B-167369, SEP 18, 1969

B-167369, SEP 18, 1969

BID PROTEST - LOST LOW OFFER DECISION TO FLOWDYNE CORPORATION DENYING PROTEST AGAINST NEGOTIATED AWARD TO WALTER KIDDE & COMPANY FOR FURNISHING AIR FLASKS TO NAVAL ORDINANCE STATION. LETTER FROM LOW OFFEROR WHICH WAS SENT CERTIFIED MAIL - RETURN RECEIPT REQUESTED AND SUBSEQUENTLY LOST AFTER RECEIPT AT THE PROCURING INSTALLATION BEFORE THE CLOSING DATE FOR OFFERS DOES NOT AFFORD ANY LEGAL BASIS TO CANCEL AWARD MADE TO LOWEST AND BEST OFFER RECEIVED PRIOR TO CLOSING TIME FOR OFFERS. WHILE IT IS UNFORTUNATE THAT OFFER WAS LOST, CORRECTIVE ACTION HAS BEEN TAKEN TO PREVENT FUTURE OCCURRENCES.

FLOWDYNE CORPORATION:

REFERENCE IS MADE TO YOUR TELEGRAM OF JUNE 28 AND LETTER OF JUNE 27, 1969, PROTESTING AGAINST THE AWARD OF A CONTRACT TO WALTER KIDDE & COMPANY UNDER REQUEST FOR PROPOSALS (RFP) NO. N00197-69-R-0019, ISSUED BY THE NAVAL ORDNANCE STATION, LOUISVILLE, KENTUCKY.

THE SUBJECT RFP, ISSUED ON FEBRUARY 14, 1969, SOLICITED OFFERS FOR FURNISHING 386 AIR FLASKS. OFFERS WERE SOLICITED ON TWO BASES; ITEM 1 INCLUDING FIRST ARTICLE APPROVAL TESTS AND ITEM 2 - EXCLUDING FIRST ARTICLE APPROVAL TESTS. THE PROCUREMENT WAS SYNOPSIZED AND MAILED TO 35 PROSPECTIVE OFFERORS. AMENDMENT NO. 0001 TO THE RFP CHANGED THE SPECIFICATIONS AND EXTENDED THE CLOSING DATE FROM MARCH 10 TO MARCH 14, 1969. IT IS REPORTED THAT 10 OFFERS WERE RECEIVED IN RESPONSE TO THE RFP AND, DURING THE EVALUATION OF THE PROPOSALS, YOUR FIRM WAS QUESTIONED AS TO ITS LABOR HOUR RATE WHICH APPEARED TOO LOW. THEREAFTER, BY LETTER OF MARCH 29, 1969, YOUR FIRM CORRECTED YOUR LABOR RATE UPWARDS AND SUBMITTED A REVISED PRICE OF $173.13 PER UNIT ON ITEM 1.

IT IS FURTHER REPORTED THAT ON MAY 16, 1969, ALL OFFERORS (EXCEPT PLATTE MANUFACTURING COMPANY, WHCH HAD WITHDRAWN ITS OFFER) WERE CONTACTED BY TELEGRAMS GIVING THEM THE OPPORTUNITY TO SUBMIT THEIR BEST AND FINAL OFFERS BY CLOSE OF BUSINESS ON MAY 23, 1969. IN RESPONSE THERETO, ANACONDA METAL HOSE DIVISION WAS THE ONLY OFFEROR THAT REVISED ITS PRICES IN ITS FINAL OFFER. WALTER KIDDE & COMPANY, WIL-JO MANUFACTURING COMPANY AND TAVCO, INC., RESPONDED WITH NO CHANGES. RESPONSES WERE NOT RECEIVED FROM UNITED AIRCRAFT PRODUCTS, FLOWDYNE CORPORATION, JO-BAR MANUFACTURING COMPANY, GUNHILL INDUSTRIES AND TRI STATE PRECISION WORKS. THEREUPON, ON JUNE 9, 1969, AWARD WAS MADE TO WALTER KIDDE & COMPANY ON ITEM 2 AT $155.95 (TOTAL PRICE $60,196.70), AS THE LOWEST RESPONSIBLE OFFEROR OF RECORD, AND BY LETTER OF JUNE 10, 1969, ALL UNSUCCESSFUL OFFERORS WERE NOTIFIED OF THE AWARD.

BY LETTER OF JUNE 13, 1969, TO THE PROCUREMENT OFFICE, YOU PROTESTED THAT THE AWARD MADE TO KIDDE FOR A TOTAL PRICE OF $60,196.70 WAS HIGHER THAN YOUR OFFER OF $57,321. THIS WAS THE FIRST NOTICE THAT THE CONTRACTING OFFICER HAD OF A LOWER OFFER AND YOU WERE CONTACTED AND INFORMED BY THE CONTRACTING OFFICER THAT HE HAD NO RECORD OF RECEIVING A REVISED PRICE LOWER THAN YOUR UNIT PRICE OF $173.13 ON ITEM 1. YOU WERE ASKED TO SUBSTANTIATE YOUR SUBMISSION OF A LOWER PRICE. IN RESPONSE, YOU SUBMITTED A COPY OF A LETTER DATED MAY 21, 1969, IN WHICH YOU OFFERED A UNIT PRICE OF $148.50 AND A TOTAL PRICE OF $57,321 (INCLUDING FIRST ARTICLE TESTING), AND EVIDENCE SHOWING THAT THE LETTER HAD BEEN SENT BY CERTIFIED MAIL - RETURN RECEIPT REQUESTED - TO THE NAVAL ORDNANCE STATION, PROCUREMENT DEPARTMENT, LOUISVILLE, AND HAD BEEN RECEIVED AT THE STATION PRIOR TO THE CLOSING DATE OF MAY 23, 1969. SINCE YOU COMPLIED WITH THE SOLICITATION REQUIREMENTS, YOU CONTEND THAT THE AWARD MADE TO WALTER KIDDE & COMPANY SHOULD BE SET ASIDE AND AWARD MADE TO YOUR FIRM AT THE PURPORTEDLY LOWER PRICE CONTAINED IN YOUR LETTER OF MAY 21, 1969.

IN HIS REPORT ON THE HANDLING OF YOUR LETTER OF MAY 21, 1969, THE CONTRACTING OFFICER STATES THAT:

"1. THE LETTER IN QUESTION WAS DELIVERED TO THE NAVAL ORDNANCE STATION, LOUISVILLE, KENTUCKY BY A POST OFFICE DEPARTMENT DRIVER ON 22 MAY 1969 AND RECEIPT EXECUTED THEREFOR BY THE RECEPTIONIST LOCATED IN THE ADMINISTRATION BUILDING.

"2. THE LETTER WAS THEN HAND CARRIED TO THE PROCUREMENT DEPARTMENT LOCATED IN 'V' BUILDING, WHICH IS SITUATED SOME DISTANCE FROM THE ADMINISTRATION BUILDING WHERE A RECEIPT WAS OBTAINED FROM THE PROCUREMENT DEPARTMENT RECEPTIONIST, TIME STAMPED 1400 HOURS 22 MAY 1969.

"3. THE LETTER CANNOT BE TRACED BEYOND ITS RECEIPT BY THE PROCUREMENT DEPARTMENT RECEPTIONIST. EVERY CONCEIVABLE PLACE HAS BEEN SEARCHED AND RESEARCHED IN AN EFFORT TO FIND THE LETTER, BUT ALL EFFORTS HAVE FAILED TO LOCATE IT."

IN OTHER WORDS, THERE IS NO DISPUTE FROM THE FACTS BEFORE US THAT YOU DID SEND A LETTER OF MAY 21, 1969, TO THE PROCUREMENT OFFICE AND THAT YOU WERE WITHOUT FAULT IN ITS SUBSEQUENT LOSS. WHILE IT MAY BE SMALL SOLACE TO YOU, THE PROCUREMENT OFFICE REPORTS THAT ACTION HAS BEEN TAKEN TO PREVENT FUTURE OCCURRENCES OF THIS NATURE BY INITIATING A LOG FOR THE RECEIPT OF SUCH DOCUMENTS IN THE PROCUREMENT DEPARTMENT AND TO HOLD THOSE INDIVIDUALS SIGNING FOR THE DOCUMENTS RESPONSIBLE FOR SAFEKEEPING. HOWEVER, THE FOREGOING AFFORDS NO LEGAL BASIS TO CANCEL THE AWARD MADE TO KIDDE WHICH REPRESENTED THE LOWEST AND BEST OFFER RECEIVED BEFORE THE CLOSE OF BUSINESS ON MAY 23, 1969.

IN A DECISION OF OCTOBER 25, 1962, B-149981, WE HELD THAT A BIDDER WHO ALLEGED THAT THE FAILURE OF BOTH HIS BID AND ADDENDUM TO REACH THE CONTRACTING OFFICER PRIOR TO THE BID OPENING ON SEPTEMBER 19, 1962, WAS DUE TO THEIR LOSS IN THE MAILS MAY NOT RESUBMIT HIS BID, NOTWITHSTANDING THAT A LETTER WAS MAILED TO THE PROCUREMENT AGENCY ON SEPTEMBER 12, 1962, SINCE THE RECEIPT DID NOT SHOW THE CONTENTS OF THE ENVELOPE OR THE MAILING TIME. ALTHOUGH THAT CASE INVOLVED A BID WHICH APPARENTLY WAS LOST BY THE POST OFFICE, THE FOLLOWING LANGUAGE THEREFROM APPEARS TO BE APPLICABLE AND DISPOSITIVE OF YOUR PROTEST:

"NINETEEN FIRMS SUBMITTED PRICES UNDER THIS INVITATION WHICH, OF COURSE, HAVE BEEN MADE PUBLIC. UNDER THESE CIRCUMSTANCES IT WOULD NOT BE REASONABLE, NOR PERMISSIBLE, TO ALLOW YOU TO RESUBMIT YOUR BID. ALTHOUGH THERE IS NO REASON TO QUESTION YOUR GOOD FAITH, AWARD ON THE BASIS OF SELFSERVING STATEMENTS WOULD NOT BE CONSISTENT WITH THE MAINTENANCE OF THE INTERGRITY OF THE COMPETITIVE BIDDING SYSTEM WHICH REQUIRES AWARD TO BE MADE TO THE LOW RESPONSIVE AND RESPONSIBLE BIDDER OF RECORD AT THE TIME OF THE OPENING, EXCEPT IN CERTAIN RECOGNIZED AREAS WHERE DETAILED PROCEDURES HAVE BEEN ESTABLISHED, AS IN LATE BID CASES."

WHILE THE LOSS OF YOUR LETTER OF MAY 21, 1969, AT THE GOVERNMENT INSTALLATION IS UNFORTUNATE, THERE APPEARS NO PROPER OR LEGAL BASIS FOR OBJECTION BY OUR OFFICE TO THE AWARD MADE TO THE KIDDE COMPANY. B 166973, JUNE 26, 1969.

ACCORDINGLY, YOUR PROTEST IS DENIED.