B-148751, JUL. 5, 1962

B-148751, JUL. 5, 1962

TO KRAUSE-AIRCO:

REFERENCE IS MADE TO YOUR TELEGRAMS DATED APRIL 24 AND 26, 1962 PROTESTING THE AWARD OF ITEM 2 UNDER REQUEST FOR PROPOSALS 09-603-62- 2555, ISSUED BY WARNER ROBINS AIR MATERIEL AREA (WRAMA), ROBINS AIR FORCE BASE, GEORGIA.

PROPOSALS WERE SOLICITED, TO BE SUBMITTED BY JANUARY 15, 1962, FOR FURNISHING TWO ITEMS OF AIRPLANE PARTS, ITEM 2 CALLING FOR 4.723 EXHAUST EXTENSIONS, DOUGLAS PART NUMBER 3320497. TELEGRAMS DATED MARCH 12 AND 13, 1962, WERE SENT FROM WRAMA TO ALL FIRMS WHICH HAD SUBMITTED PROPOSALS, CLARIFYING THE TYPE OF MATERIAL TO BE USED IN ITEM 2 AND STATING THAT SUPPLEMENTAL QUOTATIONS ON THIS ITEM ONLY WOULD BE ACCEPTABLE UNTIL THE CLOSE OF BUSINESS MARCH 17, 1962. BY MARCH 17, 1962, THREE REVISED PROPOSALS HAD BEEN RECEIVED, AND ON MARCH 20, 1962, A REVISED PROPOSAL WAS RECEIVED FROM DOUGLAS AIRCRAFT COMPANY, INC., WHICH WAS LOWER THAN ANY PREVIOUSLY RECEIVED. A WIRE WAS SENT ON MARCH 22, 1962, TO ALL FIRMS SUBMITTING RESPONSIVE PROPOSALS ADVISING THAT A LATE PROPOSAL HAD BEEN RECEIVED, THAT NEGOTIATIONS WERE THEREBY EXTENDED UNTIL THE CLOSE OF BUSINESS APRIL 2, 1962, AND THAT LATE PROPOSALS RECEIVED AFTER THAT DATE WOULD NOT BE CONSIDERED, NOTWITHSTANDING THE GOVERNMENT'S RESERVATION OF A RIGHT TO CONSIDER SAME. ONE REVISED PROPOSAL WAS RECEIVED BEFORE APRIL 2 AS A RESULT OF THIS WIRE.

AFTER FINAL EVALUATION OF PROPOSALS, CONTRACT AF 09/603/38954 WAS AWARDED TO DOUGLAS AIRCRAFT COMPANY, INC., ON APRIL 10, 1962, AS THE LOWEST RESPONSIVE AND RESPONSIBLE BIDDER ON ITEMS 1 AND 2.

ON APRIL 20, 1962, YOU WERE ADVISED THAT ITEM 2 HAD BEEN AWARDED TO DOUGLAS AIRCRAFT AT A UNIT PRICE OF $8.45 AND ON APRIL 24, 1962, YOU TELEGRAPHED A REVISED UNIT PRICE OF $7.90. YOU WERE ADVISED BY TELEGRAM DATED APRIL 26, 1962, THAT YOUR REVISED PRICE COULD NOT BE CONSIDERED, AND YOU PROTEST THIS ACTION AND THE AWARD TO DOUGLAS ON THE GROUND THAT YOU WERE NOT GIVEN AN OPPORTUNITY TO RENEGOTIATE AND SUBMIT YOUR REVISED PRICE. IN SUPPORT OF THIS PROTEST MR. SAMUEL KRAUSE ALLEGES THAT HE ASKED BY PHONE IF HE COULD REVISE HIS PRICE AND WAS TOLD THAT HE COULD NOT, BUT MR. KRAUSE HAS NOT IDENTIFIED THE PARTY WHO TOLD HIM THIS.

IN ACCORDANCE WITH PARAGRAPH 3-804.2 (A) OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) THE GOVERNMENT RESERVED THE RIGHT TO CONSIDER PROPOSALS OR MODIFICATIONS THEREOF RECEIVED AFTER THE DATE INDICATED FOR SUCH PURPOSE, BUT BEFORE AWARD, SHOULD SUCH ACTION BE IN THE INTEREST OF THE GOVERNMENT. PARAGRAPH 3-804.2 (B) (2) OF ASPR PROVIDES THAT WHEN IT IS DETERMINED TO BE IN THE BEST INTEREST OF THE GOVERNMENT TO CONSIDER A LATE PROPOSAL, THE CONTRACTING OFFICER SHALL RESOLICIT ALL FIRMS WHICH HAVE SUBMITTED PROPOSALS AND HAVE BEEN DETERMINED TO BE CAPABLE OF MEETING REQUIREMENTS, AND THAT SUCH RESOLICITATION SHALL SPECIFY A DATE FOR SUBMISSION OF NEW OR REVISED PROPOSALS, BUT IN APPROPRIATE CASES, SUCH AS WHERE FURTHER DELAY IN MAKING AWARD WOULD JEOPARDIZE MEETING THE GOVERNMENT'S REQUIREMENT, A RESOLICITATION MAY PROVIDE THAT LATE PROPOSALS SHALL NOT BE CONSIDERED, NOTWITHSTANDING THE GOVERNMENT'S RESERVATION OF A RIGHT TO CONSIDER SUCH PROPOSALS.

AS STATED ABOVE, UPON RECEIPT OF THE LATE PROPOSAL FROM DOUGLAS AIRCRAFT ON MARCH 20, 1962, THE CONTRACTING OFFICER, IN STRICT ACCORDANCE WITH THE PROVISIONS OF ASPR REFERRED TO IN THE PRECEDING PARAGRAPH, RESOLICITED YOUR FIRM AND ADVISED YOU THAT NEGOTIATIONS WERE EXTENDED TO APRIL 2, 1962, AND THAT PROPOSALS RECEIVED AFTER THAT DATE WOULD NOT BE CONSIDERED, NOTWITHSTANDING THE GOVERNMENT'S RESERVATION OF A RIGHT TO CONSIDER SAME.

IT APPEARS THAT DURING NEGOTIATIONS MR. SAMUEL KRAUSE MADE THREE OR FOUR TELEPHONE CALLS TO MR. MELVIN A. ANTHONY, CONTRACT ASSISTANT, WHO WAS THE BUYER ON THIS PROCUREMENT, REQUESTING INFORMATION AS TO THE STATUS OF YOUR PROPOSAL OR AS TO THE PROBABLE DATE OF AWARD OF THE CONTRACT. ON EACH OCCASION MR. KRAUSE WAS ADVISED THAT THE PROPOSALS WERE STILL BEING EVALUATED, BUT MR. ANTHONY HAS STATED THAT AT NO TIME DID MR. KRAUSE ASK IF HE COULD REVISE HIS PRICE, NOR WAS HE TOLD THAT HE COULD NOT REVISE IT.

PARAGRAPH 3-805.1 (B) OF ASPR PROVIDES THAT WHENEVER NEGOTIATIONS ARE CONDUCTED WITH MORE THAN ONE OFFEROR, NO INDICATION SHALL BE MADE TO ANY OFFEROR OF A PRICE WHICH MUST BE MET TO OBTAIN FURTHER CONSIDERATION, SINCE SUCH PRACTICE CONSTITUTES AN AUCTION TECHNIQUE WHICH MUST BE AVOIDED. ACCORDINGLY, THE CONTRACTING OFFICER MAY ONLY ADVISE OFFERORS THAT REVISED PROPOSALS WILL BE CONSIDERED AND EACH OFFEROR MUST DETERMINE WHETHER ITS QUOTATION WILL BE REVISED.

THE TELEGRAMS OF MARCH 13 AND 22, 1962, EACH RESULTED IN THE RECEIPT OF AT LEAST ONE REDUCED QUOTATION. YOU WERE GIVEN THE SAME OPPORTUNITY TO REDUCE YOUR QUOTATION THAT EVERY OTHER FIRM WAS GIVEN, BUT DID NOT TAKE ADVANTAGE OF IT. SINCE THE TELEGRAM OF MARCH 22, 1962, FIXED APRIL 2, 1962, AS THE FINAL DATE FOR CONSIDERATION OF REVISED PROPOSALS, YOUR ATTEMPTED REVISION BY TELEGRAM DATED APRIL 24, 1962, AFTER ADVICE TO YOU OF THE AWARD AND OF THE AMOUNT OF THE LOW BID, OBVIOUSLY COULD NOT BE CONSIDERED.

FOR THE REASONS STATED WE CONCLUDE THAT THERE IS NO BASIS FOR OBJECTING TO THE AWARD OF THE CONTRACT TO DOUGLAS AIRCRAFT COMPANY, INC., AND YOUR PROTEST MUST THEREFORE BE DENIED.