINGS WHICH IS NOT SUBJECT TO REVIEW BY GAO. 3. BEM'S BID WAS DETERMINED TO HAVE BEEN TIMELY MAILED AND, IN ANY EVENT, A FIRM'S FAILURE TO RESPOND TO AN ORIGINAL SOLICITATION DOES NOT PRECLUDE ITS BIDDING ON A RESOLICITATION OF THE SAME PROCUREMENT. 4. THE DELAY IN AWARD WAS JUSTIFIABLE. HOWEVER, EVEN AN EXCESSIVE DELAY WILL NOT, PER SE, INVALIDATE THE CONTRACT. 5. WHETHER AN OFFEROR IS TECHNICALLY CAPABLE OF PERFORMING AT ITS STATED PRICE IS PRIMARILY FOR DETERMINATION BY THE CONTRACTING OFFICER AND WILL NOT BE QUESTIONED ABSENT CLEAR AND CONVINCING EVIDENCE THAT THE AGENCY'S JUDGMENT WAS UNREASONABLE. 6. IN THIS TYPE OF SOLICITATION PRICE MAY PROPERLY BE CONSIDERED THE CONTROLLING FACTOR AND, SINCE "OTHER FACTORS" ARE IMPLICIT, THE COMP. GEN. MUST CONCLUDE THAT THE SOLICITATION CONTAINED SUFFICIENT INFORMATION TO ENABLE ALL OFFERORS TO PREPARE THEIR PROPOSALS PROPERLY. SEE ASPR 3- 501(B). 7. THE SOLICITATION CANNOT BE CONSIDERED AN AUCTION SINCE NO OFFEROR WAS INFORMED OF HOW HIS PRICE STOOD IN RELATION TO OTHERS. 8. PROTESTANTS MAY NOT BE REIMBURSED THE COSTS OF BID PREPARATION OR OTHER DAMAGES SINCE THERE IS NO BASIS FOR CONCLUDING THAT THE GOVERNMENT'S IMPLIED OBLIGATION TO FAIRLY CONSIDER BIDS HAS BEEN BREACHED. KECO INDUSTRIES V UNITED STATES, 428 F. 2D 1233 (CT. CL. 1970). FOR THE FOREGOING REASONS, THE PROTESTS MUST BE DENIED.

TO MR. SECRETARY:

WE REFER TO A LETTER DATED OCTOBER 7, 1971, FROM THE GENERAL COUNSEL, OFFICE OF THE CHIEF OF ENGINEERS, AND SUBSEQUENT CORRESPONDENCE TRANSMITTING REPORTS IN CONNECTION WITH THE PROTESTS OF RADIATION INTERNATIONAL, INCORPORATED (RADIATION), MOBILE SYSTEMS INTERNATIONAL, INCORPORATED (MSI), AND TELEDYNE INET (TELEDYNE) AGAINST THE AWARD OF A CONTRACT TO BOGUE ELECTRIC MANUFACTURING COMPANY (BEM) UNDER REQUEST FOR PROPOSALS NO. DACA87-72-R-0086 (RFP 0086), ISSUED ON OCTOBER 14, 1971, BY THE UNITED STATES ARMY ENGINEER DIVISION, HUNTSVILLE, ALABAMA.

THE SUBJECT PROCUREMENT WAS INITIATED ON MAY 20, 1971, BY INVITATION FOR BIDS NO. DACA87-71-B-0061 (IFB 0061) WHICH SOLICITED BIDS FOR 16 "NO BREAK POWER SYSTEMS" TO BE SUPPLIED TO A CONSTRUCTION CONTRACTOR AS GOVERNMENT- FURNISHED PROPERTY ON THE SAFEGUARD BMD SYSTEM. NINE BIDS WERE RECEIVED AND OPENED ON AUGUST 3. ON AUGUST 9 A BID FROM BEM WAS RECEIVED AND OPENED UPON A DETERMINATION BY THE CONTRACTING OFFICER THAT THE BID WAS DELAYED IN THE MAILS. MEANWHILE ON AUGUST 5, BOTH BEM AND MSI PROTESTED AGAINST ALLEGED AMBIGUITIES IN THE SPECIFICATIONS. ON AUGUST 12, 1971, THE IFB WAS CANCELLED BY THE CONTRACTING OFFICER BASED UPON HIS DETERMINATION THAT THE SPECIFICATIONS WERE, INDEED, AMBIGUOUS.

ON AUGUST 16, 1971, REQUEST FOR PROPOSALS NO. DACA87-72-R-0024 (RFP 0024) WAS ISSUED WITH REVISED SPECIFICATIONS AND WAS SENT TO THOSE FIRMS (INCLUDING BEM) WHO HAD SUBMITTED BIDS UNDER THE IFB. THE RFP WAS ISSUED UNDER THE AUTHORITY OF 10 U.S.C. 2304(A)(2) WHICH ALLOWS NEGOTIATION IF "THE PUBLIC EXIGENCY WILL NOT PERMIT THE DELAY INCIDENT TO ADVERTISING." TEN OFFERS WERE RECEIVED BY AUGUST 30, 1971; BUT NEW OFFERS REQUESTED ON SEPTEMBER 1, 1971, FOR AN ALTERNATE DELIVERY DATE WERE RECEIVED BY SEPTEMBER 7, 1971, AT WHICH TIME THE CONTRACTING OFFICER DETERMINED THAT RADIATION, MSI, TELEDYNE AND BEM WERE IN THE COMPETITIVE RANGE. SEPTEMBER 8, 1971, THE CONTRACTING OFFICER CONTACTED THREE OF THESE FOUR FIRMS (HE NEGLECTED TO CONTACT MSI) AND REQUESTED THAT THEY EITHER RECONFIRM OR CHANGE THEIR PRICE BASED UPON A CHANGE IN AWARD DATE FROM SEPTEMBER 8, 1971, TO SEPTEMBER 15, 1971. DELIVERY DATES UNDER THE RFP WERE NOT TO BE CHANGED. THE REASON FOR EXTENDING THE AWARD DATE WAS TO OBTAIN A REPORT ON THE ABILITY OF RADIATION TO PERFORM IF AWARDED A CONTRACT.

ON SEPTEMBER 14, 1971, AND AGAIN ON SEPTEMBER 15, 1971, BOTH BEM AND TELEDYNE REDUCED THEIR PRICES. ON SEPTEMBER 15, 1971, AWARD WAS MADE TO BEM AT A PRICE OF $739,614. SEVERAL PROTESTS WERE MADE TO BOTH THE CONTRACTING OFFICER AND TO OUR OFFICE, AND ON OCTOBER 12, 1971, THE AWARD TO BEM WAS TERMINATED FOR CONVENIENCE BECAUSE OF THE CONTRACTING OFFICER'S FAILURE TO CONDUCT NEGOTIATIONS WITH MSI.

THEREAFTER ON OCTOBER 14, 1971, REQUEST FOR PROPOSALS NO. DACA87-71-R 0086 (RFP 0086) WAS ISSUED TO THE SAME FOUR OFFERORS (RADIATION, BEM, TELEDYNE AND MSI) WHO HAD BEEN DETERMINED TO BE WITHIN THE COMPETITIVE RANGE UNDER RFP 0024. ON OCTOBER 26, NOTICE WAS GIVEN TO ALL OFFERORS THAT THE CLOSING DATE HAD BEEN EXTENDED UNTIL OCTOBER 28. ON THAT DATE FOUR PROPOSALS WERE RECEIVED. AT THIS TIME THERE WERE TWO PROTESTS OUTSTANDING AGAINST THE PROCUREMENT. ON NOVEMBER 10, NOTWITHSTANDING THE PENDENCY OF THE PROTESTS FILED BY RADIATION AND MSI, AWARD WAS MADE TO BEM AS THE LOW OFFEROR AT A PRICE OF $710,804. THIS AWARD WAS MADE WITH THE APPROVAL OF THE ASSISTANT SECRETARY OF THE ARMY (I&L) PURSUANT TO ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2-407. 8(B)(2).

THE FIRST ACTION CHALLENGED IN THIS CASE IS THE CANCELLATION OF IFB 0061 AND THE RESOLICITATION OF THE SUBJECT PROCUREMENT UNDER RFP 0024. THAT CANCELLATION IS ALLEGED TO HAVE BEEN IMPROPER BECAUSE NO SUBSTANTIVE CHANGES WERE MADE TO THE SPECIFICATIONS INCORPORATED INTO THE NEW SOLICITATION. THE CONTRACTING OFFICER STATES THAT ON AUGUST 5 BOTH MSI AND BEM PROTESTED AGAINST THE AWARD OF A CONTRACT UNDER IFB 0061 DUE TO ALLEGED AMBIGUITIES IN THE SUBJECT INVITATION. MORE SPECIFICALLY, MSI CONTENDED THAT THE TECHNICAL PROVISIONS WERE AMBIGUOUS IN REGARD TO THE NUMBER OF ITEMS REQUIRED. BEM CONTENDED THAT THE TECHNICAL PROVISIONS DID NOT CLEARLY INDICATE THE PERMISSIBLE EXTENT OF DESIGN VARIATION. AS A RESULT OF THESE PROTESTS THE IFB WAS CANCELLED AND THE PROCUREMENT WAS RESOLICITED UNDER RFP 0024.

WE OBSERVE THAT RFP 0024, WHICH WAS INTENDED TO RESOLVE THE ALLEGED AMBIGUITIES DID, IN FACT, INCORPORATE SPECIFICATION CHANGES. PARAGRAPH 2.1 WAS REWRITTEN SO AS TO MORE CLEARLY PROVIDE THAT EACH OF THE ITEMS REQUIRED IS TO CONSIST OF 2 SUBSYSTEMS. EACH SUBSYSTEM IS DESIGNATED BY A DIFFERENT PART NUMBER. THE SCHEDULE WAS ALSO ALTERED TO REQUIRE 8 POWER BREAK SYSTEMS IN LIEU OF THE SIXTEEN SUBSYSTEMS INITIALLY CALLED FOR UNDER IFB 0061. ALTHOUGH THESE MODIFICATIONS WERE NOT SUBSTANTIVE IN THAT THE 16 SUBSYSTEMS INITIALLY REQUIRED WERE ACTUALLY THE SAME AS THE 8 SYSTEMS (EACH CONSISTING OF 2 SUBSYSTEMS) REQUIRED BY RFP 0024, THE AMBIGUITY ALLEGED BY MSI UNDER IFB 0061 SPECIFICALLY DEALT WITH THE NUMBER OF UNITS REQUIRED BY THE INVITATION. BASED ON THE UNIT PRICES SUBMITTED BY MSI, THE CONTRACTING OFFICER OBSERVED THAT MSI HAD QUOTED ON FURNISHING 16 SYSTEMS RATHER THAN 16 SUBSYSTEMS. HE CONCLUDED THAT THE SPECIFICATIONS MISLED THE BIDDER AS TO THE NUMBER OF UNITS REQUIRED, AND THAT THE SPECIFICATIONS WERE ALSO MISLEADING AS TO THE EXTENT OF DESIGN VARIATION PERMITTED. UNDER THE CIRCUMSTANCES, WE DO NOT FEEL THE CONTRACTING OFFICER ACTED UNREASONABLY IN DECIDING TO CANCEL THE IFB AND RESOLICIT THE PROCUREMENT.

IT IS ALSO CONTENDED THAT THE SPECIFICATION DIFFERENCES BETWEEN IFB 0061 AND RFP 0024 WERE INSUFFICIENT TO JUSTIFY CHANGING FROM FORMAL ADVERTISING TO NEGOTIATION. ALTHOUGH THE CANCELLATION WAS BASED ON AMBIGUITIES IN THE INVITATION, THE CONVERSION TO NEGOTIATION WAS EXECUTED PURSUANT TO THE AUTHORITY OF 10 U.S.C. 2304(A)(2) WHICH PROVIDES FOR NEGOTIATION IF THE PUBLIC EXIGENCY WILL NOT PERMIT THE DELAY INCIDENT TO ADVERTISING. THE JUSTIFICATION FOR NEGOTIATION IS CONTAINED IN A DETERMINATION AND FINDINGS ISSUED ON AUGUST 13, 1971, BY THE CONTRACTING OFFICER. SUCH FINDINGS ARE MADE FINAL BY THE PROVISIONS OF 10 U.S.C. 2310(B) AND ARE NOT SUBJECT TO REVIEW BY THIS OFFICE.

HOWEVER, IT IS URGED THAT BEM WAS NOT QUALIFIED TO PARTICIPATE IN THE SUBJECT PROCUREMENT UNDER EITHER RFP 0024 OR RFP 0086 BECAUSE THAT FIRM WAS NOT A RESPONSIVE AND RESPONSIBLE BIDDER UNDER IFB 0061. THIS CONTENTION APPARENTLY IS BASED ON THE FACT THAT BEM SUBMITTED A LATE BID IN RESPONSE TO IFB 0061. WE BELIEVE THE FOLLOWING EXPLANATION PROVIDED BY THE CONTRACTING OFFICER ADEQUATELY ANSWERS THIS CONTENTION:

" *** THE LATENESS OF BEM'S BID DOES NOT PRECLUDE THAT FIRM FROM BEING ONE OF THE ORIGINAL OFFERORS SINCE THE BID WAS READILY IDENTIFIED AS HAVING BEEN DELAYED BY THE MAILS AND WAS DETERMINED BY THE CONTRACTING OFFICER TO HAVE BEEN TIMELY MAILED.

" *** WHETHER BEM'S BID WAS LATE AND ACCEPTED OR WHETHER IT HAD NOT BEEN ACCEPTED HAS NO BEARING ON THE SELECTION OF OFFERORS TO BE SOLICITED ON THE RFP. THE FACT THAT BEM WAS AMONG THOSE SOLICITED ON BOTH RFPS WAS BASED ON THE SAME RATIONALE USED IN SELECTION OF ALL OFFERORS TO BE SOLICITED. ON RFP DACA87-72-R-0024, SELECTION OF OFFERORS WAS BASED ON FAMILIARITY OF OFFERORS WITH THE SPECIFICATION *** . ON RFP DACA87-72-R- 0086, SELECTION OF OFFERORS WAS BASED ON THEIR STANDING IN THE COMPETITIVE ZONE OF CONSIDERATION ON THE PREVIOUS RFP.

HOWEVER, THERE COULD HAVE BEEN A COMPLETELY DIFFERENT RATIONALE USED AND FIRMS WHICH DID NOT RESPOND WITH A BID ON THE IFB OR FOR THAT MATTER, FIRMS WHO HAD NOT PREVIOUSLY BEEN FURNISHED COPIES OF THE IFB, COULD HAVE BEEN SOLICITED. THE MERE FACT THAT A FIRM DID OR DID NOT RESPOND TO SOLICITATION WHICH WAS CANCELLED DOES NOT PROHIBIT THAT FIRM FROM BEING INCLUDED ON A RESOLICITATION."

NEXT, IT IS CONTENDED THAT SINCE AWARD WAS NOT MADE UNTIL NOVEMBER 10 EVEN THOUGH THE GOVERNMENT'S STATED INTENTION WHEN RFP 0086 WAS ISSUED WAS TO MAKE AWARD ON OCTOBER 21 WITHOUT ADDITIONAL NEGOTIATIONS, THE AWARD WAS SUBJECT TO EXCESSIVE DELAY. THE CONTRACTING OFFICER HAS EXPLAINED THE MATTER AS FOLLOWS:

"THE CONTRACTING OFFICER'S LETTER INCLUDED WITH RFP DACA87-72-R-0086 STATED THAT NO ALTERNATE PROPOSALS WOULD BE CONSIDERED AND THAT THE RFP WAS A RESOLICITATION OF THE REQUIREMENTS AS ORIGINALLY EXPRESSED IN IFB DACA87-71-B-0061. THIS LETTER ALSO ADVISED OFFERORS THAT PRICES SUBMITTED SHOULD BE THEIR BEST AND FINAL, AS THE GOVERNMENT INTENDED TO MAKE AN AWARD WITHOUT ANY ADDITIONAL NEGOTIATIONS SUBSEQUENT TO 21 OCTOBER 1971. THE URGENCY OF THE REQUIREMENT WAS POINTED OUT BY THE STATEMENT THAT CLOSING TIME COULD NOT BE EXTENDED, AND BY NOTICE OF THE POSSIBILITY OF A PREAWARD SURVEY AS EARLY AS 22 OCTOBER 1971. HOWEVER, DUE TO THE ERROR IN THE SUBSEQUENT PROPOSAL SUBMITTED BY MSI, THE GOVERNMENT WAS PRECLUDED FROM ACCOMPLISHING ITS STATED GOAL: THE IMMEDIATE AWARD OF A CONTRACT. TWELVE DAYS WERE LOST IN A SECOND ROUND OF NEGOTIATIONS, WHICH WERE CONDUCTED TO ALLOW THE CORRECTION OF THE ERROR OF MSI AND TO ELIMINATE ANY ALLEGATIONS OF ALLOWING ONE OFFEROR AN OPPORTUNITY TO CHANGE A PROPOSED PRICE AND NOT EXTENDING THE SAME OPPORTUNITY TO ALL OFFERORS.

"E. THE FURTHER DELAYS EXPERIENCED, EIGHT DAYS, WERE DUE TO THE ADMINISTRATIVE STEPS NECESSARY TO CLEAR AWARD OF THIS CONTRACT THROUGH HIGHER AUTHORITY IN THE FACE OF A PENDING PROTEST. WHILE THIS DELAY IS REGRETTABLE, IT IS NEVERTHELESS A NECESSARY PART OF THE GOVERNMENT'S PROCEDURES, INSTITUTED FOR PROTECTION OF THE PROCUREMENT PROCESS. THIS ADDITIONAL EIGHT DAY DELAY CAN ONLY BE CLASSIFIED, IN DISCUSSION WITH OFFERORS, AS EVALUATION OF PROPOSALS."

IN OUR VIEW THE FOREGOING ESTABLISHES A REASONABLE BASIS FOR THE DELAY. IN ANY CASE, WE DO NOT BELIEVE THAT A DELAY IN AWARD OF THESE DIMENSIONS CAN, PER SE, AFFECT THE VALIDITY OF THE RESULTING CONTRACT.

IT IS ALSO ALLEGED THAT BEM CANNOT OFFER FULL COMPLIANCE WITH ALL OF THE REQUIRED SPECIFICATIONS AT THE AWARDED UNIT PRICE OF $87,838, SINCE BEM BID A UNIT PRICE OF $132,800 UNDER IFB 0061 WHICH SOLICITED BIDS FOR THE SAME ITEM.

IN REGARD TO THIS MATTER THE CONTRACTING OFFICER INFORMS US AS FOLLOWS:

"THE EQUIPMENT UNIT PRICE SUBMITTED BY BEM ON THE IFB WAS $66,400.00 EACH. BY DOUBLING THIS FIGURE (THE SYSTEM PROCURED UNDER THE IFB WAS ONE HALF OF THE SYSTEM PROCURED UNDER THE RFPS) A COMPARABLE UNIT PRICE OF A COMPLETE SYSTEM CAN BE ESTABLISHED AT $132,800.00. AWARD PRICE TO BEM ON CONTRACT DACA87-72-C-0031 WAS $87,838.00 OR A REDUCTION OF APPROXIMATELY 34% OF THEIR BID PRICE ON A COMPLETE SYSTEM AND NOT 51% AS ALLEGED IN MSI'S 16 NOVEMBER 1971 LETTER. MSI'S UNIT PRICE ON THE IFB WAS $89,958.00 AND BY LETTER THEY ADVISED THE GOVERNMENT THAT THE UNIT PRICE SHOULD HAVE BEEN $44,979.00. AS STATED IN THE CONTRACTING OFFICER'S PREVIOUS STATEMENTS AFTER RECEIPT OF MSI'S LETTER IN WHICH THEY STATED THE AMBIGUITY OF THE SPECIFICATIONS AS REGARDS A SYSTEM AND SUBSYSTEM, IT WAS APPARENT THAT THE POSSIBILITY EXISTED OF OTHER BIDDERS HAVING BEEN CONFUSED BY THE WORDING OF TECHNICAL PROVISIONS PARAGRAPHS 2 AND 2.1. THIS AMBIGUITY WAS ONE OF THE REASONS FOR CANCELLATION OF THE IFB. MSI HAS QUESTIONED WHETHER THE GOVERNMENT HAS ACCEPTED A FULL SPECIFICATION COMPLIANCE OFFER IN VIEW OF THE LARGE REDUCTION THEY ALLEGE BEM HAS OFFERED. HOWEVER, IN COMPARING THE UNIT PRICES OF THESE TWO OFFERORS ON THE FINAL ROUND OF NEGOTIATIONS, THE DIFFERENCE OF $4,052.00 IN MSI'S UNIT PRICE OF $91,890.00 AND BEM'S UNIT PRICE OF $87,838.00 IS NOT APPRECIABLE. THE GOVERNMENT CONSIDERS MSI'S OFFER OF $91,890.00 PER UNIT TO BE FOR FULL SPECIFICATION COMPLIANCE. FURTHER, THE GOVERNMENT CONSIDERS IT POSSIBLE AND PROBABLE THAT A MANUFACTURER COULD, BY REDUCING PROFIT MARGINS, CUTTING OVERHEAD, OR BY THE SIMPLE FACT OF BETTER MANAGEMENT, OFFER FULL SPECIFICATION COMPLIANCE FOR $4,052.00 LESS.

"G. THE GOVERNMENT IS CONFIDENT OF FULL SPECIFICATION COMPLIANCE IN THE CONTRACT WHICH RESULTED FROM RFP DACA87-72-R-0086 AND WILL NOT CONDONE ANYTHING LESS. BEM IS PRESENTLY PERFORMING ON A CONTRACT FOR THE HUNTSVILLE DIVISION AND IS FULLY FAMILIAR WITH THE SAFEGUARD BALLISTIC MISSILE DEFENSE SYSTEM (BMD), ITS MAGNITUDE, ITS COMPLEXITY, AND ITS CRITICALITY. MSI'S CONTENTION THAT ONLY TWO MANUFACTURERS IN THIS COUNTRY CAN OFFER FULL COMPLIANCE EQUIPMENT WHICH MEETS THE INTENT AND REQUIREMENTS OF THE SPECIFICATIONS IS QUESTIONABLE SINCE THE NUMBER OF OFFERORS WHICH RESPONDED TO THESE SOLICITATIONS INDICATES THIS IS NOT TRUE. GOVERNMENT PROCUREMENT REGULATIONS REQUIRE ANY SOLICITATION WHICH IS TO RESULT IN A FIRM-FIXED PRICE CONTRACT TO INCLUDE REASONABLY DEFINITE DESIGN OR PERFORMANCE SPECIFICATIONS. THESE REASONABLY DEFINITE DESIGN OR PERFORMANCE SPECIFICATIONS ARE EXPECTED TO DESCRIBE THE REQUIREMENTS OF THE EQUIPMENT IN SUCH A MANNER AS TO ASSURE THE GOVERNMENT THAT IT WILL RECEIVE EQUIPMENT WHICH WILL PERFORM SATISFACTORILY ITS INTENDED PURPOSE. THE EQUIPMENT SPECIFIED IN THESE SOLICITATIONS WILL PERFORM ITS INTENDED PURPOSE AS THE DESIGN OF THE BMD SYSTEM IS KNOWN TODAY. HOWEVER, DUE TO THE COMPLEXITY AND MAGNITUDE OF THE BMD SYSTEM, CHANGES IN DESIGN CRITERIA DEMANDS CHANGES IN MANY OF THE SYSTEMS BEING PROCURED AS GFP. WHETHER CHANGES IN THE NO BREAK POWER SYSTEMS WILL BE NECESSARY DEPENDS ENTIRELY ON DOWNSTREAM DEVELOPMENTS INSOFAR AS IT PERTAINS TO DESIGN CRITERIA OF THE WEAPONS SYSTEM AND RESOLUTION OF INTERFACE PROBLEMS. CHANGES ARE NECESSARY AND IN THE BEST INTEREST OF THE GOVERNMENT, CERTAINLY THEY MUST BE MADE. INCREASE IN THE CONTRACT PRICE COULD RESULT. HOWEVER, THIS IS NOT NECESSARILY THE CASE. CHANGES COULD DECREASE THE CONTRACT PRICE. THE REQUIREMENTS OF THE BMD SYSTEM MUST BE CONSIDERED." THE DETERMINATION OF WHETHER A PROSPECTIVE CONTRACTOR IS TECHNICALLY ABLE TO PERFORM AT ITS STATED PRICE IS A QUESTION WHICH IS PRIMARILY WITHIN THE JURISDICTION OF THE CONTRACTING AGENCY. IN SUCH MATTERS THIS OFFICE WILL NOT QUESTION THAT JUDGMENT UNLESS THERE IS CLEAR AND CONVINCING EVIDENCE IN THE RECORD THAT THE AGENCY'S JUDGMENT IS UNREASONABLE. WE ARE UNABLE TO REACH SUCH A CONCLUSION IN THIS CASE.

IT IS FURTHER ALLEGED THAT RFP 0086 IS DEFECTIVE FOR FAILURE TO INFORM OFFERORS OF THE FACTORS TO BE USED BY THE GOVERNMENT IN EVALUATING THE PROPOSALS. THE RFP STATES AT SECTION D, "EVALUATION AND AWARD FACTORS," THAT "AWARD WILL BE MADE ON THE BASIS OF THE LOWEST F.O.B. DESTINATION COST TO THE GOVERNMENT, PRICE AND OTHER FACTORS CONSIDERED." IT IS ASSERTED THAT THE PHRASE "PRICE AND OTHER FACTORS CONSIDERED" DOES NOT IDENTIFY THE "OTHER FACTORS" TO BE CONSIDERED. WE ARE INFORMED THAT THE PHRASE "OTHER FACTORS" WAS INTENDED TO REFER TO THE RESPONSIVENESS OF THE PROPOSALS TO THE SHOP DRAWING SUBMITTAL TIME AND EQUIPMENT DELIVERY DATE, AND THE RESPONSIBILITY OF THE SUCCESSFUL OFFEROR. THE TERM "PRICE AND OTHER FACTORS" IS WELL DEFINED IN THIS AREA OF THE LAW AND THE ADMINISTRATIVE POSITION IS CONSISTENT WITH THE ACCEPTED DEFINITION. SEE 37 COMP. GEN. 550 (1958). IN SITUATIONS SUCH AS HERE WHERE RELATIVE TECHNICAL DIFFERENCES BETWEEN PROPOSALS MEETING THE GOVERNMENT'S SPECIFICATIONS ARE NOT TO BE EVALUATED, WE BELIEVE IT IS PROPER THAT PRICE BE CONSIDERED THE CONTROLLING FACTOR, SINCE CONSIDERATION OF THE "OTHER FACTORS" IS IMPLICIT. THEREFORE, THE SUBJECT RFP DID NOT LACK INFORMATION NECESSARY TO ENABLE ALL OFFERORS TO PREPARE THEIR PROPOSALS PROPERLY. SEE ASPR 3-501(B).

ALL 3 PROTESTORS CONTEND THAT THE PROCEDURES FOLLOWED UNDER ALL THE SOLICITATIONS ISSUED DURING THIS PROCUREMENT WERE TANTAMOUNT TO AN AUCTION, WHICH IS PROHIBITED BY ASPR 1-805.1(B). ALTHOUGH THE RATHER BEWILDERING ARRAY OF CUT-OFF DATE EXTENSIONS INCIDENT TO BOTH RFP 0024 AND RFP 0086 MAY HAVE CREATED AN IMPRESSION THAT AN AUCTION WAS CARRIED ON, WE CAN FIND NO SPECIFIC INCIDENT WHERE AN OFFEROR WAS INFORMED THAT A SPECIFIC PRICE HAD TO BE MET OR HOW HIS PRICE STOOD IN RELATION TO ANOTHER. THEREFORE, WE CANNOT CONCLUDE THAT THE PROHIBITION AGAINST THE USE OF AUCTION TECHNIQUES WAS VIOLATED.

FINALLY, MSI REQUESTS THAT IT BE REIMBURSED FOR COSTS INCURRED IN PREPARATION, SUBMITTAL, AND NEGOTIATIONS OF PROPOSALS SUBMITTED IN RESPONSE TO THE SUBJECT SOLICITATIONS. MSI ALSO REQUESTS THAT IT BE ALLOWED DAMAGES IN THE FORM OF ITS ANTICIPATED PROFITS.

THERE IS NO LEGAL BASIS TO SUPPORT A CLAIM FOR ANTICIPATED PROFITS SINCE THE CONTRACT UNDER WHICH PROFITS COULD HAVE BEEN MADE NEVER CAME INTO EXISTENCE. IN ADDITION, IT CANNOT BE DETERMINED THAT AN AWARD SHOULD HAVE BEEN MADE TO MSI. SEE KECO INDUSTRIES V UNITED STATES, 428 F 2D. 1233 (CT. CL. 1970).

THE COURT OF CLAIMS HAS HELD THAT THE GOVERNMENT HAS AN IMPLIED OBLIGATION TO FAIRLY CONSIDER BIDS AND PROPOSALS SUBMITTED IN RESPONSE TO SOLICITATIONS AND A PROSPECTIVE CONTRACTOR MAY BE ABLE TO RECOVER HIS BID OR PROPOSAL PREPARATION COSTS IN THAT FORUM WHERE THE GOVERNMENT'S OBLIGATION HAS BEEN BREACHED. SEE KECO INDUSTRIES, INC. V UNITED STATES (SUPRA) AND CONTINENTAL BUSINESS ENTERPRISES, INC. V UNITED STATES, CT. CL. NO. 160-69, DECIDED DECEMBER 10, 1971. CONSIDERING THE PROCUREMENT AS A WHOLE, WE FIND NO BASIS FOR CONCLUDING THAT THE IMPLIED OBLIGATION WAS BREACHED.

ALTHOUGH THE ADMINISTRATIVE REPORTS SUBMITTED IN THIS CASE CONSTANTLY NOTED THE URGENCY OF THE PROCUREMENT, NEARLY 6 MONTHS ELAPSED FROM THE TIME OF INITIAL SOLICITATION TO FINAL AWARD. THE PRIMARY CAUSES FOR THE DELAY APPEAR TO HAVE BEEN A SERIES OF ERRORS ON THE PART OF THE PROCURING ACTIVITY AND THE RESULTING PROTESTS. THESE ERRORS HAVE BEEN EITHER CORRECTED OR DO NOT AFFECT THE VALIDITY OF THE FINAL AWARD. HOWEVER, PUBLIC CONFIDENCE IN THE GOVERNMENT'S PROCUREMENT SYSTEM IS ..END :