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B-186401, AUGUST 26, 1976

B-186401 Aug 26, 1976
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REJECTION OF LOW OFFER UNDER RFP WAS IMPROPER WITHOUT CONDUCTING DISCUSSIONS WITH OFFEROR WHO SUBMITTED OFFER ON INTERCHANGEABLE BASIS ("IF NOT LOW INTERCHANGE LOT 206 WITH 204") AND RFP CONTAINED NO PROHIBITION AGAINST SUCH PRICING. NO CORRECTIVE ACTION IS POSSIBLE BUT GAO AGREES WITH RECOMMENDATION OF PROCURING AGENCY THAT FUTURE SOLICITATIONS CONTAIN INTERCHANGEABLE PRICE PROHIBITION IF FOUND TO BE IN GOVERNMENT'S BEST INTEREST. THE RFP WAS FOR DIFFERING QUANTITIES OF BEEF FOR VARIOUS INSTALLATIONS AROUND THE COUNTRY. SUPREME SUBMITTED THE FOLLOWING OFFER IN RESPONSE TO THE RFP FOR THE LOTS UNDER PROTEST: LOT 201 GROUND $0.8389 202 GROUND 0.8486 203 GROUND 0.8456 204 PATTIES 0.8656 205 PATTIES 0.8785 206 PATTIES 0.8556 IF NOT LOW INTERCHANGE LOT 206 WITH 204 IF NOT LOW INTERCHANGE 201 WITH 202 SUPREME'S OFFER FOR LOT 206 WAS NOT LOW AND AWARD WAS MADE TO ANOTHER FIRM.

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B-186401, AUGUST 26, 1976

REJECTION OF LOW OFFER UNDER RFP WAS IMPROPER WITHOUT CONDUCTING DISCUSSIONS WITH OFFEROR WHO SUBMITTED OFFER ON INTERCHANGEABLE BASIS ("IF NOT LOW INTERCHANGE LOT 206 WITH 204") AND RFP CONTAINED NO PROHIBITION AGAINST SUCH PRICING. HOWEVER, AS CONTRACT HAS BEEN FULLY PERFORMED, NO CORRECTIVE ACTION IS POSSIBLE BUT GAO AGREES WITH RECOMMENDATION OF PROCURING AGENCY THAT FUTURE SOLICITATIONS CONTAIN INTERCHANGEABLE PRICE PROHIBITION IF FOUND TO BE IN GOVERNMENT'S BEST INTEREST.

SUPREME BEEF PROCESSORS, INC.:

SUPREME BEEF PROCESSORS, INC. (SUPREME), HAS PROTESTED THE REJECTION OF ITS OFFER UNDER REQUEST FOR PROPOSALS (RFP) NO. DSA13H-76-R-1445, ISSUED BY THE DEFENSE PERSONNEL SUPPORT CENTER, PHILADELPHIA, PENNSYLVANIA.

THE RFP WAS FOR DIFFERING QUANTITIES OF BEEF FOR VARIOUS INSTALLATIONS AROUND THE COUNTRY. SUPREME SUBMITTED THE FOLLOWING OFFER IN RESPONSE TO THE RFP FOR THE LOTS UNDER PROTEST:

LOT

201 GROUND $0.8389 202 GROUND 0.8486 203 GROUND 0.8456 204 PATTIES 0.8656 205 PATTIES 0.8785 206 PATTIES 0.8556

IF NOT LOW INTERCHANGE LOT 206 WITH 204

IF NOT LOW INTERCHANGE 201 WITH 202

SUPREME'S OFFER FOR LOT 206 WAS NOT LOW AND AWARD WAS MADE TO ANOTHER FIRM. LOT 204 WAS AWARDED TO ANOTHER BIDDER AND SUPREME CONTENDS THAT ITS OFFER ON LOT 206 ($0.8556) SHOULD HAVE BEEN CONSIDERED FOR LOT 204 WHERE IT WOULD HAVE BEEN LOW AND AWARD MADE TO SUPREME.

HOWEVER, THE CONTRACTING OFFICER DETERMINED THAT SUPREME'S OFFER DIRECTING THAT THE LOT PRICES BE INTERCHANGED CONSTITUTED A REVISED OFFER WHICH COULD LEAD TO CHAOS IN THE EVALUATION PROCESS IF ALL OFFERORS SUBMITTED OFFERS IN A SIMILAR MANNER.

IN ITS REPORT TO OUR OFFICE ON THE PROTEST, COUNSEL FOR THE DEFENSE SUPPLY AGENCY MADE THE FOLLOWING COMMENTS REGARDING THE PROCUREMENT:

"WE NOTE THAT THIS WAS NOT A FORMALLY ADVERTISED PROCUREMENT. FURTHER, EVEN THOUGH AWARD COULD HAVE BEEN MADE WITHOUT DISCUSSION (ASPR 3- 805.1(A)(IV)), THE CONTRACTING OFFICER DID NOT HAVE A PROPER BASIS FOR DETERMINING THAT SUPREME'S OFFER WAS NOT THE MOST FAVORABLE INITIAL PROPOSAL RECEIVED. THEREFORE, WE CANNOT CONCUR WITH THE CONTRACTING OFFICER'S DETERMINATION THAT REJECTION OF SUPREME'S OFFER WAS PROPER. HOWEVER, THE CONTRACT WHICH RESULTED FROM THE SUBJECT SOLICITATION FOR FABRICATED STEAKS AND ROASTS HAS BEEN FULLY PERFORMED.

"WE HAVE ADVISED DPSC THAT IF IT IS DETERMINED THAT THE GOVERNMENT'S INTEREST IS BEST SERVED BY A PROHIBITION AGAINST PRICE INTERCHANGING, IT WOULD BE APPROPRIATE TO INCLUDE SUCH A RESTRICTION IN FUTURE SOLICITATIONS."

WE AGREE WITH THE ABOVE INTERPRETATION AND FIND THAT SUPREME'S OFFER WAS IMPROPERLY REJECTED FOR CONSIDERATION OF AWARD FOR LOT 204 WITHOUT CONDUCTING DISCUSSIONS. HOWEVER, AS THE CONTRACT HAS BEEN PERFORMED BY FOSTER BROTHERS, NO CORRECTIVE ACTION IS POSSIBLE AT THIS TIME.

FURTHER, WE CONCUR WITH THE RECOMMENDATION THAT FUTURE PROCUREMENTS CONTAIN A SPECIFIC PROHIBITION AGAINST INTERCHANGE OF PRICES, IF IT IS DEEMED TO BE IN THE GOVERNMENT'S BEST INTEREST TO PROHIBIT SUCH OFFERS.

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