B-158237, APR. 15, 1966

B-158237, APR. 15, 1966

TO VINCO CORPORATION:

REFERENCE IS MADE TO YOUR TELEGRAM OF DECEMBER 23, AND LETTERS OF DECEMBER 27 AND 28, 1965, AND MARCH 2, 1966, PROTESTING AGAINST THE ACTION OF THE SAN ANTONIO AIR MATERIEL AREA, KELLY AIR FORCE BASE, TEXAS, IN AWARDING TWO CONTRACTS TO EMBE GEAR AND ELECTRONICS CO. UNDER DEPARTMENT OF THE AIR FORCE REQUEST FOR PROPOSALS (RFP) NO. 36 600-65-5728 AND REQUEST FOR QUOTATIONS (RFQ) NO. MA-5-16300.

THE RECORD SHOWS THAT REQUEST FOR PROPOSALS -5728 WAS ISSUED BY MIDDLETOWN AIR MATERIEL AREA ON JUNE 28, 1965, AND REQUIRED SUBMISSION OF PROPOSALS BY JULY 28, 1965. ALSO, REQUEST FOR QUOTATIONS -16300 WAS ISSUED ON JUNE 8, 1965, AND REQUIRED SUBMISSION OF PROPOSALS BY JULY 6, 1965. PROPOSALS WERE RECEIVED FROM YOUR FIRM AND EMBE GEAR, WITH YOUR INITIAL PRICE BEING $280 ON EACH SOLICITATION, AND EMBE GEAR'S INITIAL PRICE BEING $263.04 AND $274.35 ON THE RESPECTIVE SOLICITATIONS. AFTER EVALUATING THE PROPOSALS RECEIVED, THE PROCURING AGENCY BY TELEGRAPHIC MESSAGES DATED SEPTEMBER 7, 1965, INFORMED YOUR FIRM AND THE EMBE GEAR THAT THE PROPOSALS SUBMITTED WERE COMPETITIVE AND THAT REDUCED PRICE PROPOSALS WOULD BE ACCEPTED UNTIL CLOSE OF BUSINESS SEPTEMBER 17, 1965. THE TELEGRAPHIC MESSAGES ALSO INFORMED YOUR FIRM AND EMBE GEAR THAT ANY REVISED PROPOSALS RECEIVED AFTER SEPTEMBER 17, 1965, WOULD BE TREATED AS LATE PROPOSALS IN ACCORDANCE WITH THE "LATE PROPOSAL" PROVISION OF THE SOLICITATIONS. ALSO, IT WAS REQUESTED THAT EACH OFFEROR EXTEND THE DATE FOR ACCEPTANCE OF PROPOSALS TO 30 DAYS FROM DATE OF REPLY CONCERNING RFP - 5728. IT IS REPORTED THAT YOUR FIRM REDUCED ITS PRICES FOR ITEM 1 ON BOTH PROPOSALS FROM $280 EACH TO $270 EACH. EMBE GEAR'S PROPOSALS ON RFP 5728 REMAINED THE SAME AT $263.04 EACH AND ITS PRICE PROPOSAL FOR ITEM 1 ON RFQ -16300 WAS REDUCED TO $263.04. EMBE GEAR WAS DETERMINED TO BE THE LOW RESPONSIVE OFFEROR ON BOTH SOLICITATIONS.

IT IS ADMINISTRATIVELY REPORTED THAT SUBSEQUENT TO THE SEPTEMBER 17, 1965, CLOSING DATE FOR RECEIPT OF PROPOSALS, YOUR FIRM, ON OCTOBER 19, 1965, PURPORTED TO REDUCE THE UNIT PRICE OF BOTH OF ITS PROPOSALS TO $264.62. ON NOVEMBER 17, 1965, YOUR FIRM AGAIN PURPORTED TO FURTHER REDUCE THE UNIT PRICE OF BOTH PROPOSALS TO $256 EACH. THESE PURPORTED REDUCTIONS IN PRICE WERE COUPLED WITH EXTENSIONS OF ACCEPTANCE DATES REGARDING YOUR PROPOSALS. YOUR PROTEST IS BASED ON THE CONTENTION THAT A REQUEST FOR AN EXTENSION OF THE PROPOSAL ACCEPTANCE DATE BY THE PROCURING AGENCY PERMITTED THE SUBMISSION OF REVISED PROPOSALS BY YOU IN THE CIRCUMSTANCES SHOWN.

WE DO NOT AGREE. THE REQUESTS FOR TIME EXTENSIONS MADE SUBSEQUENT TO SEPTEMBER 17, 1965, CLEARLY REFERRED ONLY TO THE TIME WITHIN WHICH THE AGENCY COULD ACCEPT YOUR PROPOSALS. THESE REQUESTS NEITHER EXPRESSLY NOR IMPLIEDLY INVITED FURTHER PRICE REVISIONS. MOREOVER, IN THE REPORT SUBMITTED TO OUR OFFICE, IT IS SHOWN THAT YOUR FIRM WAS PUT ON NOTICE IN PLAIN TERMS THAT THE PROPOSALS RECEIVED AFTER SEPTEMBER 17, 1965, WOULD BE TREATED AS "LATE PROPOSALS.' ALSO THE FILE SHOWS THAT YOUR FIRM WAS REPEATEDLY INFORMED THAT THE GOVERNMENT COULD NOT CONSIDER REVISED PROPOSALS BEYOND THE CUTOFF DATE OF SEPTEMBER 17, 1965, DUE TO THE LATE PROPOSALS PROVISIONS OF THE SOLICITATIONS. SUCH INSTRUCTIONS TO YOUR FIRM WERE BASED ON ARMED SERVICES PROCUREMENT REGULATION (ASPR) 3-506 DEALING WITH LATE PROPOSALS AND MODIFICATIONS WHICH PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"3-506 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.

"/B) IN THE EXCEPTIONAL CIRCUMSTANCES WHERE THE SECRETARY CONCERNED AUTHORIZES AN EXCEPTION FROM (A) ABOVE, THE CONTRACTING OFFICER SHALL RESOLICIT ALL FIRMS (INCLUDING LATE OFFERORS) WHICH HAVE SUBMITTED PROPOSALS AND ARE DETERMINED TO BE CAPABLE OF MEETING CURRENT REQUIREMENTS. SUCH RESOLICITATION SHALL SPECIFY A DATE FOR SUBMISSION OF NEW PROPOSALS AND INCLUDE THE "LATE PROPOSALS" PROVISION SET FORTH IN (D) BELOW.

"/C) THE NORMAL REVISIONS OF PROPOSALS BY SELECTED OFFERORS OCCURRING DURING THE USUAL CONDUCT OF NEGOTIATIONS WITH SUCH OFFERORS ARE NOT TO BE CONSIDERED AS LATE PROPOSALS BUT SHALL BE HANDLED IN ACCORDANCE WITH 3- 805.1 (B).'

SINCE YOUR PRICE ON BOTH PROPOSALS WAS $6.96 HIGHER PER UNIT THAN EMBE'S ($270 V. $263.04), AS OF SEPTEMBER 17, 1965, THE FINAL DATE FOR CONSIDERATION OF PRICE REVISIONS, THE REQUIREMENTS WERE AWARDED TO EMBE GEAR ON DECEMBER 15 AND DECEMBER 20, 1965, RESPECTIVELY. THIS ACTION CONFORMED TO THE TERMS OF THE ABOVE-QUOTED ASPR PROVISION AND IS NOT SUBJECT TO OBJECTION BY THIS OFFICE.

WITH RESPECT TO YOUR CONTENTION THAT EMBE GEAR'S PROPOSAL WAS EVALUATED ON THE BASIS OF RENT-FREE USE OF GOVERNMENT PROPERTY, IT IS ADMINISTRATIVELY REPORTED THAT SUCH IS NOT THE CASE. THE RECORD SHOWS THAT THE EMBE GEAR PLANNED TO USE A LINK TORQUE TESTING DYNAMOMETER (TEST STAND) OWNED BY NORTHROP CORPORATION, NORAIR DIVISION, IN THE PERFORMANCE OF THE CONTRACT, AND IN RESPONSE TO YOUR ALLEGATION, THE AIR FORCE PLANT REPRESENTATIVE AT NORTHROP CORPORATION HAS CONFIRMED THAT TITLE TO THE EQUIPMENT IN QUESTION IS VESTED IN THE NORTHROP CORPORATION AND NOT THE AIR FORCE.

IN VIEW OF THE FOREGOING, WE FIND NO LEGAL BASIS TO OBJECT TO THE AWARD MADE TO EMBE GEAR AND YOUR PROTEST IS DENIED.