B-151886, AUG. 16, 1963
Highlights
YOUR PROTEST IS DIRECTED TO THE FACT THAT THE JOINT VENTURE SUBMITTED THE LOWEST PROPOSAL BUT ALL PROPOSALS EXCEEDED THE FUNDS AVAILABLE. THAT THE NAVY WAS REDUCING THE SCOPE AND INVITING NEW PROPOSALS. YOU CONTEND THAT THE JOINT VENTURE WAS ENTITLED TO AN OPPORTUNITY TO NEGOTIATE ON THE ALTERED SCOPE BEFORE NEW PROPOSALS WERE REQUESTED FROM ANY OTHERS. WE ARE ADVISED THAT THIS PROCUREMENT REPRESENTED AN EXTREMELY URGENT PROJECT CALLING FOR DREDGING. THE WORK WAS SUBMITTED FOR COMPETITIVE PROPOSALS WITH NOTICE THAT AWARD MIGHT BE MADE WITHOUT FURTHER NEGOTIATION. THE QUANTITY OF DREDGING AND FILL WAS REDUCED TO TWO-THIRDS AND THE DREDGING WAS DIRECTED TO EASIER MATERIAL. NEW PROPOSALS WERE INVITED FROM THE TWO OFFERORS PURSUANT TO THE PROVISION OF ASPR 3-805.1 (E).
B-151886, AUG. 16, 1963
TO UTAH CONSTRUCTION AND MINING COMPANY:
BY TELEGRAM DATED JUNE 25, 1963, YOU PROTESTED, ON BEHALF OF THE DILLINGHAM-BAUER-POMEROY-UTAH IN JOINT VENTURE, AGAINST THE ACTIONS TAKEN BY THE BUREAU OF YARDS AND DOCKS, DEPARTMENT OF THE NAVY, IN CONNECTION WITH THE NEGOTIATIONS UNDER SPECIFICATION NO. 54793/63.
YOUR PROTEST IS DIRECTED TO THE FACT THAT THE JOINT VENTURE SUBMITTED THE LOWEST PROPOSAL BUT ALL PROPOSALS EXCEEDED THE FUNDS AVAILABLE, AND THAT THE NAVY WAS REDUCING THE SCOPE AND INVITING NEW PROPOSALS. YOU CONTEND THAT THE JOINT VENTURE WAS ENTITLED TO AN OPPORTUNITY TO NEGOTIATE ON THE ALTERED SCOPE BEFORE NEW PROPOSALS WERE REQUESTED FROM ANY OTHERS.
WE ARE ADVISED THAT THIS PROCUREMENT REPRESENTED AN EXTREMELY URGENT PROJECT CALLING FOR DREDGING, FILL, BULKHEADS, AND OTHER WORK AT A CLASSIFIED LOCATION. THE WORK WAS SUBMITTED FOR COMPETITIVE PROPOSALS WITH NOTICE THAT AWARD MIGHT BE MADE WITHOUT FURTHER NEGOTIATION. THE PROPOSALS SUBMITTED BY TWO OFFERORS ON OR ABOUT MAY 29, 1963, FAR EXCEEDED THE GOVERNMENT ESTIMATE AND THE FUNDS AVAILABLE. HENCE, TO BRING THE COST DOWN, THE QUANTITY OF DREDGING AND FILL WAS REDUCED TO TWO-THIRDS AND THE DREDGING WAS DIRECTED TO EASIER MATERIAL. THEREAFTER, NEW PROPOSALS WERE INVITED FROM THE TWO OFFERORS PURSUANT TO THE PROVISION OF ASPR 3-805.1 (E), WHICH READS AS FOLLOWS:
"WHENEVER IN THE COURSE OF NEGOTIATION A SUBSTANTIAL CHANGE IS MADE IN THE GOVERNMENT'S REQUIREMENTS (FOR EXAMPLE, INCREASES OR DECREASES IN QUANTITIES OR MATERIAL CHANGES IN THE DELIVERY SCHEDULES), ALL OFFERORS SHALL BE GIVEN AN EQUITABLE OPPORTUNITY TO SUBMIT REVISED PROPOSALS UNDER THE CHANGED REQUIREMENTS.'
THE NEW PROPOSALS REQUESTED WERE AGAIN MADE EXPRESSLY SUBJECT TO AWARD WITHOUT FURTHER NEGOTIATION AS PERMITTED BY ASPR 3-805.1 (A) (III), AND WERE SUBJECT TO ACCEPTANCE BY JULY 2, 1963. IN THIS CONNECTION SEE 10 U.S.C. 2304 (G), AS AMENDED BY PUBLIC LAW 87-653, WHICH AUTHORIZES SUCH PROCEDURE WHEN TIME OF DELIVERY WILL NOT PERMIT ORAL OR WRITTEN NEGOTIATIONS. THE LOWEST PROPOSAL RECEIVED ON JUNE 27, 1963, FROM WESTERN CONTRACTING, GULF AND PACIFIC, STANDARD DREDGING, RAYMOND INTERNATIONAL, A JOINT VENTURE, COMPARED FAVORABLY WITH THE GOVERNMENT'S ESTIMATE FOR THE REVISED SCOPE OF WORK.
UNDER THE REGULATIONS, YOUR JOINT VENTURE HAD NO RIGHT OF PRIORITY IN NEGOTIATIONS AFTER A SUBSTANTIAL CHANGE HAD BEEN MADE IN THE GOVERNMENT'S REQUIREMENTS. THE GOVERNMENT WAS ENTITLED TO EVALUATE THE TWO COMPETITIVE PROPOSALS SUBMITTED UNDER THE REVISED REQUIREMENTS AND TO CONSIDER FOR AWARD, WITHOUT FURTHER NEGOTIATION, THAT PROPOSAL MOST ADVANTAGEOUS TO THE GOVERNMENT, PRICE AND OTHER FACTORS CONSIDERED. THEREFORE, AND SINCE THE OTHER JOINT VENTURE SUBMITTED THE LOWEST COMPETITIVE PROPOSAL, AWARD WAS MADE ON JUNE 28, 1963, TO SUCH OFFEROR.
FOR THE REASONS SET OUT ABOVE, WE FIND NO LEGAL BASIS TO QUESTION THE ACTIONS TAKEN ON THIS PROCUREMENT.