B-179921, MAR 26, 1974

B-179921: Mar 26, 1974

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12 WORKING DAYS AFTER NOTICE OF AWARD WAS RECEIVED. THAT PROCUREMENT SHOULD HAVE BEEN RESOLICITED BECAUSE OF LOWER PRICE THAT COULD HAVE BEEN OBTAINED FROM PROTESTANT BUT FOR RFP CLAUSE MAKING OFFER FOR PARTIAL QUANTITY NONRESPONSIVE IS UNTIMELY. SINCE SECTION 20.2(A) OF INTERIM BID PROTEST PROCEDURES AND STANDARDS REQUIRED PROTEST TO BE FILED NOT LATER THAN 5 WORKING DAYS AFTER BASIS FOR PROTEST WAS KNOWN OR SHOULD HAVE BEEN KNOWN. 2. GAO WILL NOT CONCLUDE THAT CLAUSE PROVIDING THAT BIDS FOR PARTIAL QUANTITIES WILL BE CONSIDERED NONRESPONSIVE SHOULD NOT BE INCLUDED IN ALL FUTURE SOLICITATIONS. SECTION 20.2(A) OF INTERIM BID PROTEST PROCEDURES AND STANDARDS PROVIDES THAT APPROPRIATE TIME TO QUESTION REQUIREMENT IS PRIOR TO BID OPENING OR CLOSING DATE FOR RECEIPT OF PROPOSALS.

B-179921, MAR 26, 1974

1. PROTEST, 12 WORKING DAYS AFTER NOTICE OF AWARD WAS RECEIVED, THAT PROCUREMENT SHOULD HAVE BEEN RESOLICITED BECAUSE OF LOWER PRICE THAT COULD HAVE BEEN OBTAINED FROM PROTESTANT BUT FOR RFP CLAUSE MAKING OFFER FOR PARTIAL QUANTITY NONRESPONSIVE IS UNTIMELY, SINCE SECTION 20.2(A) OF INTERIM BID PROTEST PROCEDURES AND STANDARDS REQUIRED PROTEST TO BE FILED NOT LATER THAN 5 WORKING DAYS AFTER BASIS FOR PROTEST WAS KNOWN OR SHOULD HAVE BEEN KNOWN. 2. GAO WILL NOT CONCLUDE THAT CLAUSE PROVIDING THAT BIDS FOR PARTIAL QUANTITIES WILL BE CONSIDERED NONRESPONSIVE SHOULD NOT BE INCLUDED IN ALL FUTURE SOLICITATIONS, SINCE ASPR CONTEMPLATES USE OF THAT KIND OF PROVISION IN CERTAIN CIRCUMSTANCES AND WHERE PROSPECTIVE OFFEROR DOUBTS VALIDITY OF REQUIREMENT IN ANY SOLICITATION, SECTION 20.2(A) OF INTERIM BID PROTEST PROCEDURES AND STANDARDS PROVIDES THAT APPROPRIATE TIME TO QUESTION REQUIREMENT IS PRIOR TO BID OPENING OR CLOSING DATE FOR RECEIPT OF PROPOSALS.

TO D. MOODY & CO., INC.:

REQUEST FOR PROPOSALS (RFP) NO. F34601-74-R-1265, ISSUED BY THE OKLAHOMA CITY AIR MATERIEL AREA, TINKER AIR FORCE BASE, OKLAHOMA, SOLICITED PROPOSALS FOR FURNISHING 249 TACHOMETER GENERATORS.

ON OCTOBER 18, 1973, AWARD WAS MADE TO AIRCRAFT APPLIANCES & EQUIPMENT LTD. AT A PRICE OF $118 PER UNIT. AFTER AWARD, D. MOODY & CO., INC. (MOODY), WAS NOTIFIED THAT ITS PROPOSAL FOR ONLY 100 UNITS AT $69.80 PER UNIT WAS CONSIDERED NONRESPONSIVE IN ACCORDANCE WITH RFP CLAUSE C-43. THE REFERENCED CLAUSE PROVIDED THAT "BIDS FOR PARTIAL QUANTITIES WILL BE CONSIDERED NONRESPONSIVE." THE NOTICE FURTHER ADVISED MOODY OF THE AWARD THAT HAD BEEN MADE. AFTER RECEIPT OF THE NOTICE, MOODY SENT A PROTEST BY TWX ON OCTOBER 19, 1973. IN A LETTER OF NOVEMBER 1, 1973, RECEIVED HERE ON NOVEMBER 7, 1973, MOODY SET FORTH THE BASIS FOR THE PROTEST. MOODY CONTENDED THAT THE PROCUREMENT SHOULD HAVE BEEN RESOLICITED BECAUSE OF THE LOWER UNIT PRICE THAT COULD BE OBTAINED WITHOUT CLAUSE C-43. MOODY SUGGESTED THAT OUR OFFICE REQUEST THAT THE CLAUSE NOT BE USED IN FUTURE SOLICITATIONS BECAUSE IT LIMITS COMPETITION.

THE CONTENTION THAT THE RFP SHOULD HAVE BEEN RESOLICITED IS UNTIMELY AND NOT FOR CONSIDERATION. ALTHOUGH MOODY HAD NOTICE OF THE AWARD ON OCTOBER 19, 1973, THE PROTEST THAT THE RFP SHOULD HAVE BEEN RECOMPETED WAS NOT MADE KNOWN UNTIL THE LETTER OF NOVEMBER 1, 1973, WAS RECEIVED HERE ON NOVEMBER 7, 1973, WHICH WAS 12 WORKING DAYS AFTER THE NOTICE OF AWARD WAS RECEIVED. IN THAT REGARD, SECTION 20.2(A) OF THE INTERIM BID PROTEST PROCEDURES AND STANDARDS REQUIRES THE PROTEST TO BE FILED NOT LATER THAN 5 WORKING DAYS AFTER THE BASIS FOR THE PROTEST IS KNOWN OR SHOULD HAVE BEEN KNOWN.

AS TO THE REQUEST THAT CLAUSE C-43 NOT BE USED IN FUTURE SOLICITATIONS, WE NOTE THAT ASPR 3-501(BCV) PROVIDES THAT WHEN A RFP FORM IS USED AND NO AWARD WILL BE MADE FOR LESS THAN FULL QUANTITIES SOLICITED, A STATEMENT TO THAT EFFECT SHALL BE MADE IN THE RFP. THEREFORE, ASPR CONTEMPLATES THE USE OF SUCH A PROVISION IN CERTAIN CIRCUMSTANCES AND IT WOULD NOT BE APPROPRIATE FOR OUR OFFICE TO CONCLUDE THAT IT SHOULD NOT BE INCLUDED IN ALL FUTURE SOLICITATIONS. IN ANY SITUATION WHERE SUCH A PROVISION IS CONTAINED IN A SOLICITATION AND A PROSPECTIVE OFFEROR DOUBTS THE VALIDITY OF THE REQUIREMENT, THE APPROPRIATE TIME TO QUESTION IT IS PRIOR TO BID OPENING OR THE CLOSING DATE FOR RECEIPT OF PROPOSALS. SEE SECTION 20.2(A) OF THE INTERIM BID PROTEST PROCEDURES AND STANDARDS.