B-176283(2), FEB 5, 1973

B-176283(2): Feb 5, 1973

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ALTHOUGH THE PROTEST WAS DENIED. GAO QUESTIONS THE NEED FOR REOPENING THE NEGOTIATIONS AFTER "BEST AND FINAL" OFFERS HAD BEEN RECEIVED AND QUESTIONS WHETHER THE POLICY OF THE DEPARTMENT OF THE NAVY REGARDING NOTICE TO UNSUCCESSFUL OFFERORS OF THE REJECTION OF THEIR PROPOSALS IS CONSISTENT WITH THE INTENT OF ASPR 3-508.3. ENCLOSED IS A COPY OF OUR DECISION OF TODAY TO THE PROTESTER. WE HAVE QUESTIONED THE SOUNDNESS OF THE NEGOTIATING PROCEDURES WHICH WERE USED IN THIS CASE. WE HAVE QUESTIONED THE NEED FOR REOPENING THE NEGOTIATIONS AFTER "BEST AND FINAL" OFFERS HAD BEEN RECEIVED. WE HAVE CONCLUDED THAT THE AWARD WHICH RESULTED FROM THE REOPENED NEGOTIATIONS WAS LEGAL. IT IS REPORTED THAT THE AWARD SELECTION WAS MADE MAY 25.

B-176283(2), FEB 5, 1973

BID PROTEST - REOPENING OF NEGOTIATIONS - NOTICE TO UNSUCCESSFUL OFFERORS CONCERNING THE PROTEST OF BAIRD-ATOMIC, INC., AGAINST AWARD OF A CONTRACT TO ANY OTHER FIRM UNDER AN RFP ISSUED BY THE NAVAL AMMUNITION DEPOT, CRANE, IND. ALTHOUGH THE PROTEST WAS DENIED, GAO QUESTIONS THE NEED FOR REOPENING THE NEGOTIATIONS AFTER "BEST AND FINAL" OFFERS HAD BEEN RECEIVED AND QUESTIONS WHETHER THE POLICY OF THE DEPARTMENT OF THE NAVY REGARDING NOTICE TO UNSUCCESSFUL OFFERORS OF THE REJECTION OF THEIR PROPOSALS IS CONSISTENT WITH THE INTENT OF ASPR 3-508.3.

TO MR. SECRETARY:

WE REFER TO A LETTER DATED AUGUST 14, 1972, SUP 02E, FROM THE DEPUTY COMMANDER, PROCUREMENT DIVISION, NAVAL SUPPLY SYSTEMS COMMAND, IN RESPONSE TO A REQUEST FROM THIS OFFICE FOR A REPORT IN CONNECTION WITH A BID PROTEST BY BAIRD-ATOMIC, INCORPORATED, UNDER REQUEST FOR PROPOSALS NO. N00164-72-R-0191, ISSUED BY THE NAVAL AMMUNITION DEPOT, CRANE, INDIANA.

ENCLOSED IS A COPY OF OUR DECISION OF TODAY TO THE PROTESTER. WE HAVE QUESTIONED THE SOUNDNESS OF THE NEGOTIATING PROCEDURES WHICH WERE USED IN THIS CASE. SPECIFICALLY, WE HAVE QUESTIONED THE NEED FOR REOPENING THE NEGOTIATIONS AFTER "BEST AND FINAL" OFFERS HAD BEEN RECEIVED. NEVERTHELESS, WE HAVE CONCLUDED THAT THE AWARD WHICH RESULTED FROM THE REOPENED NEGOTIATIONS WAS LEGAL.

IN THIS CONNECTION, IT IS REPORTED THAT THE AWARD SELECTION WAS MADE MAY 25, 1972, AND IT IS OUR UNDERSTANDING THAT A BINDING AGREEMENT CAME INTO EXISTENCE WITHIN A FEW DAYS THEREAFTER. HOWEVER, THE PROTESTER WAS NOT NOTIFIED OF THE REJECTION OF ITS PROPOSAL UNTIL JULY 3, 1972, IN ACCORDANCE WITH THE PROCURING ACTIVITY POLICY OF NOTIFYING UNSUCCESSFUL OFFERORS OF THE REJECTION OF THEIR PROPOSALS ONLY AFTER FORMAL EXECUTION OF THE CONTRACT BY BOTH THE GOVERNMENT AND THE SUCCESSFUL OFFEROR. IF OUR INFORMAL UNDERSTANDING IS CORRECT, WE QUESTION WHETHER THE POLICY OF YOUR DEPARTMENT REGARDING NOTICE TO UNSUCCESSFUL OFFERORS OF THE REJECTION OF THEIR PROPOSALS IS CONSISTENT WITH THE INTENT OF ASPR 3-508.3, TO PROVIDE SUCH NOTICE AS PROMPTLY AS POSSIBLE AFTER AWARD OF THE PROCUREMENT. RECOMMEND THAT YOUR DEPARTMENT REVIEW ITS CURRENT NOTICE POLICY TO ASSURE THAT UNSUCCESSFUL OFFERORS ARE BEING PROVIDED WITH PROMPT NOTICE OF THE REJECTION OF THEIR PROPOSALS.