B-176683(2), DEC 21, 1972
Highlights
SECRETARY: THIS IS TO RECOMMEND THAT CONSIDERATION BE GIVEN TO AMENDING THE PROVISIONS OF THE ARMED SERVICES PROCUREMENT REGULATION CONCERNING THE METHOD OF CONDUCTING NEGOTIATIONS. ENCLOSED IS A COPY OF OUR DECISION OF TODAY. IN THIS PROCUREMENT ORAL NEGOTIATIONS WERE CONDUCTED. IT WAS ALLEGED BY THE PROTESTER THAT HIS FIRM HAD NOT BEEN ADVISED THAT NEGOTIATIONS HAD BEEN OPENED OR THAT A CUT-OFF DATE HAD BEEN ESTABLISHED FOR THE CLOSE OF NEGOTIATIONS. ALTHOUGH THE PROTESTER MAY HAVE MISUNDERSTOOD THE CONTRACTING OFFICER. ON OTHER OCCASIONS WHEN ORAL NEGOTIATIONS HAVE BEEN CONDUCTED WE HAVE OBSERVED THAT SIMILAR MISUNDERSTANDINGS ON THE PART OF OFFERORS APPEAR TO HAVE RESULTED. WE HAVE NOT SUSTAINED PROTESTS BASED ON THE CONTRACTING OFFICER'S FAILURE TO PROVIDE WRITTEN CONFIRMATION OF REQUEST FOR BEST AND FINAL OFFERS AND THE ESTABLISHMENT OF CUT-OFF DATES SINCE THE ASPR DOES NOT SPECIFY THE MANNER BY WHICH OFFERORS ARE TO BE NOTIFIED OF THE CLOSING OF NEGOTIATIONS AND WE HAVE CONSIDERED VERBAL NOTIFICATION TO BE SUFFICIENT.
B-176683(2), DEC 21, 1972
PROCUREMENT PROCEDURES - NEGOTIATIONS - GAO RECOMMENDATIONS LETTER CONCERNING THE DECISION OF TODAY, B-176683, DENYING THE PROTEST OF UNITED TECHNOLOGY, INC. IN ORDER TO AVOID MISUNDERSTANDING AND CONFUSION IN THE NEGOTIATING PROCESS, CONSIDERATION SHOULD BE GIVEN TO AMENDING THE ASPR SO AS TO REQUIRE THAT REQUESTS FOR FINAL OFFERS AND THE ESTABLISHMENT OF CUT-OFF DATES BE CONFIRMED IN WRITING, WHENEVER FEASIBLE.
TO MR. SECRETARY:
THIS IS TO RECOMMEND THAT CONSIDERATION BE GIVEN TO AMENDING THE PROVISIONS OF THE ARMED SERVICES PROCUREMENT REGULATION CONCERNING THE METHOD OF CONDUCTING NEGOTIATIONS.
ENCLOSED IS A COPY OF OUR DECISION OF TODAY, B-176683, DENYING THE PROTEST OF UNITED TECHNOLOGY, INCORPORATED. IN THIS PROCUREMENT ORAL NEGOTIATIONS WERE CONDUCTED. HOWEVER, IT WAS ALLEGED BY THE PROTESTER THAT HIS FIRM HAD NOT BEEN ADVISED THAT NEGOTIATIONS HAD BEEN OPENED OR THAT A CUT-OFF DATE HAD BEEN ESTABLISHED FOR THE CLOSE OF NEGOTIATIONS. THE PROTESTER CONTENDED THAT THE CONTRACTING OFFICER MERELY REQUESTED THAT THE PROTESTER CONFIRM ITS SUBMITTED OFFER. ALTHOUGH THE PROTESTER MAY HAVE MISUNDERSTOOD THE CONTRACTING OFFICER, THE RECORD DID NOT SUPPORT A CONCLUSION THAT THE CONTRACTING OFFICER HAD NOT PROPERLY ADVISED THE PROTESTER OF THE NEGOTIATIONS.
ON OTHER OCCASIONS WHEN ORAL NEGOTIATIONS HAVE BEEN CONDUCTED WE HAVE OBSERVED THAT SIMILAR MISUNDERSTANDINGS ON THE PART OF OFFERORS APPEAR TO HAVE RESULTED. SEE, FOR EXAMPLE, B-170227, OCTOBER 30, 1970; B 168671, MARCH 2, 1970, COPIES ENCLOSED. WE HAVE NOT SUSTAINED PROTESTS BASED ON THE CONTRACTING OFFICER'S FAILURE TO PROVIDE WRITTEN CONFIRMATION OF REQUEST FOR BEST AND FINAL OFFERS AND THE ESTABLISHMENT OF CUT-OFF DATES SINCE THE ASPR DOES NOT SPECIFY THE MANNER BY WHICH OFFERORS ARE TO BE NOTIFIED OF THE CLOSING OF NEGOTIATIONS AND WE HAVE CONSIDERED VERBAL NOTIFICATION TO BE SUFFICIENT.
HOWEVER, AS NOTED IN THE INSTANT CASE, WE HAVE COME TO THE CONCLUSION THAT IN ORDER TO AVOID MISUNDERSTANDING AND CONFUSION IN THE NEGOTIATING PROCESS, CONSIDERATION SHOULD BE GIVEN TO AMENDING THE ASPR SO AS TO REQUIRE THAT REQUESTS FOR FINAL OFFERS AND THE ESTABLISHMENT OF CUT-OFF DATES BE CONFIRMED IN WRITING, WHENEVER FEASIBLE.
OUR OFFICE WOULD APPRECIATE BEING ADVISED AS TO ANY ACTION TAKEN WITH RESPECT TO THE MATTER.