B-222476.4, NOV 25, 1986, OFFICE OF GENERAL COUNSEL

B-222476.4: Nov 25, 1986

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THAT AWARD FOLLOWS THE DEPARTMENT OF THE ARMY'S REJECTION OF YOUR LOWER BID AS NONRESPONSIVE ON THE GROUND THAT IT WAS MATERIALLY UNBALANCED WITH RESPECT TO FIRST ARTICLE PRICING. WE HAVE DEEMED IT INAPPROPRIATE TO REQUIRE THE ARMY TO FURNISH AN ADDITIONAL ADMINISTRATIVE REPORT CONCERNING THE AWARD TO STOCKER & YALE. TO THE EXTENT YOU ALLEGE THAT ALL BIDS UNDER THE INVITATION EXCEPT YOUR OWN EXPIRED BEFORE THEY WERE EXTENDED BY THE BIDDERS. SINCE THE BIDS IN QUESTION WERE REVIVED AS A RESULT OF THE EXTENSIONS IMMEDIATELY GRANTED BY THE BIDDERS. THE FACT THAT THE BIDS MAY HAVE TECHNICALLY EXPIRED IS NOT A SUFFICIENT GROUND TO OBJECT LEGALLY TO THE AWARD THAT WAS MADE. WE FIND NO EVIDENCE IN THE DOCUMENTS FURNISHED BY YOU TO INDICATE THAT ANY PARTY ACTED IN BAD FAITH OR WAS AFFORDED AN UNFAIR ADVANTAGE IN THE CIRCUMSTANCES.

B-222476.4, NOV 25, 1986, OFFICE OF GENERAL COUNSEL

PRECIS-UNAVAILABLE

NEBRASKA ALUMINUM CASTINGS, INC.:

THIS RESPONDS TO YOUR LATEST SUBMISSIONS TO THIS OFFICE, INCLUDING THAT DATED NOVEMBER 10, 1986, CONCERNING THE AWARD OF A CONTRACT TO STOCKER & YALE, INC. UNDER INVITATION FOR BIDS NO. DAAK01-85-B-B060. THAT AWARD FOLLOWS THE DEPARTMENT OF THE ARMY'S REJECTION OF YOUR LOWER BID AS NONRESPONSIVE ON THE GROUND THAT IT WAS MATERIALLY UNBALANCED WITH RESPECT TO FIRST ARTICLE PRICING. THIS OFFICE HAS ALREADY ISSUED THREE DECISIONS UPHOLDING THE ARMY'S ACTION IN THE MATTER. NEBRASKA ALUMINUM CASTINGS, INC., B-222476, JUNE 24, 1986, 86-1 CPD PARA. 582, AFF'D ON RECONSIDERATION, B-222476.2, SEPT. 23, 1986, 86-2 CPD PARA. ***, B-222476.3, NOV. 4, 1986, 86-2 CPD PARA. ***.

AS TO THE ISSUES RAISED IN YOUR LATEST SUBMISSIONS, PLEASE BE ADVISED THAT OUR BID PROTEST REGULATIONS, 4 C.F.R. PART 21 (1986), DO NOT CONTEMPLATE THE PIECEMEAL DEVELOPMENT OF BID PROTESTS OR THE CONTINUED FILING OF REQUESTS FOR RECONSIDERATION OF PRIOR DECISIONS. HENCE, WE HAVE DEEMED IT INAPPROPRIATE TO REQUIRE THE ARMY TO FURNISH AN ADDITIONAL ADMINISTRATIVE REPORT CONCERNING THE AWARD TO STOCKER & YALE.

TO THE EXTENT YOU ALLEGE THAT ALL BIDS UNDER THE INVITATION EXCEPT YOUR OWN EXPIRED BEFORE THEY WERE EXTENDED BY THE BIDDERS, IT HAS BEEN OUR VIEW THAT EXPIRED BIDS PROPERLY MAY BE REVIVED WHERE THE BIDDERS RESPONDED PROMPTLY TO THE AGENCY'S REQUESTS FOR EXTENSIONS AND GAINED NO UNFAIR COMPETITIVE ADVANTAGE BY DOING SO. SEE TROJAN INDUSTRIES, INC., B-220620, FEB. 10, 1986, 86-1 CPD PARA. 143. SINCE THE BIDS IN QUESTION WERE REVIVED AS A RESULT OF THE EXTENSIONS IMMEDIATELY GRANTED BY THE BIDDERS, THE FACT THAT THE BIDS MAY HAVE TECHNICALLY EXPIRED IS NOT A SUFFICIENT GROUND TO OBJECT LEGALLY TO THE AWARD THAT WAS MADE. WE FIND NO EVIDENCE IN THE DOCUMENTS FURNISHED BY YOU TO INDICATE THAT ANY PARTY ACTED IN BAD FAITH OR WAS AFFORDED AN UNFAIR ADVANTAGE IN THE CIRCUMSTANCES.

YOU HAVE ALSO ASSERTED THAT STOCKER & YALE'S OFFERED PRICE UNDER THIS INVITATION WAS UNREASONABLE. HOWEVER, WE POINT OUT THAT, BY REGULATION, IT IS THE RESPONSIBILITY OF THE CONTRACTING OFFICER TO DETERMINE WHETHER A PROSPECTIVE CONTRACTOR'S PRICE IS REASONABLE BEFORE AWARDING IT THE CONTRACT. FEDERAL ACQUISITION REGULATION, 48 C.F.R. SEC. 14.407-2 (1985). THIS OFFICE WILL NOT QUESTION A DETERMINATION OF PRICE REASONABLENESS ABSENT AN INDICATION THAT THE CONTRACTING OFFICER WAS MOTIVATED BY EITHER FRAUD OR BAD FAITH IN MAKING THE DETERMINATION. LING/L.A.B. SUBSIDIARY OF MECHANICAL TECHNOLOGY, INC., B-207414, OCT. 15, 1982, 82-2 CPD PARA. 341. THEREFORE, THE FACT THAT STOCKER & YALE'S OFFERED PRICE UNDER THIS INVITATION WAS HIGHER THAN ITS PRICE FOR THE SAME ITEMS UNDER A SUBSEQUENT SOLICITATION PROVIDES NO LEGAL BASIS TO QUESTION THE CONTRACTING OFFICER'S CONSIDERED JUDGMENT THAT THE FIRM'S PRICE WAS REASONABLE. EACH PROCUREMENT MUST BE VIEWED INDEPENDENTLY, AND YOU CLEARLY HAVE NOT MET YOUR BURDEN TO ESTABLISH THAT FRAUD OR BAD FAITH WAS INVOLVED IN THE DETERMINATION OF PRICE REASONABLENESS MADE HERE.

WE BELIEVE THAT THIS OFFICE HAS FULLY AND FAIRLY CONSIDERED THE ISSUES RELATING TO THE REJECTION OF YOUR BID AND THE RESULTING AWARD TO STOCKER & YALE. ALTHOUGH WE CAN APPRECIATE YOUR KEEN DISAPPOINTMENT AT NOT RECEIVING THE CONTRACT, WE SEE NO RELIEF TO WHICH YOU ARE ENTITLED CONSISTENT WITH THE BID PROTEST FUNCTION OF THIS OFFICE. ACCORDINGLY, WE ARE CLOSING OUR FILE IN THE MATTER AND WILL ENTERTAIN NO FURTHER SUBMISSIONS FROM YOU WITH RESPECT TO THIS SOLICITATION.

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