B-181589, OCT 29, 1974

B-181589: Oct 29, 1974

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ALTHOUGH THERE WERE ONLY 14 DAYS FROM ISSUANCE OF RFP AND 8 FROM PUBLICATION IN COMMERCE BUSINESS DAILY FOR SUBMISSION OF PROPOSALS. CONTRACTING OFFICER'S DENIAL OF PROTESTER'S REQUEST FOR EXTENSION OF TIME FOR SUBMISSION OF PROPOSALS ON DAY PROPOSALS WERE TO BE RECEIVED WAS PROPER. SINCE THERE WERE 9 OFFERORS AND PROPRIETY OF PROCUREMENT IS DETERMINED ON BASIS OF ADEQUATE COMPETITION AND REASONABLE PRICES OBTAINED AND NOT ON WHETHER EVERY POSSIBLE OFFEROR WAS AFFORDED OPPORTUNITY TO COMPETE. 2. PROTEST THAT THERE WAS NO NEED TO PROCURE BY NEGOTIATION. IS UNTIMELY AND NOT FOR CONSIDERATION ON MERITS. THE FACTS UNDERLYING THE MANNER IN WHICH THIS REQUIREMENT WAS PROCURED ARE THE FOLLOWING.

B-181589, OCT 29, 1974

1. ALTHOUGH THERE WERE ONLY 14 DAYS FROM ISSUANCE OF RFP AND 8 FROM PUBLICATION IN COMMERCE BUSINESS DAILY FOR SUBMISSION OF PROPOSALS, CONTRACTING OFFICER'S DENIAL OF PROTESTER'S REQUEST FOR EXTENSION OF TIME FOR SUBMISSION OF PROPOSALS ON DAY PROPOSALS WERE TO BE RECEIVED WAS PROPER, SINCE THERE WERE 9 OFFERORS AND PROPRIETY OF PROCUREMENT IS DETERMINED ON BASIS OF ADEQUATE COMPETITION AND REASONABLE PRICES OBTAINED AND NOT ON WHETHER EVERY POSSIBLE OFFEROR WAS AFFORDED OPPORTUNITY TO COMPETE. 2. PROTEST THAT THERE WAS NO NEED TO PROCURE BY NEGOTIATION, FILED AFTER CLOSING DATE FOR RECEIPT OF PROPOSALS, IS UNTIMELY AND NOT FOR CONSIDERATION ON MERITS, SINCE INTERIM BID PROTEST PROCEDURES AND STANDARDS REQUIRE THAT PROTESTS CONCERNING MATTERS APPARENT PRIOR TO CLOSING DATE FOR RECEIPT OF PROPOSALS MUST BE FILED PRIOR TO CLOSING DATE.

DYNETERIA, INC.:

DYNETERIA, INC., PROTESTS THE FAILURE OF THE FORT BEMJAMIN HARRISON PROCUREMENT OFFICE TO AFFORD IT THE OPPORTUNITY TO SUBMIT AN OFFER UNDER REQUEST FOR PROPOSALS NO. DABT15-74-R-0021, ISSUED FOR THE PROCUREMENT OF THAT ACTIVITY'S REQUIREMENT FOR KP SERVICES.

THE FACTS UNDERLYING THE MANNER IN WHICH THIS REQUIREMENT WAS PROCURED ARE THE FOLLOWING. DURING FISCAL YEAR 1974, KP SERVICES FOR FORT BENJAMIN HARRISON WERE FURNISHED BY QUALITY FOODS, INC., AN 8(A) SMALL BUSINESS CONTRACTOR. IN MID-MARCH OF 1974, THE SMALL BUSINESS ADMINISTRATION (SBA), CHICAGO, REQUESTED THAT THESE SERVICES AGAIN BE SET ASIDE FOR AN 8(A) CONTRACTOR. HOWEVER, RATHER THAN CERTIFYING QUALITY FOODS, AS WAS EXPECTED, SBA CETIFIED ANSWERING SYSTEMS, INC., AS THE 8(A) CONTRACTOR FOR THE 1975 FISCAL YEAR SERVICES. ALL MATERIALS NECESSARY FOR BID PREPARATION WERE, IN VIEW OF THIS INFORMATION, SUBSEQUENTLY ASSIMILATED, AND ON MAY 29, 1974, THE PROCUREMENT OFFICE ISSUED REQUEST FOR PROPOSALS NO. DABT15-74-R-0021 TO ANSWERING SYSTEMS,

THE DATE FOR THE RECEIPT OF A PROPOSAL WAS SET FOR JUNE 14. ON MAY 31, HOWEVER, THE PROCUREMENT ACTIVITY RECEIVED ADVICE FROM SBA THAT IT WOULD NO LONGER BE ABLE TO FURNISH AN 8(A) CONTRACTOR, AND ITS REQUEST FOR A A SECTION 8(A) SET-ASIDE WAS WITHDRAWN. ON JUNE 4, AN AMENDMENT WAS ISSUED TO SBA AND ANSWERING SERVICES CANCELING THE PROCUREMENT. SINCE THIS ORIGINAL PROCUREMENT ATTEMPT WAS TO HAVE BEEN MADE WITH AN 8(A) CONTRACTOR, NO SYNOPSIS OF IT HAD BEEN MADE FOR PUBLICATION IN THE COMMERCE BUSINESS DAILY.

IN VIEW OF THE FOREGOING EVENTS, THE PROCUREMENT ACTIVITY THEN DECIDED TO ADVERTISE THE REQUIREMENT ON A COMPETITIVE BASIS. ACCORDINGLY, INVITATION FOR BIDS NO. DABT15-75-B-0192 WAS ISSUED ON JUNE 4, 1974, WITH BID OPENING DATE SET FOR JUNE 21. THE PROCUREMENT WAS SYNOPSIZED IN THE COMMERCE BUSINESS DAILY. HOWEVER, ON JUNE 5, 1974, SBA, WASHINGTON, NOTIFIED THE PROCUREMENT OFFICE THAT IT HAD NOMINATED TOMBS & SONS AS THE 8(A) CONTRACTOR TO PERFORM THE SERVICES. CONSEQUENTLY, THE INVITATION WAS CANCELLED, AND NEGOTIATIONS WERE BEGUN AND COMPLETED WITH TOMBS & SONS ON JUNE 5. AT THIS JUNCTURE, HOWEVER, SBA NOTIFIED THE PROCUREMENT OFFICE THAT IT COULD NOT OBTAIN THE NECESSARY CERTIFICATION TO SUPPORT TOMBS & SONS AS AN 8(A) CONTRACTOR. IN VIEW OF THIS INFORMATION, IT WAS DECIDED TO NEGOTIATE THE PROCUREMENT WITH OTHER SMALL BUSINESS CONCERNS ON A TOTAL SET-ASIDE BASIS.

AFTER MAKING THIS DECISION, IT AGAIN BECAME NECESSARY TO COMPETE THE PROCUREMENT. A SYNOPSIS APPEARED IN THE COMMERCE BUSINESS DAILY ON JUNE 13. IN ORDER TO EXPEDITE THE PROCUREMENT, THE SAME SOLICITATION NUMBER (DABT15-74-R-0021) WAS USED AS THAT USED FOR THE ORIGINAL PROCUREMENT ATTEMPT INASMUCH AS THIS, WE ARE ADVISED, MADE POSSIBLE THE CHANGING OF ONLY TWO PAGES OF THAT REQUEST FOR PROPOSALS. THIS SOLICITATION WAS DATED JUNE 7, 1974, WITH A JUNE 21 DEADLINE FOR THE RECEIPT OF PROPOSALS. DUE TO THE NECESSITATED CHANGES, DELAYS IN PRINTING THE SOLICITATION OCCURRED. PROSPECTIVE OFFERORS WERE ADVISED THAT BECAUSE OF THE SHORT TIME ALLOWED FOR THE COMPUTATION OF OFFERS, AS WELL AS BECAUSE OF THE DELAYS IN PRINTING, THEY WERE FREE TO VISIT THE PROCUREMENT OFFICE TO EXAMINE A COPY OF THE REQUEST FOR PROPOSALS AVAILABLE THERE. NINE OFFERORS SUBMITTED PROPOSALS. OF THE NINE, WE ARE ADVISED, FOUR VISITED THE PROCUREMENT OFFICE AFTER BEING ADVISED OF THE PRINTING DELAYS; FOUR OTHERS MADE THE VISIT FOR OTHER REASONS. AWARD WAS MADE TO THE SUCCESSFUL OFFEROR ON JUNE 25.

IT IS SUGGESTED BY DYNETERIA THAT THE EVENTS LEADING TO AWARD UNDER THE REQUEST FOR PROPOSALS ISSUED ON JUNE 7 DO NOT COMPORT WITH THE REQUIREMENTS SET FORTH IN THE ARMED SERVICES PROCUREMENT REGULATION (ASPR). PARAGRAPH 3-101(B) OF ASPR PROVIDES THAT "OFFERS SHALL BE SOLICITED FROM THE MAXIMUM NUMBER OF QUALIFIED SOURCES CONSISTENT WITH THE NATURE AND REQUIREMENTS OF THE *** SERVICES TO BE PROCURED" BY NEGOTIATION. ALSO, AS A GENERAL RULE, IN ADVERTISED PROCUREMENTS, IT IS NOTED, BIDDERS ARE TO BE ALLOWED NOT LESS THAN 15 CALENDAR DAYS WHEN STANDARD COMMERCIAL ARTICLES AND SERVICES ARE BEING PROCURED AND NOT LESS THAN 30 CALENDAR DAYS WHEN OTHER THAN STANDARD COMMERCIAL ARTICLES OR SERVICES ARE BEING PROCURED. SEE ASPR 2-202.1 IN THIS RESPECT, HOWEVER, IT MUST BE OBSERVED THAT ASPR 2-202.1 ALSO PROVIDES THAT IT IS NOT NECESSARY TO FOLLOW THIS RULE WHERE SPECIAL CIRCUMSTANCES COME INTO PLAY, SUCH AS AN URGENT NEED TO MAKE AWARD.

ATHOUGH ASPR CONTAINS THE NOTED GUIDELINES AS TO THE TIME TO BE PROVIDED FOR THE SUBMISSION OF OFFERS UNDER INVITATIONS FOR BIDS, IT IS SILENT WITH RESPECT TO REQUESTS FOR PROPOSALS. MOREOVER, AS INDICATED, EVEN THE TIME LIMITS SPECIFIED IN ASPR FOR INVITATIONS FOR BIDS MAY BE VARIED IN SPECIAL CIRCUMSTANCES.

FURTHER, IN RESOLVING QUESTIONS CONCERNING THE ADEQUACY OF SOLICITATION SOURCES, WE HAVE HELD THAT THE PROPRIETY OF A PARTICULAR PROCUREMENT MUST BE DETERMINED UPON THE BASIS OF WHETHER ADEQUATE COMPETITION AND REASONABLE PRICES WERE OBTAINED, AND NOT UPON WHETHER EVERY POSSIBLE OFFEROR WAS AFFORDED AN OPPORTUNITY TO COMPETE. 50 COMP. GEN. 565, 571 (1971). IN THIS INSTANCE, NINE OFFERORS SUBMITTED PROPOSALS IN RESPONSE TO THE SOLICITATION. THUS, IT APPEARS THAT ADEQUATE COMPETITION WAS OBTAINED. AFTER REVIEWING THE PRICES RECEIVED FROM ALL OFFERORS AND THE AWARD PRICE, WE MUST ALSO CONCLUDE THAT REASONABLE PRICES WERE OBTAINED. IN VIEW OF THE NUMBER OF PROPOSALS SUBMITTED, WE BELIEVE THAT THE CONTRACTING OFFICER'S REFUSAL OF DYNETERIA'S REQUEST FOR AN EXTENSION OF THE DATE FOR RECEIPT OF PROPOSALS, SUBMITTED ON THE SAME DAY THAT PROPOSALS WERE TO BE RECEIVED BY THE PROCUREMENT ACTIVITY, WAS PROPER. UNDER THE CIRCUMSTANCES, WE CAN SEE NO REASON WHY THE CONTRACTING OFFICER SHOULD POSSIBLY HAVE TO EXTEND A CONTRACT ABOUT TO EXPIRE MERELY TO ALLOW ONE MORE OFFEROR AN OPPORTUNITY TO SUBMIT A PROPOSAL.

THE FACT THAT THE SYNOPSIZING OF THE PROCUREMENT WAS NOT DONE IN STRICT ACCORDANCE WITH THE TIME CONSTRAINTS CONTAINED IN ASPR 1-1003.2 IS UNFORTUNATE, HOWEVER, IT IS NOT IN ITSELF A SUFFICIENT BASIS TO INVALIDATE AN OTHERWISE PROPER AWARD. B-178967, NOVEMBER 5, 1973.

AS REGARDS THE FINAL CONTENTION THAT NEGOTIATION OF THE PROCUREMENT UNDER ASPR 3-201.2(B)(II) WAS IMPROPER AND THAT THERE WAS NO NEED TO PROCURE THE REQUIREMENT BY NEGOTIATION, SECTION 20.2(A) OF OUR INTERIM BID PROTEST PROCEDURES AND STANDARDS (4 C.F.R. 20.2(A)) (1972) REQUIRES PROTESTS CONCERNING MATTERS APPARENT PRIOR TO THE CLOSING DATE FOR RECEIPT OF PROPOSALS TO BE FILED BEFORE THE CLOSING DATE. INASMUCH AS NO FORMAL PROTEST ON THIS MATTER WAS FILED UNTIL AFTER THE CLOSING DATE, WE MUST CONSIDER THIS ASPECT OF THE PROTEST AS UNTIMELY AND NOT FOR CONSIDERATION ON THE MERITS BY OUR OFFICE.

ACCORDINGLY, THE PROTEST IS DENIED.