B-183141, MAR 26, 1975

B-183141: Mar 26, 1975

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PROTEST ALLEGING DEFICIENCIES IN THE SOLICITATION AND IN THE MANNER IN WHICH NEGOTIATIONS WERE CONDUCTED IS UNTIMELY UNDER 4 C.F.R. 20.2(A) WHERE THE ALLEGED DEFICIENCIES WERE APPARENT PRIOR TO THE SUBMISSION OF BEST AND FINAL OFFERS. AS THE PROTEST WAS NOT FILED WITH GAO UNTIL AFTER AWARD WAS MADE. THE THREE GENERAL AREAS OF ITS PROTEST ARE STATED BY THE PROTESTER AS FOLLOWS: (1) THE GENERAL CONFUSING NATURE OF THE RFP. WAS CONFUSING. THE RFP DID NOT INDICATE A CLOSING DATE FOR THE SUBMISSION OF OFFERS AND DID NOT MENTION THAT 38 GOVERNMENT-OWNED PERISCOPES WOULD BE FURNISHED ON WHICH THE KITS TO BE PROCURED WERE TO BE INSTALLED. TO EFFECTUATE CHANGES IN THE SOLICITATION RAISES THE QUESTION WHETHER ALL POTENTIAL SUPPLIERS WERE SIMULTANEOUSLY FURNISHED THE SAME REQUIREMENTS AND WHETHER THE METHOD EMPLOYED RESULTED IN AN UNFAIR ADVANTAGE TO THE FIRM AWARDED THE CONTRACT.

B-183141, MAR 26, 1975

PROTEST ALLEGING DEFICIENCIES IN THE SOLICITATION AND IN THE MANNER IN WHICH NEGOTIATIONS WERE CONDUCTED IS UNTIMELY UNDER 4 C.F.R. 20.2(A) WHERE THE ALLEGED DEFICIENCIES WERE APPARENT PRIOR TO THE SUBMISSION OF BEST AND FINAL OFFERS, AS THE PROTEST WAS NOT FILED WITH GAO UNTIL AFTER AWARD WAS MADE.

KOLLMORGEN CORPORATION, ELECTRO-OPTICAL DIVISION:

KOLLMORGEN CORPORATION, ELECTRO-OPTICAL DIVISION (KOLLMORGEN), PROTESTS THE JANUARY 27, 1975, AWARD OF A CONTRACT TO SPERRY RAND CORPORATION, UNDER REQUEST FOR PROPOSALS (RFP) NO. N0024-74-R-3408(S), ISSUED BY THE NAVAL SEA SYSTEMS COMMAND (NSSC) FOR THE PRODUCTION AND INSTALLATION OF PERISCOPE IMPROVEMENT KITS. BY LETTER DATED FEBRUARY 12, 1975, KOLLMORGEN SUPPLIED THE DETAILS OF ITS PROTEST INITIALLY FILED WITH OUR OFFICE ON FEBRUARY 3, 1975. THE THREE GENERAL AREAS OF ITS PROTEST ARE STATED BY THE PROTESTER AS FOLLOWS: (1) THE GENERAL CONFUSING NATURE OF THE RFP; (2) WHETHER ALL POTENTIAL OFFERORS SUBMITTED PRICES BASED ON THE SAME REQUIREMENTS; AND (3) THE PROPRIETY OF CHANGES MADE IN THE GOVERNMENT'S REQUIREMENTS AFTER THE SUBMISSION OF PRICES.

KOLLMORGEN FIRST CONTENDS THAT THE RFP AS INITIALLY ISSUED, AND AS SUBSEQUENTLY AMENDED, WAS CONFUSING. THE PROTESTER ALLEGES THAT IN ITS ORIGINAL FORM, THE RFP DID NOT INDICATE A CLOSING DATE FOR THE SUBMISSION OF OFFERS AND DID NOT MENTION THAT 38 GOVERNMENT-OWNED PERISCOPES WOULD BE FURNISHED ON WHICH THE KITS TO BE PROCURED WERE TO BE INSTALLED. THROUGH A SERIES OF FOUR LETTERS, NSSC ESTABLISHED NOVEMBER 27, 1974, AS THE CLOSING DATE FOR RECEIPT OF PROPOSALS AND MADE A NUMBER OF "ADMINISTRATIVE CHANGES AND CORRECTIONS" TO THE RFP. KOLLMORGEN ALSO CONTENDS THAT THE AGENCY'S USE OF LETTERS IN LIEU OF STANDARD FORM 30, AS REQUIRED BY ARMED SERVICES PROCUREMENT REGULATION (ASPR 3-505 (1974 ED.)), TO EFFECTUATE CHANGES IN THE SOLICITATION RAISES THE QUESTION WHETHER ALL POTENTIAL SUPPLIERS WERE SIMULTANEOUSLY FURNISHED THE SAME REQUIREMENTS AND WHETHER THE METHOD EMPLOYED RESULTED IN AN UNFAIR ADVANTAGE TO THE FIRM AWARDED THE CONTRACT. FURTHERMORE, THE PROTESTER CONTENDS THAT ABSENCE OF "CLEARLY SET FORTH" DELIVERY REQUIREMENTS CASTS DOUBT ON WHETHER ALL POTENTIAL SUPPLIERS WERE MAKING OFFERS BASED ON THE SAME FACTS. WHILE NOTING THAT THE RFP INCLUDED A "DOD INDUSTRIAL PREPAREDNESS PROGRAM, PRODUCTION PLANNING SCHEDULE," KOLLMORGEN ASKS WHAT CONSIDERATION WAS GIVEN TO THE SCHEDULE IN THE AGENCY'S EVALUATION OF PROPOSALS AND WHAT PREPAREDNESS REQUIREMENTS HAVE BECOME PART OF THE AWARDED CONTRACT.

FINALLY, KOLLMORGEN CONTENDS THAT NSSC'S LETTER OF DECEMBER 9, 1974, WHICH REQUESTED BEST AND FINAL OFFERS AND MODIFIED CERTAIN REQUIREMENTS, PARTICULARLY THE DELAYING OF THE DELIVERY OF THE KITS FOR THREE MONTHS AND THE ADDITION OF PROVISIONS TO THE RFP WHICH ANTICIPATED AND ENCOURAGED THE SUBMISSION OF ENGINEERING CHANGES AND PROPOSALS, RESULTED IN AN UNFAIR ADVANTAGE TO THE SUCCESSFUL FIRM. IN ADDITION, THE PROTESTER CONTENDS THAT THE PROVISION FOR SUBMISSION OF ENGINEERING CHANGE PROPOSALS RAISES THE QUESTION OF WHETHER THE DRAWINGS AND SPECIFICATIONS WERE COMPLETE, UNAMBIGUOUS AND SUITABLE FOR USE IN A FIXED PRICE PRODUCTION CONTRACT. KOLLMORGEN ALSO ALLEGES THAT THE CHANGES IN THE RFP WERE AN APPARENT ATTEMPT ON THE PART OF THE GOVERNMENT TO EXCLUDE THE PROTESTER FROM RECEIVING AWARD.

THE GENERAL ACCOUNTING OFFICE INTERIM BID PROTEST PROCEDURES AND STANDARDS (SECTION 20.2(A) OF TITLE 4 OF THE CODE OF FEDERAL REGULATIONS) PROVIDE IN PERTINENT PART THAT, "*** PROTESTS BASED UPON ALLEGED IMPROPRIETIES IN ANY TYPE OF SOLICITATION WHICH ARE APPARENT PRIOR *** TO THE CLOSING DATE FOR RECEIPT OF PROPOSALS SHALL BE FILED PRIOR *** TO THE CLOSING DATE FOR RECEIPT OF PROPOSALS." FURTHERMORE, IN ALL OTHER CASES, BID PROTESTS MUST BE FILED NOT LATER THAN 5 DAYS AFTER THE BASIS OF THE PROTEST IS KNOWN, OR SHOULD HAVE BEEN KNOWN, WHICHEVER IS EARLIER. SINCE THE ALLEGED CONFUSING NATURE OF THE SOLICITATION, THE PROPRIETY OF THE AGENCY'S USE OF LETTERS TO EFFECTUATE CHANGES IN THE RFP, THE QUESTION OF THE WEIGHT TO BE GIVEN THE REQUIRED PREPAREDNESS SCHEDULE IN THE EVALUATION OF PROPOSALS, AND THE REMAINDER OF KOLLMORGEN'S ISSUES OF PROTEST WHICH WERE PROMPTED BY NSSC'S LETTER OF DECEMBER 9, 1974, WERE OR SHOULD HAVE BEEN APPARENT TO KOLLMORGEN PRIOR TO THE SUBMISSION OF ITS BEST AND FINAL OFFER ON DECEMBER 12, 1974, ITS PROTEST AFTER AWARD WAS CLEARLY UNTIMELY AND IS THEREFORE NOT FOR CONSIDERATION ON THE MERITS.

IN REGARD TO KOLLMORGEN'S REFERENCE TO THE CHANGES IN THE CONTRACT DELIVERY SCHEDULE FOR INSTALLATION OF THE KITS FROM THE SIX MONTH SCHEDULE STATED IN THE RFP TO THE NINE MONTHS CALLED FOR IN THE AWARDED CONTRACT, OUR OFFICE HAS BEEN ADVISED THAT THE NINE MONTH CONTRACT DELIVERY SCHEDULE WAS THE RESULT OF AN ERROR AND WAS SUBSEQUENTLY CHANGED BY AMENDMENT TO CONFORM TO THAT STATED IN THE RFP.

IN THESE CIRCUMSTANCES, THERE IS NO BASIS FOR ACTION BY OUR OFFICE.