B-182365, DEC 4, 1974

B-182365: Dec 4, 1974

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PROTEST ALLEGING DENIAL OF ADEQUATE OPPORTUNITY TO SUBMIT "BEST AND FINAL" OFFER FILED MORE THAN 5 DAYS AFTER BASIS OF PROTEST WAS KNOWN IS UNTIMELY UNDER SECTION 20.2(A) OF INTERIM BID PROTEST PROCEDURES AND STANDARDS WHICH REQUIRES THAT PROTESTS BE FILED WITHIN 5 WORKING DAYS OF DATE BASIS OF PROTEST WAS KNOWN OR SHOULD HAVE BEEN KNOWN. 2. CONTRACTING OFFICER IS NOT AUTHORIZED TO UNILATERALLY REDUCE OFFER TO FULL EXTENT OF DISALLOWED ITEMS IN EVALUATING PROTESTER'S PRICE FOR AWARD. MARANATHA CONTENDS THAT IT WAS NOT AFFORDED A REASONABLE OPPORTUNITY TO SUBMIT A "BEST AND FINAL"OFFER UNDER THE SUBJECT PROCUREMENT. MARANATHA ALLEGES THAT IT WAS THE LOW OFFEROR EVEN WITHOUT A BEST AND FINAL OFFER SINCE DURING NEGOTIATIONS THE GOVERNMENT DISALLOWED A PORTION OF ITS PRICING PROPOSAL AND THIS SHOULD HAVE BEEN TAKEN INTO ACCOUNT IN THE GOVERNMENT'S EVALUATION OF ITS OFFER.

B-182365, DEC 4, 1974

1. PROTEST ALLEGING DENIAL OF ADEQUATE OPPORTUNITY TO SUBMIT "BEST AND FINAL" OFFER FILED MORE THAN 5 DAYS AFTER BASIS OF PROTEST WAS KNOWN IS UNTIMELY UNDER SECTION 20.2(A) OF INTERIM BID PROTEST PROCEDURES AND STANDARDS WHICH REQUIRES THAT PROTESTS BE FILED WITHIN 5 WORKING DAYS OF DATE BASIS OF PROTEST WAS KNOWN OR SHOULD HAVE BEEN KNOWN. 2. WHERE AGENCY DISALLOWED PORTION OF PROTESTER'S PRICING PROPOSAL DURING NEGOTIATIONS AND PROTESER SUBSEQUENTLY SUBMITTED REVISED OFFER WHICH FAILED TO TOTALLY ELIMINATE DISALLOWED ITMS, CONTRACTING OFFICER IS NOT AUTHORIZED TO UNILATERALLY REDUCE OFFER TO FULL EXTENT OF DISALLOWED ITEMS IN EVALUATING PROTESTER'S PRICE FOR AWARD.

MARANATHA INDUSTRIES, INC.:

MARANATHA INDUSTRIES, INCORPORATED (MARANATHA), PROTESTS THE AWARD OF A CONTRACT OF OKLAHOMA AEROTRONICS, INCORPORATED, UNDER REQUEST FOR PROPOSALS (RFP) NO. DAAB07-75-R-0155, ISSUED BY FORT MONMOUTH, NEW JERSEY. MARANATHA CONTENDS THAT IT WAS NOT AFFORDED A REASONABLE OPPORTUNITY TO SUBMIT A "BEST AND FINAL"OFFER UNDER THE SUBJECT PROCUREMENT. IN ADDITION, MARANATHA ALLEGES THAT IT WAS THE LOW OFFEROR EVEN WITHOUT A BEST AND FINAL OFFER SINCE DURING NEGOTIATIONS THE GOVERNMENT DISALLOWED A PORTION OF ITS PRICING PROPOSAL AND THIS SHOULD HAVE BEEN TAKEN INTO ACCOUNT IN THE GOVERNMENT'S EVALUATION OF ITS OFFER.

THE RECORD SHOWS THAT BY TELEGRAM DATED SEPTEMBER 9, 1974, ADDRESSED TO MARANATHA AT WILLSHIRE, OHIO, THE CONTRACTING OFFICER REQUESTED THE FIRM'S BEST AND FINAL OFFER BY THE CLOSE OF BUSINESS ON SEPTEMBER 13, 1974. HOWEVER, ON SEPTEMBER 10, 1974, WESTERN UNION NOTIFIED THE CONTRACTING OFFICER THAT MARANATHA COULD NOT BE REACHED AT THE WILLSHIRE, OHIO, ADDRESS WHEREUPON THE CONTRACTING OFFICER PROVIDED WESTERN UNION ALL THE VARIOUS ADDRESSES AND TELEPHONE NUMBERS SET FORTH ON MARANATHA'S OFFER. THE RECORD SHOWS THAT WESTERN UNION THEN TRANSMITTED ANOTHER TELEGRAM DATED SEPTEMBER 12, 1974, TO MARANATHA AT PAYNE, OHIO, WHICH WAS SUBSEQUENTLY MAILED FROM CLEVELAND, OHIO, ON SEPTEMBER 16 AND RECEIVED BY MARANATHA ON SEPTEMBER 18. UPON RECEIPT MARANATHA TELEPHONED THE CONTRACTING OFFICER AND WAS ADVISED THAT THE "BIDDING" WAS CLOSED AND THAT IT WAS TOO LATE TO SUBMIT A BEST AND FINAL OFFER.

BY MAIL GRAM DATED OCTOBER 1, 1974, MARANATHA ADVISED OUR OFFICE OF ITS INTENTION TO "FILE A FORMAL PROTEST" AND BY LETTER DATED OCTOBER 4, 1974, THE DETAILS OF ITS PROTEST WERE FURNISHED.

THE INTERIM BID PROTEST PROCEDURES AND STANDARDS (SECTION 20.2(A) OF TITLE 4 OF THE CODE OF FEDERAL REGULATIONS) PROVIDES, IN PERTINENT PART THAT, "*** BID PROTESTS SHALL BE FILED NOT LATER THAN 5 WORKING DAYS AFTER THE BASIS FOR PROTEST IS KNOWN OR SHOULD HAVE BEEN KNOWN, WHICHEVER IS EARLIER. *** THE TERM 'FILED' AS USED IN THIS SECTION MEANS RECEIPT IN THE *** GENERAL ACCOUNTING OFFICE ***."

THE BASIS FOR MARANATHA'S PROTEST REGARDING THE ALLEGED FAILURE BY THE GOVERNMENT TO AFFORD A REASONABLE OPPORTUNITY TO SUBMIT A BEST AND FINAL OFFER SHOULD HAVE BEEN APPARENT BY SEPTEMBER 18. HOWEVER, THE MAIL GRAM OF OCTOBER 1 WAS THE FIRM'S FIRST INDICATION OF AN INTENTION TO PROTEST. SINCE THIS EXCEEDED THE FIVE WORKING DAY PERIOD FOR PROTESTING, THE MATTER WILL NOT BE FURTHER CONSIDERED BY THIS OFFICE.

IN REGARD TO THE PROTESTER'S SECOND ALLEGATION THAT ITS OFFER WAS LOW EVEN WITHOUT A BEST AND FINAL OFFER, WE HAVE BEEN ADVISED BY THE ARMY THAT DURING THE COURSE OF A SEPTEMBER 6 TELEPHONE CONVERSATION, MARANATHA WAS INFORMED BY REPRESENTATIVES OF THE PROCURING ACIVITY THAT TWO ITEMS OF ITS PRICING PROPOSAL WERE UNNECESSARY AND SHOULD NOT BE INCLUDED IN ITS FINAL OFFER. THESE ITEMS TOTOALLING $8,640.00, INCLUDED $5,760.00 FOR CONSULTING FEES TO SUBCONTRACTORS AND $2,880.00 FOR TRAVEL AND EXPENSES. HOWEVER, BY LETTER DATED SEPTEMBER 7, 1974, MARANATHA REDUCED ITS CONTRACT PRICE BY ONLY $3,975. IN VIEW OF THE FACT THAT AT THE TIME THE PROTESTER SUBMITTED ITS REVISED OFFER IT HAD BEEN APPRISED OF THE ACTIVITY'S POSITION AS TO THE AFOREMENTIONED ITEMS, AND NOT WITHSTANDING THIS FACT, DID NOT TOTALLY ELIMINATE THEM FROM ITS OFFER, THE CONTRACTING OFFICER IS NOT AUTHORIZED TO UNILATERALLY REDUCE MARANATHA'S OFFER BY THE STATED AMOUNT.

FOR THE FOREGOING REASONS, THE SECOND BASIS FOR PROTEST IS DENIED.