B-167492, SEP 9, 1969

B-167492, SEP 9, 1969

BIDS - NEGOTIATION - DISCUSSION TERMINATION DECISION TO YORK DIVISION, BORG-WARNER CORPORATION, SUSTAINING DECISION OF AUGUST 12, 1969, WITH RESPECT TO FURTHER NEGOTIATIONS UNDER NAVAL SHIP SYSTEMS COMMAND PROCUREMENT.

TO MR. J.W. CHANDLER:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 22, 1969, REQUESTING RECONSIDERATION OF DECISION B-167492 OF AUGUST 12, 1969, WHICH HELD THAT THERE SHOULD BE FURTHER NEGOTIATIONS WITH RESPECT TO REQUEST FOR PROPOSALS N00024-69-R-7463(S), ISSUED BY THE NAVAL SHIP SYSTEMS COMMAND.

THE BASIS FOR THE REQUEST FOR RECONSIDERATION IS THAT YOU CONSIDER THAT OFFERS WERE FORMALLY CLOSED AS OF JUNE 5, 1969; THAT THE NAVY WAS UNDER NO LEGAL OBLIGATION TO DISCLOSE THE DETAILS OF ITS $40,000 EVALUATION FACTOR; AND THAT THERE WAS NOTHING TO PRECLUDE ANY OFFEROR FROM PRESENTING COST DATA AFTER THE ISSUANCE OF THE MAY 27, 1969, REQUEST FOR REVISED PROPOSALS TO SHOW THAT THE NAVY EVALUATION FACTOR WAS EITHER TOO HIGH OR TOO LOW. YOU CONTEND THAT THE NEGOTIATIONS WERE FORMALLY CLOSED AS OF JUNE 5, 1969, BECAUSE OF THE STATEMENT IN THE MAY 27 REQUEST FOR PROPOSALS THAT -

"IN VIEW OF THE FOREGOING CHANGES, YOU ARE INVITED TO SUBMIT A REVISED PRICE PROPOSAL OR TO ADVISE THAT YOUR PREVIOUS PROPOSAL REMAINS UNCHANGED. THE GOVERNMENT MAY AWARD A CONTRACT, BASED ON OFFERS RECEIVED, WITHOUT DISCUSSION OF SUCH OFFERS. ACCORDINGLY, EACH OFFER SHOULD BE SUBMITTED ON THE MOST FAVORABLE TERMS FROM A PRICE AND TECHNICAL STANDPOINT WHICH THE OFFEROR CAN SUBMIT TO THE GOVERNMENT."

AS OBSERVED IN THE AUGUST 12 DECISION, THE MAY 27 LETTER DID NOT COMPLY WITH THE REQUIREMENTS OF ASPR 3-805.1 WITH REGARD TO THE CLOSING OF NEGOTIATIONS AND THERE WAS, THEREFORE, NO FORMAL CLOSING OF NEGOTIATIONS AS YOU CONTEND.

FURTHER, AS INDICATED IN THE AUGUST 12 DECISION, THE DISCLOSURE OF THE DETAILS OF THE $40,000 EVALUATION FACTOR WAS REQUIRED FROM BOTH A LEGAL AND A PRACTICAL STANDPOINT.

IN ADDITION, THE RECORD SHOWS THAT ONE OF THE OFFERORS MADE A PROMPT ATTEMPT TO DISCOVER FROM THE NAVY HOW THE $40,000 FACTOR WAS COMPUTED, BUT THE REQUEST WAS DENIED. WHILE YOU SUGGEST THAT THE OFFEROR COULD HAVE PRESENTED COST DATA TO THE NAVY AT THAT POINT AND UNTIL JUNE 5, 1969, WE BELIEVE THAT, SINCE THE NAVY IMPOSED THE EVALUATION FACTOR, ANY OFFEROR WAS ENTITLED TO AN EXPLANATION OF THE FACTOR PRELIMINARY TO ANY FURTHER ACTION ON ITS PART.

IN ANY EVENT, AND CONSIDERING THAT NEGOTIATIONS HAD NOT BEEN FORMALLY CLOSED, WE BELIEVE THAT THE CIRCUMSTANCES DICTATE THE APPROPRIATENESS AND NECESSITY FOR FURTHER DISCUSSIONS AND NEGOTIATIONS.

ACCORDINGLY, THE DECISION OF AUGUST 12, 1969, IS SUSTAINED.