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B-161595, AUG. 17, 1967

B-161595 Aug 17, 1967
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- WHO PROTESTS AWARD BECAUSE HE WAS NOT GIVEN SUFFICIENT TIME TO BID. THAT HIS TELEGRAPHIC BID WAS NOT ACCEPTABLE AND THAT PROTESTANTS PRODUCT WAS SUPERIOR MUST HAVE PROTEST DENIED SINCE BOTH SUCCESSFUL BIDDER AND PROTESTANT HAD SAME TIME. ALTHOUGH PROTESTANT WAS ORALLY ADVISED THAT HE COULD SUBMIT TELEGRAPHIC BID. RECORDS OF CONVERSATIONS DO NOT SO INDICATE AND ASPR 2-202.2 PROVIDES THAT TELEGRAPHIC BIDS ARE ONLY PERMITTED WHEN AUTHORIZED AND PRESENT INVITATION DID NOT CONTAIN SUCH AUTHORIZATION. PRESIDENT: REFERENCE IS MADE TO YOUR TELEGRAM OF MAY 22. A SYNOPSIS OF THE PROPOSED PROCUREMENT WAS PUBLISHED IN THE COMMERCE BUSINESS DAILY ON APRIL 7. THE SUBJECT SOLICITATION WAS ISSUED ON APRIL 25.

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B-161595, AUG. 17, 1967

BIDS - TELEGRAPHIC - ACCEPTABILITY DECISION TO TELLUROMETER, INC. RE AWARD TO APPLIED DEVICES CORP. FOR ELECTRONIC SURVEYING INSTRUMENTS BY U.S. ARMY MOBILITY EQUIPMENT COMMAND, ST. LOUIS. BIDDER - THEN CURRENT CONTRACTOR --- WHO PROTESTS AWARD BECAUSE HE WAS NOT GIVEN SUFFICIENT TIME TO BID, THAT HIS TELEGRAPHIC BID WAS NOT ACCEPTABLE AND THAT PROTESTANTS PRODUCT WAS SUPERIOR MUST HAVE PROTEST DENIED SINCE BOTH SUCCESSFUL BIDDER AND PROTESTANT HAD SAME TIME, AND ALTHOUGH PROTESTANT WAS ORALLY ADVISED THAT HE COULD SUBMIT TELEGRAPHIC BID, RECORDS OF CONVERSATIONS DO NOT SO INDICATE AND ASPR 2-202.2 PROVIDES THAT TELEGRAPHIC BIDS ARE ONLY PERMITTED WHEN AUTHORIZED AND PRESENT INVITATION DID NOT CONTAIN SUCH AUTHORIZATION. WITH RESPECT TO CLAIM AS TO PROTESTANT'S PRODUCT BEING SUPERIOR TO LOW BIDDER-S, PRODUCT WHICH MEETS MINIMUM NEEDS OF GOVT. MAY NOT BE REJECTED BECAUSE A SUPERIOR PRODUCT MAY BE OFFERED.

TO MR. WARREN J. SINSHEIMER, PRESIDENT:

REFERENCE IS MADE TO YOUR TELEGRAM OF MAY 22, 1967, PROTESTING AGAINST THE AWARD OF A CONTRACT TO ANY OTHER CONCERN UNDER ADVERTISED SOLICITATION NO. DAAK01-67-B-A060, ISSUED BY THE DIRECTORATE OF PROCUREMENT AND PRODUCTION, U.S. ARMY MOBILITY EQUIPMENT COMMAND,ST. LOUIS, MISSOURI.

ACCORDING TO THE ADMINISTRATIVE RECORD, A SYNOPSIS OF THE PROPOSED PROCUREMENT WAS PUBLISHED IN THE COMMERCE BUSINESS DAILY ON APRIL 7, 1967, AND THE SUBJECT SOLICITATION WAS ISSUED ON APRIL 25, 1967, CALLING FOR BIDS ON 251 DISTANCE MEASURING ELECTRONIC MICROWAVE SURVEYING INSTRUMENTS. THE OPENING TIME AND DATE SPECIFIED IN THE IFB WAS 4:00 P.M., CDST, MAY 10, 1967. ALTHOUGH YOUR COMPANY WAS CURRENTLY SUPPLYING THE SAME ITEM UNDER A PRIOR CONTRACT (DA 11-184 AMC-750/T) ( AWARDED BY THE SAME COMMAND, THE SOLICITATION WAS NOT SENT TO IT. AFTER LEARNING ABOUT IT, YOU REQUESTED A COPY OF THE SOLICITATION ON MAY 1, 1967, AND ONE WAS PROMPTLY FORWARDED TO YOU. YOU STATE THAT AT THE SAME TIME YOU INQUIRED CONCERNING THE POSSIBILITY OF SUBMITTING A TELEGRAPHIC BID AND WERE INFORMED THAT A TELEGRAPHIC BID WOULD BE ACCEPTED PROVIDED IT REACHED THE COMMAND PRIOR TO BID OPENING TIME.

ON MAY 10, THE BID OPENING DATE, YOU PHONED THE CONTRACTING OFFICER AND REQUESTED A 30-DAY EXTENSION, WHICH WAS REFUSED. HOWEVER, YOU ALLEGE THAT THE CONTRACTING OFFICER AGAIN CONFIRMED THAT A TELEGRAPHIC BID WOULD BE ACCEPTABLE. ON THE AFTERNOON OF MAY 10, 1967, YOU CALLED THE CONTRACTING OFFICER TO ADVISE THAT YOUR TELEGRAPHIC BID WOULD BE RECEIVED PRIOR TO BID OPENING TIME AND WERE THEN INFORMED THAT A TELEGRAPHIC BID WOULD NOT BE ACCEPTABLE. BY TELEGRAM DATED MAY 22, 1967, YOU PROTESTED ANY AWARD TO ANY OTHER BIDDER AND OFFERED TO FURNISH THE ITEM AT $6,300 PER UNIT.

IT IS YOUR CONTENTION THAT YOU WERE NOT GIVEN SUFFICIENT TIME TO BID; THAT SINCE ONLY TWO OTHER BIDS WERE RECEIVED, ONE OF WHICH WAS NONRESPONSIVE BECAUSE OF A REQUIREMENT FOR RESEARCH AND DEVELOPMENT FUNDS, AND THE OTHER WAS $1,400 PER ITEM IN EXCESS OF YOUR BID PRICE, THE GOVERNMENT WOULD SUFFER FINANCIALLY TO THE EXTENT OF $351,400 BY NOT AWARDING TO YOU; THAT THE INSTRUMENT OFFERED BY YOU REPRESENTS A MORE ADVANCED STATE-OF-THE-ART IN TECHNIQUE AND PERFORMANCE; AND THAT YOUR COMPANY IS THE ONLY BIDDER ABLE TO FURNISH THE ITEM FROM PRODUCTION. YOU REQUEST THAT THE SOLICITATION BE CANCELLED AND THE PROCUREMENT NEGOTIATED WITH YOUR COMPANY.

CONTRARY TO YOUR STATED UNDERSTANDING AND ALLEGATION AS TO THE EXCESSIVE COST TO THE GOVERNMENT THE RECORD OF THE PROCUREMENT SHOWS THAT THE LOW BID RECEIVED WAS AT THE UNIT PRICE OF $4,450, OR $1,850 PER ITEM LESS THAN YOUR OFFER. IT IS FURTHER REPORTED THAT THERE IS NO BASIS FOR YOUR STATEMENT THAT THE LOW BIDDER WAS NONRESPONSIVE BECAUSE OF A REQUIREMENT FOR RESEARCH AND DEVELOPMENT FUNDS; THAT NO RESEARCH AND DEVELOPMENT FUNDS WERE REQUIRED OR REFERRED TO EITHER IN THE INVITATION OR IN THE BID, AND THE PROCURING ACTIVITY HAS DETERMINED THAT THE LOW BID WAS RESPONSIVE IN EVERY RESPECT TO THE REQUIREMENTS OF THE SOLICITATION.

WHETHER OR NOT YOUR PRODUCT IS SUPERIOR, AS YOU CLAIM, THE ENGINEER RESEARCH AND DEVELOPMENT LABORATORIES HAS DETERMINED THAT THE INVITATION REQUIREMENT REPRESENTS THE MINIMUM NEEDS OF THE GOVERNMENT, UP-DATED TO INCLUDE THE LATEST ENGINEERING CHANGES, AND A PRODUCT MEETING SUCH REQUIREMENTS MAY NOT BE REJECTED MERELY BECAUSE A SUPERIOR PRODUCT MAY BE AVAILABLE OR OFFERED. AS FOR YOUR ABILITY TO FURNISH THE ITEM FROM CURRENT PRODUCTION, THE INVITATION DOES NOT CONTAIN SUCH A REQUIREMENT, AND THE LOW BID CONFORMS TO THE DELIVERY SCHEDULE REQUIRED BY THE SOLICITATION.

SINCE IT IS THUS CLEAR THAT YOU WOULD NOT IN ANY EVENT BE ENTITLED TO AWARD OF THE PROCUREMENT IN QUESTION EVEN IF YOUR TELEGRAPHIC OFFER OF MAY 22 WERE CONSIDERED AS A RESPONSIVE BID, YOUR PROTEST APPEARS TO BE WITHOUT MERIT, AND CONSIDERATION OF YOUR OTHER CONTENTIONS MAY NOT BE REQUIRED. HOWEVER, FOR YOUR INFORMATION THIS OFFICE HAS HELD THAT READVERTISEMENT IS NOT REQUIRED WHERE A PROSPECTIVE BIDDER WAS NOT GIVEN ENOUGH TIME TO BID BECAUSE OF LATE RECEIPT OF AN INVITATION FOR BIDS. B-157817, DECEMBER 9, 1965. ALSO, THIS OFFICE HAS HELD ON SEVERAL OCCASIONS THAT WHERE THERE IS A SYNOPSIS AND ADEQUATE COMPETITION, FAILURE TO SOLICIT A PROSPECTIVE BIDDER AT THE TIME OTHER BIDDERS ARE SOLICITED IS NOT SUFFICIENT BASIS FOR CANCELLATION. 34 COMP. GEN. 684; B-151737, JULY 26, 1963; B-154535, AUGUST 28, 1964; B 150565, MAY 10, 1963. IN THIS CONNECTION YOUR CONTENTION THAT YOU DID NOT HAVE SUFFICIENT TIME TO BID APPEARS TO BE WEAKENED BY THE FACT THAT APPLIED DEVICES CORPORATION, THE LOW BIDDER, ALSO RECEIVED ITS INVITATION ON MAY 1, 1967, AND MANAGED TO SUBMIT ITS BID ON TIME AFTER IT HAD BEEN REFUSED AN EXTENSION OF THE BID OPENING DATE. IT IS ALSO NOTED THAT YOU WERE CURRENTLY PRODUCING THE ITEM AND HAD SUBMITTED A PRICE PROPOSAL FOR AN ADD-ON QUANTITY UNDER YOUR EXISTING CONTRACT ON MAY 8, 1967, TWO DAYS BEFORE THE DATE OF BID OPENING UNDER THE SUBJECT SOLICITATION. IN A SIMILAR SITUATION, WE HAVE UPHELD AWARD OF A CONTRACT OVER THE PROTEST OF A BIDDER WHO WAS IN PRODUCTION AND HAD RECENTLY BID ON THE ITEM, AS IN THIS CASE. 36 COMP. GEN. 62.

CONCERNING YOUR CONTENTION THAT YOU WERE ORALLY ADVISED A TELEGRAPHIC BID WOULD BE ACCEPTABLE, THE RECORDS OF SUCH CONVERSATIONS DO NOT SO INDICATE, AND YOUR CONTENTIONS ARE DENIED BY THE PROCUREMENT PERSONNEL WITH WHOM YOU SPOKE. BE THAT AS IT MAY, ARMED SERVICES PROCUREMENT REGULATION SECTION 2 -202.2 PROVIDES THAT TELEGRAPHIC BIDS ARE PERMITTED ONLY WHEN AUTHORIZED BY THE INVITATION, AND THE PRESENT INVITATION CONTAINED NO SUCH AUTHORIZATION. FURTHER, THIS OFFICE HAS HELD THAT A TELEGRAPHIC BID, UNLESS AUTHORIZED BY THE INVITATION FOR BIDS, SHOULD BE REJECTED. COMP. GEN. 279.

IN VIEW OF THE FOREGOING, WE SEE NO LEGAL BASIS FOR OBJECTING TO THE AWARD OF THE CONTRACT TO APPLIED DEVICES CORPORATION, AND YOUR PROTEST MUST THEREFORE BE DENIED.

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