B-169743, JUL. 20, 1970

B-169743, JUL. 20, 1970

BID PROTEST -- NEGOTIATED PROCUREMENT -- REQ MODIFICATIONS DECISION TO ART DESIGNERS, INC. DENYING PROTEST AGAINST NEGOTIATED AWARD TO DESIGN AND PRODUCTION, INC. ON AN AMENDED REQUEST FOR PROPOSALS BY OFFICE OF CIVIL DEFENSE, DEPT. OF THE ARMY. MODIFICATION OF A REQUEST FOR PROPOSALS DELETING CERTAIN ITEMS AND THEN AWARD AND SIMULTANEOUS INCLUSION OF THE DELETED ITEMS IN THE CONTRACT WAS MATTER WITHIN DISCRETION OF THE AGENCY SINCE IT WAS MADE IN ACCORDANCE WITH ASPR 3-805.1(E).

TO ART DESIGNERS, INCORPORATED:

FURTHER REFERENCE IS MADE TO YOUR PROTEST AGAINST THE AWARD OF A CONTRACT TO DESIGN AND PRODUCTION, INCORPORATED (D&P), PURSUANT TO REQUEST FOR PROPOSALS NO. DAHC20-70-C-0094, ISSUED BY THE OFFICE OF CIVIL DEFENSE (OCD), DEPARTMENT OF THE ARMY.

THE SUBJECT SOLICITATION, ISSUED APRIL 24, 1970, WITH A CLOSING DATE OF APRIL 30, 1970, CALLED FOR PROPOSALS ON CONSTRUCTING AND INSTALLING NO LATER THAN JUNE 15, 1970, PERMANENT OCD EXHIBITS IN CALIFORNIA AND OHIO. THE DESIGN AND PLANS FOR THE EXHIBITS WERE DEVELOPED UNDER A CONTRACT WITH D&P, WHICH CALLED FOR FINAL PLANS TO BE DELIVERED ON APRIL 24, 1970. BECAUSE OF THE TIME CONSTRAINTS, OCD HELD A PRE PROPOSAL CONFERENCE ON APRIL 15 WITH FIVE FIRMS BELIEVED QUALIFIED FOR THE CONSTRUCTION AND INSTALLATION. ON APRIL 24 THESE SAME FIRMS WERE GIVEN THE REQUEST FOR PROPOSALS ALONG WITH THE FINAL PLANS. THE FOLLOWING PROPOSALS WERE RECEIVED ON APRIL 30:

ART DESIGNERS $64,540.00

BLAIR, INCORPORATED $69,812.38

DESIGN AND PRODUCTION,

INCORPORATED $73,650.00

IN REVIEWING THE PROPOSALS, OCD CONCLUDED THAT THE REQUIREMENT FOR GOVERNMENT APPROVAL OF THE SCRIPT AND PHOTOGRAPHS TO BE FURNISHED BY THE CONTRACTOR UNDER THE REQUEST FOR PROPOSALS COULD RESULT IN LENGTHY DISPUTES AND THEREBY DELAY THE CONSTRUCTION. MOREOVER, IT WAS FELT THAT DELETION OF THE REQUIREMENT WOULD ELIMINATE AN ELEMENT OF UNCERTAINTY AND, BECAUSE OF THE LIQUIDATED DAMAGES PROVISION, RESULT IN LOWER QUOTATIONS. THEREFORE, AN AMENDMENT WAS ISSUED ON MAY 4 DELETING THE REQUIREMENT AND CALLING FOR REVISED QUOTATIONS. THE REVISED QUOTATIONS AND AMOUNTS OF THE REDUCTIONS WERE AS FOLLOWS:

REVISED OFFER REDUCTION

DESIGN & PRODUCTION, INC. $58,950.00 $14,700.00

ART DESIGNERS, INC. $63,790.00 $ 750.00

BLAIR, INCORPORATED $67,596.56 $ 2,214.82 THE CONTRACT WAS AWARDED TO D&P ON MAY 4, 1970. AT THE SAME TIME D&P'S DESIGN CONTRACT WAS INCREASED BY $2,499 TO INCLUDE THE ITEMS DELETED FROM THE SUBJECT REQUEST FOR PROPOSALS.

YOU HAVE PROTESTED THE AWARD CONTENDING THAT THE "CIRCUMSTANCES SURROUNDING THE INVITATION AND AWARD ARE OF A QUESTIONABLE NATURE." YOU QUESTION THE CONTRACTING OFFICER'S MOTIVE IN ISSUING THE AMENDMENT ON MAY 4 WHEN YOU WERE THE LOW OFFEROR, HAD BEEN SURVEYED ON MAY 1, AND TIME WAS OF THE ESSENCE. IN THIS CONNECTION, YOU SUGGEST THAT CIRCUMSTANCES INDICATE YOUR INITIAL OFFER WAS DISCLOSED BY OCD. YOU STATE THAT ON MAY 1 A COMPETITOR INFORMED YOU THAT YOU WERE THE LOW OFFEROR. YOU ALSO REPORT THAT ON MAY 4 AN EMPLOYEE OF A COMPETITOR INQUIRED ABOUT EMPLOYMENT, STATING THAT HIS EMPLOYER WAS THE HIGH OFFEROR, LOW ON WORK AND YOUR FIRM WAS THE LOW OFFEROR. ALSO, YOU POINT TO THE SUBSTANTIAL REDUCTION MADE BY D&P IN ITS REVISED OFFER AND AWARD OF A CONTRACT TO IT FOR THE DELETED ITEMS FOR A PRICE OF $2,499.

THE SUBJECT PROCUREMENT WAS NEGOTIATED PURSUANT TO THE AUTHORITY OF 10 U.S.C. 2304(A)(1), AS IMPLEMENTED BY THE ARMED SERVICES PROCUREMENT REGULATION (ASPR). ASPR 3-805.1(E) PROVIDES THAT WHEN, DURING NEGOTIATIONS, A DECISION IS MADE TO RELAX, INCREASE OR OTHERWISE MODIFY THE SCOPE OF THE WORK, SUCH MODIFICATION SHALL BE MADE IN WRITING AS AN AMENDMENT TO THE REQUEST FOR PROPOSALS. IN THE INSTANT CASE SUCH DECISION WAS MADE FOR THE REASONS NOTED ABOVE AND THE RFP MODIFIED ACCORDINGLY. SINCE THIS IS A DECISION WITHIN THE DISCRETION OF THE ADMINISTRATIVE AGENCY CONCERNED, WE WOULD NOT BE JUSTIFIED IN SUBSTITUTING OUR JUDGMENT FOR THEIRS OR IN CONCLUDING THAT THE AMENDMENT WAS ISSUED OTHER THAN FOR THE REASONS STATED.

WITH REGARD TO YOUR ASSERTIONS CONCERNING DISCLOSURE OF YOUR INITIAL OFFER, OCD STATES THAT INSOFAR AS IT HAS BEEN ABLE TO ASCERTAIN NO DISCLOSURE WAS MADE. HOWEVER, THEIR REPORT DOES NOT INDICATE THAT SUCH CONCLUSION WAS BASED UPON A FULL INVESTIGATION. SINCE WE BELIEVE THAT YOUR CHARGES WARRANT A FULL INVESTIGATION, WE ARE SUGGESTING THAT THE SECRETARY OF THE ARMY CONSIDER REQUESTING AN INVESTIGATION OF THE MATTER BY THE INSPECTOR GENERAL.

ON THE BASIS OF THE PRESENT RECORD WE CANNOT SUSTAIN YOUR PROTEST. IF, HOWEVER, A FURTHER INVESTIGATION BY THE ARMY SUPPORTS YOUR CHARGES WE WILL RECONSIDER THE MATTER.