B-168130, MAR. 25, 1970

B-168130, MAR. 25, 1970

TO BANGOR PUNTA CORPORATION:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 3, 1970, IN WHICH YOU REQUEST RECONSIDERATION OF OUR DECISION DATED JANUARY 14, 1970, WHICH DENIED YOUR PROTEST AGAINST AWARD OF A CONTRACT TO COLT INDUSTRIES, INC. (HEREAFTER REFERRED TO AS COLT) UNDER SOLICITATION NO. DAAG25-69 R-0554, ISSUED BY THE U. S. ARMY NEW YORK PROCUREMENT AGENCY ON MAY 23, 1969, FOR THE PROCUREMENT OF 10,000 EACH, REVOLVER, CALIBER .38.

THE PRINCIPAL BASES OF YOUR PROTEST WERE THAT THE DISCLOSURE BY THE PROCURING ACTIVITY'S NEGOTIATOR TO YOUR CONCERN OF THE PRICE COLT SUBMITTED IN RESPONSE TO AMENDMENT NO. 001 TO THE SOLICITATION CONSTITUTED SUFFICIENT GROUND FOR CANCELLING THE AWARD SUBSEQUENTLY MADE TO COLT. YOU ALSO CONTENDED THAT THE AMOUNT OF THE FINAL AMENDED PRICE PROPOSAL SUBMITTED BY COLT JUSTIFIED THE INFERENCE THAT YOUR PRICE HAD BEEN IMPROPERLY DISCLOSED. WE NOTED THAT THERE WAS NO EVIDENCE INDICATING THAT THE DISCLOSURE OF COLT'S PRICE TO YOU WAS INTENTIONAL, OR THAT THE PRICE YOU SUBMITTED IN RESPONSE TO AMENDMENT 001, WHICH WAS $2.21 PER UNIT LOWER THAN COLT'S PRICE AT THAT TIME, HAD BEEN DISCLOSED. CONVERSELY, THE RECORD CONTAINED A WRITTEN STATEMENT BY THE NEGOTIATOR THAT HE DID NOT RELEASE YOUR PRICE TO COLT AND THAT YOU HAD INDICATED AN INTENTION TO VERIFY SUCH ADVICE WITH COLT, BUT APPARENTLY HAD NOT DONE SO. ADDITIONALLY, WE NOTED THAT YOU HAD FAILED TO FORMALLY PROTEST THE MATTER TO THE CONTRACTING OFFICER OR THIS OFFICE UNTIL AFTER THE AWARD HAD BEEN MADE. IN VIEW THEREOF, WE CONCLUDED THAT ANY COMPETITIVE ADVANTAGE WHICH MIGHT HAVE RESULTED FROM THE NEGOTIATOR'S ACTIONS ACCRUED TO YOUR COMPANY, AND NOT TO COLT, AND YOUR PROTEST WAS DENIED.

IN YOUR LETTER OF MARCH 3, 1970, YOU REQUESTED US TO RECONSIDER OUR DECISION FOR THE FOLLOWING REASONS:

(1) SMITH AND WESSON WAS NOT INVITED TO A JOINT CONFERENCE AT THE PROCURING ACTIVITY ON AUGUST 12, 1969, TO DISCUSS THE CHANGES IN THE SPECIFICATIONS AS STATED IN THE DECISION.

(2) YOUR REPRESENTATIVE DID NOT REQUEST A COPY OF COLT'S TECHNICAL EXCEPTIONS AS STATED IN THE DECISION, BUT WAS FURNISHED A COPY BY THE NEGOTIATOR AS A MATTER OF EXPEDIENCY.

(3) THE SUBSTANTIAL PRICE REDUCTION SET FORTH IN COLT'S FINAL OFFER IN RESPONSE TO AMENDMENT 002 CANNOT BE EXPLAINED IN TERMS OF THE CHANGES SET FORTH IN AMENDMENT 002 SINCE THE TECHNICAL CHANGES CONTAINED THEREIN HAD ALREADY BEEN PRICED BY THE COMPANY IN RESPONSE TO AMENDMENT 001.

(4) THE OBJECTION YOU LODGED WITH THE NEGOTIATOR OVER THE DISCLOSURE OF COLT'S PRICE CONSTITUTED A SUFFICIENT FORMAL PROTEST IN THE MATTER.

THE ADMINISTRATIVE REPORT FORWARDED TO US CONCERNING YOUR PROTEST CONTAINED A STATEMENT THAT THE GOVERNMENT'S NEGOTIATOR, MR. CORNELIUS L. DAVIS, INVITED BOTH OFFERORS TO A NEGOTIATION CONFERENCE ON AUGUST 12, 1969; THAT SMITH AND WESSON REPLIED THAT IT WOULD BE UNABLE TO HAVE A REPRESENTATIVE PRESENT ON THE 12TH, BUT WOULD DO SO ON THE 13TH. MR. DAVIS THEREFORE CONFERRED WITH COLT'S REPRESENTATIVES ON AUGUST 12 AND WITH SMITH AND WESSON'S ON THE FOLLOWING DAY. WHETHER WE ACCEPT YOUR STATEMENT OR MR. DAVIS', WE FIND NO BASIS ON THAT ACCOUNT TO QUESTION THE GOOD FAITH OF THE NEGOTIATOR, OR THE PROPRIETY OF THE NEGOTIATIONS, SINCE IT IS PROPER AND CUSTOMARY TO CONDUCT NEGOTIATIONS WITH OFFERORS SEPARATELY, AND IT IS REPORTED THAT THE INFORMATION FURNISHED TO COLT ON AUGUST 12 WAS THE SAME DATA WHICH WAS GIVEN TO YOUR CONCERN ON AUGUST 13.

THE DEPARTMENT ALSO STATES THAT ON AUGUST 13, 1969, MR. GUENTER W. BACHMANN OF YOUR COMPANY REQUESTED A COPY OF COLT'S EXCEPTIONS. YOU STATE THAT YOUR REPRESENTATIVE DID NOT REQUEST A COPY OF THE EXCEPTIONS BUT THAT THE NEGOTIATOR OFFERED TO GIVE HIM A COPY AS A MATTER OF EXPEDIENCY. FACTUAL DISPUTES OF THIS NATURE OUR OFFICE MUST ACCEPT THE AGENCY'S VERSION OF THE MATTER IN THE ABSENCE OF A CLEAR SHOWING TO THE CONTRARY. 37 COMP. GEN. 568 (1958). IN ANY EVENT, SINCE THE EXCEPTIONS WERE AGREED TO AND INCORPORATED INTO AN AMENDMENT, A COPY OF WHICH WAS REQUIRED TO BE FURNISHED TO YOU, WE ARE UNABLE TO SEE THE MATERIALITY OF THE QUESTION RAISED BY YOU. WHETHER THE COLT EXCEPTIONS WERE GIVEN AT YOUR REQUEST OR UPON THE NEGOTIATOR'S INITIATIVE, THERE IS NO INDICATION THAT EITHER PARTY INTENDED OR WAS AWARE AT THE TIME THAT THE COPY FURNISHED INCLUDED COLT'S PRICE, AND WE DO NOT FEEL THAT IN EITHER CASE THE FACTS WOULD JUSTIFY AN INFERENCE THAT YOUR PRICE WAS SIMILARLY DISCLOSED TO COLT.

YOU HAVE ALSO ALLEGED THAT THE CONTENTS OF AMENDMENT 002 DID NOT JUSTIFY THE SUBSTANTIAL PRICE REDUCTION COLT OFFERED IN RESPONSE THERETO AND THE REDUCTION CAN ONLY BE EXPLAINED BY ASSUMING THE DISCLOSURE OF YOUR PRICE TO COLT. IN THIS REGARD, THE PROCUREMENT REGULATIONS DO NOT REQUIRE AN OFFEROR TO FURNISH AN EXPLANATION FOR ANY PRICE MODIFICATION PROPOSED DURING OR FOLLOWING NEGOTIATING DISCUSSIONS. IN THE ABSENCE OF ANY DIRECT EVIDENCE THAT YOUR PRICE WAS DISCLOSED TO COLT, WE ARE NOT LEGALLY JUSTIFIED IN ACCEPTING YOUR SUGGESTION AS TO THE MOTIVE FOR COLT'S PRICE REDUCTION. THERE ARE OTHER POSSIBLE EXPLANATIONS FOR THE ADJUSTMENT, INCLUDING ARITHMETICAL ERROR, AND IT IS NOT UNCOMMON FOR OFFERORS TO OFFER SUBSTANTIAL PRICE REDUCTIONS IN THE FINAL STAGE OF NEGOTIATIONS, EVEN WITHOUT CHANGES IN THE GOVERNMENT'S REQUIREMENTS.

WITH RESPECT TO YOUR STATEMENT THAT YOU BELIEVE THE OBJECTION WHICH YOU LODGED WITH THE NEGOTIATOR CONSTITUTED A SUFFICIENT FORMAL PROTEST OF THE DISCLOSURE OF COLT'S PRICE, THE PROCUREMENT REGULATION GOVERNING PROTEST PROCEDURES IN EFFECT IN AUGUST 1969, ARMED SERVICES PROCUREMENT REGULATION 2-407.9, STATED THAT AN ORAL PROTEST SHALL BE CONSIDERED BY THE CONTRACTING OFFICER AND IF THE MATTER CANNOT OTHERWISE BE RESOLVED, WRITTEN CONFIRMATION OF THE PROTEST SHALL BE REQUESTED. THE REGULATION ALSO REFERS TO PROTESTS MADE DIRECTLY TO THIS OFFICE.

SINCE THE REGULATION STIPULATED THAT THE CONTRACTING OFFICER WAS THE COGNIZANT PROCUREMENT OFFICIAL TO BE CONTACTED IN SUBMITTING A PROTEST AT THE PROCURING ACTIVITY, AND INASMUCH AS YOU FAILED TO PROTEST THE MATTER DIRECTLY TO THIS OFFICE, WE CANNOT AGREE THAT YOUR COMPANY SUBMITTED A FORMAL PROTEST IN THE MATTER BEFORE AWARD BY DISCUSSING THE PRICE DISCLOSURE WITH THE NEGOTIATOR.

FOR THE REASONS SET FORTH ABOVE, WE FIND NO BASIS FOR MODIFYING THE CONCLUSIONS SET FORTH IN OUR DECISION OF JANUARY 14, 1970.