B-176424, SEP 26, 1972, 52 COMP GEN 169

B-176424: Sep 26, 1972

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CONTRACTS - NEGOTIATION - LATE PROPOSALS AND QUOTATIONS - PRICE REDUCTION A LATE UNSOLICITED PRICE REDUCTION THAT REFLECTED A POTENTIAL SAVINGS TO THE GOVERNMENT IN THE PROCUREMENT OF A FIRST ARTICLE SAMPLE AND A QUANTITY OF FUZE ASSEMBLIES UNDER THE PUBLIC EXIGENCY PROVISION IN 10 U.S.C. 2304(A)(2) PROPERLY WAS NOT REFERRED TO THE SECRETARY OF THE ARMY UNDER PARAGRAPH 3-506(C)(II) OF THE ARMED SERVICES PROCUREMENT REGULATION FOR CONSIDERATION ON THE BASIS THE REDUCTION WAS OF EXTREME IMPORTANCE TO THE GOVERNMENT AND. THE CONTRACTING OFFICER WAS NOT REQUIRED TO REOPEN NEGOTIATIONS AND CONDUCT FURTHER DISCUSSIONS PURSUANT TO 10 U.S.C. 2304(G). A MONETARY SAVINGS ALONE IS NOT SUFFICIENT TO BRING A LATE PROPOSAL OR MODIFICATION WITHIN THE CATEGORY OF "EXTREME IMPORTANCE TO THE GOVERNMENT.".

B-176424, SEP 26, 1972, 52 COMP GEN 169

CONTRACTS - NEGOTIATION - LATE PROPOSALS AND QUOTATIONS - PRICE REDUCTION A LATE UNSOLICITED PRICE REDUCTION THAT REFLECTED A POTENTIAL SAVINGS TO THE GOVERNMENT IN THE PROCUREMENT OF A FIRST ARTICLE SAMPLE AND A QUANTITY OF FUZE ASSEMBLIES UNDER THE PUBLIC EXIGENCY PROVISION IN 10 U.S.C. 2304(A)(2) PROPERLY WAS NOT REFERRED TO THE SECRETARY OF THE ARMY UNDER PARAGRAPH 3-506(C)(II) OF THE ARMED SERVICES PROCUREMENT REGULATION FOR CONSIDERATION ON THE BASIS THE REDUCTION WAS OF EXTREME IMPORTANCE TO THE GOVERNMENT AND, THEREFORE, THE CONTRACTING OFFICER WAS NOT REQUIRED TO REOPEN NEGOTIATIONS AND CONDUCT FURTHER DISCUSSIONS PURSUANT TO 10 U.S.C. 2304(G), SINCE WITHOUT CLARIFICATION AS TO THE ACTIONS CONTEMPLATED BY THE REGULATION, A MONETARY SAVINGS ALONE IS NOT SUFFICIENT TO BRING A LATE PROPOSAL OR MODIFICATION WITHIN THE CATEGORY OF "EXTREME IMPORTANCE TO THE GOVERNMENT." CONTRACTS - NEGOTIATION - COMPETITION - DISCUSSION WITH ALL OFFERORS REQUIREMENT - PROPOSAL REVISIONS THE REOPENING OF NEGOTIATIONS UPON RECEIPT OF A LATE UNSOLICITED PRICE REDUCTION FROM A SMALL BUSINESS CONCERN IN ITS OFFER SUBMITTED UNDER A REQUEST FOR PROPOSALS THAT DID NOT PROVIDE FOR A SMALL BUSINESS SET-ASIDE WAS NOT REQUIRED SINCE THE SMALL BUSINESS ACT, 15 U.S.C. 631, ALTHOUGH PROTECTING THE INTERESTS OF SMALL BUSINESS CONCERNS DOES NOT IMPOSE AN OBLIGATION ON A CONTRACTING OFFICER TO REOPEN NEGOTIATIONS IN AN UNRESTRICTED PROCUREMENT, AND AS NEGOTIATIONS WERE NOT REOPENED THE OFFERER WAS NOT PREJUDICED BY THE FAILURE TO RECEIVE NOTICE THAT ITS LATE PRICE REDUCTION WOULD NOT BE CONSIDERED - THE NOTICE DISCREPANCY BEING A MATTER OF FORM - NOR WAS THE CONCERN PREJUDICED BY LACK OF NOTICE OF A PROTEST MADE BY ANOTHER OFFERER OF AN AMBIGUITY IN THE SOLICITATION IN VIEW OF THE AMENDMENTS ISSUED TO CORRECT THE AMBIGUITY.

TO THE AMRON-ORLANDO CORPORATION, SEPTEMBER 26, 1972:

THIS IS IN REPLY TO YOUR TELEFAX OF JUNE 30, 1972, AND LETTERS OF JULY 20 AND AUGUST 23, 1972, PROTESTING THE AWARD OF A CONTRACT TO ANOTHER FIRM UNDER REQUEST FOR PROPOSAL DAAA21-72-R-0308, ISSUED BY THE DEPARTMENT OF THE ARMY, PICATINNY ARSENAL, DOVER, NEW JERSEY.

THE SOLICITATION CALLED FOR A PREPRODUCTION EFFORT, FIRST ARTICLE SAMPLE AND A QUANTITY OF M567 FUZE ASSEMBLIES. THE PROCUREMENT WAS NEGOTIATED UNDER THE "PUBLIC EXIGENCY" PROVISIONS PERMITTING NEGOTIATIONS AS AUTHORIZED IN 10 U.S.C. 2304(A)(2), AND IMPLEMENTED BY ARMED SERVICES PROCUREMENT REGULATION (ASPR) 3-202.2. (THE PROCUREMENT CARRIED AN 02 PRIORITY RATING UNDER THE UNIFORM MATERIEL MOVEMENT AND ISSUE PRIORITY SYSTEM.) OFFERS WERE SUBMITTED BY MAY 15, 1972, BUT SUBSEQUENT TO THIS DATE THE SOLICITATION WAS AMENDED IN CERTAIN RESPECTS AND OFFERORS WERE REQUIRED TO ACKNOWLEDGE THE CHANGES AND SUBMIT THEIR "BEST AND FINAL" OFFERS BY JUNE 2, 1972. AN AWARD WAS MADE TO THE BULOVA WATCH CO. ON JUNE 26 ON THE BASIS OF THE LOWEST FINAL OFFER RECEIVED BY JUNE 2, AT A FIXED PRICE OF $1,403,124.91.

THE RECORD SHOWS THAT BY TELEGRAM DATED JUNE 9, 1972, YOUR FIRM SUBMITTED AN UNSOLICITED MODIFICATION WHICH PROPOSED TO REDUCE YOUR FINAL PRICE OF JUNE 2 BY $76,488. THIS PROPOSED REDUCTION REFLECTS A POTENTIAL SAVINGS TO THE GOVERNMENT OF APPROXIMATELY $44,000 WHEN COMPARED TO THE PRICE AT WHICH THE AWARD WAS MADE TO BULOVA.

ESSENTIALLY, IT IS YOUR POSITION THAT PURSUANT TO ASPR 3-506(C)(II) THE SECRETARY WAS REQUIRED TO CONSIDER THE ADVANTAGES TO THE GOVERNMENT OF YOUR LATE PRICE REDUCTION AND THAT THE REJECTION OF THE BENEFITS IMPLICIT IN YOUR LATE PRICE REDUCTION WITHOUT FURTHER NEGOTIATION OR RESOLICITATION WAS IMPROPER. SPECIFICALLY, YOU REFER TO THE FOLLOWING BENEFITS WHICH COULD HAVE BEEN REALIZED AS A RESULT OF YOUR LATE LOW OFFER: (1) A COST SAVINGS OF AT LEAST $44,098 AND (2) SINCE YOUR FIRM WAS A SMALL BUSINESS AND BULOVA WAS NOT, A REOPENING OF NEGOTIATIONS SUBSEQUENT TO YOUR LATE LOW OFFER WOULD HAVE EFFECTED A MORE MEANINGFUL IMPLEMENTATION OF THE POLICY ENUNCIATED IN THE SMALL BUSINESS ACT, 15 U.S.C. 631. IN PERTINENT PART THE ACT STATES THAT "THE GOVERNMENT SHOULD AID, COUNSEL, ASSIST AND PROTECT, INSOFAR AS IS POSSIBLE, THE INTERESTS OF SMALL-BUSINESS CONCERNS IN ORDER TO PRESERVE FREE COMPETITIVE ENTERPRISE, TO INSURE THAT A FAIR PROPORTION OF THE TOTAL PURCHASES AND CONTRACTS OR SUBCONTRACTS FOR PROPERTY AND SERVICES FOR THE GOVERNMENT ... BE PLACED WITH SMALL-BUSINESS ENTERPRISES...." FINALLY, YOU CONTEND THAT THE REOPENING OF NEGOTIATIONS AND THE CALL FOR "BEST AND FINAL" OFFERS BY JUNE 2 SHOULD NOT BE VIEWED AS A DISCUSSION SUCH AS IS CONTEMPLATED BY THE PROVISIONS OF 10 U.S.C. 2304(G) AND YOU BELIEVE THAT THE AGENCY FAILED TO CONDUCT THE DISCUSSIONS REQUIRED BY THIS LAW.

ASPR 3-506(C)(II) PROVIDES, IN PERTINENT PART, THAT LATE PROPOSALS SHALL NOT BE CONSIDERED FOR AWARD, EXCEPT WHERE THE SECRETARY CONCERNED DETERMINES THAT CONSIDERATION OF A LATE PROPOSAL IS OF EXTREME IMPORTANCE TO THE GOVERNMENT, AS FOR EXAMPLE WHERE IT OFFERS SOME IMPORTANT TECHNICAL OR SCIENTIFIC BREAKTHROUGH.

10 U.S.C. 2304(G) PROVIDES AS FOLLOWS:

(G) IN ALL NEGOTIATED PROCUREMENTS IN EXCESS OF $2,500 IN WHICH RATES OR PRICES ARE NOT FIXED BY LAW OR REGULATION AND IN WHICH TIME OF DELIVERY WILL PERMIT, PROPOSALS, INCLUDING PRICE, SHALL BE SOLICITED FROM THE MAXIMUM NUMBER OF QUALIFIED SOURCES CONSISTENT WITH THE NATURE AND REQUIREMENTS OF THE SUPPLIES OR SERVICES TO BE PROCURED, AND WRITTEN OR ORAL DISCUSSIONS SHALL BE CONDUCTED WITH ALL RESPONSIBLE OFFERORS WHO SUBMIT PROPOSALS WITHIN A COMPETITIVE RANGE, PRICE, AND OTHER FACTORS CONSIDERED: PROVIDED, HOWEVER, THAT THE REQUIREMENTS OF THIS SUBSECTION WITH RESPECT TO WRITTEN OR ORAL DISCUSSIONS NEED NOT BE APPLIED TO PROCUREMENTS IN IMPLEMENTATION OF AUTHORIZED SET-ASIDE PROGRAMS OR TO PROCUREMENTS WHERE IT CAN BE CLEARLY DEMONSTRATED FROM THE EXISTENCE OF ADEQUATE COMPETITION OR ACCURATE PRIOR COST EXPERIENCE WITH THE PRODUCT, THAT ACCEPTANCE OF AN INITIAL PROPOSAL WITHOUT DISCUSSION WOULD RESULT IN FAIR AND REASONABLE PRICES AND WHERE THE REQUEST FOR PROPOSALS NOTIFIES ALL OFFERORS OF THE POSSIBILITY THAT AWARD MAY BE MADE WITHOUT DISCUSSION.

THE RECORD SHOWS THAT THE CONTRACTING OFFICER DECLINED TO SUBMIT YOUR LATE MODIFICATION, WHICH WAS APPROXIMATELY $44,000 OR 3 PERCENT BELOW BULOVA'S PRICE, TO THE SECRETARY, OR HIS DELEGATE, FOR POSSIBLE CONSIDERATION UNDER ASPR 3-560(C)(II), AND THAT HE DECLINED TO REOPEN NEGOTIATIONS BECAUSE OF THE URGENCY OF THE PROCUREMENT AND FACT THAT ALL OFFERORS, INCLUDING YOUR FIRM AND BULOVA, HAD BEEN AFFORDED AN OPPORTUNITY TO SUBMIT THEIR "BEST AND FINAL" OFFERS SUBSEQUENT TO THE RECEIPT OF THEIR INITIAL PROPOSALS. IT SHOULD ALSO BE NOTED THAT ALL OFFERORS HAD BEEN ADVISED OF THE COMMON CUTOFF DATE AND THAT ALL MODIFICATIONS RECEIVED AFTER THAT DATE WOULD BE TREATED AS LATE PROPOSALS.

YOU HAVE TAKEN THE POSITION THAT THE CONTRACTING OFFICER'S HANDLING OF THIS MATTER AMOUNTS TO AN ABUSE, OR UNSOUND EXERCISE, OF DISCRETION AND, AS SUCH, IS ARBITRARY AND/OR CAPRICIOUS. YOU REGARD THE MINIMUM SAVINGS OF $44,098 AS SUFFICIENTLY SIGNIFICANT TO HAVE OBLIGATED THE CONTRACTING OFFICER TO ATTEMPT TO REALIZE THOSE SAVINGS. YOU NOTE THAT 17 DAYS ELAPSED FROM THE DATE OF YOUR LATE PROPOSAL AND THE DATE OF AWARD TO BULOVA, IMPLYING THAT SUFFICIENT TIME EXISTED DURING WHICH ANOTHER ROUND OF OFFERS COULD HAVE BEEN SOUGHT. WITH RESPECT TO THE REQUIREMENT IN 10 U.S.C. 2304(G) FOR CONDUCTING DISCUSSIONS YOU SUBMIT "THAT THE ONLY MEANINGFUL DEFINITIONS OF NEGOTIATIONS AND/OR DISCUSSIONS CONNOTE VERBAL INTERCOURSE, DIALOGUE, DEBATE, A TWO-WAY GIVE-AND-TAKE EXCHANGE OF INFORMATION" AND IN NO WAY CAN ONE CORRECTLY INTERPRET EITHER OF THESE TERMS TO CONNOTE "SILENCE." YOU SAY SILENCE IS PRECISELY WHAT YOUR COMPANY RECEIVED DURING THIS "NEGOTIATED" PROCUREMENT.

WE CANNOT AGREE WITH YOUR INTERPRETATION OF THE PROVISIONS OF 10 U.S.C. 2304(G) RELATING TO THE CONDUCT OF DISCUSSIONS. THE ABSENCE OF ORAL DISCUSSIONS IS INCONSEQUENTIAL SINCE THE CITED PROVISION ITSELF ALSO PROVIDES IN THE ALTERNATIVE FOR WRITTEN DISCUSSIONS. IN ADDITION, WE HAVE HELD THAT A LETTER EXTENDING AN OPPORTUNITY TO REVISE INITIAL PROPOSALS AS A RESULT OF A CHANGE IN REQUIREMENTS, AND THE OFFERORS' RESPONSES THERETO, MEET THE REQUIREMENT FOR "DISCUSSIONS" AS SET OUT IN 10 U.S.C. 2304(G). SEE B-170297, MAY 26, 1971. IT SHOULD BE NOTED, HOWEVER, THAT THE CITED DECISION EXPRESSLY STATES THAT THE HOLDING WAS NOT INTENDED TO DISCOURAGE MORE EXTENSIVE NEGOTIATIONS OF PRICE IN SIMILAR SITUATIONS NOR TO IMPLY THAT THEY WOULD BE INAPPROPRIATE. ALTHOUGH WE HAVE OBSERVED THAT "NEGOTIATION" GENERALLY IMPLIES A SERIES OF OFFERS AND COUNTEROFFERS UNTIL A MUTUALLY SATISFACTORY AGREEMENT IS CONCLUDED BY THE PARTIES (45 COMP. GEN. 417, 427(1966)), WE HAVE RECOGNIZED THAT SUCH A MEANING IS NOT DENOTED IN THE ABOVE STATUTORY REFERENCES TO DISCUSSIONS AND THAT A SERIES OF OFFERS IS NOT ESSENTIAL FOR COMPLIANCE WITH THOSE PROVISIONS. 164688, OCTOBER 2 1968.

AS TO WHETHER NEGOTIATIONS SHOULD HAVE BEEN REOPENED AFTER RECEIPT OF YOUR LATE MODIFICATIONS OF JUNE 9, THE ABOVE-CITED REGULATION ASPR 3 506(C)(II)) DOES NOT STATE THAT THE CONTRACTING OFFICER MUST REFER ALL LATE PROPOSALS AND MODIFICATIONS (ASPR 3-506(C)(G)) TO THE SECRETARY, AND THE EXAMPLE SHOWN THEREIN OF "EXTREME IMPORTANCE TO THE GOVERNMENT" IS AN IMPORTANT TECHNICAL OR SCIENTIFIC BREAKTHROUGH. WHILE OUR DECISION, 47 COMP. GEN. 279(1967), WHICH YOU CITE, EXPRESSES THE VIEW (AT PAGES 283 AND 284) THAT THE PROVISIONS OF ASPR 3-506 WERE NOT INTENDED TO PRECLUDE THE OPENING OF NEGOTIATIONS UPON RECEIPT OF A LATE MODIFICATION WHICH INDICATED SUCH NEGOTIATIONS WOULD BE ADVANTAGEOUS (PRICE WISE) TO THE GOVERNMENT, OUR ANALYSIS OF PORTIONS OF THE HISTORY LEADING UP TO THE PROMULGATION OF THE REGULATION (AS SINCE FURNISHED THIS OFFICE BY THE DEPARTMENT OF THE NAVY) REQUIRES THE CONCLUSION THAT AN INDICATED MONETARY SAVINGS, ALONE, WAS NOT CONSIDERED SUFFICIENT TO BRING A LATE PROPOSAL OR MODIFICATION WITHIN THE CATEGORY OF "EXTREME IMPORTANCE TO THE GOVERNMENT." ALTHOUGH WE RECOGNIZE THAT CONTRACTING OFFICERS HAVE, ON OCCASIONS, REFERRED LATE MODIFICATIONS TO THE SECRETARY UNDER THAT REGULATION, ON THE BASIS OF SUBSTANTIAL PROSPECTIVE SAVINGS TO THE GOVERNMENT, WE CANNOT CONCLUDE THAT THE REGULATION REQUIRES, OR WAS INTENDED TO REQUIRE, THE CONTRACTING OFFICER TO SUBMIT LATE PRICE MODIFICATIONS TO THE SECRETARY AND, AS YOU CONTEND, THAT SUCH A NONREFERRAL CONSTITUTES AN ARBITRARY OR CAPRICIOUS ACTION BY THE CONTRACTING OFFICER.

IN THIS CONNECTION, OUR RECORDS INDICATE THAT THE UNCERTAINTY AMONG CONTRACTING OFFICERS AS TO WHETHER ANY LATE PRICE MODIFICATIONS SHOULD BE REFERRED TO THE SECRETARY, ON THE BASIS ON ASPR 3-506(C)(II), IS WELL KNOWN TO THE AGENCIES CONCERNED, AND CONSIDERATION HAS BEEN GIVEN FOR SEVERAL YEARS BY THE APPROPRIATE OFFICIALS TO MODIFYING THE REGULATION TO CLARIFY THE ACTION TO BE TAKEN WHEN LATE PROPOSALS OR MODIFICATIONS INDICATE THAT NEGOTIATIONS, OR FURTHER NEGOTIATIONS, MAY OBTAIN SAVINGS TO THE GOVERNMENT.

IN VIEW OF THE FOREGOING, WE FIND NO ADEQUATE BASIS IN THIS CASE FOR QUESTIONING THE EFFICACY OF THE COMPETITION. THE RECORD SHOWS THAT SEVEN PROPOSALS WERE CONSIDERED FOR AWARD ON JUNE 2 AND THAT YOUR "FINAL" BID OF JUNE 2 WAS ONLY 2.3 PERCENT GREATER THAN BULOVA'S LOW BID. IN OUR VIEW, THE RECORD DOES NOT PRESENT A FIRM BASIS ON WHICH TO QUESTION THE REASONABLENESS OF THE CONTRACT PRICE, EVEN THOUGH IT MAY NOT HAVE BEEN THE LOWEST POSSIBLE PRICE OBTAINABLE THROUGH FURTHER NEGOTIATIONS.

IN THIS CONNECTION, WE NOTE THAT CONSIDERATION OF YOUR LATE PRICE MODIFICATION WOULD HAVE REQUIRED THE ESTABLISHMENT OF A NEW CUTOFF DATE FOR FURTHER NEGOTIATIONS AND SUBMISSION OF FINAL OFFERS DURING WHICH TIME THE PRICE IS SHOWN IN YOUR MODIFICATION COULD HAVE BEEN AMENDED SO AS TO DISSOLVE THE INDICATED SAVINGS. MOREOVER, WE ARE INFORMALLY ADVISED THAT THIS REQUIREMENT WAS SUCH THAT IT COULD HAVE BEEN FORMALLY ADVERTISED BUT FOR THE URGENCY AND, THEREFORE, THE REOPENING OF NEGOTIATIONS WOULD SIMPLY HAVE AMOUNTED TO ANOTHER REQUEST FOR "BEST AND FINAL" OFFERS. EVEN THOUGH WE DO NOT BELIEVE IT IS ESTABLISHED THAT FURTHER NEGOTIATIONS COULD NOT HAVE BEEN CONCLUDED AND THE AWARD MADE WITHIN THE 2-WEEK PERIOD BETWEEN THE TIME YOUR LATE PRICE REDUCTION WAS RECEIVED AND THE TIME OF AWARD TO BULOVA, WE FIND NO CLEAR BASIS FOR CONCLUDING THAT THE CONTRACTING OFFICER IMPROPERLY MADE THE AWARD ON THE BASIS OF THE "BEST AND FINAL" OFFER RECEIVED BY JUNE 2.

AS TO YOUR CONTENTION THAT THE CONTRACTING OFFICER FAILED TO CONSIDER OR TO DISCHARGE HIS OBLIGATIONS UNDER THE SMALL BUSINESS ACT, WE SEE NO BASIS FOR CONSTRUING THE ABOVE-QUOTED POLICY ENUNCIATED IN 15 U.S.C. 631 OF PROTECTING THE INTERESTS OF SMALL BUSINESS CONCERNS, AS IMPOSING AN OBLIGATION TO REOPEN NEGOTIATIONS IN UNRESTRICTED PROCUREMENTS. MOREOVER, THE PROCEDURES GOVERNING CONTRACT AWARDS TO SMALL BUSINESS FIRMS MAKE NO PROVISION FOR SUCH ACTION. SEE ASPR 1-700, ET SEQ.

YOU ALSO CONTEND THAT YOU WERE IMPROPERLY DENIED PROMPT NOTICE THAT THE CONTRACTING OFFICER DID NOT INTEND TO CONSIDER YOUR LATE PRICE REDUCTION, WHICH NOTICE YOU CLAIM IS REQUIRED BY ASPR 3-506(D). THIS REGULATION PROVIDES, AS FOLLOWS:

EXCEPT WHERE ONLY ONE PROPOSAL IS RECEIVED, ALL LATE OFFERORS SHALL BE PROMPTLY NOTIFIED THAT THEIR PROPOSALS WERE RECEIVED LATE AND THAT THEIR PROPOSALS WILL BE EVALUATED BUT NOT CONSIDERED FOR AWARD UNLESS FOUND TO QUALIFY UNDER ONE OF THE EXCEPTIONS IN (C)(II) AND (III) ABOVE. WHERE IT IS NOT CLEAR FROM AVAILABLE INFORMATION WHETHER THE EXCEPTION IN (C)(III) ABOVE APPLIES, THE NOTIFICATION SHALL INCLUDE THE SUBSTANCE OF THE NOTICE IN 2-303.6(APPROPRIATELY MODIFIED TO RELATE TO PROPOSALS AND, IF NECESSARY, TO TELEGRAPHIC PROPOSALS).

WE DO NOT AGREE WITH YOUR INTERPRETATION THAT THE ABOVE-QUOTED REGULATION REQUIRED NOTIFICATION OF THE DECISION NOT TO CONSIDER YOUR LATE PROPOSAL FOR AWARD FOR FAILURE TO QUALIFY UNDER THE CRITERIA IN (C)(II). ALL THAT WAS REQUIRED UNDER THIS REGULATION WAS NOTICE THAT YOUR PROPOSAL WAS RECEIVED LATE AND WOULD BE EVALUATED PURSUANT TO THE CRITERIA IN (C)(II), NOT NOTICE OF THE RESULTS OF THAT EVALUATION. SINCE WE HAVE CONCLUDED THAT THE CONTRACTING OFFICER DID NOT ACT IMPROPERLY IN NOT REOPENING NEGOTIATIONS, WE DO NOT FIND THAT YOU WERE PREJUDICED BY YOUR FAILURE TO RECEIVE THE NOTICE CONTEMPLATED BY THE REGULATION AND THE DEFICIENCY IS THEREFORE REGARDED AS A MATTER OF FORM RATHER THAN A MATERIAL FACTOR AFFECTING THE VALIDITY OF THE AWARD.

FINALLY, YOU HAVE PROTESTED THE FACT THAT YOU WERE NOT GIVEN NOTICE OF A PROTEST OF AN AMBIGUITY IN THE SOLICITATION BY ANOTHER OFFEROR, MAXSON ELECTRONICS CORPORATION, WHICH YOU ALLEGE WAS REQUIRED PURSUANT TO THE PROVISIONS OF ASPR 2-407.8(A)(3). THIS REGULATION IS MADE APPLICABLE TO NEGOTIATED PROCUREMENTS BY ASPR 3-509 AND PROVIDES AS FOLLOWS: OTHER PERSONS, INCLUDING BIDDERS, INVOLVED IN OR AFFECTED BY THE PROTEST SHALL BE GIVEN NOTICE OF THE PROTEST. THEY SHALL ALSO BE ADVISED THAT THEY MAY SUBMIT THEIR VIEWS AND RELEVANT INFORMATION TO THE CONTRACTING OFFICER WITHIN A SPECIFIED PERIOD OF TIME, NORMALLY WITHIN ONE WEEK, AND THAT COPIES OF SUCH SUBMISSIONS SHOULD BE FURNISHED DIRECTLY TO THE GENERAL ACCOUNTING OFFICE WHEN THE PROTEST HAS BEEN FILED WITH THAT OFFICE.

THE RECORD INDICATES THAT MAXSON OBTAINED A RESOLUTION OF ITS COMPLAINTS WITH THE CONTRACTING AGENCY, WHICH RESULTED IN THE ISSUANCE OF AMENDMENTS NOS. 5, 6 AND 7 TO THE SOLICITATION AND THE WITHDRAWAL OF THE PROTEST SHORTLY AFTER THE CLOSING DATE FOR NEGOTIATIONS. OUR BID PROTEST PROCEDURES AND STANDARDS (SEE 4 CFR 20.2) ENCOURAGE SUCH RESOLUTIONS. MOREOVER, AS TO PREAWARD PROTESTS, ASPR 2-407.8(B) PROVIDES FOR NOTICE OF PROTEST TO AFFECTED OFFERORS "IN APPROPRIATE CASES," SUCH AS WHEN THE CONTRACTING OFFICER DETERMINES TO WITHHOLD THE AWARD PENDING DISPOSITION OF THE PROTEST. WHERE, AS HERE, REMEDIAL ACTION WAS TAKEN BY THE AGENCY TO CORRECT THE ALLEGED AMBIGUITIES IN THE SOLICITATION AND THE PROTEST WAS RESOLVED ADMINISTRATIVELY BY AMENDMENTS TO THE SOLICITATION, WITH ALL PARTIES BEING REQUIRED TO SUBMIT THEIR FINAL OFFERS ON AN IDENTICAL BASIS, IT DOES NOT APPEAR THAT YOU WERE PREJUDICED EVEN IF IT COULD BE CONCLUDED THAT NOTICE OF THE PROTEST SHOULD HAVE BEEN GIVEN THE OTHER OFFERORS UNDER THE REGULATIONS. ACCORDINGLY, YOUR PROTEST IS DENIED.