B-179925, FEB 22, 1974

B-179925: Feb 22, 1974

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SUBMISSION OF LOWER PRICE BY OFFEROR IN FINAL ROUND OF NEGOTIATED PROCUREMENT IN RESPONSE TO SOLICITATION AMENDMENT THAT OTHERWISE INCREASED SCOPE OF WORK DOES NOT NECESSARILY MEAN THAT OFFEROR HAD KNOWLEDGE OF PRICES SUBMITTED BY OFFEROR SUBMITTING PROTEST SINCE IT IS NOT UNCOMMON FOR OFFERORS TO RESERVE LOWEST-PRICED OFFER FOR FINAL ROUND OF NEGOTIATIONS IRRESPECTIVE OF INCREASED REQUIREMENTS. 2. ALLEGEDLY TECHNICALLY SUPERIOR OFFER IS NOT ABUSE OF BROAD DISCRETION VESTED IN PROCUREMENT PERSONNEL IN SELECTING CONTRACTOR IN NEGOTIATED PROCUREMENT. 3. PROTEST QUESTIONING PROPRIETY OF CANCELLATION OF PROCUREMENT IN MARCH 1973 IS UNTIMELY BECAUSE RAISED MORE THAN 5 DAYS AFTER BASIS OF PROTEST WAS KNOWN. 4.

B-179925, FEB 22, 1974

1. SUBMISSION OF LOWER PRICE BY OFFEROR IN FINAL ROUND OF NEGOTIATED PROCUREMENT IN RESPONSE TO SOLICITATION AMENDMENT THAT OTHERWISE INCREASED SCOPE OF WORK DOES NOT NECESSARILY MEAN THAT OFFEROR HAD KNOWLEDGE OF PRICES SUBMITTED BY OFFEROR SUBMITTING PROTEST SINCE IT IS NOT UNCOMMON FOR OFFERORS TO RESERVE LOWEST-PRICED OFFER FOR FINAL ROUND OF NEGOTIATIONS IRRESPECTIVE OF INCREASED REQUIREMENTS. 2. SELECTION OF LOWEST-PRICED, TECHNICALLY ACCEPTABLE OFFER FOR AWARD INSTEAD OF HIGHER-PRICED, ALLEGEDLY TECHNICALLY SUPERIOR OFFER IS NOT ABUSE OF BROAD DISCRETION VESTED IN PROCUREMENT PERSONNEL IN SELECTING CONTRACTOR IN NEGOTIATED PROCUREMENT. 3. OCTOBER 19, 1973, PROTEST QUESTIONING PROPRIETY OF CANCELLATION OF PROCUREMENT IN MARCH 1973 IS UNTIMELY BECAUSE RAISED MORE THAN 5 DAYS AFTER BASIS OF PROTEST WAS KNOWN. 4. PROTEST QUESTIONING PROPRIETY OF ALLEGED USE OF OFFEROR'S PROPRIETARY INFORMATION IN SOLICITATION ISSUED IN JUNE 1973 AND VAGUE WORDING OF SOLICITATION AMENDMENT ISSUED IN JULY 1973, BOTH RELATING TO DEFECTS APPARENT IN SOLICITATION, IS UNTIMELY SINCE RAISED AFTER FINAL CLOSING DATE FOR RECEIPT OF OFFERS IN SEPTEMBER 1973.

TO DAVIDSON OPTRONICS, INC.:

THE DEPARTMENT OF THE NAVY ISSUED REQUEST FOR PROPOSALS (RFP) N00164 73-R -0282 FOR THE TESTING AND REPAIR OF CERTAIN OPTICAL ASSEMBLIES ON JANUARY 31, 1973. FOUR PROPOSALS, INCLUDING ONE FROM DAVIDSON OPTRONICS, INC. (DAVIDSON), WERE RECEIVED BY THE CLOSING DATE ON FEBRUARY 26, 1973. SUBSEQUENTLY, THE DEPARTMENT CANCELED THE RFP ON MARCH 29, 1973, IN VIEW OF SUBSTANTIAL DISCREPANCIES BETWEEN THE TECHNICAL APPROACHES ADVANCED BY THE OFFERORS AND THE TECHNICAL REQUIREMENTS SET FORTH IN THE RFP.

SPECIFICATIONS WERE REDRAFTED AND A NEW RFP (N00164-73-R-0464) FOR THE REQUIREMENT WAS ISSUED BY THE DEPARTMENT ON JUNE 6, 1973, WITH A CLOSING DATE OF JUNE 24, 1973. THREE OFFERS, INCLUDING ONE FROM DAVIDSON, WERE TECHNICALLY EVALUATED AND EACH OFFEROR WAS ADVISED, AMONG OTHER INFORMATION, OF ITS DEFICIENCIES BY RFP AMENDMENT P003, DATED JULY 30, 1973, WITH A REVISED CLOSING DATE OF AUGUST 15, 1973. THEREAFTER RFP AMENDMENT P004, ESTABLISHED SEPTEMBER 14, 1973, AS THE DATE FOR CLOSING NEGOTIATIONS AND FOR SUBMISSION OF BEST AND FINAL OFFERS. AWARD WAS MADE ON OCTOBER 18, 1973, TO VARO, INC.

DAVIDSON MAINTAINS THAT VARO HAD ACCESS TO ITS PROPOSAL DURING FINAL NEGOTIATIONS UNDER RFP -0464; THAT THIS KNOWLEDGE ALLOWED VARO TO SUBMIT A LOWER PRICE IN RESPONSE TO AMENDMENT P003 WHICH ALLEGEDLY INCREASED THE SCOPE OF THE WORK; THAT DAVIDSON'S PROPOSAL WAS TECHNICALLY SUPERIOR COMPARED WITH VARO'S PROPOSAL; AND THAT DAVIDSON SHOULD HAVE RECEIVED THE AWARD.

THE CONTRACTING OFFICER STATES THAT INFORMATION ON PROPOSALS AND PRICES WAS NOT DISCLOSED TO THE PUBLIC OR TO ANYONE WITHIN THE GOVERNMENT NOT HAVING A NEED TO KNOW. FURTHER, HE STATES THAT VARO SUBMITTED THE LOWEST- PRICED, TECHNICALLY ACCEPTABLE PROPOSAL AND THAT AWARD WAS PROPERLY MADE TO THE COMPANY.

THE FACT THAT AN OFFEROR SUBMITS A LOWER PRICE DURING FINAL NEGOTIATIONS IN RESPONSE TO A SOLICITATION AMENDMENT THAT OTHERWISE INCREASES THE SCOPE OF THE REQUIREMENTS DOES NOT NECESSARILY MEAN, AS DAVIDSON SEEMS TO ARGUE, THAT THE OFFEROR HAS ACCESS TO THE OTHER PRICES SUBMITTED. IT IS NOT UNCOMMON FOR OFFERORS TO RESERVE THEIR LOWEST-PRICED OFFER FOR THE FINAL ROUND OF NEGOTIATIONS IRRESPECTIVE OF THE ADDITIONAL REQUIREMENTS WHICH MAY HAVE BEEN IMPOSED BY AMENDMENTS TO THE SOLICITATION. BASED ON A REVIEW OF THE WRITTEN RECORD, GAO CANNOT CONCLUDE THAT VARO RECEIVED INFORMATION ABOUT DAVIDSON'S PROPOSAL DURING NEGOTIATIONS UNDER RFP - 0464.

UNDER NEGOTIATED PROCEDURES PROCUREMENT PERSONNEL HAVE BROAD DISCRETION IN SELECTING THE SUCCESSFUL OFFEROR. B-171580, JUNE 21, 1971. NEITHER THE OFFEROR SUBMITTING THE LOWEST-PRICED OFFER NOR THE OFFEROR SUBMITTING THE MOST SOPHISTICATED TECHNICAL APPROVAL IS NECESSARILY ASSURED OF AWARD. SINCE WE CANNOT CONCLUDE THAT THE ALLEGED SUPERIORITY OF DAVIDSON'S OFFER SHOULD OFFSET THE ADVANTAGES OF VARO'S LOWEST-PRICED, TECHNICALLY ACCEPTABLE OFFER, THERE IS NO INDICATION OF AN ABUSE OF DISCRETION IN THE SELECTION OF VARO.

DAVIDSON'S OCTOBER 19 PROTEST ALSO ALLEGES THAT RFP -0282 WAS IMPROPERLY CANCELED; THAT AMENDMENT P003 WAS VAGUELY WORDED; AND THAT RFP -0464 IMPROPERLY INCLUDED DATA SET FORTH IN DAVIDSON'S PROPOSAL SUBMITTED UNDER RFP -0282.

UNDER GAO'S INTERIM BID PROTEST PROCEDURES AND STANDARDS, PROTESTS OTHER THAN THOSE BASED ON APPARENT IMPROPRIETIES IN ANY TYPE OF SOLICITATION SHALL BE FILED NO LATER THAN 5 DAYS AFTER THE BASIS OF PROTEST IS KNOWN OR SHOULD HAVE BEEN KNOWN. 4 CFR 20.2(A), COPY ENCLOSED. CONSEQUENTLY, DAVIDSON'S OCTOBER 19 PROTEST INVOLVING THE CANCELLATION OF RFP -0282, AND RELATED ACTIONS UNDER THAT PROCUREMENT IN MARCH 1973, MUST BE CONSIDERED UNTIMELY.

THE CITED REGULATION ALSO PROVIDES THAT PROTESTS BASED ON APPARENT IMPROPRIETIES IN ANY TYPE OF SOLICITATION SHALL BE FILED PRIOR TO THE CLOSING DATE SET FOR RECEIPT OF PROPOSALS. DAVIDSON'S OCTOBER 19 PROTEST ALLEGING THAT THE DEPARTMENT IMPROPERLY INCLUDED CERTAIN INFORMATION OF THE COMPANY IN RFP -0464, AS INITIALLY ISSUED IN JUNE 1973, AND THAT AMENDMENT P003, DATED JUNE 30, 1973, TO RFP -0464, WAS VAGUELY WORDED INVOLVE ALLEGATIONS OF DEFECTS APPARENT IN THE SOLICITATION. SINCE THE PROTEST WAS FILED MORE THAN 1 MONTH AFTER THE CLOSING DATE SET FOR RECEIPT OF BEST AND FINAL OFFERS ON SEPTEMBER 14, 1973, GAO ALSO CONSIDERS THIS ASPECT OF THE PROTEST UNTIMELY.

CONSEQUENTLY, THE PROTEST MUST BE DENIED.