B-147264, NOV. 3, 1961

B-147264, NOV. 3, 1961

TO WILKINSON MANUFACTURING COMPANY:

REFERENCE IS MADE TO YOUR LETTER DATED SEPTEMBER 13, 1961, AND SUBSEQUENT CORRESPONDENCE PROTESTING AGAINST THE ACTION OF THE DEPARTMENT OF THE ARMY IN EXTENDING THE CLOSING DATE FOR RECEIPT OF PROPOSALS UNDER REQUEST FOR PROPOSAL NO. APC-800-62 AFTER RECEIPT AND OPENING OF THE PROPOSAL WHICH YOUR COMPANY SUBMITTED THEREUNDER.

RFP NO. APC-800-62 SOLICITED PROPOSALS FOR FURNISHING 500, 750 M524 FUZES, AND ESTABLISHED THE CLOSING DATE FOR RECEIPT OF SUCH PROPOSALS AS THE CLOSE OF BUSINESS ON SEPTEMBER 11, 1961. THE RECORDS OF THE DEPARTMENT OF THE ARMY INDICATE IT WAS INITIALLY DETERMINED THAT THIS SOLICITATION OF PROPOSALS SHOULD BE LIMITED TO THOSE PRODUCERS INCLUDED IN THE PLANNED MOBILIZATION BASE. HOWEVER, AS A RESULT OF NUMEROUS REQUESTS FROM OTHER PRODUCERS, IT WAS DECIDED ON SEPTEMBER 9, 1961, TO PERMIT SUCH OUTSIDE PRODUCERS TO COMPETE. ALL ORDNANCE DISTRICTS WHICH HAD REQUESTED CONSIDERATION OF PROPOSALS FROM OUTSIDE SOURCES WERE ADVISED ON SEPTEMBER 9, AND THE BALANCE OF THE DISTRICTS NOTIFIED ON SEPTEMBER 11, THAT THE CLOSING DATE WOULD BE EXTENDED TO OCTOBER 11 TO PERMIT NEW SUPPLIERS TO QUOTE. YOUR PROPOSAL WAS SUBMITTED TO THE ST. LOUIS ORDNANCE DISTRICT PRIOR TO RECEIPT IN THAT OFFICE ON SEPTEMBER 11 OF THE NOTICE OF EXTENDED CLOSING DATE REFERRED TO ABOVE. IT FURTHER APPEARS THAT YOUR PROPOSAL HAD BEEN OPENED, EXAMINED BY A PRICE ANALYST, AND THAT THE PRICE ANALYST WAS ENROUTE TO YOUR PLANT IN OMAHA TO CLARIFY AND VERIFY CERTAIN COST ELEMENTS WHEN THE ST. LOUIS ORDNANCE DISTRICT RECEIVED NOTICE OF SUCH EXTENSION. FOLLOWING RECEIPT BY YOUR COMPANY OF NOTICE OF THE EXTENSION, YOU REQUESTED THAT ALL COPIES OF YOUR PROPOSAL BE RETURNED UNOPENED, AT WHICH TIME YOU WERE ADVISED OF ITS OPENING AND OF THE FACT THAT THE PRICE ANALYST WAS ENROUTE TO YOUR PLANT. THE ANALYST WAS THEN CONTACTED AND ADVISED TO RETURN THE COPIES OF YOUR PROPOSAL IN HIS POSSESSION TO YOU. THE DISTRICT OFFICE RETURNED THE REMAINING COPY TO YOU BY MAIL.

YOUR PROTEST APPEARS TO BE BASED UPON YOUR BELIEF THAT SEPTEMBER 11, THE CLOSING DATE FOR RECEIPT OF PROPOSALS, WAS ALSO THE DATE FOR OPENING OF SUCH PROPOSALS; THAT THE OPENING OF YOUR PROPOSAL PRIOR TO EXPIRATION OF THE TIME FOR RECEIPT OF PROPOSALS WAS THEREFORE UNAUTHORIZED; AND THAT SUCH OPENING HAS PLACED YOUR COMPANY AT A COMPETITIVE DISADVANTAGE.

WHILE THE REQUIREMENT FOR OPENING OF BIDS AT A TIME AND PLACE STATED IN THE INVITATION FOR BIDS UNDER A FORMALLY ADVERTISED PROCUREMENT IS CLEARLY SET OUT IN BOTH LAW AND REGULATION (SEE 10 U.S.C. 2305 (C) AND ASPR 2- 402.1 (A) (, WE ARE NOT AWARE OF ANY SIMILAR REQUIREMENT APPLICABLE TO PROPOSALS SOLICITED AND RECEIVED UNDER A NEGOTIATED PROCUREMENT. CONVERSELY, THE APPLICABLE REGULATIONS DO REQUIRE THAT INFORMATION CONTAINED IN PROPOSALS SHALL NOT BE DISCLOSED AFTER OPENING AND DURING THE CONDUCT OF NEGOTIATIONS WITH OTHER OFFERORS. SEE ASPR 3 109, 3-804.1, AND 3-805.1 (B).

IN VIEW THERE OF IT WOULD APPEAR THAT THE OPENING OF YOUR PROPOSAL PRIOR TO THE CLOSING DATE WOULD AFFORD NO BASIS FOR PROTEST, CERTAINLY NOT UNLESS SUCH OPENING RESULTED IN PUBLICATION OF THE INFORMATION CONTAINED IN THE PROPOSAL. IN THIS CONNECTION, IT IS OUR UNDERSTANDING THAT THE INFORMATION IN YOUR PROPOSAL WAS NOT PUBLICLY DISCLOSED OR MADE AVAILABLE TO ANY PERSONS OTHER THAN GOVERNMENT PROCUREMENT PERSONNEL IN THE PROPER EXERCISE OF THEIR OFFICIAL DUTIES. IN THE ABSENCE OF EVIDENCE OF ADDITIONAL DISCLOSURE WE SEE NO VALID BASIS UPON WHICH IT MAY BE CONCLUDED THAT THE EXTENSION OF THE CLOSING DATE AFTER OPENING OF YOUR PROPOSAL WAS UNAUTHORIZED, OR THAT SUCH OPENING AND SUBSEQUENT EXTENSION OF THE CLOSING DATE HAS ADVERSELY AFFECTED YOUR COMPETITIVE POSITION.