B-222613, JUL 16, 1986, 86-2 CPD 74
Highlights
ITS CONTENTION IN THIS REGARD IS MERE CONJECTURE AND THUS PROVIDES NO BASIS TO SUSTAIN THE PROTEST. THE SOLICITATION WAS FOR THE PROCUREMENT OF TWO MAN CREW SOFT TOPS FOR THE HIGH MOBILITY MULTIPURPOSE WHEELED VEHICLE. THE PROTESTER CONTENDS THAT THE ARMY MUST HAVE DISCLOSED BRETON'S OFFERED PRICE TO AM GENERAL. THE RFP WAS RESTRICTED TO A SPECIFIED AM GENERAL PART. SINCE THE FIRM WAS THE ONLY KNOWN SOURCE OF SUPPLY. THE ONLY POSSIBLE EXPLANATION FOR AM GENERAL'S OFFER OF $160.17 PER UNIT IS THAT THE ARMY IMPROPERLY DISCLOSED BRETON'S INITIAL OFFER OF $172 TO AM GENERAL SO THAT AM GENERAL COULD UNDERBID BRETON IN ITS BEST AND FINAL OFFER. THERE IS NO MERIT TO THE PROTEST. AS REFLECTED IN AN INTERNAL ARMY DOCUMENT THAT HAD BEEN FURNISHED TO BRETON AFTER THE RFP WAS ISSUED BUT BEFORE BRETON'S PRODUCT WAS APPROVED.
B-222613, JUL 16, 1986, 86-2 CPD 74
CONTRACTS - PROTESTS - ALLEGATIONS - SPECULATIVE DIGEST: WHERE A PROTESTER FAILS TO OFFER ANY EVIDENCE THAT THE AGENCY DISCLOSED THE FIRM'S PROPOSED PRICE TO ANOTHER OFFEROR, ITS CONTENTION IN THIS REGARD IS MERE CONJECTURE AND THUS PROVIDES NO BASIS TO SUSTAIN THE PROTEST.
BRETON INDUSTRIES, INC.:
BRETON INDUSTRIES, INC. PROTESTS THE AWARD OF A CONTRACT BY THE DEPARTMENT OF THE ARMY TO AM GENERAL UNDER REQUEST FOR PROPOSALS (RFP) NO. DAAE07-85-R-J452. THE SOLICITATION WAS FOR THE PROCUREMENT OF TWO MAN CREW SOFT TOPS FOR THE HIGH MOBILITY MULTIPURPOSE WHEELED VEHICLE. THE PROTESTER CONTENDS THAT THE ARMY MUST HAVE DISCLOSED BRETON'S OFFERED PRICE TO AM GENERAL.
WE DENY THE PROTEST.
AS ISSUED, THE RFP WAS RESTRICTED TO A SPECIFIED AM GENERAL PART, SINCE THE FIRM WAS THE ONLY KNOWN SOURCE OF SUPPLY. BRETON NEVERTHELESS SUBMITTED A PROPOSAL, OFFERING ITS OWN PART AT A UNIT PRICE OF $172. THE ARMY EVALUATED BRETON'S PART, FOUND IT ACCEPTABLE, AND ISSUED AN AMENDMENT TO THE RFP IDENTIFYING BRETON'S PART AS AN APPROVED ONE. THE AMENDMENT ALSO ADDED A SPECIFICATION AND REQUESTED BEST AND FINAL OFFERS. THE ARMY AWARDED THE CONTRACT TO AM GENERAL BASED ON THE FIRM'S BEST AND FINAL OFFER OF $160.17 PER UNIT, BRETON HAVING MAINTAINED THE PRICE IT OFFERED INITIALLY.
BRETON STATES THAT UNTIL THIS PROCUREMENT AM GENERAL HAD BEEN THE ARMY'S SOLE SOURCE OF SUPPLY FOR THE ITEM, AT A PRICE MORE THAN TWICE BRETON'S OFFER UNDER THE RFP. THEREFORE, THE PROTESTER ARGUES, THE ONLY POSSIBLE EXPLANATION FOR AM GENERAL'S OFFER OF $160.17 PER UNIT IS THAT THE ARMY IMPROPERLY DISCLOSED BRETON'S INITIAL OFFER OF $172 TO AM GENERAL SO THAT AM GENERAL COULD UNDERBID BRETON IN ITS BEST AND FINAL OFFER.
THERE IS NO MERIT TO THE PROTEST. THE ARMY REPORTS THAT ALTHOUGH THE GOVERNMENT'S ESTIMATED COST FOR THE TOP, AS REFLECTED IN AN INTERNAL ARMY DOCUMENT THAT HAD BEEN FURNISHED TO BRETON AFTER THE RFP WAS ISSUED BUT BEFORE BRETON'S PRODUCT WAS APPROVED, WAS $572, THE AGENCY NEVER HAD PURCHASED THE ITEM SEPARATELY BEFORE, SO THAT THERE WAS NO PROCUREMENT HISTORY. MORE IMPORTANTLY, THE RECORD SHOWS THAT AM GENERAL'S INITIAL OFFER WAS LESS THAN $3 PER ITEM MORE THAN BRETON'S; AM GENERAL'S OFFER THUS WAS COMPETITIVE WITH BRETON'S FROM THE OUTSET, AND THE FIRM'S SUBSEQUENT PRICE REDUCTION TO $160.17 DOES NOT ESTABLISH THAT BRETON'S INITIAL OFFER WAS REVEALED. JOSEPH L. DE CLERK AND ASSOCS., INC., B-221723, FEB. 10, 1986, 86-1 CPD PARA. 146.
THE RECORD INCLUDES NO EVIDENCE TO SUPPORT BRETON'S POSITION, AND OUR OFFICE WILL NOT FIND IMPROPER ACTION BY A CONTRACTING AGENCY BASED ONLY ON CONJECTURE OR INFERENCE. BEECH AEROSPACE SERVICES, INC., B-219362, AUG. 20, 1985, 85-2 CPD PARA. 203. THE PROTEST IS DENIED.