B-174122(1), FEB 25, 1972

B-174122(1): Feb 25, 1972

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PROTESTANT ALLEGES THAT INSUFFICIENT TIME WAS ALLOWED FOR THE PREPARATION OF PROPOSALS ON WHICH TO NEGOTIATE AN ACCEPTABLE CONTRACT. THAT ITS REQUEST FOR A 7-DAY EXTENSION OF THE 27-DAY PROPOSAL DEADLINE WAS DENIED WITHOUT JUSTIFICATION OR NECESSITY. IN THE ABSENCE OF ANY INDICATION THAT THE AGENCY'S DETERMINATION WAS ARBITRARY OR CAPRICIOUS. WILL NOT SUBSTITUTE HIS JUDGMENT FOR THAT OF THE PROCURING ACTIVITY. 50 COMP. INC.: FURTHER REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 29. YOUR PROTEST IS BASED ON THE SHORT PERIOD OF TIME ALLOWED IN WHICH TO PREPARE YOUR PROPOSAL. FIVE SPECIFIC ARGUMENTS IN SUPPORT OF YOUR POSITION HAVE BEEN SET FORTH IN YOUR LETTER. YOU ALLEGE THAT THE TIME ALLOWED WAS LESS THAN THE MINIMUM REQUIREMENTS OF ASPR.

B-174122(1), FEB 25, 1972

BID PROTEST - UNREASONABLE PROPOSAL DEADLINE - DENIAL OF EXTENSION REQUEST DECISION DENYING PROTEST OF TORRAX SYSTEMS, INC., AGAINST AWARD OF A CONTRACT TO PROCESS PLANTS CORPORATION UNDER AN RFQ ISSUED BY THE CORPS OF ENGINEERS FOR A WASTE DESTRUCTOR SYSTEM FOR THE NATIONAL SECURITY AGENCY. PROTESTANT ALLEGES THAT INSUFFICIENT TIME WAS ALLOWED FOR THE PREPARATION OF PROPOSALS ON WHICH TO NEGOTIATE AN ACCEPTABLE CONTRACT, AND THAT ITS REQUEST FOR A 7-DAY EXTENSION OF THE 27-DAY PROPOSAL DEADLINE WAS DENIED WITHOUT JUSTIFICATION OR NECESSITY. THE CORPS OF ENGINEERS COUNTERS THAT THE SUBJECT PROCUREMENT CLEARLY WARRANTS A FLEXIBLE APPLICATION OF THE 30- DAY CALENDAR RULE AS A "SPECIAL CIRCUMSTANCE," PURSUANT TO THE PROVISIONS OF ASPR 2-202.1. IN THE ABSENCE OF ANY INDICATION THAT THE AGENCY'S DETERMINATION WAS ARBITRARY OR CAPRICIOUS, THE COMP. GEN. WILL NOT SUBSTITUTE HIS JUDGMENT FOR THAT OF THE PROCURING ACTIVITY. 50 COMP. GEN. 565, 572 (1971). ACCORDINGLY, THE PROTEST MUST BE DENIED.

TO TORRAX SYSTEMS, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 29, 1971, AND EARLIER TELEGRAM PROTESTING ANY AWARD BY THE CORPS OF ENGINEERS, BALTIMORE DISTRICT, FOR A WASTE DESTRUCTOR SYSTEM FOR THE NATIONAL SECURITY AGENCY UNDER RFP DACA31-72-B-0013 (NEG).

YOUR PROTEST IS BASED ON THE SHORT PERIOD OF TIME ALLOWED IN WHICH TO PREPARE YOUR PROPOSAL. FIVE SPECIFIC ARGUMENTS IN SUPPORT OF YOUR POSITION HAVE BEEN SET FORTH IN YOUR LETTER. FIRST, YOU ALLEGE THAT THE TIME ALLOWED WAS LESS THAN THE MINIMUM REQUIREMENTS OF ASPR; SECOND, THAT THE TIME ALLOWANCE WAS LESS THAN THE GENERAL ACCOUNTING OFFICE HAS FOUND ADEQUATE; THIRD, THAT THE TIME WAS SO SHORT AS TO PRECLUDE PREPARATION OF A RESPONSIVE BID; FOURTH, THAT THE RECORD AVAILABLE TO TORRAX SYSTEMS, INC. DOES NOT INDICATE THERE WAS ANY PUBLIC EXIGENCY; AND FIFTH, THAT SUBSEQUENT INACTION BY THE CONTRACTING OFFICER INDICATES THE LACK OF AN EMERGENCY SITUATION. SINCE THESE FIVE POINTS ARE ALL INTERRELATED WITH THE MAIN ISSUE THEY WILL NOT BE TREATED AS SPECIFIC SEPARATE ISSUES.

FROM THE RECORD IT APPEARS THAT AN INVITATION FOR BIDS (NO. DACA31-71 B- 0019) WAS ADVERTISED ON JANUARY 22, 1971, CALLING FOR BIDS ON THE DESIGN, FABRICATION, DELIVERY AND INSTALLATION OF A WASTE DESTRUCTOR SYSTEM FOR THE NATIONAL SECURITY AGENCY AT FORT MEADE, MARYLAND. THE ONLY BID RECEIVED AT BID OPENING TIME ON MARCH 18 WAS THAT OF YOUR COMPANY. WHEN OPENED YOUR BID PRICE WAS DISCLOSED AS $1,297,000 WHICH GREATLY EXCEEDED THE GOVERNMENT'S ESTIMATE OF $600,000 AND WAS IN EXCESS OF THE FUNDS THEN AVAILABLE FOR THE PROJECT. IT IS NOTED THAT THE ORIGINAL DATE FOR SUBMISSION OF BIDS WAS FEBRUARY 24 AND IT WAS EXTENDED AT YOUR REQUEST TO MARCH 18.

THIS STATE OF AFFAIRS MADE IT NECESSARY FOR THE REQUIRING AGENCY AND THE CONSTRUCTION AGENCY TO RESTUDY THE MEANS AVAILABLE FOR SATISFYING THE NEED, AND TO OBTAIN ADDITIONAL FUNDING WITH WHICH TO PROVIDE FOR THE MINIMUM ESSENTIAL FACILITIES. THE REEVALUATION, WHICH INVOLVED A TIME DELAY FACTOR AND SOME ADJUSTMENT IN THE MAGNITUDE OF THE UNDERTAKING, RESULTED IN A DECISION TO NEGOTIATE THE PROCUREMENT, AND TO INCLUDE THE BUILDING WHICH WOULD HOUSE THE WASTE DESTRUCTOR EQUIPMENT. ALL OF THIS HAD TO BE CORRELATED WITH THE SITE LOCATION AND THE ASSOCIATED UTILITIES NEEDED TO OPERATE THE FACILITY. THIS OF COURSE COMPRESSED THE TIME AVAILABLE FOR SEEKING PROPOSALS AND GETTING CONSTRUCTION UNDERWAY TO MEET COMPLETION DATES THAT WERE BECOMING MORE CRITICAL BECAUSE OF OPERATING COSTS AND POLLUTION OF THE ENVIRONMENT RESULTING FROM USE OF THE EXISTING PROCESS. IN THIS CONNECTION, WE ARE ADVISED THAT TWO LEGAL ACTIONS HAVE BEEN FILED BECAUSE OF THE NATURE OF EMISSIONS INTO THE ATMOSPHERE FROM THE EXISTING PROCESS.

ON AUGUST 17 AND 18, 1971, BRIEFINGS WERE HELD WITH PROCESS PLANTS CORPORATION AND TORRAX SYSTEMS, INC., RESPECTIVELY. IT IS STATED THAT THE SAME BRIEFING WAS GIVEN TO EACH COMPANY AND INCLUDED ALL DETAILS NECESSARY TO START PREPARATION OF A PROPOSAL. THE CONTRACTING OFFICER ALSO REPORTS THAT YOU WERE ADVISED, AT THAT MEETING, THAT THE EQUIPMENT WAS ESSENTIALLY THE SAME AS YOU HAD PREVIOUSLY BID AND THAT A BUILDING TO HOUSE THE FACILITY AND EXTENSION OF UTILITIES WERE IN ADDITION. GUIDE SPECIFICATIONS FOR A BUILDING WERE FURNISHED AT THAT TIME. YOU WERE ALSO INFORMED THAT A FORMAL BIDDING PACKAGE WOULD BE MADE AVAILABLE AS SOON AS POSSIBLE AND THAT PROPOSALS WOULD BE REQUIRED BY SEPTEMBER 14; THUS YOU HAD KNOWLEDGE OF THE URGENCY OF THE PROPOSAL, THE DATE ON WHICH IT WOULD BE REQUIRED, AND THE NECESSARY DATA ON WHICH TO START YOUR PREPARATION TO MEET A 27 DAY PROPOSAL DEADLINE OF SEPTEMBER 14.

THE RECORD ALSO SHOWS THAT ON SEPTEMBER 7 THE FORMAL COPIES OF RFP DACA31 -72-B-0013(NEG) WERE SENT TO YOU AND APPARENTLY RECEIVED LATE ON SEPTEMBER 8. ON THE FOLLOWING DAY YOU VERBALLY REQUESTED A SEVEN DAY EXTENSION OF THE PROPOSAL DATE TO SEPTEMBER 21, AND YOU CONFIRMED IT BY LETTER DATED THE SAME DAY, BUT WHICH WAS NOT RECEIVED BY THE GOVERNMENT UNTIL THE 13TH. ALSO, ON SEPTEMBER 9 CONVERSATIONS WERE HELD BETWEEN THE VICE PRESIDENT OF YOUR COMPANY AND THE AGENCY PROJECT MANAGER, AT WHICH TIME YOUR REPRESENTATIVE COULD NOT STATE WHETHER TORRAX WOULD PROPOSE IF THE TIME WERE NOT EXTENDED. ON SEPTEMBER 13 YOUR VICE PRESIDENT ADVISED THAT IT WAS UNLIKELY YOUR COMPANY WOULD BE ABLE TO MEET THE CLOSING DATE. LATER IN THAT DAY YOUR REQUEST FOR AN EXTENSION WAS DECIDED AGAINST, BUT CONTACT WAS NOT ESTABLISHED WITH YOU UNTIL LATE ON SEPTEMBER 14, AFTER CLOSING TIME FOR RECEIPT OF PROPOSALS. ON SEPTEMBER 17 YOU SUBMITTED YOUR PROTEST TO THIS OFFICE AND NOTIFIED THE DISTRICT ENGINEER ON THE SAME DATE.

THE FACTS AS VIEWED BY BOTH PARTIES ARE SUBSTANTIALLY SIMILAR AND ARE NOT IN DISPUTE. THE SINGLE QUESTION OF CONTENTION IS WHETHER, IN THE CIRCUMSTANCES HERE PRESENT, SUFFICIENT TIME WAS ALLOWED FOR THE PREPARATION AND PRESENTATION OF PROPOSALS ON WHICH TO NEGOTIATE AN ACCEPTABLE CONTRACT. ONLY LIMITED GUIDANCE IS FURNISHED BY ASPR. SECTION III THEREOF, DEALING WITH PROCUREMENT BY NEGOTIATIONS, IS SILENT AS REGARDS ANY SPECIFIC TIME FACTORS WHICH MIGHT BE APPLIED TO PROPOSAL PREPARATION. HOWEVER, SECTION II DOES ESTABLISH GUIDELINES AND EXCEPTIONS FOR USE IN CONNECTION WITH ADVERTISED SOLICITATIONS FOR BIDS, WHICH MAY BE CONSIDERED IN THE ABSENCE OF MORE DIRECT RULES. ASPR 2-202.1 READS AS FOLLOWS:

"BIDDING TIME. CONSISTENT OF THE NEEDS OF THE GOVERNMENT FOR OBTAINING THE SUPPLIES OR SERVICES, ALL INVITATIONS FOR BIDS SHALL ALLOW SUFFICIENT BIDDING TIME (I.E., THE PERIOD OF TIME BETWEEN THE DATE OF DISTRIBUTION OF AN INVITATION FOR BIDS AND THE DATE SET FOR OPENING OF BIDS) TO ALLOW BIDDERS AN ADEQUATE OPPORTUNITY TO PREPARE AND SUBMIT THEIR BIDS. AS A GENERAL RULE, BIDDING TIME SHALL BE NOT LESS THAN 15 CALENDAR DAYS WHEN PROCURING STANDARD COMMERCIAL ARTICLES AND SERVICES AND NOT LESS THAN 30 CALENDAR DAYS WHEN PROCURING OTHER THAN STANDARD COMMERCIAL ARTICLES OR SERVICES. THIS RULE NEED NOT BE OBSERVED IN SPECIAL CIRCUMSTANCES, FOR EXAMPLE, WHERE THE CONTRACTING OFFICER HAS VALID REASON TO DETERMINE THAT BIDDERS IN THE SECOND STEP OF TWO-STEP FORMAL ADVERTISING CAN PREPARE AND SUBMIT THEIR BIDS IN LESS THAN 30 CALENDAR DAYS, OR WHERE THE URGENCY FOR THE SUPPLIES OR SERVICES DOES NOT PERMIT SUCH DELAY. *** "

IT IS THE CONTENTION OF THE CORPS OF ENGINEERS THAT WHILE THE 30 CALENDAR DAY RULE MIGHT BE APPLIED TO A NEGOTIATED SOLICITATION, THE SPECIFIC CIRCUMSTANCES OF THIS PROCUREMENT CLEARLY WARRANT THE FLEXIBLE APPLICATION OF THE RULE AS A "SPECIAL CIRCUMSTNCE" WHEN THE ADVANCE INFORMATION AVAILABLE TO YOU FROM YOUR MARCH 18 BID, PLUS THE PRESOLICITATION BRIEFING ON AUGUST 18, ARE CONSIDERED. IT IS THE AGENCY'S POSITION THAT THE BASIC EQUIPMENT REQUIREMENTS HAD NOT CHANGED FROM YOUR EARLIER BID, AND THAT PRICE ESTIMATES COULD EASILY HAVE BEEN OBTAINED FROM SUBCONTRACT SOURCES FOR THE ADDITIONAL REQUIREMENTS OF AND HOOK-UP OF ESSENTIAL UTILITIES.

IN THIS CONNECTION, THE AGENCY ADVISES AS FOLLOWS:

"THE BUILDING WAS TO BE LITTLE MORE THAN A SHELTER, WITH DIMENSIONS AS REQUIRED TO HOUSE THE PARTICULAR EQUIPMENT CONTEMPLATED. OFFERORS WERE WARNED THAT A REQUEST FOR PROPOSALS WOULD BE ISSUED IN THE NEAR FUTURE, THAT THE NEED FOR THE FACILITY WAS CRITICAL, THAT THE DATE FOR RECEIPT OF PROPOSALS WOULD BE 14 SEPTEMBER 1971, WITH NO EXTENSIONS ALLOWABLE, AND THAT THE PURPOSE OF THESE MEETINGS WAS TO AFFORD THEM SUFFICIENT TIME TO ESTIMATE AND PRICE THE JOB AND PLACE THEMSELVES IN A POSITION TO COMPLETE THEIR FINAL BID ESTIMATES AND SUBMIT THEIR PROPOSALS ON SHORT NOTICE. ACCORDANCE WITH THIS ADMONITION, PROCESS PLANTS REPRESENTATIVES WENT BACK AND AT ONCE PROCEEDED TO PUT TOGETHER THEIR BID ESTIMATE SO THAT, WHEN THE REQUEST FOR PROPOSALS WAS PUBLISHED THEY WERE READY WITH A PRACTICALLY COMPLETE BID ESTIMATE. TORRAX APPEARS TO HAVE MADE NO SUCH PREPARATIONS.

"THE CONTRACTING OFFICER RECOGNIZED THE DESIRABILITY OF SECURING A COMPETITIVE PROPOSAL FROM TORRAX. ON THE OTHER HAND, HE COULD NOT BE CERTAIN THAT SUCH A PROPOSAL WOULD BE FORTHCOMING, EVEN IF THE REQUESTED DEFERRAL WERE GRANTED. THE END OF THE 1971 CONSTRUCTION SEASON WAS APPROACHING. IF THE FOOTINGS AND FLOOR SLAB COULD NOT BE PLACED BEFORE THE GROUND FROZE, ERECTION OF THE BUILDING AND INSTALLATION OF THE EQUIPMENT WOULD HAVE TO BE DEFERRED UNTIL SPRING. THERE WAS NO ASSURANCE THAT TORRAX, WHOSE BID HAD SO GROSSLY EXCEEDED THE GOVERNMENT'S WORKING ESTIMATE IN JANUARY, WOULD BE ABLE TO SUBMIT A COMPETITIVE OFFER NOW, EVEN WITH THE REQUESTED TIME EXTENSION. THE REASONS WHY SUCH AN EXTENSION WAS NECESSARY WERE UNCLEAR. IN THE JUDGMENT OF THE CONTRACTING OFFICER, THE CERTAINTIES OF THE GOVERNMENT'S NEED OUTWEIGHED THE UNASCERTAINABLE BENEFITS WHICH MIGHT POSSIBLY RESULT FROM A DEFERRED BID OPENING. THEREFORE DECIDED TO ADHERE TO THE ORIGINAL PUBLISHED CLOSING DATE."

AS WE INDICATED IN 50 COMP. GEN. 565, 572, (1971) THE DETERMINATION OF THE DATE TO BE SPECIFIED FOR RECEIPT OF PROPOSALS IS A MATTER OF JUDGMENT PROPERLY VESTED IN THE CONTRACTING AGENCY, AND WE WILL NOT SUBSTITUTE OUR JUDGMENT UNLESS IT APPEARS THAT THE DECISION OF THE AGENCY WAS ARBITRARY OR CAPRICIOUS. IN VIEW OF THE FOREGOING WE CANNOT CONCLUDE THAT THE DATE SPECIFIED WAS ARBITRARILY OR CAPRICIOUSLY SELECTED, OR THAT SUCH DATE, IN VIEW OF THE EVENTS PRECEDING ISSUANCE OF THE SOLICITATION, SHOULD NECESSARILY HAVE RESTRICTED COMPETITION FOR THE PROCUREMENT. IN THIS RESPECT, WE ARE MINDFUL OF THE FACT THAT ANOTHER PROPOSER, WITHIN THE SAME TIME LIMIT, DID RESPOND WITH A PROPOSAL UPON WHICH NEGOTIATIONS WERE UNDERTAKEN, AND WHICH SUBSEQUENTLY CULMINATED IN A CONTRACT.

IN VIEW OF THE FOREGOING, WE FIND NO BASIS IN YOUR PROTEST ON WHICH TO LEGALLY OBJECT TO THE AWARD OF THE CONTRACT. YOUR PROTEST, THEREFORE, IS DENIED.