B-176802(1), FEB 16, 1973

B-176802(1): Feb 16, 1973

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ANY PROTEST BASED UPON ALLEGED IMPROPRIETIES IN AN RFP WHICH ARE APPARENT PRIOR TO THE CLOSING DATE FOR THE RECEIPT OF PROPOSALS SHALL BE FILED PRIOR TO THAT CLOSING DATE. 4 CFR 20.2(A). ALTHOUGH THE CONTRACTING OFFICER VIOLATED ASPR 3-805.1(B) AND 3-805.1(E) IN THAT ALL OFFERORS WERE NOT GIVEN THE EQUITABLE OPPORTUNITY TO SUBMIT SUCH PRICE. OTHER REVISIONS AS MAY RESULT FROM NEGOTIATIONS AND NO WRITTEN MODIFICATIONS TO THE RFP WERE FURNISHED THE OFFERORS WHEN SPECIFICATIONS WERE RELAXED FOR ONE OFFEROR. GAO CAN TAKE NO FURTHER ACTION SINCE THIS PROCUREMENT WAS URGENT AND PERFORMANCE OF THE CONTRACT AWARDED PURSUANT TO THIS RFP HAS BEEN ACCOMPLISHED. TO ELECTRONIC SPACE SYSTEMS CORPORATION: REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 11.

B-176802(1), FEB 16, 1973

BID PROTEST - TIMELINESS - URGENT PROCUREMENT - IMPROPER NEGOTIATIONS CONCERNING THE PROTEST OF ELECTRONIC SPACE SYSTEMS CORPORATION AGAINST AWARD OF A CONTRACT TO SELCO-U.S., INC., UNDER AN RFP ISSUED BY NORTON AFB, CALIF., FOR A RADOME. ANY PROTEST BASED UPON ALLEGED IMPROPRIETIES IN AN RFP WHICH ARE APPARENT PRIOR TO THE CLOSING DATE FOR THE RECEIPT OF PROPOSALS SHALL BE FILED PRIOR TO THAT CLOSING DATE. 4 CFR 20.2(A). ALSO, ALTHOUGH THE CONTRACTING OFFICER VIOLATED ASPR 3-805.1(B) AND 3-805.1(E) IN THAT ALL OFFERORS WERE NOT GIVEN THE EQUITABLE OPPORTUNITY TO SUBMIT SUCH PRICE, TECHNICAL, AND OTHER REVISIONS AS MAY RESULT FROM NEGOTIATIONS AND NO WRITTEN MODIFICATIONS TO THE RFP WERE FURNISHED THE OFFERORS WHEN SPECIFICATIONS WERE RELAXED FOR ONE OFFEROR, GAO CAN TAKE NO FURTHER ACTION SINCE THIS PROCUREMENT WAS URGENT AND PERFORMANCE OF THE CONTRACT AWARDED PURSUANT TO THIS RFP HAS BEEN ACCOMPLISHED.

TO ELECTRONIC SPACE SYSTEMS CORPORATION:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 11, 1972, AND PRIOR CORRESPONDENCE, PROTESTING AGAINST THE AWARD OF A CONTRACT TO SELCO U.S., INC., (SELCO) UNDER REQUEST FOR PROPOSALS (RFP) NO. F04607-72-R 0312, ISSUED BY THE NORTON AIR FORCE BASE PROCUREMENT OFFICE, CALIFORNIA.

A DETERMINATION AND FINDINGS WAS MADE THAT A CONTRACT FOR A RADOME WITH SPARE PARTS AND DATA SHOULD BE NEGOTIATED UNDER THE PUBLIC EXIGENCY EXCEPTION TO FORMAL ADVERTISING IN 10 U.S.C. 2304(A)(2) BECAUSE OF THE ASSIGNMENT OF AN 01 PRIORITY DESIGNATOR. THE RFP WAS SENT TO TWO KNOWN SUPPLIERS OF THE ITEM, SELCO AND ELECTRONIC SPACE SYSTEMS CORPORATION (ESSCO). SELCO AND ESSCO SUBMITTED PROPOSALS IN THE AMOUNTS OF $66,820 AND $67,302, RESPECTIVELY. AN AWARD WAS MADE TO SELCO ON AUGUST 7, 1972.

YOU HAVE CONTENDED THAT AFTER THE SUBMISSION OF PROPOSALS THERE WERE NO ORAL OR WRITTEN NEGOTIATIONS WITH ESSCO AS PROVIDED IN ASPR 3 805.1(A). THE CONTRACTING OFFICER HAS JUSTIFIED THE ABSENCE OF NEGOTIATIONS IN VIEW OF THE PROVISION IN THE RFP SOLICITATION INSTRUCTIONS AND CONDITIONS THAT THE GOVERNMENT MAY AWARD A CONTRACT BASED ON INITIAL OFFERS RECEIVED WITHOUT DISCUSSION OF SUCH OFFERS. HOWEVER, DESPITE YOUR CONTENTION THAT THERE WERE NO NEGOTIATIONS AND THE CONTRACTING OFFICER'S JUSTIFICATION FOR THE ABSENCE OF NEGOTIATIONS, THE ADMINISTRATIVE RECORD INDICATES THAT IN THE COURSE OF EVALUATION, ADDITIONAL TECHNICAL INFORMATION WAS OBTAINED FROM BOTH SELCO AND ESSCO AND SEVERAL QUESTIONABLE ITEMS IN THE PROPOSALS WERE CLARIFIED. IF, AS APPEARS, THE PARTIES WERE GIVEN THE OPPORTUNITY TO MAKE CHANGES IN THE RESPECTIVE PROPOSALS, WE BELIEVE THAT NEGOTIATIONS WERE CONDUCTED WITH BOTH OFFERORS AFTER THE SUBMISSION OF PROPOSALS. THAT REGARD, OUR OFFICE HAS HELD THAT "DISCUSSIONS" ARE SYNONYMOUS WITH "NEGOTIATIONS." 51 COMP. GEN. 102, 111 (1971). IN THE CIRCUMSTANCES, IT WOULD SEEM THAT THE AWARD WAS NOT MADE ON AN INITIAL OFFER BASIS. IN THAT RESPECT, THERE APPEARS TO HAVE BEEN A VIOLATION OF ASPR 3-805.1(B) PROVIDING THAT:

*** WHENEVER NEGOTIATIONS ARE CONDUCTED WITH SEVERAL OFFERORS, WHILE SUCH NEGOTIATIONS MAY BE CONDUCTED SUCCESSIVELY, ALL OFFERORS SELECTED TO PARTICIPATE IN SUCH NEGOTIATIONS *** SHALL BE OFFERED AN EQUITABLE OPPORTUNITY TO SUBMIT SUCH PRICE, TECHNICAL, OR OTHER REVISIONS IN THEIR PROPOSALS AS MAY RESULT FROM THE NEGOTIATIONS. ALL SUCH OFFERORS SHALL BE INFORMED OF THE SPECIFIED DATE (AND TIME IF DESIRED) OF THE CLOSING OF NEGOTIATIONS AND THAT ANY REVISIONS TO THEIR PROPOSALS MUST BE SUBMITTED BY THAT DATE. ***

THUS, WE ARE RECOMMENDING TO THE DEPARTMENT OF THE AIR FORCE BY A SEPARATE LETTER THAT THIS ASPR PROVISION BE COMPLIED WITH IN THE FUTURE.

YOU HAVE ALSO CONTENDED THAT THE RFP WAS DEFECTIVE IN THAT IT FAILED TO STATE THE EVALUATION FACTORS THAT WERE TO BE USED IN CONSIDERING THE PROPOSALS. SECTION 20.2(A) OF OUR INTERIM BID PROTEST PROCEDURES AND STANDARDS PUBLISHED IN TITLE 4 OF THE CODE OF FEDERAL REGULATIONS PROVIDES THAT PROTESTS BASED UPON ALLEGED IMPROPRIETIES IN ANY TYPE OF SOLICITATION WHICH ARE APPARENT PRIOR TO BID OPENING OR THE CLOSING DATE FOR THE RECEIPT OF PROPOSALS SHALL BE FILED PRIOR TO BID OPENING OR THE CLOSING DATE FOR RECEIPT OF PROPOSALS. YOUR PROTEST AGAINST THE DEFICIENCY OF THE EVALUATION FACTORS WAS MADE AFTER AWARD OF THE CONTRACT. THAT ASPECT OF THE PROTEST IS UNTIMELY AND IS THEREFORE NOT FOR CONSIDERATION.

FINALLY, YOU HAVE CONTENDED THAT SELCO WAS GRANTED A WAIVER OF THE SPECIFICATIONS PERTAINING TO THE TRANSMISSION LOSS REQUIREMENTS OF THE RADOME AND THAT THE PROCURING AGENCY SHOULD HAVE ISSUED AN AMENDMENT TO THE RFP UNDER ASPR 3-805.1(E) WHICH PROVIDES:

WHEN, DURING NEGOTIATIONS, A SUBSTANTIAL CHANGE OCCURS IN THE GOVERNMENT'S REQUIREMENTS OR A DECISION IS REACHED TO RELAX, INCREASE OR OTHERWISE MODIFY THE SCOPE OF THE WORK OR STATEMENT OF REQUIREMENTS, SUCH CHANGE OR MODIFICATION SHALL BE MADE IN WRITING AS AN AMENDMENT TO THE REQUEST FOR PROPOSAL OR REQUEST FOR QUOTATIONS, AND A COPY SHALL BE FURNISHED TO EACH PROSPECTIVE CONTRACTOR. ***

THE CONTRACTING OFFICE HAS RESPONDED THAT NO CHANGES WERE MADE TO THE SPECIFICATIONS NOR WERE WAIVERS GRANTED; THEREFORE, NO AMENDMENT TO THE RFP WAS ISSUED. HOWEVER, THE TECHNICAL EVALUATION OF THE RADOME PROPOSALS STATED:

IN THE SELCO-US PROPOSAL, PARAGRAPH 1.7.1.1 TAKES EXCEPTION TO SPECIFIED TRANSMISSION LOSS REQUIREMENTS. THIS ITEM WAS DISCUSSED WITH THE ANTENNA SYSTEM SUPPLIER WHO VERIFIED THAT TRANSMISSION LOSSES ANTICIPATED BY SELCO -US ARE AS EXPECTED AND WILL BE ACCEPTABLE. ***

IT IS CLEAR FROM THE FOREGOING STATEMENT, THAT SELCO TOOK EXCEPTION TO THE SPECIFICATIONS AND THAT DESPITE THIS, IT WAS CONCLUDED THAT THE SELCO PRODUCT WOULD BE ACCEPTABLE. ALTHOUGH THE SPECIFICATIONS WERE NOT AMENDED, IT IS APPARENT THAT THERE WAS NO INTENTION TO ENFORCE THEM AS WRITTEN AND THAT IT WAS DETERMINED TO RELAX THE SPECIFICATIONS. ACCORDINGLY, WE AGREE THAT A MODIFICATION TO THE RFP SHOULD HAVE BEEN ISSUED AS CONTEMPLATED BY ASPR 3-805.1(E). B-175968, OCTOBER 17, 1972. PARENTHETICALLY, WE MIGHT OBSERVE THAT THE TECHNICAL EVALUATORS ALSO FOUND THAT YOUR PROPOSED RADOME DID NOT MEET THE TRANSMISSION LOSS REQUIREMENT OF THE SPECIFICATION. WHAT EFFECT A MODIFICATION IN THIS REGARD WOULD HAVE HAD UPON YOUR PROPOSAL IS AT BEST SPECULATIVE. B 175978, OCTOBER 6, 1972. HOWEVER, WE ARE ALSO BRINGING THIS IRREGULARITY TO THE ATTENTION OF THE DEPARTMENT OF THE AIR FORCE.

PERFORMANCE OF THE CONTRACT AND FINAL INSPECTION AND ACCEPTANCE WERE ACCOMPLISHED IN DECEMBER 1972. MOREOVER, AS NOTED AT THE OUTSET, THE PROCUREMENT WAS URGENT. IN THE CIRCUMSTANCES, OUR OFFICE WILL TAKE NO OTHER ACTION ON THIS PROCUREMENT OTHER THAN AS NOTED ABOVE.