B-160642, MAR. 8, 1967

B-160642, MAR. 8, 1967

TO SCOPE, INCORPORATED:

REFERENCE IS MADE TO YOUR LETTERS OF JANUARY 6 AND 13, 1967, PROTESTING AN AWARD UNDER DEPARTMENT OF THE ARMY REQUEST FOR PROPOSALS NO. DAABO5-67- R-0034.

THE REQUEST WAS ISSUED ON OCTOBER 27, 1966, COVERING A REQUIREMENT FOR COUNTERMEASURE SETS, AN/MLQ-26, AND ANCILLARY ITEMS. THE REQUIREMENT WAS COVERED BY AN URGENT DELIVERY PRIORITY. SIX COMPANIES WERE SOLICITED AND THREE PROPOSALS WERE RECEIVED ON NOVEMBER 28, 1966; HOWEVER, ONLY THE LOW OFFERS OF YOUR COMPANY AND FAIRCHILD CAMERA AND INSTRUMENT CORP. WERE SELECTED FOR NEGOTIATIONS. TECHNICAL CONFERENCES WERE HELD ON DECEMBER 9 AND 12, 1966, WITH YOUR COMPANY AND FAIRCHILD, RESPECTIVELY. EACH OFFEROR WAS THEN INVITED TO SUBMIT IN WRITING ANY CHANGE IN PRICE OR CONDITIONS AS EXPEDITIOUSLY AS POSSIBLE. BOTH OFFERORS INDICATED THAT CHANGES WOULD BE MADE IN THEIR PROPOSALS WHICH WOULD NECESSITATE AN UPWARD REVISION IN PRICE. UPON REVISION, FAIRCHILD CAMERA AND INSTRUMENT CORP. WAS THE APPARENT LOW OFFEROR ON A FIRM FIXED-PRICE BASIS. YOUR REVISED PROPOSAL WAS HAND DELIVERED ON DECEMBER 21, 1966, BY YOUR VICE PRESIDENT AND ENGINEER WHO REQUESTED A CONFERENCE WITH THE CONTRACTING OFFICER. YOUR REVISED PROPOSAL REFLECTED A PRICE INCREASE AND OFFERED BETTER DELIVERY TERMS. HOWEVER, SUCH REVISION STILL DID NOT MEET THE SOLICITATION SCHEDULED DELIVERY TERMS. AT THE COMPLETION OF THIS MEETING, YOUR REPRESENTATIVES WERE ADVISED THAT A FINAL TELEGRAM CLOSING NEGOTIATIONS WOULD BE ISSUED NO LATER THAN DECEMBER 22 OR 23, 1966, WITH ABOUT A 48- HOUR PERIOD FOR RECEIPT OF ANY FINAL REVISIONS. AN UNDERSTANDING OF THE CLOSING TELEGRAM TECHNIQUES AND THE FACT THAT A RESPONSE IS NOT NECESSARILY REQUIRED WHEN NO CHANGE IS CONTEMPLATED WAS ACKNOWLEDGED BY YOUR REPRESENTATIVES.

A SINGLE MULTIPLE-ADDRESS TELETYPE MESSAGE CLOSING NEGOTIATIONS AS OF 3:00 P.M., E.S.T., DECEMBER 28, 1966, WAS DISPATCHED TO THE TWO OFFERORS FROM THE COMMUNICATIONS CENTER BY THE CONTRACTING OFFICER ON DECEMBER 24, 1966. THIS TELEGRAM REPLACED AN EARLIER TELEGRAM WHICH CITED THE WRONG RFP NUMBER. SINCE DECEMBER 26 WAS A HOLIDAY, THE CONTRACTING OFFICER SPECIFIED DECEMBER 28 AS THE CLOSING DATE. ALTHOUGH THE MESSAGE WAS DISPATCHED AT THE SAME TIME TO BOTH FAIRCHILD AND YOUR COMPANY, ONLY FAIRCHILD RECEIVED THE TELEGRAM. THE MESSAGE TO YOUR COMPANY WAS SENT TO THE GOVERNMENT RELAY STATION SERVICING THE FALLS CHURCH, VIRGINIA, AREA BUT NOT RECEIVED BY YOU DUE TO A BREAKDOWN IN COMMUNICATIONS ATTRIBUTED TO THE UNUSUALLY HEAVY HOLIDAY WORKLOAD WHICH WAS FURTHER COMPLICATED BY A SEVERE SNOW STORM.

AT ABOUT 4:30 P.M., E.S.T. ON DECEMBER 28, 1966, THE CONTRACTING OFFICER RECEIVED A TELEPHONE CALL FROM YOUR COMPANY RELATIVE TO THE STATUS OF THE PROCUREMENT. THE CALLER, MR. MCCAULEY, WAS ADVISED THAT NEGOTIATIONS HAD BEEN CLOSED AT 3:00 P.M. AS OF THAT DATE BY THE TELEGRAM DISPATCHED ON DECEMBER 24, 1966. MR. MCCAULEY STATED THAT HE DID NOT BELIEVE THE TELEGRAM HAD BEEN RECEIVED. MR. BRIGIDA, THE VICE PRESIDENT, THEN ADVISED IN THE COURSE OF THAT CONVERSATION THAT THE TELEGRAM HAD NOT BEEN RECEIVED BUT NOTWITHSTANDING THE FAILURE TO RECEIVE THE MESSAGE, YOUR COMPANY'S PROPOSAL WOULD NOT BE CHANGED. HOWEVER, PURSUANT TO MR. BRIGIDA'S REQUEST, THE CONTRACTING OFFICER READ THE TELEGRAM TO MR. BRIGIDA, WHO REITERATED THAT HE WOULD NOT ALTER THE PROPOSAL IN ANY WAY. ON DECEMBER 30, 1966, MR. BRIGIDA CALLED THE CONTRACTING OFFICER AND HE WAS ADVISED THAT AN AWARD HAD BEEN MADE TO FAIRCHILD CAMERA AND INSTRUMENT CORP. ON DECEMBER 30.

YOUR FAILURE TO RECEIVE THE TELEGRAM FIXING A DATE AND TIME FOR CLOSING NEGOTIATIONS IS THE SOLE BASIS OF YOUR PROTEST THAT YOU WERE PREVENTED "FROM HAVING THE SAME OPPORTUNITY THAT WAS APPARENTLY ACCORDED OTHER CONCERNS TO RECONSIDER THEIR BIDS.' IN VIEW THEREOF, YOU RECOMMEND THAT THE AWARD MADE TO FAIRCHILD BE SET ASIDE, THE SITUATION REVIEWED, AND THAT ALL BIDDERS THEREAFTER BE GIVEN AN EQUAL OPPORTUNITY TO BID AGAIN.

ARMED SERVICES PROCUREMENT REGULATION (ASPR) 3-805.1 (B) PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"* * * WHENEVER NEGOTIATIONS ARE CONDUCTED WITH SEVERAL OFFERORS, WHILE SUCH NEGOTIATIONS MAY BE CONDUCTED SUCCESSIVELY, ALL OFFERORS SELECTED TO PARTICIPATE IN SUCH NEGOTIATIONS * * * SHALL BE OFFERED AN EQUITABLE OPPORTUNITY TO SUBMIT SUCH PRICE, TECHNICAL, OR OTHER REVISIONS IN THEIR PROPOSALS AS MAY RESULT FROM THE NEGOTIATIONS. ALL SUCH OFFERORS SHALL BE INFORMED OF THE SPECIFIED DATE (AND TIME IF DESIRED) OF THE CLOSING OF NEGOTIATIONS AND THAT ANY REVISIONS TO THEIR PROPOSALS MUST BE SUBMITTED BY THAT DATE. * * *"

WHILE THE ABOVE PROVISION OF THE ASPR REQUIRES THAT ALL OFFERORS SHALL BE INFORMED OF THE SPECIFIC DATE FOR THE CLOSING OF NEGOTIATIONS, THE REGULATION DOES NOT SPECIFY THE MANNER BY WHICH OFFERORS ARE TO BE NOTIFIED. IT IS CLEAR FROM THE RECORD THAT YOU WERE GIVEN VERBAL NOTICE OF THE APPROXIMATE TIME FOR THE CLOSING OF NEGOTIATIONS WHEN YOU SUBMITTED YOUR REVISED PROPOSAL ON DECEMBER 21, 1966. IN ADDITION, SHORTLY AFTER THE TIME FIXED FOR THE CLOSING OF NEGOTIATIONS, THE CONTRACTING OFFICER, AT YOUR REQUEST, READ THE TELEGRAM TO YOUR REPRESENTATIVE. YOU DID NOT INDICATE TO THE CONTRACTING OFFICER AT THAT TIME THAT YOU DESIRED TO CHANGE YOUR PRICE. IT WAS ONLY AFTER YOU LEARNED OF THE AWARD TO FAIRCHILD THAT YOU COMPLAINED OF THE FAILURE TO RECEIVE THE TELEGRAM CLOSING NEGOTIATIONS. IT IS REGRETTABLE THAT DELIVERY OF THE TELEGRAM COULD NOT HAVE BEEN EFFECTED TO YOU TIMELY THROUGH THE USUAL MEANS OF TRANSMISSION AND DELIVERY. HOWEVER, THE GOVERNMENT MADE EVERY EFFORT TO INSURE THAT INTERESTED PROPONENTS WOULD RECEIVE THE CLOSING INFORMATION BY TELEGRAM. SINCE THE INFORMATION CONTAINED IN THE TELEGRAM WAS TIMELY COMMUNICATED TO YOU ORALLY, NO PREJUDICE RESULTED FROM THE NON-RECEIPT OF THE TELEGRAM. IN EFFECT, THE SAME OPPORTUNITY OF REVISION WAS EXTENDED TO YOU AS WAS EXTENDED TO FAIRCHILD BY TELEGRAM. CF. 40 COMP. GEN. 126; 43 ID 279.

ACCORDINGLY, UPON REVIEW WE FIND NO LEGAL BASIS TO QUESTION THE AWARD MADE TO FAIRCHILD CAMERA AND INSTRUMENT CORPORATION. YOUR PROTEST MUST THEREFORE BE DENIED.