B-155666, JAN. 21, 1965

B-155666, JAN. 21, 1965

TO HYDROMATICS, INC.:

REFERENCE IS MADE TO YOUR TELEGRAM OF NOVEMBER 25, 1964, PROTESTING THE REFUSAL OF THE UNITED STATES NAVY SHIPS PARTS CONTROL CENTER, MECHANICSBURG, PENNSYLVANIA, TO CONSIDER YOUR PROPOSAL SUBMITTED IN RESPONSE TO REQUEST FOR PROPOSALS NO. 5-99986 ISSUED ON NOVEMBER 9, 1964.

THE REQUEST FOR PROPOSALS INVITED PROPOSALS--- TO BE RECEIVED UNTIL THE CLOSE OF BUSINESS ON NOVEMBER 23, 1964--- FOR FURNISHING 185 ITEMS OF BALL VALVES AND ASSOCIATED SPARE PARTS AS DESCRIBED IN THE REQUEST. THREE PROPOSALS WERE RECEIVED BY THE PURCHASING ACTIVITY BY THE TIME STATED. YOUR PROPOSAL WAS HAND-CARRIED BY YOUR REPRESENTATIVE, MR. CASLER, BUT HE DID NOT ARRIVE AT THE RECEIVING OFFICE PRIOR TO THE CLOSE OF BUSINESS ON NOVEMBER 23 WHICH WAS 4 P.M. AND YOUR BID WAS NOT CONSIDERED IN MAKING AWARD. THE BASIS OF YOUR PROTEST IS THAT YOU WERE NOT INFORMED AT ANY TIME THAT THE CONTRACTING OFFICE CLOSED AT 4 P.M. AND THAT YOU ASSUMED THAT THE CLOSING TIME WAS 5 P.M. ALSO, YOU STATE THAT EVEN WHEN YOU HAD TALKED WITH ONE MR. HOOVER, OF THE CONTRACTING OFFICE, AT NOON ON NOVEMBER 23, 1964, AND INFORMED HIM THAT YOUR MESSENGER WAS "ON HIS WAY" WITH THE PROPOSAL NO MENTION WAS MADE OF THE 4 P.M. CLOSING TIME.

WITH REGARD TO THE MATTER OF LATE PROPOSALS PARAGRAPH 3-505 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) PROVIDES IN PERTINENT PART AS FOLLOWS:

"3-505 LATE PROPOSALS AND MODIFICATIONS.

"/A) PROPOSALS WHICH ARE RECEIVED IN THE OFFICE DESIGNATED IN THE REQUESTS FOR PROPOSALS AFTER THE TIME SPECIFIED FOR THEIR SUBMISSION ARE "LATE PROPOSALS.' LATE PROPOSALS SHALL NOT BE CONSIDERED FOR AWARD, EXCEPT UNDER THE CIRCUMSTANCES SET FORTH IN 2-303 RELATING TO LATE BIDS OR WHERE ONLY ONE PROPOSAL IS RECEIVED. (FOR THE PURPOSE OF APPLYING THE LATE BID RULES TO LATE PROPOSALS, UNLESS A SPECIFIC TIME FOR RECEIPT OF PROPOSALS IS STATED IN THE REQUEST FOR PROPOSALS, THE TIME FOR SUCH RECEIPT SHALL BE DEEMED TO BE THE TIME FOR CLOSE OF BUSINESS OF THE OFFICE DESIGNATED FOR RECEIPT OF PROPOSALS ON THE DATE STATED IN THE REQUEST FOR PROPOSALS). NOTWITHSTANDING THE PROVISIONS OF 1-109, EXCEPTIONS MAY BE AUTHORIZED ONLY BY THE SECRETARY CONCERNED, AND ONLY WHERE CONSIDERATION OF A LATE PROPOSAL IS OF EXTREME IMPORTANCE TO THE GOVERNMENT, AS FOR EXAMPLE WHERE IT OFFERS SOME IMPORTANT TECHNICAL OR SCIENTIFIC BREAKTHROUGH. TO DETERMINE THE POSSIBLE EXISTENCE OF SUCH EXTREME IMPORTANCE, NOTWITHSTANDING 2 303.7, ALL LATE PROPOSALS SHALL BE OPENED PRIOR TO AWARD AND IF NOT CONSIDERED FOR AWARD SHALL BE RETURNED TO THE OFFEROR.'

PARAGRAPH 2-303, ASPR, REFERRED TO IN PARAGRAPH 3-505, ASPR, DEALS ONLY WITH THE CONSIDERATION OF LATE BIDS OTHER THAN HAND CARRIED BIDS, IT BEING SPECIFICALLY PROVIDED IN PARAGRAPH 2-303.5 THAT A LATE HAND CARRIED BID SHALL NOT BE CONSIDERED FOR AWARD. OUR OFFICE HAS HELD THAT A HAND- CARRIED BID SHOULD NOT BE CONSIDERED IN THE SAME STATUS AS A BID WHICH IS MAILED AND WOULD BE DELIVERED IN THE NORMAL COURSE TO THE ADDRESSEE. IS THE RESPONSIBILITY OF THE BIDDER SUBMITTING A HAND-CARRIED BID TO SEE THAT THE BID IS DELIVERED AT THE DESIGNATED OFFICE PRIOR TO THE TIME SPECIFIED FOR THE SUBMISSION OF PROPOSALS. SEE 38 COMP. GEN. 234.

WHILE YOUR PROTEST IS DIRECTED MAINLY TO THE FACT THAT THE CONTRACTING OFFICE CLOSED AT 4 P.M. INSTEAD OF 5 P.M. AND THAT YOU WERE NOT ADVISED, NOR WERE YOU OTHERWISE AWARE, OF THIS FACT, THE REPORT RECEIVED FROM THE ADMINISTRATIVE OFFICE DENIES YOUR STATEMENT THAT YOU WERE NOT AWARE OF THIS FACT. THE CONTRACTING OFFICER STATES THAT IN A TELEPHONE CONVERSATION AT 1 P.M. ON NOVEMBER 23, 1964, WITH MR. B. SCHLATTERER OF YOUR FIRM HE WAS ADVISED BY MR. SCHLATTERER THAT YOUR REPRESENTATIVE LEFT AT 12:30 P.M. WITH THE PROPOSAL AND HE ESTIMATED THAT HE WOULD ARRIVE AT THE CONTRACTING OFFICE BETWEEN 3 P.M. AND 3:30P.M. AT THAT TIME MR. SCHLATTERER WAS INFORMED THAT HIS MESSENGER HAD "THREE AND ONE-HALF HOURS TO MAKE IT.' WHILE THIS DOES NOT ESTABLISH THAT YOUR MESSENGER KNEW THE CLOSING TIME, THE GOVERNMENT GUARD AT THE CONTRACTING OFFICE STATES THAT ON NOVEMBER 23, AT APPROXIMATELY 4:30 PM., YOUR MESSENGER ARRIVED AT THE MAIN GATE AND INQUIRED ABOUT DELIVERING A BID TO THE BID ROOM. THE GUARD STATES THAT HE ASKED THE MESSENGER "WHEN THE TIME WAS UP FOR THE BID TO BE PLACED AND HE SAID AT 4 P.M.' THE PROPOSAL WAS NOT LEFT WITH THE GUARD BUT IT APPEARS THAT THE HAND-CARRIED PROPOSAL WAS PRESENTED THE NEXT DAY, NOVEMBER 24, AND WAS TIME STAMPED AS HAVING BEEN RECEIVED AT 8 A.M. ON THAT DAY.

ON NOVEMBER 25, 1964, A REPRESENTATIVE OF YOUR FIRM, MR. LAWRENCE SCHUE, VISITED THE CONTRACTING OFFICE AND DISCUSSED THE REFUSAL TO CONSIDER YOUR PROPOSAL. HE WAS INFORMED THAT YOUR PROPOSAL WOULD BE HANDLED IN ACCORDANCE WITH THE PROVISIONS OF THE ABOVE-QUOTED ASPR 3 505. FURTHERMORE, HE WAS INFORMED THAT THE PROPOSAL HAD BEEN OPENED AND HE WAS NOTIFIED THAT IT WOULD NOT BE CONSIDERED. THE DECISION NOT TO CONSIDER YOUR LATE PROPOSAL WAS THAT (A) MORE THAN ONE PROPOSAL WAS RECEIVED; (B) IT DID NOT CONTAIN AN IMPORTANT SCIENTIFIC OR TECHNICAL BREAKTHROUGH, AND (C) IT WAS NOT LOW AND CONTAINED MANY QUALIFICATIONS OR EXCEPTIONS TO THE SPECIFICATIONS.

DUE TO THE URGENCY OF THE REQUIREMENT FOR THE MATERIAL COVERED BY THE REQUEST FOR PROPOSALS THE CONTRACTING OFFICER WAS AUTHORIZED TO MAKE AWARD PRIOR TO THE DISPOSITION OF YOUR PROTEST AND AWARD WAS MADE ON DECEMBER 7, 1964, TO CONTROMATICS CORPORATION, A SMALL BUSINESS CONCERN, IN ACCORDANCE WITH THE PROVISIONS OF ASPR 2-407.9 (B) (3) (I) AND (II), WHICH PERMIT THE MAKING OF AN AWARD BEFORE A PROTEST IS RESOLVED WHERE THE ITEMS ARE URGENTLY REQUIRED OR DELIVERY WILL BE UNDULY DELAYED BY FAILURE TO MAKE AWARD PROMPTLY. IN THIS LATTER REGARD A DETERMINATION HAD BEEN MADE THAT ANY DELAY IN AWARD BEYOND DECEMBER 6, 1964, WOULD RESULT IN A PROPORTIONATE DELAY IN DELIVERY AND WOULD SERIOUSLY JEOPARDIZE THE OVERHAUL SCHEDULE FOR THE FIRST FOUR SUBMARINES INVOLVED AND, IN ALL PROBABILITY, WOULD RESULT IN AN INORDINATE INCREASE IN OVERHAUL COSTS AT THE SHIPYARDS.

WHILE THE FORM USED IN THIS CASE MIGHT HAVE BEEN DEFICIENT IN FAILING TO ADVISE PROSPECTIVE BIDDERS AS TO THE HOUR SET FOR CLOSING OF REQUEST FOR PROPOSALS, IT IS REPORTED THAT THE FORMS NOW BEING USED PROVIDE THAT THE HOUR AND DATE SET FOR SUCH CLOSING BE INCLUDED IN THE INFORMATION FURNISHED PROSPECTIVE BIDDERS.