B-181638, OCT 10, 1974

B-181638: Oct 10, 1974

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WHICH SOLICITATION WAS NOT RECEIVED BY PROTESTER UNTIL ONE DAY AFTER CLOSING DATE FOR RECEIPT OF PROPOSALS. IS NOT ENTITLED TO CANCELLATION OF AWARD SINCE PROPRIETY OF PROCUREMENT ACTION IS DETERMINED UPON BASIS OF WHETHER ADEQUATE COMPETITION AND REASONABLE PRICES WERE OBTAINED. WHERE PROSPECTIVE OFFEROR'S REQUEST FOR SOLICITATION WAS HONORED WITHIN 1 DAY OF RECEIPT THEREOF AND 6 DAYS BEFORE RFP CLOSING. FACT THAT PROTESTER DID NOT RECEIVE RFP UNTIL 1 DAY AFTER CLOSING DATE IS NOT FAULT OF CONTRACTING OFFICER. MOTION PICUTURE WAS RELEASED TO 20 SOURCES BY THE DEFENSE SUPPLY SERVICE. THE PROCUREMENT SYNOPSIS WAS PUBLISHED IN THE COMMERCE BUSINESS DAILY (CBD). 48 SOLICITATIONS WERE FURNISHED TO FIRMS RESPONDING TO THE SYNOPSIS.

B-181638, OCT 10, 1974

1. PROSPECTIVE OFFEROR WHO, IN RESPONSE TO PUBLICATION OF SYNOPSIS FOR ARMY FILM, REQUESTED SOLICITATION FROM AGENCY, WHICH SOLICITATION WAS NOT RECEIVED BY PROTESTER UNTIL ONE DAY AFTER CLOSING DATE FOR RECEIPT OF PROPOSALS, IS NOT ENTITLED TO CANCELLATION OF AWARD SINCE PROPRIETY OF PROCUREMENT ACTION IS DETERMINED UPON BASIS OF WHETHER ADEQUATE COMPETITION AND REASONABLE PRICES WERE OBTAINED, AND NOT UPON WHETHER EVERY POSSIBLE OFFEROR HAD OPPORTUNITY TO COMPETE. 50 COMP. GEN. 565, 571 (1971). 2. WHERE PROSPECTIVE OFFEROR'S REQUEST FOR SOLICITATION WAS HONORED WITHIN 1 DAY OF RECEIPT THEREOF AND 6 DAYS BEFORE RFP CLOSING, FACT THAT PROTESTER DID NOT RECEIVE RFP UNTIL 1 DAY AFTER CLOSING DATE IS NOT FAULT OF CONTRACTING OFFICER. MOREOVER, ABSENT CONSCIOUS OR DELIBERATE INTENTION TO EXCLUDE PROTESTER OR OTHER INTERESTED FIRMS, PROTESTER'S RECEIPT OF UNTIMELY COPY OF RFP CONSTITUTES INSUFFICIENT BASIS FOR QUESTIONING OR CANCELING OTHERWISE PROPER AWARD.

A-V CORPORATION:

REQUEST FOR PROPOSALS (RFP) NO. MDA903-74-R-0109, WHICH SOLICITED CONTRACTUAL SERVICES FOR THE WRITING AND PRODUCING OF A 16 MM, SOUND, COLOR, MOTION PICUTURE WAS RELEASED TO 20 SOURCES BY THE DEFENSE SUPPLY SERVICE, WASHINGTON, D.C., ON JUNE 10, 1974. ON JUNE 12, 1974, THE PROCUREMENT SYNOPSIS WAS PUBLISHED IN THE COMMERCE BUSINESS DAILY (CBD). BETWEEN JUNE 12 AND JUNE 19, 1974, 48 SOLICITATIONS WERE FURNISHED TO FIRMS RESPONDING TO THE SYNOPSIS. PROPOSALS WERE DUE AT 9:00 A.M., LOCAL PREVAILING TIME, ON JUNE 24, 1974.

ON JUNE 14, 1974, IN RESPONSE TO THE PUBLISHED SYNOPSIS, A-V CORPORATION (A-V), THE PROTESTER, DISPATCHED AN AIRMAIL REQUEST FOR THE SUBJECT RFP TO THE DEFENSE SUPPLY AGENCY, WASHINGTON, D.C., ASKING THAT THE RFP BE TRANSMITTED TO IT BY AIRMAIL. A-V PROTESTS THAT IT DID NOT RECEIVE THE RFP UNTIL JUNE 25, 1974 - ONE FULL DAY PAST THE AGENCY DEADLINE FOR RECEIPT OF PROPOSALS. IN SUPPORT OF ITS PROTEST, A-V HAS SUBMITTED A COPY OF THE RFP WHICH IS STAMPED WITH THE DATE OF RECEIPT. THE PROTESTER FURTHER ALLEGES THAT THE LATE RECEIPT OF THE SOLICITATION IS THE FAULT OF THE DEFENSE SUPPLY SERVICE AND CONSTITUTES "*** GROSS MISHANDLING AND NEGLIGENCE ***." MOREOVER, A-V QUESTIONS "*** WHETHER THERE MAY HAVE BEEN A CALCULATED PURPOSE IN THE HANDLING OF THIS CASE, WITH THE POSSIBLE MOTIVE OF MINIMIZING COMPETITIVE BIDDING." AS A RESULT OF THESE ALLEGATIONS, A-V PROTESTS "*** AGAINST THE AWARD OF THE PROJECT TO ANY OTHER BIDDER, UNTIL A-V CORPORATION HAS BEEN GIVEN REASONABLE TIME TO COMPILE, ITS PROPOSAL AND HAVE IT IMPARTIALLY CONSIDERED BY THE DEFENSE SUPPLY SERVICE." PRIOR TO NOTIFICATION GIVEN ON JUNE 28, 1974, THAT THE GAO HAD RECEIVED THE A V PROTEST, AWARD WAS MADE TO PETER ROSEN PRODUCTIONS, INC., ON JUNE 27, 1974.

THE DEFENSE SUPPLY SERVICE RECEIVED A-V'S SOLICITATION REQUEST ON JUNE 17, 1974, AND MAILED THE RFP THE FOLLOWING DAY. CONSEQUENTLY, THE CONTRACTING OFFICER ACTED PROMPTLY ON THE REQUEST AND WE FIND NO BASIS TO CHARGE HIM WITH THE RESPONSIBILITY FOR THE LATE RECEIPT OF THE RFP.

ASPR 1-1003.2 PROVIDES THAT:

"*** TO ALLOW CONCERNS WHICH ARE NOT ON CURRENT BIDDERS LISTS AMPLE TIME TO PREPARE BIDS, PROPOSALS OR QUOTATIONS, PURCHASING OFFICES SHOULD, WHEN FEASIBLE, SYNOPSIZE PROPOSED PROCUREMENTS AT LEAST TEN DAYS BEFORE THE ISSUANCE OF SOLICITATIONS ***. IF THIS IS NOT FEASIBLE OR PRACTICABLE, PURCHASING OFFICES SHALL SYNOPSIZE PROPOSED PROCUREMENTS NOT LATER THAN THE DATE OF ISSUANCE OF SOLICITATIONS."

CONCERNING THE LATE SYNOPSES OF THE PROCUREMENT IN CBD, THE PROCUREMENT AGENCY ADVISES:

"*** THE CONTRACTING OFFICER HAD BEEN ASSURED BY HIS TECHNICAL REPRESENTATIVE THAT THE TIME FOR PUBLICATION TO THE TIME SET FOR RECEIPT OF PROPOSALS (TWELVE DAYS) WAS ADEQUATE FOR A KNOWLEDGEABLE FIRM TO PREPARE AN OFFER. PUBLICATION OF THE SYNOPSIS WAS DELAYED BEYOND THE TIME REQUIRED IN ASPR SEC. 1-1003.2 (THE DATE OF RELEASE OF THE REQUEST FOR PROPOSALS) BECAUSE OF THE VOLUME OF WORK IN THE AGENCY AND THE PERSONNEL SHORTAGE EXISTING AT THAT TIME. ***"

ALTHOUGH LATE SYNOPSIZING WAS UNFORTUNATE, AND THE AGENCY HAS TAKEN STEPS TO PREVENT A RECURRENCE, THE RECORD SEEMS TO ESTABLISH THAT TIMELY SYNOPSIZING WAS NOT FEASIBLE UNDER THE PARTICULAR CIRCUMSTANCES EXISTING AT THE TIME. IN ANY EVENT, FAILURE TO MEET THE CBD PUBLICATION REQUIREMENTS IS NOT IN ITSELF A SUFFICIENT BASIS TO INVALIDATE AN OTHERWISE PROPER AWARD. SEE B-178967, NOVEMBER 5, 1973.

IN RESOLVING QUESTIONS CONCERNING THE ADEQUACY OF SOLICITATION OF SUPPLY 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). FURTHER, OF THE SEVEN OFFERORS WHO RESPONDED BY THE RFP DUE DATE, FOUR HAD RECEIVED THE RFP SUBSEQUENT TO CBD PUBLICATION.

WE REGRET THAT A-V DID NOT RECEIVE A COPY OF THE RFP UNTIL AFTER THE DEADLINE FOR RECEIPT OF OFFERS, THEREBY MAKING IT IMPOSSIBLE FOR THEM TO SUBMIT A TIMELY OFFER. HOWEVER, THE NUMBER OF PROPOSALS RECEIVED AND THE AWARD PRICE ($59,000) COMPARED TO THE GOVERNMENT ESTIMATE ($150,000) TEND TO ESTABLISH THE ADEQUACY OF THE COMPETITION. FURTHER, THERE IS NO INDICATION IN THE RECORD OF ANY CONSCIOUS OR DELIBERATE INTENTION TO EXCLUDE A-V OR ANY OTHER INTERESTEED FIRM FROM PARTICIPATING IN THE PROCUREMENT. IN THE CIRCUMSTANCES, THE UNTIMELY RECEIPT OF A COPY OF THE RFP DOES NOT CONSTITUTE A SUFFICIENT BASIS TO QUESTION AN OTHERWISE PROPER AWARD UNDER THE SOLICITATION.

ACCORDINGLY, THE PROTEST IS DENIED.