B-174788(1), MAR 8, 1972

B-174788(1): Mar 8, 1972

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

IT IS WELL-SETTLED THAT THE COMP. VIEWS THE PROVISIONS OF PARAGRAPH 5.3-802(E) AND (G) OF THE GSA PROCUREMENT REGULATIONS (GSPR) AS A GUIDE FOR ACTION RATHER THAN AS IMPOSING AN OBLIGATION ON THE CONTRACTING OFFICER TO CONSIDER LATE OFFERS WHICH ARE LOWER IN PRICE. THE STATEMENT IN THE DECEMBER 15 TELEGRAM INFORMED BIDDERS THAT LATE OFFERS WOULD NOT BE CONSIDERED UNDER ANY CIRCUMSTANCES AND WAS ISSUED BOTH TO END THE LENGTHY PERIOD OF NEGOTIATIONS AND SPECIFICALLY TO REMOVE ANY SUGGESTION OF IMPROPRIETY THAT MIGHT HAVE RESULTED FROM HILLSIDE'S SUBMISSION OF FOUR OFFERS AFTER THE AGENCY'S BUSINESS DAY HAD ENDED AND THE EVALUATION OF ITS COMPETITORS HAD BEGUN. IN THESE CIRCUMSTANCES THERE APPEARS TO HAVE BEEN NO ABUSE OF THE CONTRACTING OFFICER'S DISCRETION AND THE PROTEST MUST BE DENIED.

B-174788(1), MAR 8, 1972

BID PROTEST - LATE BID - NEGOTIATED PROCUREMENT DECISION DENYING PROTEST OF HILLSIDE METAL PRODUCTS, INC., AGAINST AWARD OF A NEGOTIATED CONTRACT TO STANDARD PRESSED STEEL COMPANY (STANDARD) UNDER AN RFP ISSUED BY THE FEDERAL SUPPLY SERVICE, GENERAL SERVICES ADMINISTRATION (GSA) FOR A PROCUREMENT OF STEEL DESKS. WITH REGARD TO THE DISPUTED DUE DATE FOR THE FINAL MODIFICATION, IT IS WELL-SETTLED THAT THE COMP. GEN. MUST BASE HIS DETERMINATION ON THE FACTS AS REPORTED BY THE AGENCY IN THE ABSENCE OF A CLEAR SHOWING OF ADMINISTRATIVE ERROR. B-173522(2), JANUARY 25, 1972. FURTHER, THE COMP. GEN. VIEWS THE PROVISIONS OF PARAGRAPH 5.3-802(E) AND (G) OF THE GSA PROCUREMENT REGULATIONS (GSPR) AS A GUIDE FOR ACTION RATHER THAN AS IMPOSING AN OBLIGATION ON THE CONTRACTING OFFICER TO CONSIDER LATE OFFERS WHICH ARE LOWER IN PRICE. THE STATEMENT IN THE DECEMBER 15 TELEGRAM INFORMED BIDDERS THAT LATE OFFERS WOULD NOT BE CONSIDERED UNDER ANY CIRCUMSTANCES AND WAS ISSUED BOTH TO END THE LENGTHY PERIOD OF NEGOTIATIONS AND SPECIFICALLY TO REMOVE ANY SUGGESTION OF IMPROPRIETY THAT MIGHT HAVE RESULTED FROM HILLSIDE'S SUBMISSION OF FOUR OFFERS AFTER THE AGENCY'S BUSINESS DAY HAD ENDED AND THE EVALUATION OF ITS COMPETITORS HAD BEGUN. IN THESE CIRCUMSTANCES THERE APPEARS TO HAVE BEEN NO ABUSE OF THE CONTRACTING OFFICER'S DISCRETION AND THE PROTEST MUST BE DENIED.

TO HILLSIDE METAL PRODUCTS, INC.:

REFERENCE IS MADE TO YOUR LETTER DATED FEBRUARY 2, 1972, AND PRIOR CORRESPONDENCE, PROTESTING THE AWARD OF A CONTRACT TO STANDARD PRESSED STEEL COMPANY (STANDARD) UNDER REQUEST FOR PROPOSALS (RFP) NO. FPNFO-T 40916-N-11-3-71, ISSUED BY THE FEDERAL SUPPLY SERVICE, GENERAL SERVICES ADMINISTRATION (GSA). YOU REQUEST THAT GSA BE ADVISED TO CANCEL THE AWARD TO STANDARD AND AWARD THE CONTRACT TO YOUR FIRM.

FOR REASONS SET OUT BELOW, WE CONCLUDE THAT NO BASIS EXISTS FOR CANCELLATION OF THE STANDARD CONTRACT.

THE SUBJECT PROCUREMENT WAS NEGOTIATED PURSUANT TO THE AUTHORITY OF 41 U.S.C. 252(C)(2) WHICH PERMITS NEGOTIATION OF A CONTRACT WHEN THE PUBLIC EXIGENCY WILL NOT ADMIT OF THE DELAY INCIDENT TO ADVERTISING. THE RFP WAS ISSUED ON OCTOBER 19, 1971, FOR 20,027 STEEL DESKS, "FSA CLASS-7110-DESKS, STEEL, GENERAL OFFICE", FOR USE IN THE VOLAR (VOLUNTEER ARMY) PROGRAM IN GERMANY. THE RFP SET THE TIME FOR RECEIPT OF PROPOSALS AS 3 P.M., NOVEMBER 3, 1971. THE REQUISITION WAS RECEIVED FROM THE DEPARTMENT OF THE ARMY ACTIVITIES BY THE OFFICE FURNITURE SECTION, FURNITURE AND FURNISHINGS BRANCH, FEDERAL SUPPLY SERVICE AT THE CENTRAL OFFICE IN ARLINGTON, VIRGINIA. OTHER REQUESTS FOR THESE DESKS WERE SUBSEQUENTLY RECEIVED BY GSA, BUT WERE PROCURED SEPARATELY SINCE THEY INVOLVED EITHER DIFFERENT SHIPPING POINTS, DIFFERENT FUNDS, OR SUPPLY SUPPORT PURCHASES FOR STOCKING IN GSA SUPPLY DISTRIBUTION FACILITIES.

IT IS REPORTED THAT BY THE CLOSE OF BUSINESS ON NOVEMBER 3, 1971, OFFERS HAD BEEN RECEIVED IN THE GSA'S REGION 3 BUSINESS SERVICE CENTER, WASHINGTON, D.C., AND FORWARDED TO GSA'S ARLINGTON, VIRGINIA OFFICE FROM THE FOLLOWING FIRMS:

GENERAL FIREPROOFING - WASHINGTON, D.C.

COMMERCIAL OFFICE FURNITURE COMPANY - WASHINGTON, D.C.

SUPERIOR SLEEPRITE - CHICAGO, ILLINOIS

STANDARD PRESSED STEEL COMPANY - SANTA ANA, CALIFORNIA

EVALUATION OF THESE OFFERS ON NOVEMBER 3, 1971, INDICATED THAT STANDARD PRESSED STEEL COMPANY'S OFFER REPRESENTED THE LOWEST PRICE EVALUATED TO ULTIMATE DESTINATION. WE ARE ADVISED THAT ON NOVEMBER 4, 1971, YOUR OFFER WAS HAND-DELIVERED TO A SUPERVISING PROCUREMENT AGENT IN THE CONTRACTING OFFICE AT 9:10 A.M. EVALUATION OF YOUR LATE DELIVERED OFFER RESULTED IN ITS DISPLACING STANDARD'S AS LOWEST. WE ARE ADVISED THAT AS A RESULT OF THE CLOSENESS IN PRICE OF THESE TWO OFFERS, PLANT FACILITY REPORTS, FINANCIAL AND EQUAL EMPLOYMENT OPPORTUNITY CLEARANCES WERE REQUESTED ON BOTH STANDARD AND YOUR FIRM.

ON NOVEMBER 5, 1971, A WIRE WAS SENT TO ALL FIVE OFFERORS REQUESTING BEST AND FINAL OFFERS BY NOVEMBER 9, 1971. BY THE CLOSE OF BUSINESS ON NOVEMBER 9, 1971, BEST AND FINAL OFFERS - WITHOUT REVISIONS - HAD BEEN RECEIVED AND EVALUATED FROM ALL OFFERORS EXCEPT HILLSIDE. ON NOVEMBER 10, 1971, AT 7:01 A.M., A WIRE WAS RECEIVED FROM YOUR FIRM AFFIRMING YOUR ORIGINAL OFFER AS BEST AND FINAL. ON NOVEMBER 10, 1971, AMENDMENT NO. 1 TO THE RFP WAS ISSUED. SINCE THE AMENDMENT WAS CONSIDERED TO HAVE ONLY A MINOR IMPACT ON THE PROCUREMENT, OFFERORS WERE REQUESTED TO ACKNOWLEDGE RECEIPT OR RETURN THE AMENDMENT SIGNED.

ON NOVEMBER 23, 1971, A MEMORANDUM WAS RECEIVED BY THE CONTRACTING OFFICER FROM THE STANDARDS AND QUALITY CONTROL BRANCH OF GSA APPROVING DELETION OF TWO FEATURES FROM THE DESKS. THIS CHANGE IN SPECIFICATIONS RESULTED FROM A SIGNIFICANT PRICE REDUCTION OFFERED BY ONE OF THE RESPONDING FIRMS IF SUCH A CHANGE WERE MADE. ALTHOUGH IT WAS RECOGNIZED THAT CHANGING THE SPECIFICATIONS WOULD DELAY AWARD OF THE CONTRACT, IT WAS CONSIDERED TO BE IN THE GOVERNMENT'S BEST INTEREST CONSIDERING THE SIGNIFICANT COST SAVINGS WHICH MIGHT RESULT. WE ARE ADVISED THAT, BECAUSE OF THE URGENCY OF THIS PROCUREMENT, A WIRE WAS SENT TO ALL OFFERORS ADVISING OF THIS CHANGE IN THE SPECIFICATIONS AND REQUESTING BEST AND FINAL OFFERS BY NOVEMBER 30, 1971.

BY THE CLOSE OF BUSINESS ON NOVEMBER 30, 1971, BEST AND FINAL OFFERS HAD BEEN RECEIVED AS FOLLOWS:

STANDARD PRESSED STEEL - REDUCED PRICE

GENERAL FIREPROOFING - NO CHANGE

SUPERIOR SLEEPRITE - NO PRICE REDUCTION

COMMERCIAL OFFICE - NO CHANGE

EVALUATION ON NOVEMBER 30, 1971, INDICATED THAT HILLSIDE'S PREVIOUS OFFER STILL REPRESENTED THE LOEST PRICE AVAILABLE EVALUATED TO ULTIMATE DESTINATION. ON DECEMBER 1, 1971, AT 3:11 P.M., A WIRE WAS RECEIVED FROM HILLSIDE INDICATING NO PRICE CHANGE.

ON DECEMBER 13, 1971, AT 10:30 A.M., A WIRE WAS RECEIVED FROM STANDARD OFFERING TO REDUCE ITS UNIT PRICE FOR THE DESKS, ALL OTHER TERMS AND CONDITIONS REMAINING THE SAME. IF THIS MODIFICATION WERE ACCEPTED STANDARD'S OFFER WOULD HAVE BECOME THE LOW OFFER. ON DECEMBER 14, 1971, AT 8:30 A.M., HOWEVER, A REPRESENTATIVE OF YOUR FIRM HAND CARRIED AN ENVELOPE TO A SUPERVISING PROCUREMENT AGENT IN THE CONTRACTING OFFICE CONTAINING A FURTHER REVISION OF YOUR OFFER WHICH, IF ACCEPTED, WOULD HAVE AGAIN MADE HILLSIDE'S OFFER THE MOST FAVORABLE TO THE GOVERNMENT.

AS A RESULT OF THE ABOVE-MENTIONED LATE PRICE REDUCTIONS, IT WAS DECIDED TO REOPEN THE NEGOTIATIONS WITH ALL FIVE PROSPECTIVE OFFERORS. GSA REPORTS, HOWEVER, THAT WHILE REVIEWING THE RECORD IN THIS PROCUREMENT UP TO DECEMBER 15, 1971, IT WAS NOTICED THAT ALL OF HILLSIDE'S OFFERS HAD BEEN SUBMITTED AFTER THE TIME SET FOR CLOSING OF OFFERS AND AFTER THE INITIAL DETERMINATION OF THE RELATIVE STANDING OF HILLSIDE'S COMPETITORS. THEREFORE, IT WAS DECIDED THAT THE BEST INTERESTS OF THE GOVERNMENT REQUIRED THAT NEGOTIATIONS BE PROMPTLY CONCLUDED AND THAT THE COMPETING COMPANIES BE SO NOTIFIED. A TELEGRAM THEREFORE WAS DRAFTED SETTING 4 P.M., DECEMBER 16 AS THE FINAL CLOSING TIME. THE TELEGRAM SPECIFICALLY ADVISED OFFERORS THAT MODIFICATIONS TO OFFERS "MUST BE RECEIVED IN THIS OFFICE BY THIS CLOSING TIME AND DATE OR THEY WILL NOT BE CONSIDERED UNDER ANY CIRCUMSTANCES."

WE ARE ADVISED BY GSA THAT THE SHORTNESS OF TIME TO BE ALLOWED FOR REPLY WAS THE RESULT OF THE HIGH PRIORITY OF THESE ITEMS, AND THE FACT THAT THE NEGOTIATIONS HAD ALREADY BEEN EXTENDED FOR A LONGER PERIOD THAN WAS DESIRED. IT WAS THOUGHT THAT THE SHORTNESS OF TIME TO REPLY WOULD NOT PREJUDICE ANY OFFEROR SINCE ALL FIVE FIRMS WERE ALREADY FAMILIAR WITH THE PROCUREMENT AND THAT LITTLE ADDITIONAL CALCULATION WOULD BE INVOLVED. ALTHOUGH YOU CONTEND OTHERWISE, IN VIEW OF THE EXTENSIVE NEGOTIATIONS, CONDUCTED PRIOR TO THIS TIME, WE AGREE THAT THE PROCEDURE WAS REASONABLE.

FOLLOWING THE DECEMBER 15 TELEGRAM, TIMELY RESPONSES WERE RECEIVED FROM TWO OFFERORS, INCLUDING A MODIFICATION BY STANDARD WHICH UPON EVALUATION RESULTED IN STANDARD'S OFFER BECOMING THE LOWEST RECEIVED. ON DECEMBER 17 AT 7:05 A.M., HOWEVER, SOME 15 HOURS AFTER THE TIME SET FOR CLOSING OF OFFERS, A TELEGRAPHIC MODIFICATION WAS RECEIVED FROM HILLSIDE WHICH, IF CONSIDERED, WOULD HAVE MADE HILLSIDE'S OFFER LOW.

YOU PROTEST ESSENTIALLY ON TWO GROUNDS. FIRST, YOU CONTEND THAT THE CLOSING TIME AND DATE COMMUNICATED TO YOU BY GSA WAS 4 P.M., DECEMBER 17, NOT DECEMBER 16, SO THAT YOUR MODIFICATION RECEIVED EARLY ON DECEMBER 17 WAS THEREFORE TIMELY. SECONDLY, YOU CONTEND THAT YOUR DECEMBER 17 MODIFICATION SHOULD HAVE BEEN CONSIDERED EVEN IF IT WAS RECEIVED LATE SINCE ITS CONSIDERATION WOULD BE IN THE GOVERNMENT'S BEST INTEREST.

CONCERNING THE FIRST GROUND OF YOUR PROTEST, GSA REPORTS THAT AT APPROXIMATELY 9:50 A.M., ON DECEMBER 15, THE TELEGRAM REQUESTING BEST AND FINAL OFFERS NOT LATER THAN 4 P.M., DECEMBER 16, 1971, WAS HAND CARRIED TO THE COMMUNICATIONS CENTER FOR TRANSMISSION. IT WAS ALSO DECIDED THAT TO INSURE PROMPT NOTIFICATION, ALL OFFERORS WOULD BE ADVISED OF THE NEW CLOSING DATE BY TELEPHONE. THE RECORD CONTAINS AFFIDAVITS FROM SEVERAL GSA EMPLOYEES WHICH INDICATE THAT ON DECEMBER 15, 1971, AT APPROXIMATELY 10 A.M., EACH OF THE FIVE OFFERORS WAS CALLED AND READ VERBATIM THE CONTENTS OF THE TELEGRAM. YOU HAVE FURNISHED AN OPPOSING AFFIDAVIT FROM YOUR SECRETARY WHICH STATES THAT A REPRESENTATIVE OF GSA ADVISED HIM IN A TELEPHONE CALL ON DECEMBER 15, 1971, THAT FINAL CLOSING OF NEGOTIATIONS WOULD BE 4 P.M., EASTERN STANDARD TIME, ON DECEMBER 17, 1971, NOT DECEMBER 16. IN SUBSTANTIATION OF THIS CONTENTION, YOU HAVE SUBMITTED SHORTHAND NOTES PURPORTEDLY TAKEN BY YOUR SECRETARY DURING THE TELEPHONE CONVERSATION INDICATING DECEMBER 17 AS THE FINAL CLOSING DATE.

GSA STATES FURTHER THAT THE SUBSTANCE OF THE TELEPHONE CALL IS IMMATERIAL SINCE AT APPROXIMATELY 1 P.M. ON DECEMBER 15, 1971, MR. LOWELL OF HILLSIDE WAS GIVEN A THERMOFAX COPY OF THE TELEGRAM IN QUESTION. IN YOUR LETTER OF FEBRUARY 2, 1972, HOWEVER, YOU DENY THAT YOU WERE GIVEN A COPY OF THE DECEMBER 15, 1971, TELEGRAM AND YOU STATE MOREOVER, THAT THE DECEMBER 15, 1971, TELEGRAM, SETTING THE FINAL CLOSING DATE AS DECEMBER 16, WAS NOT RECEIVED BY HILLSIDE UNTIL DECEMBER 17, 1971.

IN SITUATIONS SUCH AS THIS, IT IS A LONG-ESTABLISHED RULE OF THIS OFFICE TO BASE OUR DETERMINATION ON THE FACTS AS REPORTED BY THE AGENCY IN THE ABSENCE OF EVIDENCE WHICH CONVINCINGLY ESTABLISHES THAT THE ADMINISTRATIVE RECORD IS IN ERROR. SEE B-173522(2), JANUARY 25, 1972. WE DO NOT CONSIDER THE EVIDENCE YOU HAVE SUBMITTED SUFFICIENT TO CONCLUDE THAT THE ADMINISTRATIVE STATEMENT OF THE FACTS IS ERRONEOUS. THEREFORE, WE MUST DECIDE THE LEGAL QUESTIONS WHICH YOU RAISE ON THE ASSUMPTION THAT YOU WERE ADVISED THAT THE CLOSING DATE FOR SUBMISSION OF BEST AND FINAL OFFERS WOULD BE 4 P.M., ON DECEMBER 16, 1971.

GSA REPORTS THAT IT WAS DECIDED NOT TO ACCEPT YOUR LATE OFFER SINCE IT WOULD BE PREJUDICIAL TO OTHER OFFERORS, WOULD VIOLATE THE POSITIVE DEADLINE WHICH HAD BEEN ESTABLISHED, WOULD APPEAR HIGHLY IMPROPER, AND THEREFORE WOULD NOT BE IN THE BEST INTEREST OF THE GOVERNMENT. ACCORDINGLY, THE CONTRACTING OFFICER WAS ADVISED TO BEGIN PROCESSING AN AWARD TO STANDARD, BUT NOT TO ACTUALLY NOTIFY STANDARD UNTIL THE AWARD WAS FINALLY APPROVED AT A HIGHER AGENCY LEVEL. GSA HAS ADVISED THAT IN VIEW OF THE ARMY'S URGENT NEED FOR THESE DESKS, A CONTRACT FOR THE ITEMS WAS AWARDED TO STANDARD ON DECEMBER 23, 1971, IN THE AMOUNT OF $1,355,827.90. YOUR FIRST GROUND OF PROTEST IS THEREFORE DENIED.

CONCERNING THE SECOND GROUND OF PROTEST, IT IS YOUR CONTENTION THAT YOUR OFFER SHOULD HAVE BEEN CONSIDERED AS BEING IN THE GOVERNMENT'S INTEREST AND IN NO WAY PREJUDICIAL TO THE RIGHTS OF OTHER OFFERORS. YOU STATE THAT AN OFFEROR IN A NEGOTIATED SOLICITATION, BY THE VERY NATURE AND FORM OF SUCH NEGOTIATED SOLICITATION, FREQUENTLY DOES CHANGE HIS PRICES, WITHOUT REGARD TO CLOSING TIME, AND THE GOVERNMENT, BEFORE AWARD, IN ITS INTEREST, MUST TAKE SUCH LOW OFFERS INTO CONSIDERATION, UNLESS THE GOVERNMENT HAS SUBSTANTIAL EVIDENCE OF INSIDE INFORMATION OR OF FRAUD. YOU REFER TO OUR DECISION REPORTED IN 47 COMP. GEN. 274 (1967) AS SUPPORTING YOUR POSITION. FURTHER, YOU CONTEND THAT GSA'S OWN REGULATIONS NOT ONLY CONTEMPLATE BUT SPECIFICALLY REQUIRE THAT IN THE ABSENCE OF A DISCLOSURE OF ONE BIDDER'S PRICE TO ANOTHER, LATE OFFERS LOWER IN PRICE SHOULD BE CONSIDERED. YOU REFER TO PARAGRAPH 5.3 802(E) AND (G) OF THE GENERAL SERVICES ADMINISTRATION PROCUREMENT REGULATIONS (GSPR) TO SUPPORT YOUR POSITION.

OUR DECISION AT 47 COMP. GEN. 279 (1967) IS DISTINGUISHABLE FROM THE CASE AT HAND. THAT DECISION CONCERNED A NEGOTIATED PROCUREMENT WHEREUNDER AWARD WAS MADE ON THE BASIS OF INITIALLY SUBMITTED PROPOSALS, WITHOUT NEGOTIATIONS, NOTWITHSTANDING A LATE MODIFICATION OFFERING A PRICE REDUCTION OF SOME 15 PERCENT. THE JUSTIFICATION ADVANCED BY THE AGENCY INVOLVED WAS THAT THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) (WHICH IMPOSES DIFFERENT RULES WITH RESPECT TO LATE OFFERS AND MODIFICATIONS THAN DOES THE GSPR) PRECLUDED THE CONSIDERATION OF THE LATE MODIFICATION THERE INVOLVED. OUR DECISION DREW A DISTINCTION BETWEEN THE ACCEPTANCE OF A LATE MODIFICATION, PRECLUDED BY ASPR, AND THE DETERMINATION, BASED ON THE RECEIPT OF A LATE MODIFICATION OFFERING A SUBSTANTIAL REDUCTION THAT NEGOTIATIONS NOT PREVIOUSLY CONDUCTED, SHOULD, IN FACT, BE CONDUCTED.

IN THE PRESENT CASE, HOWEVER, SEVERAL PREVIOUS ROUNDS OF NEGOTIATIONS RESULTING IN THREE PRICE REDUCTIONS BY HILLSIDE HAD BEEN CONDUCTED PRIOR TO GSA'S DECEMBER 15 TELEGRAM STATING THE FINAL CUTOFF DATE FOR THE SUBMISSION OF OFFER MODIFICATIONS. FURTHER, AS MENTIONED ABOVE, THE LATE MODIFICATION IN THE CITED CASE AMOUNTED TO SOME 15 PERCENT OF THE TOTAL BID PRICE WHEREAS THE HILLSIDE LATE MODIFICATION AMOUNTED TO LESS THAN ONE HALF OF ONE PERCENT. THE CONTRACTING OFFICER'S DECISION NOT TO CONSIDER YOUR LATE MODIFICATION WAS, IN OUR OPINION, A PROPER EXERCISE OF PROCUREMENT RESPONSIBILITY.

NEITHER DO WE AGREE WITH YOUR CONTENTION THAT GSA'S REGULATIONS REQUIRED THE CONTRACTING OFFICER TO CONSIDER YOUR LATE MODIFICATION.

PARAGRAPH 5-3.802(G) OF GSPR PROVIDES AS FOLLOWS:

"OFFERS, OR MODIFICATIONS THEREOF, RECEIVED AFTER THE TIME FIXED FOR RECEIPT, MAY BE CONSIDERED PROVIDED NO AWARD HAS BEEN MADE AND THE CONTRACTING OFFICER DETERMINES THAT SUCH ACTION WOULD BE IN THE INTEREST OF THE GOVERNMENT. NORMALLY, ONLY LATE OFFERS LOWER IN PRICE OR OFFERING OTHER MORE FAVORABLE FACTORS THAN RESPONSIVE OFFERS FROM RESPONSIBLE BIDDERS, RECEIVED ON TIME, SHOULD BE CONSIDERED. THE CONTRACTING OFFICER SHALL ALSO CAREFULLY INVESTIGATE THE CIRCUMSTANCES UNDER WHICH THE OFFER WAS SUBMITTED TO ASSURE THAT THE FIRM SUBMITTING THE LATE OFFER HAS NOT RECEIVED AN UNFAIR COMPETITIVE ADVANTAGE. (SEE (E), ABOVE.)" YOU STATE THAT THE WORD "MAY" IN THE FIRST SENTENCE OF THE ABOVE-CITED PARAGRAPH SUGGESTS THAT THE CONTRACTING OFFICER HAS THE DISCRETION TO CONSIDER LATE OFFERS OR MODIFICATIONS IF HE DETERMINES THAT ACTION IS IN THE INTEREST OF THE GOVERNMENT. THE NEXT SENTENCE OF THE REGULATION READS "NORMALLY ONLY LATE OFFERS LOWER IN PRICE *** SHOULD BE CONSIDERED." YOU STATE THAT THIS LATTER SENTENCE CLEARLY LIMITS THE CONTRACTING OFFICER'S DISCRETION, AS CONTAINED IN THE FIRST SENTENCE, BY STATING THAT IF THE LATE OFFER IS LOWER IN PRICE IT SHOULD BE CONSIDERED. IN ANY EVENT, YOU QUESTION, HOW THE CONTRACTING OFFICER COULD BE ACTING IN THE INTEREST OF THE GOVERNMENT, AND EXERCISING SOUND ADMINISTRATIVE DISCRETION, EVEN UNDER THE FIRST SENTENCE, IN FAILING TO ACCEPT YOUR LOW BID, UNLESS HE HAD PROOF, THAT YOU HAD AN "UNFAIR COMPETITIVE ADVANTAGE" SUCH AS KNOWING ANOTHER OFFEROR'S PRICE. WE DO NOT AGREE.

THE ABOVE-QUOTED PARAGRAPH PROVIDES GUIDANCE TO A CONTRACTING OFFICER IN THE EVENT HE RECEIVES A LATE OFFER OR MODIFICATION. IT LEAVES TO HIS DISCRETION THE ACTION TO BE TAKEN WITH RESPECT TO SUCH LATE SUBMITTALS; BUT IT IMPOSES NO OBLIGATION UPON HIM TO CONSIDER ANY PARTICULAR CATEGORY OF LATE SUBMITTAL NOR DOES IT OTHERWISE LIMIT HIS DISCRETION TO FOREGO CONSIDERATION OF A LATE SUBMITTAL WHICH, AS HERE, OFFERS NO TERMS OF OVERRIDING BENEFIT TO THE GOVERNMENT. THE CONTRACTING OFFICER'S DISCRETION IS ONE OF SOUND PROCUREMENT JUDGMENT MEASURED BY THE BENEFITS TO BE OBTAINED.

AS INDICATED ABOVE, GSA REPORTS THAT THE STATEMENT CONTAINED IN THE DECEMBER 15 TELEGRAM THAT "LATE OFFERS WOULD NOT BE CONSIDERED UNDER ANY CIRCUMSTANCES" WAS INTENDED TO EXPRESSLY PREVENT CONSIDERATION OF LATE OFFERS. GSA STATES THAT HILLSIDE'S DECEMBER 17TH OFFER WAS THE FOURTH TIME DURING THE NEGOTIATIONS THAT A HILLSIDE OFFER WAS SENT ON THE DAY SET FOR RECEIPT OF OFFERS, BUT AFTER THE AGENCY'S BUSINESS DAY HAD ENDED AND AFTER EVALUATION OF HILLSIDE'S COMPETITORS HAD BEGUN. TO REMOVE ANY SUGGESTION OF IMPROPRIETY, OFFERORS WERE SPECIFICALLY INFORMED THAT UNDER NO CIRCUMSTANCES WOULD LATE OFFERS BE ACCEPTED. FURTHER, THE ORDERLY CONDUCT OF THE GOVERNMENT'S BUSINESS, PARTICULARLY IN THE CASE OF URGENCY, CLEARLY REQUIRES THAT A HALT BE CALLED TO THE TYPE OF RECURRENT NEGOTIATIONS ENCOUNTERED IN THIS CASE. ACCORDINGLY, WE FIND NO ABUSE OF DISCRETION ON THE PART OF THE CONTRACTING OFFICER IN REFUSING TO CONSIDER A MODIFICATION SUBMITTED AFTER THE CUTOFF TIME FOR SUBMISSION OF MODIFICATIONS HAD BEEN FIXED IN ADVANCE WITH APPROPRIATE NOTICE TO ALL PROSPECTIVE CONTRACTORS.

FOR THE REASONS STATED YOUR PROTEST MUST BE DENIED.