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B-196755, APR 10, 1980

B-196755 Apr 10, 1980
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DIGEST: ALLEGATIONS OF IMPROPRIETY IN RFP WHICH WAS APPARENT PRIOR TO CLOSING DATE FOR RECEIPT OF INITIAL PROPOSALS. ARE UNTIMELY UNDER SECTION 20.2(B)(1) OF GAO'S BID PROTEST PROCEDURES AND THUS ARE DISMISSED. SINCE PROTEST WAS NOT FILED UNTIL AFTER BEST AND FINAL OFFERS WERE DUE. THE NAVY EFFECTIVELY CREATED A SOLE-SOURCE PROCUREMENT FROM THE ONLY PRIOR PRODUCER IN THE COMPETITION (WHO PRESUMABLY WOULD HAVE THE FIRST ARTICLE REQIREMENT WAIVED IF AWARDED THE CONTRACT). COMTECH ALSO PROTESTS THAT THE RFP WAS AMBIGUOUS WITH RESPECT TO WHETHER THE GOVERNMENT OR THE CONTRACTOR WOULD BE RESPONSIBLE FOR THE COST AND DELIVERY SCHEDULE IMPACT OF REVISING CERTAIN GOVERNMENT-FURNISHED DRAWINGS. THE RECORD DEVELOPED IN RESPONSE TO THE PROTEST AS SET OUT BELOW DISCLOSES THAT THE PROTEST IS UNTIMELY UNDER OUR BID PROTEST PROCEDURES.

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B-196755, APR 10, 1980

DIGEST: ALLEGATIONS OF IMPROPRIETY IN RFP WHICH WAS APPARENT PRIOR TO CLOSING DATE FOR RECEIPT OF INITIAL PROPOSALS, AND OF IMPROPRIETY IN RFP AMENDMENT, ARE UNTIMELY UNDER SECTION 20.2(B)(1) OF GAO'S BID PROTEST PROCEDURES AND THUS ARE DISMISSED, SINCE PROTEST WAS NOT FILED UNTIL AFTER BEST AND FINAL OFFERS WERE DUE.

COMTECH LABORATORIES:

COMTECH LABORATORIES (COMTECH) PROTESTS CERTAIN MATTERS WITH RESPECT TO REQUEST FOR PROPOSALS (RFP) NO. N00039-79-R-0028(Q) ISSUED BY THE DEPARTMENT OF THE NAVY FOR 42 AN/TRC-97A RADIO SETS FOR THE AIR FORCE. COMTECH CONTENDS THAT BY REQUIRING FIRST-TIME PRODUCERS TO SUBMIT A FIRST ARTICLE TEST REPORT FOR APPROVAL ONLY 1 MONTH BEFORE THE SCHEDULED DELIVERY OF THE ENTIRE 42 PRODUCTION UNITS, WHILE RESTRICTING PROGRESS PAYMENTS TO 60 PERCENT OF THE CONTRACT PRICE PENDING FIRST ARTICLE APPROVAL, THE NAVY EFFECTIVELY CREATED A SOLE-SOURCE PROCUREMENT FROM THE ONLY PRIOR PRODUCER IN THE COMPETITION (WHO PRESUMABLY WOULD HAVE THE FIRST ARTICLE REQIREMENT WAIVED IF AWARDED THE CONTRACT). COMTECH ALSO PROTESTS THAT THE RFP WAS AMBIGUOUS WITH RESPECT TO WHETHER THE GOVERNMENT OR THE CONTRACTOR WOULD BE RESPONSIBLE FOR THE COST AND DELIVERY SCHEDULE IMPACT OF REVISING CERTAIN GOVERNMENT-FURNISHED DRAWINGS.

THE RECORD DEVELOPED IN RESPONSE TO THE PROTEST AS SET OUT BELOW DISCLOSES THAT THE PROTEST IS UNTIMELY UNDER OUR BID PROTEST PROCEDURES, 4 C.F.R. PART 20 (1979) (PROCEDURES). THEREFORE, IT WILL NOT BE CONSIDERED ON THE MERITS.

THE RECORD SHOWS THAT THE EVIDENTLY COMPLEX RADIO SETS, WHICH ARE USED TO CONTROL COMMUNICATIONS LINKS IN THE TACTICAL COMMAND, WERE IN "CRITICALLY" SHORT SUPPLY WHEN THE PROCUREMENT WAS INITIATED. ALTHOUGH IT WAS ORIGINALLY PLANNED TO SOLICIT ONLY PRIOR PRODUCERS, THE NAVY DECIDED TO SYNOPSIZE THE REQUIREMENT IN THE COMMERCE BUSINESS DAILY AFTER RECEIVING INDICATIONS OF INTEREST FROM A NUMBER OF OTHER FIRMS. THE RFP WAS ISSUED TO THREE COMPANIES THAT RESPONDED TO THE MARCH 20, 1979, SYNOPSIS, WHICH ESTABLISHED APRIL 16 AS THE CLOSING DATE FOR THE RECEIPT OF INITIAL PROPOSALS.

PRIOR TO THE SUBMISSION OF INITIAL PROPOSALS, FOUR AMENDMENTS WERE ISSUED, ESSENTIALLY TO FURNISH FIRST-TIME PRODUCERS REQUESTED INFORMATION RELEVANT TO THE TECHNICAL ASPECTS OF THE AN/TRC-97A RADIO SET, AND/OR TO ALLOW THEM FURTHER TIME AS REQUESTED TO STUDY THE RFP AND PREPARE PROPOSALS. AMENDMENT 0001 EXTENDED THE PROPOSAL DUE DATE TO APRIL 30; AMENDMENT 0002 EXTENDED IT TO MAY 14, INTER ALIA; AMENDMENT 0003 REVISED CERTAIN SPECIFICATIONS; AND AMENDMENT 0004 EXTENDED THE DATE FOR INITIAL PROPOSAL SUBMISSION TO MAY 31.

AFTER NEGOTIATIONS WERE CONDUCTED, BY LETTER DATED OCTOBER 30 THE NAVY REQUESTED THAT BEST AND FINAL OFFERS BE SUBMITTED BY NOON ON NOVEMBER 13. COMTECH SUBMITTED ITS BEST AND FINAL OFFER BEFORE THAT TIME, BUT FILED ITS PROTEST IN OUR OFFICE SHORTLY THEREAFTER. SUBSEQUENTLY, THE OFFERS WERE EVALUATED AND SCORED IN ACCORDANCE WITH THE RFP'S STATED EVALUATION METHOD, AND A CONTRACT WAS AWARDED TO AYDIN SYSTEMS DIVISION (AYDIN), THE ONLY PRIOR PRODUCER OF AN/TRC-97A RADIO SETS OF THE THREE OFFERORS, PURSUANT TO THE AUTHORITY IN DEFENSE ACQUISITION REGULATION SECS. 3-509 AND 2-407.8(B)(3) (1976 ED.) TO AWARD A CONTRACT WHILE A PROTEST IS PENDING.

THE FIRST ARTICLE, DELIVERY, AND PROGRESS PAYMENTS PROVISIONS

THE RECORD INDICATES THAT FIRST ARTICLE APPROVAL WAS DEEMED NECESSARY BECAUSE THE COMPLEXITY OF THE ITEMS HAD CAUSED DESIGN AND TEST PROBLEMS IN THE ORIGINAL DEVELOPMENT/PRODUCTION CONTRACT, AND TEST AND ALIGNMENT PROBLEMS UNDER THE FIRST COMPETITIVE PRODUCTION CONTRACT (WITH AYDIN). THE RECORD FURTHER SHOWS THAT IN THE NAVY'S VIEW THE URGENCY OF THE ACQUISITION NECESSITATED THAT THE PRODUCTION UNITS BE MANUFACTURED ESSENTIALLY CONCURRENTLY WITH THE FIRST ARTICLE. THUS, THE INITIAL RFP REQUIRED THAT A FIRST ARTICLE TEST REPORT BE DELIVERED WITHIN 450 DAYS (APPROXIMATELY 15 MONTHS) AFTER CONTRACT AWARD, AND THAT TWO PRODUCTION UNITS BE DELIVERED THE FOLLOWING MONTH AND FOUR EACH MONTH THEREAFTER UNTIL ALL 42 UNITS, INCLUDING THE FIRST ARTICLE, WERE DELIVERED. PROGRESS PAYMENTS WERE TO BE MADE AGAINST FIRST ARTICLE COSTS ONLY, AND WERE TO BE LIMITED TO 10 PERCENT OF THE TOTAL CONTRACT PRICE.

ON JULY 20, AFTER A REVIEW OF THE PROGRESS OF THE PROCUREMENT AND THE URGENCY OF THE AIR FORCE'S NEED, AMENDMENT 0005 TO THE RFP WAS ISSUED, MODIFYING THE DELIVERY SCHEDULE TO REQUIRE THAT ALL 42 UNITS BE DELIVERED BY MARCH 31, 1981.

THE OCTOBER 30 REQUEST FOR BEST AND FINAL OFFERS INCLUDED A SAMPLE

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