B-174294(2), JAN 17, 1972

B-174294(2): Jan 17, 1972

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WAS A LATE PROPOSAL AND WAS IMPROPERLY CONSIDERED FOR THE AWARD. WILL NOT REQUIRE THAT REMEDIAL ACTION BE TAKEN. ROBINSON: ENCLOSED IS A COPY OF OUR DECISION OF TODAY ON THE PROTEST OF EAST/WEST INDUSTRIES. WHICH WAS SUBMITTED IN RESPONSE TO THE LAST CALL FOR BEST AND FINAL OFFERS. IT IS OUR OPINION THAT THE TELEGRAM COULD ONLY BE CONSIDERED. WE SEE NO VALID BASIS ON WHICH FSM'S PROPOSAL COULD HAVE BEEN ACCEPTED UNDER SUCH PROCEDURES. SINCE THE CONTRACT WAS AWARDED IN EARLY SEPTEMBER AND WE UNDERSTAND THE CONTRACTOR HAS INCURRED SUBSTANTIAL COSTS IN FABRICATION OF FIRST ARTICLES AND ACQUISITION OF PRODUCTION MATERIALS WE DO NOT BELIEVE IT WOULD BE IN THE GOVERNMENT'S INTEREST TO TAKE REMEDIAL ACTION.

B-174294(2), JAN 17, 1972

BID PROTEST DENIED - RECOMMENDATIONS FOR CORRECTIVE ACTION ALTHOUGH THE PROTEST OF EAST/WEST INDUSTRIES, INC., HAS BEEN DENIED, CORRECTIVE ACTION SHOULD BE TAKEN TO PREVENT A RECURRENCE OF SIMILAR SITUATIONS SINCE THE TELEGRAM SUBMITTED BY FRAASS SURGICAL MANUFACTURING COMPANY, INC., WAS A LATE PROPOSAL AND WAS IMPROPERLY CONSIDERED FOR THE AWARD. SINCE FRAASS HAS ALREADY INCURRED SUBSTANTIAL COSTS UNDER THE CONTRACT, THE COMP. GEN. WILL NOT REQUIRE THAT REMEDIAL ACTION BE TAKEN.

TO GENERAL WALLACE H. ROBINSON:

ENCLOSED IS A COPY OF OUR DECISION OF TODAY ON THE PROTEST OF EAST/WEST INDUSTRIES, INC., UNDER REQUEST FOR PROPOSAL (RFP) DSA700-71 R-1534.

WHILE WE DENIED THE PROTEST IT SHOULD BE NOTED THAT THE PROCURING ACTIVITY CONCLUDED AN AWARD WITH FRAASS SURGICAL MANUFACTURING COMPANY, INC. (FSM) BASED ON A LATE CONFIRMATION OF ITS OFFER, WHICH WAS SUBMITTED IN RESPONSE TO THE LAST CALL FOR BEST AND FINAL OFFERS, AS ESTABLISHED BY AMENDMENT NO. 0007.

THE PROCURING ACTIVITY STATES THAT THE FAILURE OF FSM TO TIMELY ACKNOWLEDGE AMENDMENT NO. 0007 HAD NO SUBSTANTIVE EFFECT ON THAT COMPANY'S OFFER SINCE IT HAD INFORMALLY AGREED TO THE MATTERS SET FORTH IN THE AMENDMENT PRIOR TO THE CLOSING DATE SET FOR RESPONSES TO AMENDMENT NO. 0007. WE DO NOT QUESTION THE STATEMENT THAT FSM HAD INFORMALLY AGREED TO THE CHANGES SET FORTH IN AMENDMENT NO. 0007. HOWEVER, THE LANGUAGE OF AMENDMENT NO. 0007 EXPRESSLY REQUESTED FSM, AND THE OTHER OFFERORS, TO CONFIRM OR REVISE THEIR PROPOSALS, BASED ON THE CHANGES SET FORTH IN THE AMENDMENT, PRIOR TO THE CLOSING DATE OF AUGUST 27, AND THAT ANY LATE CONFIRMATION OR REVISION WOULD BE TREATED AS A LATE PROPOSAL IN ACCORDANCE WITH THE LATE PROPOSAL PROVISION OF THE RFP.

IN VIEW THEREOF, AND INASMUCH AS THE ACCEPTANCE PERIOD FOR THE COMPANY'S TIMELY RESPONSE TO AMENDMENT 0006 EXPIRED ON AUGUST 25, THUS LEAVING THE CONTRACTING OFFICER IN A POSITION OF HAVING NO WRITTEN OFFER TO ACCEPT PRIOR TO RECEIPT OF FSM'S TELEGRAM ON AUGUST 30, IT IS OUR OPINION THAT THE TELEGRAM COULD ONLY BE CONSIDERED, AND AN AWARD COULD ONLY BE MADE TO FSM UNDER THE PROCEDURES APPLICABLE TO LATE PROPOSALS AND/OR MODIFICATIONS TO PROPOSALS. FURTHER, WE SEE NO VALID BASIS ON WHICH FSM'S PROPOSAL COULD HAVE BEEN ACCEPTED UNDER SUCH PROCEDURES.

SINCE THE CONTRACT WAS AWARDED IN EARLY SEPTEMBER AND WE UNDERSTAND THE CONTRACTOR HAS INCURRED SUBSTANTIAL COSTS IN FABRICATION OF FIRST ARTICLES AND ACQUISITION OF PRODUCTION MATERIALS WE DO NOT BELIEVE IT WOULD BE IN THE GOVERNMENT'S INTEREST TO TAKE REMEDIAL ACTION. HOWEVER, WE RECOMMEND THAT CORRECTIVE ACTION BE TAKEN TO PREVENT A REPETITION OF THESE CIRCUMSTANCES IN THE FUTURE.

THE PROTEST WAS THE SUBJECT OF REPORTS DATED NOVEMBER 8 AND DECEMBER 2, 1971 (DSAH-G) FROM MR. KARL KABEISEMAN, ASSISTANT COUNSEL. THE FILES FORWARDED WITH THOSE REPORTS ARE RETURNED.