B-161622, AUG. 7, 1967

B-161622: Aug 7, 1967

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WHERE AFTER TWO-STEP INVITATION WAS CANCELLED DUE TO LACK OF EVALUATION CRITERIA AND INCONSISTENCIES PROCUREMENT WAS ADVERTISED UNDER CLARIFIED SPECIFCATIONS. BIDDER WHOSE BID SENT REGISTERED MAIL WAS REJECTED BECUASE IT WAS NOT RECIEVED IN TIME PROTESTS ACTION. SINCE BID FAILED TO REACH DESIGNATED OFFICE IN TIME BECAUSE OF LATE MAILING IT WAS PROPERLY REJECTED. CONTENTION THAT SECOND PROCUREMENT SHOULD HAVE BEEN A TWO-STEP PROCUREMENT MUST ALSO BE REJECTED. A TWO STEP PROCUREMENT WOULD NOT BE APPROPRIATE WHERE SPECIFICATIONS AS CLARIFIED WERE ADEQUATE FOR FORMAL ADVERTISING. IN THIS CASE THE SPECIFICATIONS WERE ESSENTIALLY PERFORMANCE TYPE SPECIFICATIONS. CONKLIN INSTRUMENT CORP.: REFERENCE IS MADE TO YOUR LETTER OF MAY 23.

B-161622, AUG. 7, 1967

BIDS - TWO-STEP PROCUREMENTS DECISION TO CONKLIN INSTRUMENT CORP. PROTESTING ACTIONS OF NAVAL SUPPLY CENTER, NORFOLK, VA. FOR REJECTION OF LATE BID AND FOR FAILURE TO USE TWO STEP PROCUREMENT FOR PROCUREMENT OF EVENT RECORDERS AND DESIGN AND DEVELOPMENT DRAWINGS. WHERE AFTER TWO-STEP INVITATION WAS CANCELLED DUE TO LACK OF EVALUATION CRITERIA AND INCONSISTENCIES PROCUREMENT WAS ADVERTISED UNDER CLARIFIED SPECIFCATIONS, BIDDER WHOSE BID SENT REGISTERED MAIL WAS REJECTED BECUASE IT WAS NOT RECIEVED IN TIME PROTESTS ACTION. SINCE BID FAILED TO REACH DESIGNATED OFFICE IN TIME BECAUSE OF LATE MAILING IT WAS PROPERLY REJECTED. CONTENTION THAT SECOND PROCUREMENT SHOULD HAVE BEEN A TWO-STEP PROCUREMENT MUST ALSO BE REJECTED. A TWO STEP PROCUREMENT WOULD NOT BE APPROPRIATE WHERE SPECIFICATIONS AS CLARIFIED WERE ADEQUATE FOR FORMAL ADVERTISING. IN THIS CASE THE SPECIFICATIONS WERE ESSENTIALLY PERFORMANCE TYPE SPECIFICATIONS.

TO MR. CHARLES E. CONKLIN, PRESIDENT, CONKLIN INSTRUMENT CORP.:

REFERENCE IS MADE TO YOUR LETTER OF MAY 23, 1967, WITH ENCLOSURES, PROTESTING AGAINST THE ACTIONS TAKEN BY THE NAVAL SUPPLY CENTER, NORFOLK, VIRGINIA, UNDER INVITATION FOR BIDS NO. N00189-67-B-0256 ISSUED ON APRIL 6, 1967.

YOU PROTEST ON THE FOLLOWING BASES:

"1: IF THE ORIGINAL IFB WAS PREDICATED ON THE REQUEST FOR TECHNICAL PROPOSALS, THE SAME PROCEDURE SHOULD HAVE FOLLOWED FOR ANY SUBSEQUENT IFB.

"2: THIS CONTRACTOR IS UNAWARE OF ANY LEGAL REASON WHY THE GOVERNMENT SHOULD NOT BE HELD RESPONSIBLE FOR ITS FAILURE TO CLARIFY THE ITEMS REQUESTED IN THE ORIGINAL TECHNICAL PROPOSAL AND SUBSEQUENT RESPONSE TO IFB N00189 67 B 0079. THE GOVERNMENT SHOULD BE FORCED TO NEGOTIATE ANY INCREASE IN COST RESULTING FROM ITS FAILURE TO CLARIFY. IF A CONTRACTOR ERRS IN HIS JUDGMENT, THE GOVERNMENT STILL HOLDS THE CONTRACTOR RESPONSIBLE FOR FULFILLMENT.

"3: THIS CONTRACTOR WAS THE ONLY CONTRACTOR TO SUBMIT AN ORIGINAL PRICE AND THIS PRICE BECAME PUBLIC INFORMATION AT THE ORIGINAL BID OPENING. THIS PRICE COULD BE USED AS A REFERENCE BY ANY SUBSEQUENT CONTRACTORS SUBMITTING PRICES TO THE SECONDARY IFB.

"4: THE GOVERNMENT DOES NOT HAVE ANY DOCUMENTATION CONCERNING THE PROPOSALS OF COMPETITIVE CONTRACTORS SUBMITTING PRICES TO THE SECOND IFB AND IS THEREFORE UNAWARE OF DESIGN PARAMETERS CONSIDERED BY OTHER RESPONDEES.

"5. THE FAILURE OF THIS CONTRACTOR'S BID TO ARRIVE IN TIME FOR SCHEDULED BID OPENING IS DIRECTLY TRACEABLE TO THE FAILURE OF GOVERNMENT PERSONNEL TO PROVIDE REQUESTED DATA AT A TIME PROMISED BY THEM WHICH WOULD HAVE ALLOWED FOR MAILING. THE GOVERNMENT CLEARLY SHARES RESPONSIBILITY FOR THIS SITUATION.'

YOUR PROTEST ARISES OUT OF A TWO-STEP FORMALLY ADVERTISED PROCUREMENT FOR EVENT RECORDERS (ENGINEERING MODELS) AND DESIGN AND DEVELOPMENT DRAWINGS. THE FIRST STEP INVITATION (NO. N00189-67-R 0003) WAS ISSUED PURSUANT TO ASPR 2-503.1 ON JULY 29, 1966, AND FOUR TECHNICAL PROPOSALS WERE RECEIVED ON SEPTEMBER 9, 1966. THREE OF THESE TECHNICAL PROPOSALS WERE DETERMINED TO BE ACCEPTABLE AFTER EVALUATION BY THE REQUIRING ACTIVITY (NAVAL WEAPONS STATION, YORKTOWN). THEREAFTER, ON OCTOBER 3, 1963, SECOND-STEP INVITATION FOR BIDS NO. N00189-67-B-0079 WAS ISSUED TO YOUR COMPANY, CONCEPTS, INC., AND LEACH CORP. THE INVITATION WAS AMENDED ON OCTOBER 17, 1966, TO CLARIFY SECTION 2.5.1 OF THE SPECIFICATIONS AND TO EXTEND THE OPENING DATE TO OCTOBER 24, 1966. AT YOUR REQUEST, THE OPENING DATE WAS AGAIN EXTENDED TO OCTOBER 31, 1966. HOWEVER, AFTER OPENING THE TWO BIDS RECEIVED, IT WAS DETERMINED THAT THE BID OF NAVIGATE INC. WAS NONRESPONSIVE SINCE IT HAD NOT PARTICIPATED UNDER THE FIRST STEP. ALSO, IT APPEARED THAT YOUR BID DEVIATED FROM THE DELIVERY REQUIREMENTS OF THE INVITATION RESPECTING THE FIRST ARTICLE. THE PROCUREMENT AGENCY ADVISED WITH RESPECT TO THE RESPONSIVENESS OF YOUR BID THAT IT NOT ONLY QUESTIONED THE LACK OF A ,MEETING OF MINDS" ON THE DELIVERY VARIATION BUT ALSO EXTENSIVELY QUESTIONED THE LACK OF EVALUATION CRITERIA IN STEP ONE AND OTHER INCONSISTENCIES IN THE TECHNICAL SPECIFICATION TO THE EXTENT THAT IT WAS DOUBTFUL WHETHER AN UNDERSTANDING HAD BEEN REACHED BETWEEN EACH OF THE POSSIBLE SOURCES OF SUPPLY AND THE GOVERNMENT.

THEREFORE, ON MARCH 22, 1967, THE INVITATION WAS CANCELLED DUE TO THE INADEQUACY OF THE SPECIFICATIONS AND BIDDERS WERE NOTIFIED OF SUCH ACTION AND THAT THEY WOULD BE GIVEN AN OPPORTUNITY TO BID ON THE READVERTISEMENT.

INVITATION NO. N00189-67-B-0256 WAS ISSUED ON APRIL 7, 1967, COVERING THE REQUIREMENT, UNDER CLARIFIED SPECIFICATIONS AND UNDER THE USUAL PROCEDURES GOVERNING FORMAL COMPETITIVE PROCUREMENT. BIDDERS WERE ADVISED THEREIN THAT THE OPENING DATE WAS FIXED AT 1:30 P.M., MAY 10, 1967. ON MAY 4, YOU REQUESTED AN EXTENSION OF THE OPENING DATE, BUT SINCE THE EQUIPMENT WAS URGENTLY NEEDED, YOUR REQUEST WAS DENIED ON MAY 8, 1967.

THREE BIDS WERE RECEIVED AND OPENED AS SCHEDULED ON MAY 10. HOWEVER, YOUR BID WAS RECEIVED IN THE PROCUREMENT OFFICE VIA REGISTERED MAIL AT 10 P.M., ON MAY 10. AT THE REQUEST OF THE PROCUREMENT OFFICE, YOU FURNISHED A REGISTERED MAIL RECEIPT BEARING AN OFFICIAL DATE STAMP OF MAY 9, 1967, ONLY, AND A LETTER FROM THE POUGHKEEPSIE, NEW YORK POST OFFICE, ADVISING THAT THE ,ARTICLE WAS MAILED MAY 9, 1967 AT APPROXIMATELY 3:00 P.M. AND DISPATCHED AT 18:10 HOURS VIA N.Y. AND CHIC. TRAIN 90.' THE NORFOLK POST OFFICE HAS ADVISED THE PROCUREMENT OFFICE THAT A BID MAILED FROM POUGHKEEPSIE AT 3:00 P.M. ON MAY 9 COULD NOT HAVE ARRIVED IN NORFOLK IN TIME FOR A BID OPENING SCHEDULED AT 1:30 P.M., MAY 10, 1967. IT WAS THEREFORE DETERMINED THAT YOU HAD SUBMITTED AN UNACCEPTABLE LATE BID WHICH COULD NOT BE CONSIDERED FOR AWARD.

UNDER THE TERMS OF THE INVITATION, BIDS WERE TO BE RECEIVED IN THE ISSUING OFFICE, AT 1:30 .M., MAY 10, 1967, AT WHICH TIME THERE WOULD BE A PUBLIC BID OPENING. ARTICLE 6 OF THE INVITATION BIDDING INSTRUCTIONS READS IN PART AS FOLLOWS:

"/A) BIDS * * * RECEIVED AT THE OFFICE DESIGNATED IN THE INVITATION FOR BIDS AFTER THE EXACT TIME SET FOR OPENING OF BIDS WILL NOT BE CONSIDERED UNLESS: (1) THEY ARE RECEIVED BEFORE AWARD IS MADE; AND EITHER (2) THEY ARE SENT BY REGISTERED MAIL, OR BY CERTIFIED MAIL FOR WHICH AN OFFICIAL DATED POST OFFICE STAMP (POSTMARK) ON THE ORIGINAL RECEIPT FOR CERTIFIED MAIL HAS BEEN OBTAINED, * * * AND IT IS DETERMINED BY THE GOVERNMENT THAT THE LATE RECEIPT WAS DUE SOLELY TO DELAY IN THE MAILS, * * * FOR WHICH THE BIDDER WAS NOT RESPONSIBLE * * *.

"/C) THE TIME OF MAILING OF LATE BIDS SUBMITTED BY REGISTERED OR CERTIFIED MAIL SHALL BE DEEMED TO BE THE LAST MINUTE OF THE DATE SHOWN IN THE POSTMARK ON THE REGISTERED MAIL RECEIPT OR REGISTERED MAIL WRAPPER OR ON THE RECEIPT FOR CERTIFIED MAIL UNLESS THE BIDDER FURNISHES EVIDENCE FROM THE POST OFFICE STATION OF MAILING WHICH ESTABLISHES AN EARLIER TIME. * * *"

THE EVIDENCE OF RECORD ESTABLISHES THAT THE LATE RECEIPT OF YOUR BID WAS NOT DUE TO DELAY IN THE MAILS, BUT RATHER WAS ATTRIBUTABLE TO LATE MAILING. UNDER THE CIRCUMSTANCES, AND SINCE IT WAS YOUR RESPONSIBILITY TO MAIL YOUR BID IN SUFFICIENT TIME TO REACH THE DESIGNATED OFFICE BEFORE THE BID OPENING TIME, YOUR LATE BID WAS PROPERLY REJECTED. SEE 46 COMP. GEN. 85, 89.

YOU FURTHER CONTEND THAT IF THE ORIGINAL INVITATION WAS PREDICATED ON A REQUEST FOR TECHNICAL PROPOSALS (TWO-STEP FORMAL ADVERTISING), THE SAME PROCEDURE SHOULD HAVE BEEN FOLLOWED IN THE SUBSEQUENT PROCUREMENT. ON THE BASIS OF THE RECORD, TWO-STEP PROCUREMENT WOULD HAVE BEEN INAPPROPRIATE SINCE THE SPECIFICATIONS AS CLARIFIED WERE ADEQUATE FOR FORMAL ADVERTISING. UNDER ASPR 2-502, WHICH PRESCRIBES THE CONDITIONS FOR THE USE OF TWO-STEP ADVERTISING, SPECIFICATIONS OR PURCHASE DESCRIPTIONS MUST BE SO INDEFINITE OR INCOMPLETE AS TO REQUIRE THE ISSUANCE OF A FIRST STEP FOR TECHNICAL PROPOSALS AS A VEHICLE FOR DISCUSSION, CLARIFICATION AND SUBSEQUENT ISSUANCE OF AN INVITATION WHICH EMBODIES THE ACCEPTED PROPOSAL AS A PART OF THE GOVERNMENT'S SPECIFICATIONS. IN THIS REGARD, THE CONTRACTING OFFICER HAS ADVISED:

"IT IS THE OPINION OF THE CONTRACTING OFFICER THAT THE AREAS OF AMBIGUITY IN THE SPECIFICATIONS OF THE ORIGINAL REQUEST FOR TECHNICAL PROPOSALS SHOULD HAVE BEEN CLARIFIED BY THE GOVERNMENT DURING THE EVALUATION PERIOD. THIS CLARIFICATION WAS NOT DONE AND CONKLIN INSTRUMENT CORP., THEN PROCEEDED TO SUBMIT A RESPONSE TO THE SECOND STEP OF THE TWO STEP ADVERTISEMENT KNOWING THAT AMBIGUITIES IN THE SPECIFICATION EXISTED. ATTEMPT WAS APPARENTLY MADE ON THE PART OF THE COMPANY TO AGAIN POINT OUT THE AMBIGUITIES DURING THE SECOND STEP. IT APPEARS RATHER OBVIOUS THAT THE CONKLIN INSTRUMENT CORP., INTENDED TO AVAIL ITSELF OF THE OPPORTUNITY TO NEGOTIATE A CHANGE ORDER FOR INCREASED COSTS HAD IT BEEN SUCCESSFUL IN RECEIVING THE AWARD.

"BASED ON INFORMATION PROVIDED BY THE REQUIRING ACTIVITY, THE SPECIFICATIONS ARE CONSIDERED ADEQUATE FOR FORMAL ADVERTISEMENT PURPOSES. THE SPECIFICATIONS ARE ESSENTIALLY PERFORMANCE TYPE SPECIFICATIONS THEREFORE DESIGN PARAMETERS ARE THE RESPONSIBILITY OF THE SUCCESSFUL CONTRACTOR.'

WE BELIEVE THAT THE FOREGOING ADEQUATELY SUBSTANTIATES THE PROCUREMENT ACTIONS TAKEN. THE FACT THAT YOUR BID PRICE WAS DISCLOSED UNDER THE SECOND STEP CONSTITUTES NO BASIS TO QUESTION THE PROCEDURES UTILIZED. PRICE DISCLOSURE IS NECESSARY TO COMPETITIVE PROCUREMENT AND IS REQUIRED AT A PUBLIC BID OPENING. SEE ASPR 2-402.1 AND 2-403.

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