B-179806, MAR 4, 1974

B-179806: Mar 4, 1974

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EVEN THOUGH EACH OFFEROR MIGHT HAVE ADOPTED DIFFERENT TECHNICAL APPROACHES TO MEET THESE REQUIREMENTS. GAO CANNOT CONCLUDE THAT OFFERORS WERE TENDERING DIFFERENT ITEMS. 2. CONTRACTING OFFICER'S ALLOTMENT OF 15 DAYS FOR SUBMISSION OF PRICED BID UNDER STEP TWO OF TWO STEP ADVERTISED PROCUREMENT WAS NOT IMPROPER. PROTESTER COULD HAVE REQUESTED TIME EXTENSION FOR SUBMISSION ON BASIS THAT STEP TWO REQUEST WAS UNTIMELY RECEIVED BECAUSE OF DELAY IN MAILS. 3. CONTENTION THAT OTHER TWO PROPOSERS RECEIVED CONFERENCE OPPORTUNITY WHILE PROTESTER'S REQUEST WAS IGNORED IS UNFOUNDED INASMUCH AS ONLY ONE PROPOSER RECEIVED A CONFERENCE AND THIS PURSUANT TO ASPR 2 503.1(E) IN ATTEMPT TO MAKE PROPOSAL ACCEPTABLE.

B-179806, MAR 4, 1974

1. WHERE ALL PROPOSALS HAD TO CONFORM TO THE ESSENTIAL REQUIREMENTS OF THE TWO-STEP ADVERTISED SPECIFICATIONS, EVEN THOUGH EACH OFFEROR MIGHT HAVE ADOPTED DIFFERENT TECHNICAL APPROACHES TO MEET THESE REQUIREMENTS, GAO CANNOT CONCLUDE THAT OFFERORS WERE TENDERING DIFFERENT ITEMS. 2. IN VIEW OF CRITICAL TIME FRAME AND PRIORITY OF PROCUREMENT AND IN VIEW OF DISCRETION PERMITTED BY ASPR 2-202.1, CONTRACTING OFFICER'S ALLOTMENT OF 15 DAYS FOR SUBMISSION OF PRICED BID UNDER STEP TWO OF TWO STEP ADVERTISED PROCUREMENT WAS NOT IMPROPER; PROTESTER COULD HAVE REQUESTED TIME EXTENSION FOR SUBMISSION ON BASIS THAT STEP TWO REQUEST WAS UNTIMELY RECEIVED BECAUSE OF DELAY IN MAILS. 3. CONTENTION THAT OTHER TWO PROPOSERS RECEIVED CONFERENCE OPPORTUNITY WHILE PROTESTER'S REQUEST WAS IGNORED IS UNFOUNDED INASMUCH AS ONLY ONE PROPOSER RECEIVED A CONFERENCE AND THIS PURSUANT TO ASPR 2 503.1(E) IN ATTEMPT TO MAKE PROPOSAL ACCEPTABLE; FURTHER, CONFERENCE WITH PROTESTER WAS UNNECESSARY AS ITS PROPOSAL HAD BEEN FOUND ACCEPTABLE. 4. INASMUCH AS CONDITIONS REQUIRED BY ASPR 2-502 FOR USE OF A TWO STEP ADVERTISED PROCUREMENT EXISTED, EMPLOYMENT OF SUCH METHOD OF PROCUREMENT BY CONTRACTING ACTIVITY IS NOT OBJECTIONABLE AND ANY PROTEST AGAINST ITS USE SHOULD BE FILED AT THE TIME OF ITS ISSUANCE AND NOT AFTER OPENING OF SECOND-STEP BIDS.

TO HIGH VACUUM EQUIPMENT CORP.:

REQUEST FOR TECHNICAL PROPOSALS NO. N00173-73-B-0017, THE FIRST STEP OF A TWO-STEP FORMALLY ADVERTISED PROCUREMENT FOR A HIGH VACUUM CHAMBER AND ACCOMPANYING DATA, WAS ISSUED ON MARCH 23, 1973, BY THE NAVAL RESEARCH LABORATORY, WASHINGTON, D. C. OF THE FOUR TECHNICAL PROPOSALS SUBSEQUENTLY RECEIVED BY THE PROCUREMENT ACTIVITY, ONE WAS DETERMINED TO BE TECHNICALLY UNACCEPTABLE. THE OTHER THREE TECHNICAL PROPOSALS FOR THE HIGH VACUUM CHAMBER AND DATA WERE DETERMINED TO BE REASONABLY SUSCEPTIBLE OF BEING MADE ACCEPTABLE, AND, CONSEQUENTLY, EACH OF THE THREE PROPOSERS WAS REQUESTED TO SUBMIT ADDITIONAL INFORMATION BY JULY 27, 1973, IN AN EFFORT TO MAKE THEIR PROPOSALS ACCEPTABLE. AFTER EVALUATION OF THESE ADDITIONAL SUBMISSIONS, TWO PROPOSALS, INCLUDING THAT SUBMITTED BY THE HIGH VACUUM EQUIPMENT CORPORATION (HVEC), WERE FOUND TO BE TECHNICALLY ACCEPTABLE. THE THIRD PROPOSAL WAS STILL FOUND TO BE ONLY SUSCEPTIBLE OF BEING MADE ACCEPTABLE AND, ACCORDINGLY, FURTHER INFORMATION WAS REQUESTED FROM THAT PROPOSER (ENVIRONMENTAL TECHTONIC CORPORATION). A CONFERENCE WAS ALSO HELD WITH THAT FIRM. SUBSEQUENT TO THE EVALUATION OF THE ADDITIONAL INFORMATION SUBMITTED AND THE DISCUSSION CONCERNING THE TECHNICAL REQUIREMENTS OF THE PROCUREMENT, THE PROPOSAL OF THE ENVIRONMENTAL TECHTONIC CORPORATION WAS ALSO DEEMED TO BE TECHNICALLY ACCEPTABLE.

THE SECOND STEP, A REQUEST FOR A PRICED BID, WAS ISSUED ON AUGUST 27, 1973, WITH AN OPENING DATE OF SEPTEMBER 11. TENNEY ENGINEERING, INC., WAS FOUND TO BE LOW BIDDER; HVEC WAS HIGH BIDDER. ON SEPTEMBER 26, 1973, HVEC PROTESTED TO THE CONTRACTING OFFICER THAT ALL BIDDERS WERE NOT BIDDING ON IDENTICAL HARDWARE. BY COMMUNICATION OF SEPTEMBER 27, THE CONTRACTING OFFICER DENIED THE PROTEST. ON THE SAME DAY NOTICE OF AWARD WAS ISSUED TO TENNEY ENGINEERING.

HVEC PROTESTS THE AWARD FOR FOUR REASONS. FIRST, IT IS FELT THAT ALL BIDDERS DID NOT BID ON THE SAME EQUIPMENT INASMUCH AS THE TASK OF BRINGING ALL BIDDERS UP TO THE SAME LEVEL OF RESPONSE IS VIRTUALLY IMPOSSIBLE. SECOND, THE TIME ALLOTTED FOR PREPARATION OF THE PRICED BID IS CONSIDERED TO HAVE BEEN TOO SHORT IN VIEW OF THE FACT THAT THE PROCUREMENT WAS OVER $1,000,000 IN VALUE. FURTHER, HVEC DID NOT RECEIVE THE REQUEST FOR A PRICE PROPOSAL UNTIL SEPTEMBER 4, 1973. THIRD, IT IS ALLEGED THAT THE OTHER TWO BIDDERS WERE GRANTED CONFERENCES WITH THE PROCUREMENT OFFICIALS, WHEREAS HVEC'S REQUEST FOR A CONFERENCE WAS DISREGARDED. FOURTH, HVEC DOES NOT BELIEVE THAT USE OF THE TWO-STEP PROCUREMENT METHOD WAS THE APPROPRIATE METHOD TO BE USED FOR THIS PROCUREMENT.

FIRST, WE CONSIDER THE CONTENTION THAT ALL BIDDERS DID NOT BID ON IDENTICAL HARDWARE. OBVIOUSLY, UNDER SPECIFICATIONS WHICH ARE NOT DEFINITIVE AS TO EVERY ASPECT OF THE ITEM BEING PROCURED AND WHICH ARE CONSEQUENTLY APPROPRIATE FOR A TWO-STEP PROCUREMENT, NO TWO PROPOSALS WILL NECESSARILY OFFER AN ITEM THAT IS IDENTICAL IN ITS EVERY FEATURE. IT IS INHERENT IN TWO-STEP FORMAL ADVERTISING THAT WHEN AN OFFEROR SUBMITS A PROPOSAL THE TECHNICAL APPROACH IT ADOPTS MAY VARY FROM THE TECHNICAL APPROACHES ADOPTED BY THE OTHER OFFERORS. THIS FACT DOES NOT NEGATE THE VALIDITY OF THIS TYPE OF PROCUREMENT. HOWEVER, EVEN THOUGH EACH PROPOSAL MAY HAVE BEEN PREMISED ON DIFFERENT TECHNICAL APPROACHES EACH HAD TO MEET THOSE REQUIREMENTS OF THE SPECIFICATIONS AS SET FORTH IN THE SOLICITATION. BECAUSE THESE REQUIREMENTS APPLIED TO EACH OFFEROR, WE CANNOT CONCLUDE THAT THE FIRMS SUBMITTING PROPOSALS ON DIFFERENT ITEMS.

REGARDING THE CONTENTION THAT INSUFFICIENT TIME WAS ALLOWED FOR PREPARATION OF A PRICE BID, PARAGRAPH 2-202.1 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) STATES:

"*** ALL INVITATIONS FOR BIDS SHALL ALLOW SUFFICIENT BIDDING TIME (I.E., THE PERIOD OF TIME BETWEEN THE DATE OF DISTRIBUTION OF AN INVITATION FOR BIDS AND THE DATE SET FOR OPENING OF BIDS) TO ALLOW BIDDERS AN ADEQUATE OPPORTUNITY TO PREPARE AND SUBMIT THEIR BIDS. AS A GENERAL RULE, BIDDING TIME SHALL BE NOT LESS THAN 15 CALENDAR DAYS WHEN PROCURING STANDARD COMMERCIAL ARTICLES AND SERVICES AND NOT LESS THAN 30 CALENDAR DAYS WHEN PROCURING OTHER THAN STANDARD COMMERCIAL ARTICLES OR SERVICES. THIS RULE NEED NOT BE OBSERVED IN SPECIAL CIRCUMSTANCES, FOR EXAMPLE, WHEN THE CONTRACTING OFFICER HAS VALID REASON TO DETERMINE THAT BIDDERS IN THE SECOND STEP OF TWO-STEP FORMAL ADVERTISING CAN PREPARE AND SUBMIT THEIR BIDS IN LESS THAN 30 CALENDAR DAYS, OR WHERE THE URGENCY FOR THE SUPPLIES OR SERVICES DOES NOT PERMIT SUCH DELAY ***."

THE CONTRACTING OFFICER DETERMINED THAT UNDER THE CIRCUMSTANCES 15 DAYS WAS SUFFICIENT TIME FOR THE COMPUTATION AND SUBMISSION OF PRICES. REACHING THIS CONCLUSION HE ALSO TOOK INTO CONSIDERATION THE CRITICAL TIME FRAME AND PRIORITY OF THE PROCUREMENT. WE CANNOT SAY THAT THE DECISION TO ALLOW ONLY 15 DAYS AFTER STEP TWO WAS MAILED TO THE BIDDERS WAS ARBITRARY OR CAPRICIOUS, ESPECIALLY SINCE ALL THREE BIDDERS WERE ABLE TO SUBMIT BIDS AND NEITHER OF THE OTHER TWO BIDDERS HAS COMPLAINED OF THE 15-DAY TIME PERIOD.

HVEC STATES THAT AFTER IT RECEIVED STEP TWO ON SEPTEMBER 4, IT FOUND IT NECESSARY TO WORK A TASK FORCE OVER THE WEEKEND AND TO THEN DELIVER ITS BID TO WASHINGTON, D.C., BY HAND BECAUSE FOR IT TO HAVE ARRIVED TIMELY IT WOULD HAVE BEEN NECESSARY TO MAIL IT ON SEPTEMBER 7. HOWEVER, IT WOULD APPEAR FROM THE FOREGOING THAT HAD THE REQUEST FOR A PRICED BID NOT TAKEN SO LONG TO BE DELIVERED THROUGH THE MAILS, COMPUTATION OF THE BID WITHOUT THE MAJOR AMOUNT OF EFFORT DEPICTED WOULD HAVE BEEN POSSIBLE.

WE DO NOT BELIEVE IT PROPER TO PENALIZE THE ACTIVITY FOR A SLOWNESS IN THE MAILS OVER WHICH IT HAD NO CONTROL AND ABOUT WHICH IT HAD NO KNOWLEDGE. HAD HVEC BROUGHT THE DELAY OF ITS RECEIPT OF STEP TWO TO THE CONTRACTING OFFICER'S ATTENTION SUCH FACT COULD WELL HAVE SUPPORTED AN EXTENSION OF THE SUBMISSION DATE. HOWEVER, THIS DELAY WAS NOT BROUGHT TO THE CONTRACTING OFFICER'S ATTENTION, AND, INDEED, HVEC MADE NO REQUEST FOR AN EXTENSION OF THE SUBMISSION DATE. CONSEQUENTLY, AS REGARDS THIS MATTER, WE CAN FIND NO LEGAL IMPEDIMENT TO SUSTAINING THE AWARD.

REGARDING THE CONTENTION THAT THE OTHER TWO BIDDERS RECEIVED CONFERENCES WITH THE PROCUREMENT ACTIVITY WHEREAS HVEC'S REQUEST FOR A CONFERENCE WAS DENIED, THE ADMINISTRATIVE REPORT SHOWS THAT A CONFERENCE WAS GRANTED ONLY TO ONE FIRM AND THIS WAS DONE ONLY IN ORDER TO BRING A TECHNICAL PROPOSAL THAT WAS CONSIDERED SUSCEPTIBLE OF BEING MADE ACCEPTABLE INTO THE CATEGORY OF ACCEPTABLE. PARAGRAPH 2-503.1(E) ALLOWS THE CONTRACTING OFFICER TO MAKE USE OF DISCUSSIONS FOR THE PURPOSE OF PROVIDING THE OFFEROR THE OPPORTUNITY TO MAKE ITS PROPOSAL TECHNICALLY ACCEPTABLE. INASMUCH AS THE TECHNICAL PROPOSAL OF HVEC HAD BEEN FOUND TECHNICALLY ACCEPTABLE, HAD HVEC BEEN GRANTED A CONFERENCE IT WOULD HAVE BECOME NECESSARY TO ALSO GRANT THE OFFEROR OF THE OTHER ACCEPTABLE PROPOSAL A CONFERENCE IF IT DESIRED ONE. IN OUR VIEW, THESE CONFERENCES WOULD HAVE SERVED NO USEFUL PURPOSE. CONSEQUENTLY, INASMUCH AS CONFERENCES WITH THE OFFERORS SUBMITTING ACCEPTABLE TECHNICAL PROPOSALS WERE UNNECESSARY, WE FIND NOTHING IMPROPER, OR DETRIMENTAL TO THE RIGHTS OF OFFERORS, IN THE CONTRACTING OFFICER'S DETERMINATION TO TAKE NO ACTION ON THE REQUEST.

FINALLY, AS REGARDS THE CONTENTION THAT USE OF THE TWO-STEP FORMAL ADVERTISEMENT AS THE VEHICLE FOR THE PROCUREMENT WAS IMPROPER, WE BELIEVE THAT A PERUSAL OF THE CONDITIONS FOR THE USE OF THIS PROCUREMENT METHOD AS STATED IN ASPR 2-502 SUSTAINS THE CONTRACTING ACTIVITY'S DECISION TO EMPLOY IT HERE. IN ANY EVENT, A PROTEST AGAINST ITS USE SHOULD PROPERLY HAVE BEEN FILED AT THE TIME THAT IT WAS ANNOUNCED THAT THE PROCUREMENT WOULD BE CONDUCTED USING TWO-STEP FORMAL ADVERTISING AND NOT AFTER BID OPENING.

ACCORDINGLY, THE PROTEST IS DENIED.