B-177763(2), APR 10, 1973

B-177763(2): Apr 10, 1973

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SECRETARY: ENCLOSED IS A COPY OF OUR DECISION OF TODAY DENYING THE PROTEST OF MOLECULAR ENERGY CORPORATION AGAINST AWARD OF A CONTRACT TO ANY FIRM OTHER THAN ITSELF. THE PROPOSED CONTRACT IS FOR A QUANTITY OF 305 MK 67 MOD 1 TORPEDO BATTERIES (INCLUDING 5 FIRST ARTICLE UNITS) TO BE AWARDED PURSUANT TO INVITATION FOR BIDS (IFB) NO. THE PROTEST WAS THE SUBJECT OF A REPORT DATED FEBRUARY 1. WE HAVE CONSIDERED THE MERITS OF THE PROTEST EVEN THOUGH THE NAVY AND YARDNEY CONTEND THAT IT WAS UNTIMELY BECAUSE BASED UPON AN ATTACK ON THE PROVISIONS OF THE INVITATION AND SHOULD THEREFORE HAVE BEEN MADE PRIOR TO BID OPENING. SINCE WE ARE UNABLE TO CONCLUDE THAT MOLECULAR SUBMITTED ITS BID OTHER THAN IN THE BELIEF THAT TRANSPORTATION COSTS WOULD BE CONSIDERED.

B-177763(2), APR 10, 1973

PRECIS - UNAVAILABLE

TO MR. SECRETARY:

ENCLOSED IS A COPY OF OUR DECISION OF TODAY DENYING THE PROTEST OF MOLECULAR ENERGY CORPORATION AGAINST AWARD OF A CONTRACT TO ANY FIRM OTHER THAN ITSELF. THE PROPOSED CONTRACT IS FOR A QUANTITY OF 305 MK 67 MOD 1 TORPEDO BATTERIES (INCLUDING 5 FIRST ARTICLE UNITS) TO BE AWARDED PURSUANT TO INVITATION FOR BIDS (IFB) NO. N00017-73-B-1107. THE PROTEST WAS THE SUBJECT OF A REPORT DATED FEBRUARY 1, 1973, FROM THE NAVAL ORDNANCE SYSTEMS COMMAND.

WE HAVE CONSIDERED THE MERITS OF THE PROTEST EVEN THOUGH THE NAVY AND YARDNEY CONTEND THAT IT WAS UNTIMELY BECAUSE BASED UPON AN ATTACK ON THE PROVISIONS OF THE INVITATION AND SHOULD THEREFORE HAVE BEEN MADE PRIOR TO BID OPENING. SINCE WE ARE UNABLE TO CONCLUDE THAT MOLECULAR SUBMITTED ITS BID OTHER THAN IN THE BELIEF THAT TRANSPORTATION COSTS WOULD BE CONSIDERED, WE MUST CONCLUDE THAT THE BASIS FOR PROTEST DID NOT BECOME APPARENT TO IT UNTIL AFTER BID OPENING AND ITS PROTEST WAS, THEREFORE, TIMELY FILED.

AS NOTED IN OUR DECISION, THE SUBJECT IFB FAILED TO STATE EXPLICITLY THAT TRANSPORTATION COSTS WOULD NOT BE EVALUATED. WHEN TRANSPORTATION COSTS ARE NOT TO BE EVALUATED PURSUANT TO ARMED SERVICES PROCUREMENT REGULATION 19-208.4(B), WE RECOMMEND THAT THE SOLICITATION SO STATE.