B-171568, APR 15, 1971

B-171568, APR 15, 1971

BID PROTEST - LATE OFFERS DENIAL OF PROTEST OF INNOVATORS, INC., AGAINST THE AWARD OF CONTRACT FOR CONSULTANT SERVICES TO ABT ASSOCIATES, INC., INCUMBENT CONTRACTOR UNDER RFP ISSUED BY DEPARTMENT OF LABOR, MANPOWER ADMINISTRATION, OFFICE OF NATIONAL PROJECTS. PROTESTANT'S OFFER WAS NOT CONSIDERED AS IT WAS A LATE UNACCEPTABLE PROPOSAL. PROTESTANT ALLEGED ITS OFFER SENT VIA NATIONAL AIRLINES DELIVERY SERVICE WAS RECEIVED AT DEPARTMENT OF LABOR, MANPOWER ADMINISTRATION ON SEPTEMBER 30, 1971, THE LAST DATE FOR RECEIPT OF PROPOSALS. OFFER WAS NOT RECEIVED IN ROOM DESIGNATED IN RFP FOR DELIVERY UNTIL 11 A.M. OCTOBER 1, 1971. RFP PROVISIONS FOR CONSIDERATION OF LATE OFFERS WERE NOT APPLICABLE AS THEY PROVIDED CRITERIA ONLY FOR LATE TELEGRAPHIC AND MAILED OFFERS. THE VALIDITY OF PROTESTANT'S ALLEGATION THAT CONTRACT EVALUATION CRITERIA WERE WEIGHTED IN FAVOR OF INCUMBENT CONTRACTOR CANNOT BE DETERMINED AS NO WAY OF KNOWING THAT PROTESTANT WOULD NOT HAVE BEEN EVALUATED AS SUCCESSFUL OFFEROR HAD PROPOSAL BEEN RECEIVED ON TIME.

TO INNOVATORS, INC.:

REFERENCE IS MADE TO YOUR LETTER A-303 OF DECEMBER 17, 1970, WITH ENCLOSURES, PROTESTING THE AWARD OF A CONTRACT TO ABT ASSOCIATES, INC., UNDER REQUEST FOR PROPOSALS (RFP) ONP 71-2, ISSUED BY THE DEPARTMENT OF LABOR, MANPOWER ADMINISTRATION, OFFICE OF NATIONAL PROJECTS. YOUR PROPOSAL WAS NOT CONSIDERED FOR AWARD BECAUSE IT WAS DETERMINED TO BE A LATE UNACCEPTABLE PROPOSAL.

PROPOSALS WERE SOLICITED UNDER THE RFP FOR CONSULTANT SERVICES IN CONJUNCTION WITH THE CONCENTRATED EMPLOYMENT PROGRAM (CEP) FOR REGIONS I, II, III, IV, V, IX, AND X ON A SINGLE REGION BASIS OR COMBINATION OF TWO OR MORE REGIONS. THE TIME FOR SUBMISSION OF PROPOSALS WAS SPECIFIED IN THE RFP AS MIDNIGHT, SEPTEMBER 30, 1970.

ON THE MORNING OF SEPTEMBER 30, 1970, INNOVATORS, INC., SENT ITS PROPOSAL VIA UNITED AIR LINES AIR DELIVERY SERVICE WITH ACCOMPANYING INSTRUCTIONS FOR DELIVERY ON ARRIVAL AT NATIONAL AIRPORT, WASHINGTON, D.C., TO THE LOCATION DESIGNATED ON PAGE 8 OF THE RFP. IN ACCORDANCE WITH THE DELIVERY PROVISIONS, AND EVIDENCED BY A COPY OF THE AIR BILL RECEIPT, NO. 0521 0063, THE PACKAGE WAS DELIVERED TO THE CONSIGNEE, U.S. DEPARTMENT OF LABOR, MANPOWER ADMINISTRATION, 1741 RHODE ISLAND AVENUE, WASHINGTON, D.C., WHERE IT WAS RECEIVED AND RECEIPTED IN THE CENTRAL MAILROOM AT 4 P.M., SEPTEMBER 30, 1970, BY A CHARLES GREEN OR GREER. AT 11 A.M. ON OCTOBER 1, 1970, THE PACKAGE WAS FORWARDED TO ROOM 202, THE OFFICE DESIGNATED IN THE RFP FOR RECEIPT OF PROPOSALS, AND WAS RECORDED AS A LATE BID AND HELD UNOPENED.

TWENTY-SIX OTHER PROPOSALS WERE RECEIVED AND DETERMINED TO BE RESPONSIVE. THEREAFTER, UPON EVALUATION, THE PROPOSAL OF ABT ASSOCIATES, INC., WAS ACCEPTED AND A CONTRACT WAS AWARDED FOR REGION IV, THE REGION UNDER PROTEST.

INNOVATORS, INC., CONTENDS THAT ITS PROPOSAL WAS TIMELY DELIVERED AND SHOULD HAVE BEEN CONSIDERED FOR AWARD. IT IS ALLEGED THAT THE PRICE DIFFERENTIAL BETWEEN THE INNOVATORS, INC., PROPOSAL FOR REGION IV AND THE SUCCESSFUL BIDDER'S PROPOSAL FOR THAT REGION IS GROUNDS IN ITSELF TO SET ASIDE THE CONTRACT AS WELL AS THE FAILURE OF THE CONTRACTING OFFICER TO COMPLY WITH SECTIONS 1-2.303-6 AND 1-2.303-7 OF THE FEDERAL PROCUREMENT REGULATIONS (FPR).

UNDER THE PROVISIONS OF THE "LATE OFFERS" SECTION (PARAGRAPH 8 OF THE SOLICITATION INSTRUCTIONS AND CONDITIONS) OF THE RFP, ONLY LATE MAILED OR TELEGRAPHIC OFFERS MAY BE CONSIDERED FOR AWARD PROVIDED CERTAIN CONDITIONS ARE MET. SEE 48 COMP. GEN. 59 (1968).

SINCE YOUR LATE OFFER WAS TRANSMITTED TO THE GOVERNMENT BY A METHOD OTHER THAN THOSE MENTIONED IN THE "LATE OFFERS" PROVISIONS OF THE RFP, THE PROCEDURES PRESCRIBED THEREIN FOR DETERMINING WHETHER A LATE MAILED OR TELEGRAPHIC OFFER IS ACCEPTABLE FOR CONSIDERATION ARE INAPPLICABLE WHERE THE LATE OFFER IS TRANSMITTED BY AIR DELIVERY SERVICE. HENCE, THE REJECTION OF YOUR LATE OFFER WAS PROPER UNDER THE CIRCUMSTANCES.

YOU HAVE ALSO ALLEGED THAT THE MANPOWER ADMINISTRATION WAS IN VIOLATION OF FPR SEC 1-2.303-6, NOTIFICATION TO LATE BIDDERS. HOWEVER, THAT SECTION IS INAPPLICABLE HERE SINCE IT APPLIES ONLY TO MAILED OR TELEGRAPHIC BIDS. ALSO, YOU HAVE CONTENDED THAT THERE WAS A VIOLATION OF FPR SEC 1-2.303-7 WHICH PROVIDES:

"A LATE BID WHICH IS NOT FOR CONSIDERATION SHALL BE HELD UNOPENED UNTIL AFTER AWARD AND THEN RETURNED TO THE BIDDER (UNLESS OTHER DISPOSITION IS REQUESTED OR AGREED TO BY THE BIDDER). *** " HOWEVER, OUR OFFICE NEED NOT CONSIDER THIS CONTENTION SINCE THE ABOVE PROVISION IS APPLICABLE TO THE RECEIPT AND DISPOSITION OF LATE BIDS UNDER FORMAL ADVERTISING PROCEDURES AS DISTINGUISHED FROM THE RECEIPT AND CONSIDERATION OF LATE OFFERS UNDER THE COMPETITIVE NEGOTIATION PROCEDURES INVOLVED HERE. MOREOVER, EVEN ASSUMING THAT YOUR LATE, UNACCEPTABLE OFFER WAS LOWER THAN THAT OF ABT ASSOCIATES, INC., NO AUTHORITY WOULD HAVE EXISTED TO EVALUATE YOUR OFFER AGAINST THOSE WHICH WERE ENTITLED TO CONSIDERATION UNDER THE TERMS OF THE RFP.

IN YOUR LETTER OF DECEMBER 22, 1970, TO CONGRESSMAN ROBERT E. JONES, YOU HAVE ALLEGED THAT THE VARIOUS POINT VALUES IN THE EVALUATION CRITERIA WERE HEAVILY WEIGHTED IN FAVOR OF THE INCUMBENT CONTRACTOR, ABT ASSOCIATES, INC. HOWEVER, WE ARE UNABLE TO DETERMINE THAT THE EVALUATION CRITERIA WERE IN FACT PREJUDICIAL TO YOU, SINCE WE HAVE NO WAY OF KNOWING THAT YOUR PROPOSAL WOULD NOT HAVE BEEN EVALUATED AS THE SUCCESSFUL PROPOSAL IF IT HAD BEEN RECEIVED ON TIME. FURTHER, IF YOU THOUGHT THE EVALUATION FACTORS WERE WEIGHTED AGAINST YOU, IT WOULD HAVE BEEN MORE APPROPRIATE TO HAVE ALLEGED THAT AND SOUGHT TO HAVE IT CORRECTED BEFORE SUBMITTING A PROPOSAL RATHER THAN COMPLAINING OF THAT ONLY AFTER LEARNING THAT YOU WOULD NOT HAVE YOUR OFFER CONSIDERED BECAUSE IT WAS RECEIVED LATE.

YOUR OTHER COMPLAINTS REGARDING THIS "SHOWCASE" PROCUREMENT (EVALUATION CRITERIA AND SUFFICIENCY OF PROPOSAL PREPARATION TIME) HAVE BEEN CAREFULLY CONSIDERED IN THE LIGHT OF THE RECORD BEFORE US AND WE FIND NO BASES TO QUESTION THE ADMINISTRATION OF THE PROCUREMENT.

THE PROTEST IS THEREFORE DENIED.