B-221538, APR 15, 1986, 65 COMP.GEN. 500

B-221538: Apr 15, 1986

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CONTRACTS - NEGOTIATION - LATE PROPOSALS AND QUOTATIONS - REJECTION PROPRIETY - COMPETITIVE SYSTEM A QUOTATION THAT IS SUBMITTED 7 MONTHS AFTER THE DATE IT WAS DUE. IS NOT A LATE OFFER SINCE IT ESSENTIALLY WAS NOT SUBMITTED IN RESPONSE TO THE SOLICITATION. CONTRACTS - REQUESTS FOR QUOTATIONS - PURCHASES ON BASIS OF QUOTATIONS - EVALUATION PROPRIETY WHERE A DRAWING ACCOMPANYING A TIMELY SMALL PURCHASE QUOTATION FROM THE PROTESTER IS IN NEED OF CLARIFICATION. THE PROTESTER SHOULD HAVE BEEN GIVEN AN OPPORTUNITY DURING THE DELAY TO CLARIFY ITS DRAWING. BWC PRINCIPALLY COMPLAINS THAT ITS LOW QUOTE IMPROPERLY WAS DECLARED TECHNICALLY UNACCEPTABLE SINCE DLA SOLICITED A QUOTE FROM ELLIOTT OVER A PERIOD OF MONTHS.

B-221538, APR 15, 1986, 65 COMP.GEN. 500

CONTRACTS - NEGOTIATION - LATE PROPOSALS AND QUOTATIONS - REJECTION PROPRIETY - COMPETITIVE SYSTEM A QUOTATION THAT IS SUBMITTED 7 MONTHS AFTER THE DATE IT WAS DUE, AND AFTER THE AGENCY'S REPEATED SOLICITATION OF THE OFFEROR DURING THAT PERIOD, IS NOT A LATE OFFER SINCE IT ESSENTIALLY WAS NOT SUBMITTED IN RESPONSE TO THE SOLICITATION. THE QUOTATION THEREFORE CANNOT BE ACCEPTED WITHOUT FIRST SURVEYING THE MARKET AND PERMITTING OTHER POTENTIAL SUPPLIERS TO SUBMIT QUOTATIONS. CONTRACTS - REQUESTS FOR QUOTATIONS - PURCHASES ON BASIS OF QUOTATIONS - EVALUATION PROPRIETY WHERE A DRAWING ACCOMPANYING A TIMELY SMALL PURCHASE QUOTATION FROM THE PROTESTER IS IN NEED OF CLARIFICATION; THE AGENCY DOES NOT MAKE AWARD FOR 7 MONTHS AFTER RECEIVING THE DRAWING AND THE AGENCY ACTIVELY SOLICITS THE AWARDEE'S QUOTE DURING THE DELAY, THE PROTESTER SHOULD HAVE BEEN GIVEN AN OPPORTUNITY DURING THE DELAY TO CLARIFY ITS DRAWING.

MATTER OF: BWC TECHNOLOGIES, INC., APRIL 15, 1986:

BWC TECHNOLOGIES, INC. (BWC), PROTESTS THE PLACING OF A PURCHASE ORDER WITH THE ELLIOTT COMPANY (ELLIOTT) UNDER REQUEST FOR QUOTATIONS (RFQ) NO. DLA-700-85-Q-EL10, ISSUED BY THE DEFENSE LOGISTICS AGENCY (DLA) UNDER SMALL PURCHASE PROCEDURES FOR THE PROCUREMENT OF 28 DIRT AND LIQUID DEFLECTORS. BWC PRINCIPALLY COMPLAINS THAT ITS LOW QUOTE IMPROPERLY WAS DECLARED TECHNICALLY UNACCEPTABLE SINCE DLA SOLICITED A QUOTE FROM ELLIOTT OVER A PERIOD OF MONTHS, WHILE ENGAGING IN ALMOST NO COMMUNICATION WITH BWC CONCERNING ITS QUOTE. WE SUSTAIN THE PROTEST.

THE RFQ, ISSUED MARCH 25, 1985, SOUGHT QUOTATIONS ON ELLIOTT PART NUMBER 44B-3521-253C ON OR BEFORE APRIL 25. ALTHOUGH THE SOLICITATION WARNED THAT THIS MANUFACTURER'S PART NUMBER WAS THE ONLY PART NUMBER APPROVED FOR THE SOLICITATION AND THAT NO DRAWINGS WERE AVAILABLE AT THE FIELD ACTIVITY, DLA CONSIDERED ALTERNATE PARTS ACCEPTABLE PROVIDED OFFERORS ESTABLISHED THE TECHNICAL ACCEPTABILITY OF SUCH PARTS. BWC WAS THE ONLY FIRM TO RESPOND BY THE CLOSING DATE, AND OFFERED AN ALTERNATE PART PRODUCED BY UNIQUE SYSTEMS, INC. (UNIQUE), FOR $209.71 EACH, BUT FURNISHED NO DRAWINGS FOR THE PART. DLA REQUESTED DRAWINGS FROM BWC ON MAY 31, AND BY LETTER OF JUNE 5 BWC SENT A DRAWING, WHICH APPEARED TO BE A COPY OF THE ORIGINAL DRAWING FOR ELLIOTT'S PART, AS WELL AS THE NAME AND PHONE NUMBER OF ITS CONTACT PERSON AT UNIQUE SHOULD ADDITIONAL INFORMATION BE NEEDED. IN THE MEANTIME, DLA REQUESTED A QUOTE FROM ELLIOTT BY PHONE ON MAY 31. ON JULY 7, DLA AGAIN SPOKE TO ELLIOTT CONCERNING A PRICE FOR THE PARTS.

ON SEPTEMBER 19, BWC ASKED DLA WHETHER AN ORDER HAD BEEN PLACED AND, IF SO, WITH WHOM, AND AT WHAT QUANTITY AND PRICE. ANOTHER CONVERSATION TOOK PLACE BETWEEN DLA AND ELLIOTT ON SEPTEMBER 27, DURING WHICH ELLIOTT INDICATED THAT A WRITTEN QUOTE WAS ON THE WAY. BWC'S QUOTE WAS SENT FOR TECHNICAL REVIEW ON OCTOBER 2, AND ON OCTOBER 17 THE TECHNICAL EVALUATOR DETERMINED THAT HE DID NOT HAVE ENOUGH DATA TO EVALUATE THE QUOTE, PARTICULARLY IN THE PRESENCE OF CERTAIN HAND-WRITTEN DIMENSIONS ON THE DRAWING BWC SUBMITTED. A FOURTH CONVERSATION BETWEEN ELLIOTT AND DLA TOOK PLACE ON DECEMBER 3, DURING WHICH DLA AGAIN REQUESTED A PRICE FROM ELLIOTT. A TELEX OF THE SAME DATE FROM ELLIOTT PROPOSED A PRICE OF $374 PER ITEM.

BWC RECEIVED NOTICE OF ITS TECHNICAL UNACCEPTABILITY ON DECEMBER 26, AND FILED ITS PROTEST WITH OUR OFFICE ON JANUARY 2, 1986. THOUGH A PURCHASE ORDER WAS PLACED WITH ELLIOTT ON JANUARY 8, DLA HAS DIRECTED ELLIOTT TO CEASE PERFORMANCE.

BWC TAKES THE POSITION THAT ELLIOTT'S OFFER WAS LATE AND SHOULD NOT HAVE BEEN ACCEPTED. BWC ALSO ARGUES THAT IT WAS AT LEAST UNFAIR FOR DLA TO GO TO GREAT LENGTHS TO SECURE A LATE OFFER FROM ELLIOTT WITHOUT ENGAGING IN A SIMILAR EFFORT TO OBTAIN CLARIFICATION OF BWC'S DRAWING. IN THIS REGARD, BWC POINTS OUT THAT SINCE IT SUBMITTED A BUREAU OF SHIPPING NUMBER WITH ITS DRAWING, DLA ITSELF COULD HAVE CLEARED UP ANY DOUBTS ABOUT THE DRAWING BWC SUBMITTED BY OBTAINING THE ORIGINAL PART DRAWING FROM THE GOVERNMENT'S DRAWING ARCHIVES OR FROM ANOTHER AGENCY. DLA DID NOT ATTEMPT TO DO SO AND NEVER CONTACTED BWC FOR CLARIFICATION OR MORE INFORMATION.

DLA ASSERTS THAT BWC WAS ON NOTICE FROM THE SOLICITATION THAT DLA KEPT NO TECHNICAL DRAWINGS, AND THAT BWC THUS SHOULD HAVE KNOWN, IN OFFERING AN ALTERNATE PART, THAT IT WAS REQUIRED TO ESTABLISH THAT PART'S TECHNICAL ACCEPTABILITY. DLA REPORTS THAT THE REJECTION OF BWC'S OFFER WAS BASED ON BWC'S FAILURE TO INCLUDE THAT TECHNICAL DATA NECESSARY FOR EVALUATION OF THE PART WITH ITS OFFER. IT IS DLA'S VIEW, APPARENTLY, THAT IT WAS NOT REQUIRED TO AFFORD BWC A SECOND OPPORTUNITY TO FURNISH ALL THE NECESSARY TECHNICAL INFORMATION. AT THE SAME TIME, DLA POINTS OUT, THE SOLICITATION EXPRESSLY RESERVED THE RIGHT OF THE GOVERNMENT TO CONSIDER LATE QUOTES, SUCH AS ELLIOTT'S, IF "IN THE GOVERNMENT'S BEST INTERESTS."

THE SMALL PURCHASE PROCEDURES OF THE FEDERAL ACQUISITION REGULATION (FAR) SET FORTH ABBREVIATED COMPETITIVE REQUIREMENTS DESIGNED TO MINIMIZE ADMINISTRATIVE COSTS THAT OTHERWISE MIGHT EQUAL OR EXCEED THE COST OF RELATIVELY INEXPENSIVE ITEMS. FOR EXAMPLE, COMPETITION IS DEEMED SUFFICIENTLY MAXIMIZED WHERE THE CONTRACTING OFFICER ORALLY SOLICITS QUOTATIONS FROM A REASONABLE NUMBER OF SOURCES (THREE OR MORE). FAR, 48 C.F.R. SEC. 13.106(B) (1984). NOTWITHSTANDING THE STREAMLINED NATURE OF SMALL PURCHASE PROCEDURES, WE WILL REVIEW A SMALL PURCHASE TO ASSURE THAT IT WAS CONDUCTED IN A MANNER CONSISTENT WITH PRINCIPLES OF FAIR AND OPEN COMPETITION. SEE GRADWELL COMPANY, INC., B-216480, FEB. 8, 1985, 85-1 CPD PARA. 166. WE FIND THAT BWC WAS NOT TREATED FAIRLY.

WE CANNOT ACCEPT DLA'S CHARACTERIZATION OF ELLIOTT'S DECEMBER QUOTATION AS SIMPLY A LATE QUOTATION WHOSE ACCEPTANCE WAS AUTHORIZED BY THE SOLICITATION, WHICH DLA NEVER HAD CANCELED. SOLICITATIONS THAT ESTABLISH DUE DATES FOR OFFER SUBMISSION CONTEMPLATE THAT THE FIELD OF COMPETITION, AND AT LEAST INITIAL PRICES, WILL BE DRAWN AS OF THAT PARTICULAR TIME. THE RULES THAT GOVERN ACCEPTANCE OF LATE OFFERS ADDRESS OFFERS THAT ARE PREPARED AND RECEIVED CLOSE ENOUGH TO THAT TIME SO THAT ALL FIRMS THAT TIMELY WANTED TO COMPETE COULD, AND ON AN EQUAL FOOTING IN TERMS OF THEIR CURRENT CAPABILITIES AND PRICING STRATEGIES.

WHERE AN AGENCY, HOWEVER, ITSELF ACTIVELY SOLICITS A QUOTATION FROM A FIRM THAT CHOSE NOT TO COMPETE, AND IS ONLY ABLE TO SECURE A PRICE FROM THAT FIRM MORE THAN 7 MONTHS AFTER THE SOLICITATION INVOLVED HAS CLOSED, THE AGENCY HAS, IN EFFECT, CONDUCTED A NEW PROCUREMENT, AND ON AN IMPROPER SOLE-SOURCE BASIS; THE FACT THAT THE SOLICITATION NEVER WAS FORMALLY CANCELED IS IRRELEVANT. THE QUOTATION IN SUCH CASE REALLY IS NOT SUBMITTED IN RESPONSE TO THE SOLICITATION TO WHICH TIMELY OFFERORS RESPONDED, AND ITS SUBMISSION AND ACCEPTANCE OCCUR AT A TIME SO REMOVED FROM THE CLOSING DATE THAT CHANGES IN ECONOMIC CONDITIONS, AND IN THE NUMBER OF POTENTIAL COMPETITORS AND SUPPLIERS, MAY WARRANT ANOTHER REVIEW BY THE AGENCY OF THE MARKET TO ASCERTAIN WHETHER AN OPEN COMPETITION IS APPROPRIATE. IN THIS CASE, FOR EXAMPLE, BY THE TIME THE ELLIOTT QUOTE CAME IN, BWC MAY HAVE SECURED OTHER DRAWINGS OR MADE ARRANGEMENT WITH OTHER SUPPLIERS, OR OTHER FIRMS MAY HAVE ENTERED THE FIELD.

WE ALSO DO NOT THINK IT WAS REASONABLE FOR DLA TO SOLICIT A QUOTE FROM ELLIOTT REPEATEDLY OVER A PERIOD OF 7 MONTHS WITHOUT ALSO PERMITTING BWC AN OPPORTUNITY TO CLARIFY THE DIMENSIONS SHOWN ON ITS DRAWING, OR TO PROVIDE OTHER INFORMATION DURING THIS LENGTHY DELAY. THAT IS, ONCE DLA DETERMINED THAT AWARD COULD BE DELAYED SIGNIFICANTLY BEYOND THE CLOSING DATE TO ENABLE ELLIOTT TO COMPETE, WE BELIEVE FAIRNESS REQUIRED THAT DLA ALSO PERMIT BWC TO BENEFIT FROM THE DELAY; THE AGENCY AT LEAST SHOULD HAVE TELEPHONED BWC FOR CLARIFICATION, SINCE THE EVALUATOR DETERMINED ONLY THAT IT WAS UNCLEAR FROM BWC'S DRAWING WHETHER BWC'S ALTERNATE PART WAS ACCEPTABLE. TIME CERTAINLY DOES NOT APPEAR TO HAVE BEEN A FACTOR IN THE DECISION NOT TO SEEK CLARIFICATION SINCE, EVEN IGNORING THE FACT THAT DLA WAS IN POSSESSION OF BWC'S DRAWING AS OF JUNE 5, THE TECHNICAL REVIEW WAS CONDUCTED OCTOBER 17, ALMOST 3 MONTHS PRIOR TO THE JANUARY 8 AWARD TO ELLIOTT. THE FAILURE TO PERMIT BWC TO CLARIFY ITS OFFER CONSTITUTED UNEQUAL TREATMENT UNDER THE CIRCUMSTANCES, AND WAS IMPROPER.

IN VIEW OF OUR CONCLUSION, BY SEPARATE LETTER TO DLA WE ARE RECOMMENDING THAT THE AGENCY SURVEY THE MARKET TO DETERMINE WHETHER THERE IS NEW INTEREST IN THE REQUIREMENT SINCE THE RFQ FIRST WAS ISSUED AND, IF THERE IS SUCH INTEREST, PERMIT THOSE FIRMS TO SUBMIT QUOTATIONS. IN ANY CASE, BWC SHOULD BE AFFORDED AN OPPORTUNITY TO CLARIFY ITS DRAWING AND ESTABLISH THAT ITS ALTERNATE PART WILL MEET DLA'S NEEDS. IF BWC'S OR SOME OTHER OFFEROR'S PART MEETS DLA'S REQUIREMENTS, ELLIOTT'S CONTRACT SHOULD BE TERMINATED AND AWARD SHOULD BE MADE TO THE LOW OFFEROR.

THE PROTEST IS SUSTAINED.