B-170798, NOV. 13, 1970

B-170798, NOV. 13, 1970

BID PROTEST - NEGOTIATIONS - TIME EXTENSION DENIAL OF PROTEST AGAINST AWARD OF NEGOTIATED FIRM-FIXED PRICE INDEFINITE QUANTITY CONTRACT TO COMMERCIAL DATA PROCESSING, INC., LOW OFFEROR, FOR COMPUTER TIME FOR PRINTING DATA FROM MAGNETIC TAPE ON PUNCH CARDS FOR ARMY AVIATION SYSTEMS COMMAND ON BASIS OF SEVERAL CONTENTIONS. PROTESTANT WHO ALLEGES THAT HE WAS NOT ON "BIDDERS LIST" BUT FILE INDICATES REQUIRED FORMS WERE MAILED, MAY NOT HAVE ALLEGATION UPHELD. PROTESTANT WHO ALLEGES THAT HE WAS DENIED FIVE DAY EXTENSION OF CLOSING DATE IN WHICH TO SUBMIT QUOTATION WHEN RECORD INDICATES THAT PROTESTANT HAD AMPLE OPPORTUNITY DURING NEGOTIATIONS TO REDEFINE QUOTATION WAS NOT PREJUDICED BY THE REFUSAL TO EXTEND CLOSING TIME AND THEREFORE PROTEST MUST BE DENIED.

TO CUSTOMIZED DATA SYSTEMS INC.:

REFERENCE IS MADE TO YOUR LETTER DATED SEPTEMBER 10, 1970, IN WHICH YOU PROTEST AN AWARD TO COMMERCIAL DATA PROCESSING, INC., UNDER REQUEST FOR QUOTATIONS (RFQ) NO. DAAJ01-70-Q-0325 ISSUED BY THE UNITED STATES ARMY AVIATION SYSTEMS COMMAND (AVSCOM), ST. LOUIS, MISSOURI.

THE RFQ WAS ISSUED ON APRIL 27, 1970, FOR THE PROCUREMENT OF COMPUTER TIME FOR THE CALCULATION, SORTING AND PRINTING OF DATA FROM MAGNETIC TAPE AND/OR PUNCH CARDS WITH COMPUTER PROGRAMS PROVIDED BY UNITED STATES ARMY AERONAUTICAL DEPOT MAINTENANCE CENTER (ARADMAC) CORPUS CHRISTI, TEXAS. THIS PROCUREMENT WAS TO BE ON A "TIME AND MATERIALS" BASIS AND THE PERIOD OF CONTRACT WAS TO EXTEND FOR A PERIOD FROM 12 TO 14 MONTHS WITH A MINIMUM OF 150 HOURS PER MONTH AND A MAXIMUM OF 200 HOURS PER MONTH OF COMPUTER TIME ORDERED UNDER THIS CONTRACT.

SIXTY-THREE FIRMS WERE SOLICITED AND FOUR QUOTATIONS WERE RECEIVED BY THE CLOSING DATE, MAY 18, 1970. LETTERS WERE SENT TO EACH OF THE FOUR OFFERORS ON MAY 20 AND MAY 21 REQUESTING CLARIFICATION IN SPECIFIC TECHNICAL AND COST AREAS OF EACH QUOTATION. NEGOTIATIONS WERE HELD AT AVSCOM WITH REPRESENTATIVES OF EACH OFFEROR BETWEEN THE DATES OF JUNE 4 AND JUNE 12, 1970. ON JUNE 12, 1970, A TELEGRAM WAS SENT TO EACH OFFEROR SETTING A FINAL CUT-OFF DATE FOR NEGOTIATIONS OF JUNE 22, 1970, AT 3 P.M., CDST, FOR SUBMISSION OF ANY AND ALL REVISED QUOTATIONS.

ON AUGUST 7, 1970, A TELEGRAM WAS SENT TO EACH OF THE OFFERORS STATING THAT THE PERIOD OF CONTRACT HAD BEEN CHANGED FROM A MINIMUM 12 MONTH PERIOD TO A MINIMUM 10 MONTH PERIOD AND REQUESTED EACH OFFEROR TO SUBMIT ANY RESULTANT CHANGE IN ITS QUOTATION BY 4:30 P.M., CDST, ON AUGUST 11, 1970, OR TO SUBMIT A STATEMENT THAT THIS MODIFIED REQUIREMENT RESULTED IN NO CHANGE FROM ITS PREVIOUS QUOTATION. ON AUGUST 21, 1970, A TELEGRAM WAS SENT TO EACH OF THE OFFERORS CHANGING THE PROPOSED TYPE OF CONTRACT FROM A "TIME AND MATERIALS" TYPE OF CONTRACT TO A "FIRM-FIXED-PRICE INDEFINITE QUANTITY" TYPE OF CONTRACT. THE TELEGRAM FURTHER SET A NEW CLOSING DATE OF 12 M., CDST, ON AUGUST 26, 1970, FOR THE SUBMISSION OF ANY AND ALL REVISED QUOTATIONS. EACH OFFEROR RESPONDED IN A TIMELY MANNER INFORMING THE CONTRACTING OFFICER THAT NO CHANGE WOULD BE MADE IN ITS QUOTATION. AUGUST 31, 1970, AN AWARD WAS MADE TO THE LOWEST RESPONSIVE, RESPONSIBLE OFFEROR, COMMERCIAL DATA PROCESSING, INC., WHICH FIRM AT THE TIME OF AWARD WAS LOCATED IN THE OIL INDUSTRIES BUILDING, 723 NORTH BROADWAY, CORPUS CHRISTI, TEXAS.

AS A RESULT OF THIS AWARD TO COMMERCIAL DATA PROCESSING INC., YOU PROTESTED TO THIS OFFICE AND ALLEGED VARIOUS IMPROPRIETIES BY THE ARMY AVIATION SYSTEMS COMMAND, THE MATERIAL PORTIONS OF WHICH ARE SET OUT AND DISCUSSED BELOW.

WITH REGARD TO YOUR ALLEGATION THAT YOU WERE NOT PROVIDED WITH A COPY OF THE RFQ, THE CONTRACTING OFFICER HAS ADVISED UNDER DATE OF OCTOBER 1 THAT YOUR FIRM'S NAME WAS NOT ON FILE AT AVSCOM AT THE TIME THAT THE "BIDDERS LIST" WAS PREPARED FOR THIS SPECIFIC RFQ. THE CONTRACTING OFFICER FURTHER STATES:

"THE BID LIST UNIT RECORDS SHOW THAT A SET OF THE REQUIRED FORMS TO GET ON THE BID LIST WERE MAILED TO CUSTOMIZED DATA SYSTEMS, INC., 1630 SOUTH BROWNLEE, CORPUS CHRISTI, TEXAS, 78404, ATTN: MR. THOMAS B. POTTER ON 3 JUNE 1970, BASED ON REQUEST BY DEAN STEWART, CONTRACT SPECIALIST, PROCUREMENT DIRECTORATE, AVSCOM, AS A RESULT OF TELEPHONE CONVERSATION WITH COLONEL WILLIAM POTTER, CUSTOMIZED DATA SYSTEMS, ON 18 MAY 1970, THAT HE WOULD SUBMIT A QUOTATION IN RESPONSE TO RFQ DAAJ01 70-Q-0325(3L). REPLY HAS BEEN RECEIVED IN THE BID LIST UNIT TO DATE."

CONCERNING YOUR ALLEGATION THAT YOU WERE DENIED A FIVE DAY EXTENSION OF THE CLOSING DATE IN WHICH TO SUBMIT YOUR QUOTATION, THE ADMINISTRATIVE REPORT STATES THAT MR. DEAN STEWART, CONTRACT SPECIALIST, TELEPHONED YOUR PRESIDENT ON THE MORNING OF MAY 18, 1970, AND INFORMED HIM THAT THE GOVERNMENT DECISION WAS TO DENY HIS EXTENSION REQUEST BECAUSE OF THE URGENT NEED FOR THE COMPUTER TIME; BECAUSE QUOTATIONS HAD ALREADY BEEN RECEIVED FROM OTHER FIRMS, AND BECAUSE GRANTING AN EXTENSION AT THAT TIME WOULD NOT BE IN THE GOVERNMENT'S BEST INTEREST. HE WAS TOLD THAT CUSTOMIZED DATA SYSTEMS HAD PREPARED ITS QUOTATION OVER THE WEEKEND AND IT WAS BEING HAND CARRIED TO ST. LOUIS. IN VIEW THEREOF, AND SINCE IT APPEARS THAT YOU HAD ADEQUATE OPPORTUNITY DURING NEGOTIATIONS TO REFINE YOUR QUOTATION, IT WOULD NOT APPEAR THAT YOU WERE PREJUDICED BY THE REFUSAL TO EXTEND THE CLOSING DATE.

YOU ALSO ALLEGE THAT THE RFQ REQUIRED BIDDERS' FACILITIES TO BE LOCATED WITHIN FORTY MILES OF ARADMAC, WHICH IS AT CORPUS CHRISTI NAVAL AIR STATION, AND THE SUCCESSFUL BIDDER IS LOCATED 225 MILES FROM ARADMAC. WHILE IT MAY BE TRUE THAT THE MAIN OFFICE OF COMMERCIAL DATA PROCESSING IS ROUGHLY 225 MILES AWAY, THE RFQ ONLY REQUIRED THAT THE CONTRACTOR'S EQUIPMENT BE LOCATED WITHIN 40 MILES. AT THE TIME OF THE AWARD THE SUCCESSFUL BIDDER HAD RENTED A FACILITY LOCATED AT THE OIL INDUSTRIES BUILDING, 723 NORTH BROADWAY, CORPUS CHRISTI, TEXAS, IN WHICH THE EQUIPMENT WILL BE HOUSED, AND CONSEQUENTLY IS WELL WITHIN THE REQUIRED FORTY MILE LIMIT SET FORTH IN THE RFQ.

WITH REGARD TO YOUR ALLEGATION THAT "IT IS OUR UNDERSTANDING THAT THE SMALL BUSINESS SECTION OF THE U.S. ARMY AVIATION SYSTEMS COMMAND MUST DO BUSINESS WITH A LOCAL FIRM, IF THE LOCAL FIRM CAN PROVIDE SUCH SERVICES AS REQUIRED," THIS OFFICE HAS BEEN INFORMED BY THE CHIEF, SMALL BUSINESS ADVISORY INDUSTRIAL ASSISTANCE OFFICE AT AVSCOM THAT THE U.S. ARMY AVIATION SYSTEMS COMMAND HAS NO SUCH POLICY. ALSO WE ARE INFORMED BY THE UNITED STATES ARMY SMALL BUSINESS & ECONOMIC UTILIZATION POLICY ADVISOR THAT THERE IS NO SUCH POLICY WITH THE SMALL BUSINESS SECTION OF THE U.S. ARMY GENERALLY NOR IS THERE SUCH A REGULATION IN THE DEFENSE DEPARTMENT. IN VIEW THEREOF, AND SINCE YOUR PROTEST DOES NOT IDENTIFY THE SOURCE OF SUCH REQUIREMENT, WE MUST CONCLUDE THAT THIS PORTION OF YOUR PROTEST IS IN ERROR.

YOU FURTHER ALLEGE THAT "THIS HOUSTON BASED FIRM CREATES UNFAIR COMPETITION TO OTHER COMPUTER FIRMS IN CORPUS CHRISTI INASMUCH AS THE ARMY CONTRACT WILL ALLOW A FREE COMPUTER TO BE MOVED INTO THE TRADE AREA OF ALL DATA PROCESSORS IN THIS COMMUNITY". WHILE IT MAY WELL BE TRUE THAT THE CONTRACT AWARDED WILL RESULT IN ADDITIONAL COMPETITION TO ESTABLISHED COMPUTER FIRMS IN CORPUS CHRISTI, THE PROCUREMENT AT ISSUE WAS COMPETITIVE AND WAS AWARDED TO THE LOWEST RESPONSIVE, RESPONSIBLE OFFEROR. ADDITIONALLY, THE GOVERNMENT WILL PAY ONLY FOR THE TIME THE COMPUTER IS IN OPERATION AND THE COST OF ANY SHIPMENT OF A COMPUTER OR ANY RENTAL OF A LOCAL COMPUTER BY COMMERCIAL DATA PROCESSORS, INC., MUST OF NECESSITY BE INCORPORATED INTO THE HOURLY RATE COMPETITIVELY OFFERED BY COMMERCIAL DATA PROCESSORS, INC. ACCORDINGLY, WE SEE NO BASIS ON WHICH IT CAN VALIDLY BE CONTENDED THAT PERFORMANCE OF THE CONTRACT WILL CREATE UNFAIR COMPETITION TO COMPUTER FIRMS ALREADY LOCATED IN THE AREA.

WITH REGARD TO YOUR ALLEGATION THAT " ... THE SUCCESSFUL BIDDER COULD EASILY HAVE HAD ACCESS TO PRIVI INFORMATION", THE CONTRACTING OFFICER STATES THAT THE PROCUREMENT PERSONNEL AT AVSCOM AT NO TIME FURNISHED ANY INFORMATION TO ANY ONE OF THE FIRMS WHO RESPONDED TO THE RFQ WHICH WAS NOT IN TURN FURNISHED TO ALL RESPONSIVE OFFERORS. IN THE ABSENCE OF ANY EVIDENCE TO SUPPORT YOUR ALLEGATIONS, WE MUST ACCEPT THE CONTRACTING OFFICER'S STATEMENT AS CORRECT.

IN VIEW OF THE FOREGOING, YOUR PROTEST MUST BE DENIED.