B-176683(1), DEC 21, 1972

B-176683(1), DEC 21, 1972

BID PROTEST - NOTIFICATION OF NEGOTIATION AND CLOSING - LATE REVISION DENIAL OF PROTEST BY UNITED TECHNOLOGY, INC., AGAINST THE AWARD OF A CONTRACT TO ANY OTHER FIRM UNDER AN RFQ ISSUED BY ABERDEEN PROVING GROUNDS, MD. THE RECORD HERE DOES NOT AFFORD A BASIS FOR REJECTING THE AGENCY'S POSITION THAT PROTESTANT WAS ADVISED THROUGH THE TELEPHONE CONVERSATION OF JULY 25, 1972, OF THE OPPORTUNITY TO NEGOTIATE AND OF THE DEAD-LINE FOR SUBMISSION OF BEST AND FINAL OFFERS. ACCORDINGLY, IT MUST BE CONCLUDED THAT THE CONTRACTING OFFICER CORRECTLY REFUSED TO CONSIDER ANY FURTHER PRICING REVISIONS SUBMITTED AFTER THE CLOSING DATE.

TO UNITED TECHNOLOGY, INCORPORATED:

THIS IS IN FURTHER REFERENCE TO YOUR TELEGRAM DATED AUGUST 4, 1972, AND SUBSEQUENT CORRESPONDENCE, IN WHICH YOU PROTEST THE AWARD OF A CONTRACT TO ANY OTHER FIRM UNDER REQUEST FOR QUOTATIONS NO. DAAD05-72-Q 1282, ISSUED BY THE DEPARTMENT OF THE ARMY, ABERDEEN PROVING GROUND, FOR AN ADVANCED DEVELOPMENT PROGRAM ENTITLED "ROUGH TERRAIN GROUND HANDLING SYSTEM FOR HELICOPTERS."

THE SOLICITATION WAS RELEASED ON APRIL 24, 1972, AND QUOTATIONS WERE REQUIRED TO BE SUBMITTED ON OR BEFORE THE CLOSE OF BUSINESS MAY 31, 1972.

SEVEN QUOTATIONS WERE RECEIVED BY MAY 31, 1972, FOUR OF WHICH, INCLUDING A PROPOSAL FROM UNITED TECHNOLOGY, INCORPORATED (UTI), WERE FOUND BY THE MEMBERS OF THE SOURCE SELECTION COMMITTEE TO BE WITHIN THE ZONE OF CONSIDERATION (COMPETITIVE RANGE), AND THUS QUALIFIED FOR NEGOTIATIONS.

IT IS REPORTED THAT THE NEGOTIATIONS WERE CONDUCTED BY TELEPHONE ON JULY 25, 1972, WITH EACH OF THE FOUR FIRMS BEING ADVISED TO SUBMIT ITS BEST AND FINAL OFFER NO LATER THAN THE CLOSE OF BUSINESS ON JULY 31, 1972. SUBMISSIONS FROM ALL FOUR FIRMS WERE TIMELY RECEIVED. UTI RESPONDED TO THE TELEPHONIC CONVERSATION WITH A WRITTEN CONFIRMATION DATED JULY 28, 1972, OF ITS ORIGINALLY SUBMITTED PRICE.

ON AUGUST 3, 1972, MR. E. KISIELOWSKI, PRESIDENT OF UTI, VISITED THE PROCUREMENT OFFICE AND SPOKE WITH THE CONTRACT SPECIALIST AND THE CHIEF OF THE RESEARCH AND DEVELOPMENT DIVISION. THE PURPOSE OF THE VISIT ACCORDING TO UTI WAS TO "FIND OUT WHY THE CONTRACT SPECIALIST ASKED FOR CONFIRMATION OF PRICES, AND PARTICULARLY WHEN HE EXPECTED TO HOLD THE NEGOTIATIONS." IT WAS THE GOVERNMENT'S VIEW THAT THE PURPOSE OF THE VISIT WAS TO SUBMIT ANOTHER PROPOSAL FOR CONSIDERATION WHICH WAS CONTAINED IN A LETTER DATED AUGUST 1, 1972, AND HAND CARRIED BY MR. KISIELOWSKI. UTI MAINTAINS THAT THE REVISED PROPOSAL WAS SUBMITTED ONLY AFTER THE CONTRACT SPECIALIST INFORMED MR. KISIELOWSKI THAT THE TELEPHONE CONVERSATION OF JULY 25, 1972, WAS MEANT TO CONSTITUTE THE NEGOTIATIONS. ACCORDING TO THE CONTRACT SPECIALIST, HE EXPLAINED TO MR. KISIELOWSKI THAT SINCE NEGOTIATIONS HAD ALREADY BEEN HELD (BY THE TELEPHONE CONVERSATION OF JULY 25, 1972), AND WERE CLOSED AS OF JULY 31, 1972, ANY SUBSEQUENT SUBMISSION WOULD BE CONSIDERED A LATE MODIFICATION UNDER ASPR 3-506 AND WOULD BE HANDLED ACCORDINGLY. WHEN ASKED BY MR. KISIELOWSKI TO EXPLAIN, THE CONTRACT SPECIALIST REPORTS HE STATED THAT IN THE EVENT UTI WAS BEING CONSIDERED FOR THE AWARD AND THE LATE SUBMISSION WAS ADVANTAGEOUS TO THE GOVERNMENT IT WOULD BE ACCEPTED. MR. KISIELOWSKI WAS FURTHER ADVISED THAT IN THE EVENT ANOTHER FIRM WAS BEING CONSIDERED FOR AWARD, THE LATE SUBMISSION WOULD NOT BE ACCEPTED UNLESS IT WERE A BREAKTHROUGH IN THE STATE OF ART. THE PROTEST BY UTI FOLLOWED.

YOU CONTEND THAT YOU WERE NOT GIVEN AN OPPORTUNITY TO NEGOTIATE PRICE OR OTHER FACTORS; THAT YOU WERE NOT INFORMED OF A SPECIFIED DATE FOR THE CLOSING OF NEGOTIATIONS; AND THAT YOU WERE NOT INFORMED THAT REVISIONS RECEIVED AFTER SUCH DATE WOULD BE TREATED AS A LATE MODIFICATION.

YOU MAINTAIN THAT YOU WERE LED TO BELIEVE THAT THE TELEPHONIC CONVERSATION OF JULY 25, 1972, WAS FOR THE SOLE PURPOSE OF CONFIRMING THAT YOUR QUOTATION WAS WITHOUT ERROR, AND THAT YOU WERE NOT REQUESTED TO SUBMIT YOUR "BEST AND FINAL" OFFER. AS A RESULT, YOU CONTEND THAT YOU WERE NOT AFFORDED AN OPPORTUNITY TO NEGOTIATE OR TO SUBMIT PRICE REVISIONS RESULTING FROM NEGOTIATIONS. IT IS ALSO YOUR POSITION THAT SINCE YOU WERE NOT ADVISED IN ACCORDANCE WITH ASPR 3-805.1(B) THAT ANY RESPONSE RECEIVED AFTER JULY 31, 1972, WOULD BE TREATED AS A LATE OFFER, YOUR REVISED PROPOSAL DATED AUGUST 1, 1972, CANNOT BE TREATED AS SUCH, BUT RATHER, MUST BE HANDLED AS "NORMAL REVISIONS OF PROPOSALS BY SELECTED OFFERORS OCCURRING DURING THE USUAL CONDUCT OF NEGOTIATIONS."

HOWEVER, THE CONTRACT SPECIALIST STATES THAT DURING THE TELEPHONIC CONVERSATION OF JULY 25, 1972, HE ADVISED YOU THAT NEGOTIATIONS WERE BEING CONDUCTED WITH ALL FIRMS WITHIN THE ZONE OF CONSIDERATION; THAT YOU SHOULD REVIEW THE RFQ SCOPE OF WORK AND FULLY ASSURE YOURSELF THAT YOU UNDERSTOOD THE SCOPE OF WORK; AND THAT YOU SHOULD EITHER REVISE OR CONFIRM YOUR QUOTATION ACCORDINGLY. FURTHER, THE CONTRACT SPECIALIST STATES THAT HE INFORMED YOU THAT YOUR BEST AND FINAL OFFER, WHETHER A REVISION OR A CONFIRMATION OF YOUR ORIGINAL QUOTATION WAS TO BE SUBMITTED PRIOR TO THE CLOSE OF BUSINESS ON JULY 31, 1972.

THE METHOD OF TERMINATING NEGOTIATIONS IS PRESCRIBED BY ASPR 3 805.1(B) WHICH PROVIDES IN RELEVANT PART:

"*** WHENEVER NEGOTIATIONS ARE CONDUCTED WITH SEVERAL OFFERORS, WHILE SUCH NEGOTIATIONS MAY BE CONDUCTED SUCCESSIVELY, ALL OFFERORS SELECTED TO PARTICIPATE IN SUCH NEGOTIATIONS (SEE (A) ABOVE) SHALL BE OFFERED AN EQUITABLE OPPORTUNITY TO SUBMIT SUCH PRICE, TECHNICAL, OR OTHER REVISIONS IN THEIR PROPOSALS AS MAY RESULT FROM THE NEGOTIATIONS. ALL SUCH OFFERORS SHALL BE INFORMED OF THE SPECIFIED DATE (AND TIME IF DESIRED) OF THE CLOSING OF NEGOTIATIONS AND THAT ANY REVISIONS TO THEIR PROPOSALS MUST BE SUBMITTED BY THAT DATE. ALL SUCH OFFERORS SHALL BE INFORMED THAT ANY REVISION RECEIVED AFTER SUCH DATE SHALL BE TREATED AS A LATE PROPOSAL IN ACCORDANCE WITH THE 'LATE PROPOSAL' PROVISIONS OF THE REQUEST FOR PROPOSALS. (IN THE EXCEPTIONAL CIRCUMSTANCES WHERE THE SECRETARY CONCERNED AUTHORIZES CONSIDERATION OF SUCH A LATE PROPOSAL, RESOLICITATION SHALL BE LIMITED TO THE SELECTED OFFERORS WITH WHOM NEGOTIATIONS HAVE BEEN CONDUCTED.) IN ADDITION, ALL SUCH OFFERORS SHALL ALSO BE INFORMED THAT AFTER THE SPECIFIED DATE FOR THE CLOSING OF NEGOTIATION NO INFORMATION OTHER THAN NOTICE OF UNACCEPTABILITY OF PROPOSAL, IF APPLICABLE (SEE 3- 508), WILL BE FURNISHED TO ANY OFFEROR UNTIL AWARD HAS BEEN MADE."

THE PROVISION REQUIRES THAT OFFERORS BE ADVISED (1) THAT NEGOTIATIONS ARE BEING CONDUCTED; (2) THAT OFFERORS ARE BEING ASKED FOR THEIR "BEST AND FINAL" OFFER, NOT MERELY TO CONFIRM OR RECONFIRM PRIOR OFFERS; AND (3) THAT ANY REVISION OF A PROPOSAL MUST BE SUBMITTED BY THE DATE SPECIFIED. 48 COMP. GEN. 536, 542 (1969); 50 COMP. GEN. 117, 125 (1970).

AS PREVIOUSLY STATED, THE CONTRACT SPECIALIST MAINTAINS THAT YOU WERE INFORMED THAT NEGOTIATIONS WERE BEING CONDUCTED AND THAT THE CUT-OFF DATE FOR YOUR BEST AND FINAL OFFER WAS JULY 31, 1972. IN THIS CONNECTION, THE ADMINISTRATIVE REPORT POINTS OUT THAT YOUR CONFIRMATION LETTER OF JULY 28 INDICATED AN EXPECTATION THAT THE CONFIRMATION "WILL EXPEDITE THE PROCUREMENT PROCEDURES AND WILL RESULT IN A PROMPT AWARD OF THE PROPOSED CONTRACT," THUS INDICATING, IN THE OPINION OF THE ARMY, THAT YOU UNDERSTOOD THAT NEGOTIATIONS WERE CLOSED. ALTHOUGH YOU HAVE ARGUED TO THE CONTRARY, THE RECORD DOES NOT AFFORD US A PROPER BASIS FOR REJECTING THE GOVERNMENT'S POSITION THAT YOU WERE ADVISED, THROUGH THE TELEPHONE CONVERSATION OF JULY 25, 1972, OF THE OPPORTUNITY TO NEGOTIATE, AND THAT YOU WERE APPRISED THAT JULY 31, 1972, WAS THE DEADLINE FOR SUBMISSION OF YOUR BEST AND FINAL OFFER.

IN VIEW OF THE FOREGOING, WE MUST CONCLUDE THAT THE CONTRACTING OFFICER PROPERLY DECLINED TO CONSIDER ANY FURTHER PRICING REVISIONS SUBMITTED AFTER THE JULY 31 CLOSING DATE. SEE B-170227, OCTOBER 20, 1970. ACCORDINGLY, YOUR PROTEST MUST BE DENIED AND THE PROCURING AGENCY MAY PROCEED WITH AWARD OF THE CONTRACT.

ALTHOUGH WE HAVE FOUND NO BASIS FOR INTERFERING WITH THIS PROCUREMENT, IT IS CLEAR, AS RECOGNIZED BY THE ARMY IN THEIR LEGAL OPINION ATTACHED TO THE ADMINISTRATIVE REPORT, THAT THE GOVERNMENT NEGOTIATOR COULD HAVE MORE EFFECTIVELY DOCUMENTED THE NEGOTIATION PROCESS BY GIVING ALL OFFERORS WRITTEN NOTICE OF THE CUT-OFF DATE FOR SUBMISSION OF BEST AND FINAL OFFERS.

ALTHOUGH THE REGULATIONS DO NOT SPECIFY THE MANNER BY WHICH OFFERORS ARE TO BE NOTIFIED OF THE CLOSING TIME OF NEGOTIATIONS, AND DESPITE THE FACT THAT WE HAVE HELD IN PREVIOUS DECISIONS THAT VERBAL NOTIFICATION TO SUBMIT A FINAL OFFER BY A CERTAIN TIME CONSTITUTES ADEQUATE NOTICE OF THE TIME FOR CLOSING OF NEGOTIATIONS AND JUSTIFIES THE REJECTION OF LATER PRICING REVISIONS (SEE B-167867, JANUARY 20, 1970; B-170227, SUPRA.), WE ARE RECOMMENDING BY LETTER OF TODAY, TO THE SECRETARY OF DEFENSE THAT IN ORDER TO AVOID MISUNDERSTANDING AND CONFUSION IN THE NEGOTIATION PROCESS, CONSIDERATION BE GIVEN TO AMENDING THE ASPR TO PROVIDE THAT WHENEVER FEASIBLE, REQUESTS FOR BEST AND FINAL OFFERS AND THE ESTABLISHMENT OF CUT- OFF DATES SHOULD BE CONFIRMED IN WRITING.