B-175461, JUN 1, 1972, 51 COMP GEN 787

B-175461: Jun 1, 1972

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BIDS - INFORMATION STATUS - SUBMITTED AFTER BID OPENING THE LOW BID SUBMITTED ON A "BRAND NAME" BASIS UNDER A SMALL BUSINESS SET- ASIDE REQUIRING THE COMPONENT PARTS OF TENT FRAMES AND DOORS TO BE FURNISHED ON A "BRAND NAME OR EQUAL" BASIS IS NOT A NONRESPONSIVE BID BECAUSE THE BIDDER SECURED PRICE QUOTATIONS ON THE PARTS AFTER BID OPENING AND AFTER THE CONTRACTING AGENCY HAD CONTACTED THE MANUFACTURER - WHICH ACCORDING TO THE RECORD WAS NOT AN IMPROPER INTERFERENCE - AS THE BID ON ITS FACE COMPLIED IN ALL MATERIAL RESPECTS TO THE INVITATION FOR BIDS. THE FACT THAT THE BIDDER COULD NOT ANTICIPATE FURNISHING THE BRAND NAME ITEM AT BID OPENING TIME IS A MATTER OF RESPONSIBILITY AND NOT BID RESPONSIVENESS FOR THE SIGNIFICANT TIME TO DETERMINE ABILITY TO PERFORM IS NOT AT BID OPENING TIME BUT AT THE TIME OF SCHEDULED PERFORMANCE.

B-175461, JUN 1, 1972, 51 COMP GEN 787

BIDS - INFORMATION STATUS - SUBMITTED AFTER BID OPENING THE LOW BID SUBMITTED ON A "BRAND NAME" BASIS UNDER A SMALL BUSINESS SET- ASIDE REQUIRING THE COMPONENT PARTS OF TENT FRAMES AND DOORS TO BE FURNISHED ON A "BRAND NAME OR EQUAL" BASIS IS NOT A NONRESPONSIVE BID BECAUSE THE BIDDER SECURED PRICE QUOTATIONS ON THE PARTS AFTER BID OPENING AND AFTER THE CONTRACTING AGENCY HAD CONTACTED THE MANUFACTURER - WHICH ACCORDING TO THE RECORD WAS NOT AN IMPROPER INTERFERENCE - AS THE BID ON ITS FACE COMPLIED IN ALL MATERIAL RESPECTS TO THE INVITATION FOR BIDS, AND THE FACT THAT THE BIDDER COULD NOT ANTICIPATE FURNISHING THE BRAND NAME ITEM AT BID OPENING TIME IS A MATTER OF RESPONSIBILITY AND NOT BID RESPONSIVENESS FOR THE SIGNIFICANT TIME TO DETERMINE ABILITY TO PERFORM IS NOT AT BID OPENING TIME BUT AT THE TIME OF SCHEDULED PERFORMANCE, AND THE CONTRACTOR IF UNABLE TO PERFORM WOULD BE SUBJECT TO A DEFAULT TERMINATION AND LIABILITY FOR EXCESS COSTS. CONTRACTS - PROTESTS - PROCEDURES - COMPLIANCE ALTHOUGH IN NOT GIVING THE UNSUCCESSFUL BIDDER NOTICE OF THE DETERMINATION TO MAKE AN AWARD OF A CONTRACT WHILE A BID PROTEST WAS PENDING WITH THE UNITED STATES GENERAL ACCOUNTING OFFICE (GAO), THE CONTRACTING AGENCY FAILED TO COMPLY WITH SECTION 20.4 OF THE GAO BID PROTEST PROCEDURES (4 CFR 20.4), GAO HAS NO AUTHORITY EITHER TO IMPOSE TIME LIMITS ON CONTRACTING AGENCIES FOR REPORTS ON PROTESTS OR TO REGULATE THE WITHHOLDING OF AWARD. HOWEVER, IT IS HOPED AGENCIES WILL INCORPORATE THE PROTEST PROCEDURES AND STANDARDS INTO THEIR REGULATIONS. FURTHERMORE, THE AGENCY'S DETERMINATION THAT AN EARLY AWARD WAS NECESSARY TO TAKE ADVANTAGE OF THE LOW BID BEFORE IT EXPIRED IN ORDER TO AVOID ACCEPTING THE NEXT LOW BID AT A SUBSTANTIAL INCREASE, AND THE MAILING OF A "NO AWARD" NOTICE AFTER AWARD WAS NOT CONTRARY TO THE ARMED SERVICES PROCUREMENT REGULATION, WHICH IN PARAGRAPH 2 407.8(B)(3) DOES NOT REQUIRE NOTICE TO BE GIVEN PRIOR TO AWARD.

TO SELLERS, CONNER & CUNEO, JUNE 1, 1972:

THIS IS IN REFERENCE TO YOUR LETTER OF MARCH 22, 1972, AND SUBSEQUENT CORRESPONDENCE REGARDING THE PROTEST OF MAGLINE, INCORPORATED, AGAINST AWARD OF A CONTRACT UNDER INVITATION FOR BIDS (IFB) DSA100-72-B-0847, ISSUED JANUARY 17, 1972, BY THE DEFENSE PERSONNEL SUPPORT CENTER, DEFENSE SUPPLY AGENCY (DSA), PHILADELPHIA, PENNSYLVANIA.

THE INVITATION, A SMALL BUSINESS SET-ASIDE, WAS FROM QUANTITIES OF TENT FRAMES AND TENT FRAME DOORS, WITH SEVERAL COMPONENT PARTS TO BE PROCURED ON A "BRAND NAME OR EQUAL" BASIS. MAGLINE BID ON AN "OR EQUAL" BASIS AFTER IT WAS UNABLE TO OBTAIN A QUOTE FROM THE JOY MANUFACTURING COMPANY, THE BRAND NAME SUPPLIER FOR SIX OF THE COMPONENT PARTS. THE ONLY OTHER BIDDER, BROOKS & PERKINS, INCORPORATED, SUBMITTED A BID THAT WAS MORE THAN $193,000 LOWER ON A "BRAND NAME" BASIS, EVEN THOUGH JOY HAD ALSO DECLINED TO PROVIDE IT WITH A QUOTATION.

AFTER THE BID OPENING ON FEBRUARY 8, 1972, MAGLINE QUESTIONED THE BROOKS & PERKINS' BID IN VIEW OF JOY'S REFUSAL TO QUOTE ON THE COMPONENT PARTS. JOY WAS THEN CONTACTED BY A REPRESENTATIVE OF THE ARMY AGENCY THAT PREPARED THE SPECIFICATION. ON FEBRUARY 21, 1972, JOY TELEPHONED PRICES FOR THE COMPONENT PARTS TO BROOKS & PERKINS AND CONFIRMED THE QUOTATION BY TELEGRAM OF FEBRUARY 23. MAGLINE THEN FILED A PROTEST WITH THE CONTRACTING OFFICER, ALLEGING THAT BROOKS & PERKINS' BID WAS NONRESPONSIVE AND THAT THE GOVERNMENT IMPROPERLY INTERVENED IN THE BIDDING PROCESS TO THE PREJUDICE OF MAGLINE. THE CONTRACTING OFFICER DENIED THE PROTEST, AND MAGLINE THEN FILED A PROTEST WITH THIS OFFICE ON MARCH 16, 1972. THE CONTRACT WAS AWARDED TO THE LOW BIDDER ON APRIL 13, 1972.

THE PRIMARY ISSUE RAISED BY THIS PROTEST IS WHETHER THE BROOKS & PERKINS' BID WAS NONRESPONSIVE BECAUSE AT THE TIME OF BID OPENING THE COMPANY COULD NOT FURNISH THE BRAND NAME ITEMS ON WHICH ITS BID WAS BASED. YOU CLAIM THE BID WAS CLEARLY NONRESPONSIVE BECAUSE IN FACT THERE WAS NO BRAND NAME ITEM AVAILABLE UPON WHICH A BIDDER COULD BASE AN OFFER, AND ANY BID OFFERING THE BRAND NAME ITEMS COULD NOT CONFORM TO THE IFB. WHILE YOU ADMIT THAT THE BID CONFORMED "IN FORM ONLY" TO THE IFB, YOU ASSERT THAT IT MUST CONFORM IN FACT AS WELL, AND THAT IT DID NOT DO SO HERE.

WE AGREE WITH YOU THAT BID RESPONSIVENESS INVOLVES CONFORMITY IN ALL MATERIAL RESPECTS TO THE PROVISIONS OF THE SOLICITATION. A BID, TO BE RESPONSIVE, MUST BE ONE THAT BINDS A BIDDER TO ALL THE TERMS OF AN INVITATION. AS WE SAID IN 49 COMP. GEN. 553 (1970):

*** THE TEST TO BE APPLIED IN DETERMINING THE RESPONSIVENESS OF A BID IS WHETHER THE BID AS SUBMITTED IS AN OFFER TO PERFORM, WITHOUT EXCEPTION, THE EXACT THING CALLED FOR IN THE INVITATION, AND UPON ACCEPTANCE WILL BIND THE CONTRACTOR TO PERFORM IN ACCORDANCE WITH ALL THE TERMS AND CONDITIONS THEREOF. UNLESS SOMETHING ON THE FACE OF THE BID, OR SPECIFICALLY A PART THEREOF, EITHER LIMITS, REDUCES OR MODIFIES THE OBLIGATION OF THE PROSPECTIVE CONTRACTOR TO PERFORM IN ACCORDANCE WITH THE TERMS OF THE INVITATION, IT IS RESPONSIVE. ***

APPLYING THAT TEST TO THIS CASE, WE THINK THE CONTRACTING OFFICER WAS CORRECT IN TREATING THIS MATTER AS ONE OF BIDDER RESPONSIBILITY RATHER THAN AS ONE OF BID RESPONSIVENESS. IT IS CLEAR THAT THE BID, ON ITS FACE, COMPLIED IN ALL MATERIAL RESPECTS TO THE IFB. IT IS EQUALLY CLEAR THAT ACCEPTANCE OF THE BID WOULD RESULT IN A VALID CONTRACT THAT WOULD BIND BROOKS & PERKINS TO FURNISH JOY COMPONENTS. THUS, WE FAIL TO SEE HOW BROOKS & PERKINS' LACK OF A VALID QUOTATION FROM JOY AT TIME OF BID OPENING COULD RENDER ITS BID NONRESPONSIVE.

WE BELIEVE THIS IS MORE A MATTER OF BIDDER RESPONSIBILITY, SINCE IT CLEARLY INVOLVES THE BIDDER'S ABILITY TO CARRY OUT THE CONTRACTUAL PROMISE TO FURNISH PRODUCTS WITH THE SPECIFIED BRAND NAME COMPONENT PARTS. THE SIGNIFICANT TIME WITH RESPECT TO THE ABILITY TO SUCCESSFULLY PERFORM IS NOT BID OPENING BUT SCHEDULED PERFORMANCE. 46 COMP. GEN. 326 (1966); 47 ID. 539 (1968). ACCORDINGLY, BROOKS & PERKINS COULD PROPERLY ARRANGE FOR A QUOTE FROM JOY SUBSEQUENT TO BID OPENING. IN THIS RESPECT, THE CONTRACTING OFFICER REQUESTED THE PREAWARD SURVEY TEAM TO PUT SPECIAL EMPHASIS ON THE LOW BIDDER'S ABILITY TO OBTAIN THE BRAND NAME COMPONENTS, AND THE SURVEY REPORT INDICATED THAT BROOKS & PERKINS DID IN FACT HAVE THE NECESSARY QUOTATIONS FROM BRAND NAME SUPPLIERS. OF COURSE, HAD THE PREAWARD SURVEY REVEALED THAT THE POTENTIAL CONTRACTOR COULD NOT OBTAIN THE BRAND NAME PARTS, THE CONTRACTING OFFICER COULD HAVE PROPERLY DETERMINED BROOKS & PERKINS TO BE NONRESPONSIBLE. SEE B-174919, APRIL 17, 1972, IN WHICH WE HELD THAT A BID CONFORMING TO THE DELIVERY REQUIREMENTS OF AN INVITATION WAS RESPONSIVE, NOTWITHSTANDING THE FACTUAL IMPOSSIBILITY OF THE BIDDER'S MEETING THAT SCHEDULE, AND THAT SUCH IMPOSSIBILITY WAS A MATTER OF RESPONSIBILITY.

THE ONLY CASE YOU CITE IN SUPPORT OF YOUR CONTENTION OF BID NONRESPONSIVENESS, 50 COMP. GEN. 530 (1971), INVOLVED THE SUBMISSION OF A BID OR A SMALL BUSINESS SET-ASIDE BY WHAT WAS REPRESENTED TO BE A JOINT VENTURE WHEN IN FACT THE JOINT VENTURE DID NOT EXIST AT TIME OF BID OPENING. WE NOTED THAT THE NAME ON THE BID DOCUMENT DIFFERED FROM THE NAME ON THE BID BOND, AND THAT AWARD OF A CONTRACT "WOULD NOT RESULT IN AN ENFORCEABLE CONTRACT AS CONTEMPLATED BY THE PROCUREMENT STATUTE AND REGULATIONS." 50 COMP. GEN. 530, 534. WE THINK THAT CASE IS CLEARLY DISTINGUISHABLE AND HAS NO BEARING ON THE INSTANT SITUATION.

WE THINK THE FACTS OF THIS CASE ARE SIMILAR TO THOSE REPORTED IN THE APPEAL OF MAGNUSONICS INDUSTRIES, INC., GSBCA-1620, DECEMBER 10, 1965. THAT CASE THE CONTRACT CALLED FOR DELIVERY OF CERTAIN BRAND NAME ITEMS. THE CONTRACTOR PROPOSED TO FURNISH "OR EQUAL" ITEMS, CLAIMING IT INADVERTENTLY OMITTED TO INDICATE "OR EQUAL" IN ITS BID. THE BOARD UPHELD THE SUBSEQUENT DEFAULT TERMINATION, NOTING THAT THE CONTRACTOR WAS REQUIRED TO PERFORM IN ACCORDANCE WITH THE TERMS OF THE CONTRACT. SIMILARLY, IF BROOKS & PERKINS COULD NOT DELIVER THE BRAND NAME ITEMS IT BID ON IN THE INSTANT CASE, IT WOULD BE SUBJECT TO A DEFAULT TERMINATION AND LIABILITY FOR EXCESS COSTS.

WITH RESPECT TO THE GOVERNMENT'S INTERVENTION IN THE BID PROCESS, YOU CLAIM THAT THE DEFENSE SUPPLY AGENCY, UPON RECEIPT OF INFORMATION FROM MAGLINE THAT JOY WOULD NOT QUOTE, PROCEEDED TO QUALIFY THE BROOKS & PERKINS' BID. YOU ASSERT THAT AT THE BEHEST OF THE CONTRACTING OFFICER, AN OFFICIAL OF THE UNITED STATES ARMY NATICK LABORATORIES CONTACTED JOY AND PREVAILED UPON IT TO MAKE ITS COMPONENT PARTS AVAILABLE TO BROOKS & PERKINS. IN SUPPORT OF THIS ASSERTION, YOU FURNISHED A COPY OF AN INTERNAL MEMO FROM MAGLINE'S PURCHASING DEPARTMENT, WHICH STATES THAT THE MANAGER OF MARKETING AND ADMINISTRATION FOR JOY MANUFACTURING COMPANY ADVISED A MAGLINE OFFICIAL THAT "ONE OF HIS BRANCH MANAGERS WAS ASKED BY SOMEONE FROM THE GOVERNMENT AT NATICK, MASS. LAB TO PROVIDE A QUOTATION." THE CONTRACTING OFFICER, HOWEVER, DENIES THAT THERE WAS ANY INTERVENTION BY THE GOVERNMENT. HE FURNISHED, WITH HIS ADMINISTRATIVE REPORT, A SWORN STATEMENT FROM THE NATICK OFFICIAL, WHICH STATES THE FOLLOWING:

MR. EARL MELVILLE, TECHNICAL OPERATIONS, DPSC, CALLED ME IN FEBRUARY 1972 TO INQUIRE ABOUT OTHER SOURCES FOR THE ELECTRICAL LIGHTING AND WIRING COMPONENTS UNDER SPECIFICATION MIL-F-40132D. MR. MELVILLE WAS UNDER THE IMPRESSION THAT JOY MANUFACTURING COMPANY, THE STATED SOURCE ON THE GOVERNMENT DRAWING FOR THESE ITEMS, WAS NO LONGER PRODUCING THE ITEMS CITED ON NLABS DRAWING 5-4-588. HE INQUIRED IF OTHER SOURCES FOR THESE ITEMS WERE AVAILABLE.

I CONTACTED MR. EDGAR HUBERT, SALES REPRESENTATIVE FOR JOY MANUFACTURING COMPANY TO DETERMINE IF JOY STILL MADE THE SPECIFIED COMPONENTS. MR. HUBERT RETURNED MY CALL AFTER CHECKING WITH THE JOY MANUFACTURING COMPANY HEADQUARTERS AND INFORMED ME THAT THE COMPANY STILL FABRICATED AND STOCKED THE RESPECTIVE ITEMS BUT DID NOT FURNISH QUOTATIONS ON RELATIVELY LARGE PROCUREMENT ACTIONS BECAUSE MANAGEMENT DECIDED NOT TO INCUR THE COSTS OF PREPARING QUOTATIONS INASMUCH AS THEY HAD NEVER RECEIVED AN ORDER UNDER A LARGE GOVERNMENT PROCUREMENT ACTION. THE COMPANY FELT THAT IT WAS NOT IN A COMPETITIVE POSITION FOR SUCH PROCUREMENTS AND SAW NO REASON TO INCUR THE COSTS OF PREPARING QUOTATIONS.

THE FILE ALSO CONTAINS A LETTER DATED MARCH 23, 1972, FROM BROOKS & PERKINS WHICH STATES:

AS HAS PREVIOUSLY BEEN STATED, OUR ESTIMATING DEPARTMENT GENERATED A DETAILED COST ESTIMATE, UTILIZING A MIXTURE OF ESTIMATED PRICES BASED ON OUR PAST COST RECORDS ON THIS TENT FRAME PLUS ANY NEW QUOTED PRICES WHICH ARRIVED IN TIME TO BE INCLUDED IN THE FINAL PRICE WORK UP.

OUR BID WAS MAILED ON FEBRUARY 4, 1972 AND BASED ON USING BRAND NAME PRODUCTS. AFTER BID MAILING, WE WERE ADVISED BY OUR PURCHASING DEPARTMENT THAT JOY MANUFACTURING HAD REPLIED THAT THEY COULD NOT QUOTE COMPETITIVELY ON THE WIRING HARNESS.

WE MENTIONED THE FACT TO MISS CALLAHAN THAT ONE OF THE BRAND NAME VENDORS WAS DEFERRING FROM QUOTING BUT THAT WE HOPED TO WORK SOMETHING OUT.

OUR PURCHASING AGENT, MR. NEIL MCLEAN, CONTACTED THE LOCAL JOY MANUFACTURING REPRESENTATIVE, MR. BILL THORUP, OF J. KINNEAR & COMPANY, AND TOGETHER THEY CALLED MR. E. N. BAKER, SALES MANAGER OF JOY MANUFACTURING COMPANY. MR. BAKER ADVISED THAT THEY HAD NEVER RECEIVED ANY ORDERS ON THIS ITEM EXCEPT ON ONE OCCASION FROM MAG AEROSPACE AND OURSELVES, AND HE DID NOT FEEL THAT THEY COULD COMPETE WITH MOHAWK ELECTRONICS WHO HAD RECEIVED ALL OF THE PREVIOUS BUSINESS FROM THE MAJOR SUPPLIER OF THIS TENT FRAME. MOHAWK WOULD NEVER QUOTE TO US ON THIS ITEM. WE ADVISED MR. BAKER THAT WE HAD BASED OUR QUOTATION ON PREVIOUS JOY MANUFACTURING PRICES TO US, AND HE AGREED TO QUOTE US.

SINCE WE BELIEVE THAT THE BROOKS & PERKINS' BID WAS FULLY RESPONSIVE TO THE INVITATION, WE CANNOT VIEW THE ACTIONS OF THE GOVERNMENT OFFICIALS INVOLVED IN THIS PROCUREMENT AS ATTEMPTS TO MAKE A NONRESPONSIVE BID RESPONSIVE AFTER BID OPENING. IN ADDITION, WE CANNOT CONCLUDE, ON THE BASIS OF THIS RECORD, THAT THERE ACTUALLY WAS IMPROPER GOVERNMENT INTERFERENCE. IN THIS RESPECT, WE THINK THE FOLLOWING COMMENTS INCLUDED IN A SUPPLEMENTAL REPORT DATED MAY 5, 1972, FROM DSA ARE RELEVANT HERE:

WHETHER EFFORTS BY BROOKS & PERKINS (BROOKS), OR THE GOVERNMENT, OR BOTH, MOTIVATED JOY MANUFACTURING CO. (JOY) TO QUOTE ON ITS BRAND NAME ITEM IS NOT CLEARLY ESTABLISHED. INFORMATION FURNISHED IN A SWORN STATEMENT BY MR. SIEGEL DISCLOSES NO IMPROPER ACTION ON THE PART OF THE GOVERNMENT. EVEN IF GOVERNMENT REPRESENTATIVES HAD PERSUADED JOY, WHOSE PRODUCT WAS IDENTIFIED BY NAME IN THE SPECIFICATION, TO CONTINUE TO PROVIDE THE ITEM AS A COMPONENT AND TO QUOTE TO THE LOW BIDDER BEFORE AWARD, SUCH ACTION WOULD CLEARLY BE IN THE BEST INTERESTS OF THE UNITED STATES, COULD NOT AFFECT THE RESPONSIVENESS OF BIDS, AND WOULD BE NO MORE THAN WOULD HAVE BEEN DONE IF THE NONAVAILABILITY OF THE ITEM WERE BROUGHT TO THE ATTENTION OF THE GOVERNMENT BEFORE BID OPENING, AFTER BID OPENING, OR AFTER AWARD, FOR ANY BIDDER OR CONTRACTOR.

FINALLY, YOU OBJECT TO THE AWARDING OF A CONTRACT TO BROOKS & PERKINS WHILE THIS PROTEST WAS PENDING. YOU STATE THAT MAGLINE WAS NOT GIVEN NOTICE OF THE AGENCY'S DECISION TO MAKE THE AWARD AS REQUIRED BY ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2-407.8(B)(3) AND BY SECTION 20.4 (4 CFR 20.4) OF THE GAO BID PROTEST PROCEDURES.

ASPR 2-407.8(B)(2) REQUIRES THAT "A NOTICE OF INTENT TO MAKE AWARD" BE FURNISHED THE COMPTROLLER GENERAL WHEN A PROTEST IS PENDING, AND THAT ADVICE AS TO THE STATUS OF THE CASE SHOULD BE OBTAINED. ASPR 2 407.8(B)(3) PROVIDES THAT AN AWARD SHOULD NOT BE MADE DURING THE PENDENCY OF A PROTEST UNLESS THE CONTRACTING OFFICER DETERMINES THAT AN URGENT REQUIREMENT EXISTS, THAT DELIVERY WILL BE UNDULY DELAYED IF AWARD IS NOT MADE, OR THAT A PROMPT AWARD WILL OTHERWISE BE ADVANTAGEOUS TO THE GOVERNMENT. THAT SECTION FURTHER PROVIDES THAT IF AN AWARD IS MADE UNDER SUCH CIRCUMSTANCES, THE CONTRACTING OFFICER "SHALL GIVE WRITTEN NOTICE OF THE DECISION TO PROCEED WITH THE AWARD TO THE PROTESTER *** ." OUR BID PROTEST PROCEDURE STATES THAT AN AWARD SHALL NOT BE MADE PRIOR TO A RULING BY THE COMPTROLLER GENERAL "UNLESS THERE HAS FIRST BEEN FURNISHED TO THE GENERAL ACCOUNTING OFFICE A WRITTEN FINDING BY THE HEAD OF THE AGENCY, HIS DEPUTY, OR AN ASSISTANT SECRETARY (OR EQUIVALENT), SPECIFYING THE FACTORS WHICH WILL NOT PERMIT A DELAY IN THE AWARD *** ."

IN ITS LETTER OF APRIL 7, 1972, FORWARDING THE ADMINISTRATIVE REPORT ON THE PROTEST, DSA STATED THAT BROOKS & PERKINS' BID WAS EXTENDED TO APRIL 15, 1972, BUT THAT IT MIGHT NOT BE EXTENDED BEYOND THAT DATE, THEREBY REQUIRING AN EARLY AWARD TO PROTECT THE SUBSTANTIAL PRICE DIFFERENCE IN THE TWO BIDS. DSA FURNISHED YOU WITH A COPY OF THAT LETTER. ON APRIL 13, 1972, AN OFFICIAL OF DSA CONTACTED OUR OFFICE BY PHONE TO ADVISE THAT PROMPT AWARD APPEARED NECESSARY BECAUSE THE BID WOULD EXPIRE ON APRIL 15. ON APRIL 20, WE RECEIVED A LETTER DATED APRIL 18, 1972, FROM THE DSA ASSISTANT COUNSEL ADVISING THAT AWARD WAS MADE ON APRIL 13, 1972, BECAUSE THE LOW BIDDER "WOULD NOT EXTEND ITS BID BEYOND 15 APRIL 1972 AND A SUBSTANTIAL INCREASE IN PRICE WOULD BE INVOLVED IN AN AWARD TO THE NEXT LOW BIDDER." WE ARE ALSO ADVISED BY THE SUPPLEMENTAL REPORT OF MAY 5, 1972, THAT THE NOTICE OF "NO AWARD" WAS MAILED TO MAGLINE ON APRIL 18, 1972, IN ACCORDANCE WITH NORMAL PROCEDURES UNDER ASPR 2-407.8(B)(3). DSA CORRECTLY POINTS OUT THAT THIS SECTION DOES NOT REQUIRE NOTICE TO BE GIVEN PRIOR TO AWARD. WE DO NOT BELIEVE THE RECITED FACTS SUPPORT YOUR ASSERTION THAT THE PROVISIONS OF ASPR WERE NOT FOLLOWED. WHILE WE THINK IT IS CLEAR THAT THE PROVISIONS OF 4 CFR 20.4 WERE NOT COMPLIED WITH, THE PREAMBLE TO TITLE 4 OF THE CFR STATES THAT THE GAO "HAS NO AUTHORITY EITHER TO IMPOSE TIME LIMITS ON CONTRACTING AGENCIES FOR REPORTS ON PROTESTS OR TO REGULATE THE WITHHOLDING OF AWARD," AND WE EXPRESSED THE HOPE THAT AGENCIES WILL INCORPORATE OUR PROCEDURES AND STANDARDS INTO THEIR OWN REGULATIONS. SINCE THE ADMINISTRATIVE ACTION COMPLAINED OF WAS NOT CONTRARY TO THE PROVISIONS OF ASPR, WE DO NOT FIND ANY BASIS FOR DISTURBING THE AWARD.

FOR ALL OF THE FOREGOING REASONS, YOUR PROTEST MUST BE DENIED.