B-222122, JUN 30, 1986, 65 COMP.GEN. 685

B-222122: Jun 30, 1986

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THE CONTRACTING AGENCY SHOULD HAVE CONSIDERED THE PROTESTER'S LOW QUOTATION RECEIVED PRIOR TO AWARD SINCE NO SUBSTANTIAL ACTIVITY HAD TRANSPIRED TOWARDS AWARD AND THE OTHER OFFEROR WOULD NOT HAVE BEEN PREJUDICED. THE MINT MAINTAINS THAT ICSC WAS INFORMED OF THE CLOSING DATE AND THAT REJECTING THE QUOTATION THEREFORE WAS PROPER. THE RFQ WAS ISSUED ON OCTOBER 25. THE FACTS OTHERWISE ARE IN DISPUTE. THE PROTESTER FURTHER ALLEGES THAT IT TWICE ASKED THE PROCUREMENT AGENT (IDENTIFIED IN THE RFQ AS THE PERSON TO CALL FOR INFORMATION) WHEN QUOTATIONS WERE DUE. WAS ADVISED THAT THE MINT WOULD LIKE TO HAVE THEM WITHIN A COUPLE OF WEEKS. THERE IS A QUESTION WHETHER THE PROTEST IS TIMELY. THE MINT CONTENDS ICSC'S PROTEST SHOULD BE DISMISSED SINCE IT WAS NOT FILED WITHIN 10 WORKING DAYS AFTER NOVEMBER 22.

B-222122, JUN 30, 1986, 65 COMP.GEN. 685

CONTRACTS - REQUESTS FOR QUOTATIONS - QUOTATIONS REJECTION - PROPRIETY WHERE A REQUEST FOR QUOTATIONS UNDER SMALL PURCHASE PROCEDURES DOES NOT CONTAIN A CLAUSE ADVISING THAT QUOTATIONS MUST BE SUBMITTED BY A CERTAIN DATE TO BE CONSIDERED, THE CONTRACTING AGENCY SHOULD HAVE CONSIDERED THE PROTESTER'S LOW QUOTATION RECEIVED PRIOR TO AWARD SINCE NO SUBSTANTIAL ACTIVITY HAD TRANSPIRED TOWARDS AWARD AND THE OTHER OFFEROR WOULD NOT HAVE BEEN PREJUDICED.

MATTER OF: INSTRUMENTS & CONTROLS SERVICE COMPANY, JUNE 30, 1986:

INSTRUMENTS & CONTROLS SERVICE COMPANY (ICSC) PROTESTS THAT THE UNITED STATES MINT, PHILADELPHIA, PENNSYLVANIA, FAILED TO FAIRLY CONSIDER ICSC'S QUOTATION UNDER REQUEST FOR QUOTATIONS (RFQ) NO. NG-86 16, ISSUED AS A SMALL BUSINESS, SMALL PURCHASE SET-ASIDE TO OBTAIN EQUIPMENT MAINTENANCE SERVICES. THE MINT AWARDED A CONTRACT TO THE ONLY OTHER FIRM THAT SUBMITTED A QUOTATION. THE PROTESTER COMPLAINS THAT THE MINT IMPROPERLY REJECTED ITS QUOTATION AS LATE, BECAUSE THE RFP CONTAINED NO CLOSING DATE FOR SUBMITTING QUOTATIONS AND ICSC SUBMITTED ITS QUOTATION BEFORE THE AWARD. THE MINT MAINTAINS THAT ICSC WAS INFORMED OF THE CLOSING DATE AND THAT REJECTING THE QUOTATION THEREFORE WAS PROPER.

WE SUSTAIN THE PROTEST.

THE RFQ WAS ISSUED ON OCTOBER 25, 1985, TO SIX POTENTIAL SOURCES THAT INCLUDED THE PROTESTER AND ACCURATE INSTRUMENT COMPANY, INC, (CURRENTLY PROCESS ELECTRONICS CORP.), THE INCUMBENT CONTRACTOR. ACCURATE INSTRUMENT SUBMITTED A QUOTATION OF $8,930 ON NOVEMBER 14, 1985, AND ICSC SUBMITTED ITS QUOTATION OF $8,688 ON NOVEMBER 24. THE MINT SIGNED THE PURCHASE ORDER FOR ACCURATE INSTRUMENT ON JANUARY 15, 1986.

THE FACTS OTHERWISE ARE IN DISPUTE. THE PROTESTER CONTENDS THAT THE RFQ DID NOT REQUEST THE SUBMISSION OF QUOTATIONS BY A CERTAIN DATE, AND HAS PROVIDED A COPY OF THE RFQ WITH A BLANK SPACE FOR SUCH A DATE. THE PROTESTER FURTHER ALLEGES THAT IT TWICE ASKED THE PROCUREMENT AGENT (IDENTIFIED IN THE RFQ AS THE PERSON TO CALL FOR INFORMATION) WHEN QUOTATIONS WERE DUE, AND WAS ADVISED THAT THE MINT WOULD LIKE TO HAVE THEM WITHIN A COUPLE OF WEEKS. DURING A NOVEMBER 22 PHONE CONVERSATION, THE PROCUREMENT AGENCY ALLEGEDLY ASKED ICSC TO HAND DELIVER THE QUOTATION INSTEAD OF MAILING IT. THE PROTESTER DID SO 2 DAYS LATER.

THE MINT MAINTAINS THAT THE RFQ REQUESTED THAT QUOTES BE SUBMITTED BY NOVEMBER 15, 1985, AND HAS ENCLOSED COPIES OF THE RFQ WITH THAT DATE INSERTED IN THE APPROPRIATE SPACE. THE MINT DOES NOT ALLEGE THAT IT OTHERWISE ADVISED ICSC THAT A QUOTATION HAD TO BE SUBMITTED BY NOVEMBER 15 TO BE CONSIDERED, AND THE RFQ CONTAINED NO SUCH ADVICE. ACCORDING TO THE MINT, WHEN THE PROTESTER CALLED ON NOVEMBER 22, THE PROCUREMENT AGENT ADVISED THAT THE CLOSING DATE FOR RECEIPT OF QUOTATIONS HAD PASSED AND THAT THE AWARD DECISION HAD BEEN MADE.

INITIALLY, THERE IS A QUESTION WHETHER THE PROTEST IS TIMELY. THE MINT CONTENDS ICSC'S PROTEST SHOULD BE DISMISSED SINCE IT WAS NOT FILED WITHIN 10 WORKING DAYS AFTER NOVEMBER 22, WHEN THE MINT ALLEGEDLY ADVISED ICSC OF THE AWARD DECISION. OUR BID PROTEST REGULATIONS REQUIRE THAT PROTESTS OF ALLEGEDLY IMPROPER AGENCY ACTIONS BE FILED WITHIN 10 WORKING DAYS AFTER THE BASIS FOR PROTEST IS KNOWN OR SHOULD HAVE BEEN KNOWN, WHICHEVER IS EARLIER. 4 C.F.R. SEC. 21.2(A)(2) (1986). IT IS OUR PRACTICE TO RESOLVE DOUBTS ABOUT TIMELINESS IN FAVOR OF THE PROTESTER. CONSOL. BELL, INC., B-220421, FEB. 6, 1986, 86-1 CPD PARA. 136. SINCE THE PROTESTER DENIES THAT THE MINT ADVISED IT OF THE AWARD DECISION ON NOVEMBER 22, WE RESOLVE THE DOUBT IN THE PROTESTER'S FAVOR AND CONSIDER THE PROTEST TIMELY.

REGARDING THE MERITS, THE COMPETITION IN CONTRACTING ACT OF 1984 (CICA) AUTHORIZES SIMPLIFIED PROCEDURES FOR SMALL PURCHASES-- NOT EXCEEDING $25,000-- OF PROPERTY AND SERVICES TO PROMOTE EFFICIENCY AND ECONOMY IN CONTRACTING AND TO AVOID UNNECESSARY BURDENS FOR AGENCIES AND CONTRACTORS. 41 U.S.C. SEC. 253(G) (SUPP. II 1984). TO FACILITATE THESE STATED OBJECTIVES, CICA ONLY REQUIRES THAT PURCHASING AGENCIES OBTAIN COMPETITION TO THE MAXIMUM EXTENT PRACTICABLE. ID.; S.C. SERVS., INC., B-221012, MAR. 18, 1986, 86-1 CPD PARA. 266.

WE HAVE HELD THAT LANGUAGE REQUESTING QUOTATIONS BY A CERTAIN DATE CANNOT BE CONSTRUED AS ESTABLISHING A FIRM CLOSING DATE FOR THE RECEIPT OF QUOTATIONS ABSENT A LATE QUOTATION PROVISION EXPRESSLY PROVIDING THAT QUOTATIONS MUST BE RECEIVED BY THAT DATE TO BE CONSIDERED. SEE CMI CORP., B-211426, OCT. 12, 1983, 83-2 CPD PARA. 453. AN AGENCY THEREFORE SHOULD CONSIDER ANY QUOTATIONS RECEIVED PRIOR TO AWARD IF NO SUBSTANTIAL ACTIVITY HAS TRANSPIRED IN EVALUATING QUOTATIONS AND OTHER OFFERORS WOULD NOT BE PREJUDICED. ID. THE FAILURE TO DO SO WOULD BE INCONSISTENT WITH THE STATUTORY REQUIREMENT FOR COMPETITION TO THE MAXIMUM EXTENT PRACTICABLE.

IN VIEW OF THIS STANDARD, WHETHER THE RFP CONTAINED A CLOSING DATE IS IRRELEVANT SINCE THE RFQ CONTAINED NO LATE QUOTATIONS CLAUSE. HERE, THE RECORD DOES NOT INDICATE THAT WHEN ICSC SUBMITTED ITS QUOTATION, MORE THAN 6 WEEKS PRIOR TO THE EXECUTION OF THE PURCHASE ORDER, THE MINT HAD UNDERTAKEN ANY ACTIONS THAT WOULD HAVE MADE CONSIDERING ICSC'S QUOTATION IMPRACTICABLE OR BURDENSOME. THERE ALSO IS NO INDICATION THAT ICSC OBTAINED ANY MATERIAL ADVANTAGE BY BEING PERMITTED TO SUBMIT ITS QUOTATION ON NOVEMBER 24. THE REJECTION OF ICSC'S QUOTATION THEREFORE WAS IMPROPER.

THE PROTEST IS SUSTAINED.

WE RECOMMEND THAT THE MINT TERMINATE THE CURRENT CONTRACT FOR THE CONVENIENCE OF THE GOVERNMENT AND AWARD A CONTRACT FOR THE REMAINDER OF THE CONTRACT TERM TO ICSC BASED ON ITS LOW QUOTATION IF THAT COMPANY IS OTHERWISE QUALIFIED FOR AWARD. 4 C.F.R. SEC. 21.6(A). SINCE THE CONTRACT IS MORE THAN HALF COMPLETED, ICSC MAY BE UNWILLING TO PERFORM THE REMAINING WORK AT ITS QUOTED PRICE. IN SUCH AN EVENT, THE PROTESTER SHOULD BE REIMBURSED THE COSTS OF PREPARING AND SUBMITTING ITS QUOTATION AND PROTEST. 4 C.F.R. SEC. 21.6(E).