B-155956, JUN. 30, 1965

B-155956, JUN. 30, 1965

TO ROSS, STARK, MATZKIN AND DAY:

FURTHER REFERENCE IS MADE TO YOUR CORRESPONDENCE OF JANUARY 25 AND APRIL 7, 1965, PROTESTING, ON BEHALF OF DORNE AND MARGOLIN, INC., AWARD OF A CONTRACT UNDER REQUEST FOR PROPOSALS (RFP) NO. AMC (E/-28 043- 65-00435.

THE RECORD SHOWS THAT A SYNOPSIS OF THE RFP APPEARING IN THE COMMERCE BUSINESS DAILY ON DECEMBER 4, 1964, STATED THAT THE PROPOSAL DOCUMENTS WOULD BE ISSUED ONLY TO COLLINS RADIO COMPANY--- THE CURRENT PRODUCER. ALTHOUGH A CLOSING DATE OF 20 DAYS WAS SPECIFIED IN THE COPY OF THE ADVERTISEMENT FORWARDED TO THE UNITED STATES ARMY ELECTRONICS COMMUNICATIONS CENTER, THE NOTICE ACTUALLY PRINTED IN THE COMMERCE BUSINESS DAILY OMITTED ANY MENTION OF A CLOSING DATE.

IN YOUR LETTER OF JANUARY 25, 1965, YOU STATE:

"ON JANUARY 4, 1965, MR. F. PATRICK CARR, JR. OF DORNE AND MARGOLIN, INC. VISITED THE PROCUREMENT ACTIVITY AND REQUESTED A COPY OF THE RFP IN ORDER THAT DORNE AND MARGOLIN, INC. WOULD BE ABLE TO SUBMIT ITS OFFER FOR THE ITEMS DESCRIBED THEREIN. THE SUBJECT OF SUBMITTING A PROPOSAL WAS DISCUSSED WITH MR. C. G. WIDDIS, CONTRACTING OFFICER, WHO INITIALLY STATED THAT PROPOSAL DOCUMENTS WERE UNAVAILABLE SINCE OFFERS WERE TO BE SUBMITTED BY 4:30 P.M., 23 DECEMBER 1964, AND THAT A BID SUBMITTED AT THIS TIME WOULD BE CONSIDERED AS A LATE BID. MR. CARR STATED TO MR. WIDDIS THAT A LATE BID SHOULD BE ALLOWED IN THIS INSTANCE SINCE IT WOULD BE TO THE BENEFIT OF THE GOVERNMENT, IN VIEW OF THE FACT THAT ONLY ONE OTHER BID WAS RECEIVED AND, BY ALLOWING SUCH LATE BID, THE GOVERNMENT WOULD BE IN A POSITION OF OBTAINING A COMPETITIVE EVALUATION SINCE DORNE AND MARGOLIN, INC. WAS ABLE TO OFFER AN ANTENNA MEETING IDENTICAL AND EXACT REQUIREMENTS AS SET FORTH IN THE RFP, WITH EQUAL OR BETTER PERFORMANCE CHARACTERISTICS WITHOUT ANY DEVIATION OR CHANGES; AND IT WAS THE OPINION OF DORNE AND MARGOLIN, INC. THAT ITS PRICE WOULD BE COMPETITIVE. DURING SUBSEQUENT CONVERSATION BETWEEN MESSRS. CARR AND WIDDIS, MR. CARR ASKED WHETHER OR NOT AN AWARD WAS MADE. UPON BEING ADVISED THAT NO AWARD WAS MADE, MR. CARR REQUESTED A SET OF PROPOSAL DOCUMENTS IN ORDER TO BE ALLOWED THE OPPORTUNITY TO SUBMIT THE BEST PRICE TO THE GOVERNMENT FOR THIS PROCUREMENT. ACCORDINGLY, A SET OF PROPOSAL DOCUMENTS WAS HAND DELIVERED TO MR. CARR BY MR. JOHN SACCONE. (MR. SACCONE IS THE INDIVIDUAL NAMED IN THE PROPOSAL INSTRUCTIONS, PAGE 3, NOTE 13 OF THE RFP.)

"THE RFP DOCUMENTS GIVEN TO DORNE AND MARGOLIN, INC. BY THE CONTRACTING OFFICER DID NOT CONTAIN ANY PROVISION REGARDING LATE PROPOSALS. (AS A MATTER OF FACT, CLAUSE 3, LATE PROPOSALS, OF THE TERMS AND CONDITIONS OF THE RFP WAS DELETED.)

"THE RFP REQUIRED OFFERORS TO SET FORTH THE PRICE PROPOSED FOR FURNISHING THE ANTENNA, PRODUCTION DRAWINGS, MANUFACTURING DATA AND A PRICE QUOTATION FOR THE OPTION ITEM DESCRIBED THEREIN. THERE WAS NO REQUIREMENT FOR ANY TECHNICAL PROPOSAL OR DISSERTATION BY OFFERORS.'

IT IS YOUR CONTENTION THAT SINCE ARMED SERVICES PROCUREMENT REGULATION (ASPR) 3-505 (LATE PROPOSALS AND MODIFICATIONS) WAS NOT OTHERWISE INCORPORATED INTO THE SUBJECT RFP, DORNE AND MARGOLIN'S OFFER SHOULD HAVE BEEN EVALUATED AS HAVING BEEN TIMELY RECEIVED. ALTERNATIVELY, IT IS ARGUED THAT THE CONTRACTING OFFICER EFFECTIVELY WAIVED ASPR 3-505 BY FURNISHING DORNE AND MARGOLIN WITH A SET OF PROPOSAL DOCUMENTS.

IN THE REPORT SUBMITTED TO THIS OFFICE THE CONTRACTING OFFICE HAS STATED THAT MR. CARR WAS FULLY ADVISED THAT ANY PROPOSAL SUBMITTED AFTER THE SCHEDULED OPENING DATE WOULD HAVE TO BE CONSIDERED A LATE PROPOSAL PURSUANT TO ASPR 3-505. RESPONDING THERETO, ON PAGE 7 OF YOUR APRIL 7 LETTER YOU STATE,"MR. CARR CONTENDS THAT THE CONTRACTING OFFICER MERELY STATED THAT THE PROPOSAL WOULD HAVE TO BE EVALUATED AS A LATE BID WITH NO REFERENCES TO ASPR EVER MADE PRIOR TO HAVING THE PROPOSAL REJECTED.' WHETHER WE ACCEPT YOUR VERSION OF WHAT TRANSPIRED OR NOT, WE DO NOT BELIEVE THAT DORNE AND MARGOLIN WAS IN ANY WAY MISLED SINCE YOU APPARENTLY CONCEDE THAT MR. CARR WAS FULLY APPRISED OF THE FACT THAT THE PROPOSAL WAS A LATE PROPOSAL AND WOULD HAVE TO BE CONSIDERED AS SUCH. MOREOVER, WE ARE OF THE VIEW THAT THE PROVISION GOVERNING LATE PROPOSALS IS MANDATORY AND ITS INCLUSION IS REQUIRED BY ASPR 3-505 (D). THIS PROVISION STATES,"D) WRITTEN REQUESTS FOR PROPOSALS SHALL CONTAIN THE FOLLOWING PROVISIONS:" SEE ASPR 1 201.16. WHILE IT IS TRUE THAT THE SECRETARY CONCERNED IS VESTED WITH THE AUTHORITY TO WAIVE THE PROVISIONS OF SECTION 3-505, THERE IS NOT REQUIREMENT THAT HE EXERCISE THIS AUTHORITY IN EVERY CASE WHERE A LATE PROPOSAL OFFERS A LOWER PRICE. SEE B-154653, NOVEMBER 27, 1964. THIS IS ESPECIALLY TRUE WHERE AT THE TIME OF EVALUATION THE REQUIRED ITEMS WERE URGENTLY NEEDED AND IT WAS ESTIMATED THAT COLLINS RADIO COULD COMMENCE DELIVERY WITHIN SIX MONTHS AFTER AWARD, WHEREAS IT WAS BELIEVED THAT A NEW MANUFACTURER WOULD REQUIRE FROM 18 TO 25 MONTHS' LEAD TIME TO DEVELOP, DESIGN AND PRODUCE AN ACCEPTABLE ANTENNA.

UNDER THE PROVISION OF 10 U.S.C. 2304 (A) (10) PURCHASES AND CONTRACTS MAY BE NEGOTIATED IF IT IS DETERMINED TO BE IMPRACTICABLE TO OBTAIN COMPETITION FOR THE PROPERTY. IN LINE WITH THIS AUTHORITY, SECTION 3- 210.2, ASPR, SETS FORTH CERTAIN CIRCUMSTANCES WHERE THE SUPPLIES MAY BE OBTAINED FROM ONLY ONE SOURCE. SUCH FINDING IS BY LAW MADE FINAL. SEE 10 U.S.C. 2310 (B), AS AMENDED BY P.L. 87-653, APPROVED SEPTEMBER 10, 1962.

WE ARE OF THE VIEW THAT IN THE CIRCUMSTANCES HERE PRESENT, THE AWARD OF A CONTRACT TO COLLINS RADIO CANNOT BE CONSIDERED IMPROPER OR ILLEGAL, AND YOUR PROTEST MUST THEREFORE BE DENIED.

WITH RESPECT TO YOUR CONTENTION THAT DORNE AND MAGOLIN CAN PRODUCE AN ANTENNA EQUAL IN ALL RESPECTS TO THE COLLINS ANTENNA INVOLVED, IT IS SUGGESTED THAT DORNE AND MARGOLIN PRODUCE SUCH AN ANTENNA AND SUBMIT IT, TOGETHER WITH APPROPRIATE TECHNICAL DATA, TO THE AIR FORCE FOR EVALUATION AND TEST PURPOSES SO THAT IT CAN BE CONSIDERED IN CONNECTION WITH THE NEXT PROCUREMENT, IF IT IN FACT MEETS REQUIREMENTS.