B-175562, MAY 19, 1972

B-175562, MAY 19, 1972

BID PROTEST - ALLEGED IMPROPER PROCUREMENT - PROCEDURES DECISION DENYING THE PROTEST OF BARNES ENGINEERING COMPANY AGAINST PROCEDURES USED BY THE NAVAL REGIONAL PROCUREMENT OFFICE, PHILADELPHIA, PA., FOR THE PROCUREMENT OF AN INFRARED SPECTRUM SCANNER SYSTEM. THE LANGUAGE OF THE SOLICITATION READ AS A WHOLE IS SUFFICIENT TO HAVE PUT ALL OFFERORS ON NOTICE OF ITS INTENDED USE IN A NEGOTIATED PROCUREMENT, NOTWITHSTANDING THE FACT THAT IT WAS DESIGNATED AN IFB THROUGH A TYPOGRAPHICAL ERROR. UNDER THESE CIRCUMSTANCES, NEITHER PARTY WAS MATERIALLY PREJUDICED BY THE MISDESIGNATION AND IN VIEW OF THE URGENCY INVOLVED, IT APPEARS THAT THE ACTION TAKEN WAS EQUIVALENT TO A RESOLICITATION OF THE PROCUREMENT. ACCORDINGLY, THE PROTEST IS DENIED.

TO BARNES ENGINEERING COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 24, 1972, AND TO SUBSEQUENT CORRESPONDENCE RELATIVE TO YOUR PROTEST AGAINST PROCUREMENT PROCEDURES USED BY THE NAVAL REGIONAL PROCUREMENT OFFICE, PHILADELPHIA, PENNSYLVANIA, IN CONNECTION WITH SOLICITATION NO. N00140-72-R-1145, ISSUED FOR THE PROCUREMENT OF AN INFRARED SPECTRUM SCANNER SYSTEM, TECHNICAL DATA AND RELATED SERVICES.

THE SOLICITATION CONTAINED SPACES TO INDICATE WHETHER IT WAS AN INVITATION FOR BIDS UNDER FORMAL ADVERTISING PROCEDURES (IFB), OR A REQUEST FOR PROPOSALS UNDER CONTRACT NEGOTIATION PROCEDURES (RFP). THE SPACE FOR IFB WAS MARKED AND THE SOLICITATION PROVIDED THAT SEALED OFFERS WOULD BE RECEIVED UNTIL 4:00 P.M., FEBRUARY 14, 1972. TWO OFFERS WERE RECEIVED AS OF SUCH TIME, ONE FROM YOUR COMPANY AND ANOTHER FROM EXOTECH, INCORPORATED, GAITHERSBURG, MARYLAND. THERE WAS NO PUBLIC OPENING OF THE OFFERS AND THE CONTRACTING OFFICER PROCEEDED ON THE BASIS THAT THE CONTRACT AWARD WOULD BE MADE IN ACCORDANCE WITH THE CONTRACT NEGOTIATION PROCEDURES OF SECTION 3-805 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR).

ALTHOUGH THE CONTRACTING OFFICER BELIEVED THAT YOUR OFFER WAS NOT ACCEPTABLE AS SUBMITTED, AFTER CERTAIN DISCUSSIONS AND CORRESPONDENCE WITH YOUR COMPANY HE DECIDED TO TREAT THE PROPOSAL AS ACCEPTABLE IF YOU WOULD PROVIDE UNEQUIVOCAL CONFIRMATION THAT EQUIPMENT MEETING THE REQUIREMENTS OF THE SOLICITATION WOULD BE DELIVERED IN A TIMELY MANNER. YOU PROVIDED SUCH CONFIRMATION BY TELEGRAM OF APRIL 3, 1972, IN WHICH YOU ALSO REFERRED TO YOUR PROTEST OF MARCH 24, 1972, AGAINST CONSIDERATION OF THE OFFERS UNDER NEGOTIATION PROCEDURES INSTEAD OF MAKING AN AWARD TO THE LOWEST RESPONSIVE AND RESPONSIBLE BIDDER UNDER THE PROCEDURES APPLICABLE TO FORMAL ADVERTISING.

IN LETTERS DATED MARCH 24, 1972, TO THE NAVAL REGIONAL PROCUREMENT OFFICE, AND TO OUR OFFICE, YOU INDICATED THAT YOU WERE ADVISED THERE HAD BEEN A CLERICAL ERROR IN MARKING THE SOLICITATION AS AN IFB AND THAT THE GOVERNMENT INTENDED A NEGOTIATED PROCUREMENT. YOU ALSO INDICATED THAT, IF A NEGOTIATED PROCUREMENT WAS INTENDED, YOU WOULD QUESTION THE VALIDITY OF ANY DETERMINATION AND FINDINGS PURSUANT TO ASPR 3-200 INASMUCH AS THE SOLICITATION WAS PUBLISHED IN THE COMMERCE BUSINESS DAILY AS A FORMALLY ADVERTISED PROCUREMENT.

IT WAS REPORTED BY THE CONTRACTING OFFICER THAT A REQUISITION FOR AN INFRARED SPECTRUM SCANNER SYSTEM WAS RECEIVED ON DECEMBER 23, 1971; THAT ACTION ON THE PROCUREMENT WAS INITIATED WITH THE PREPARATION OF A DETERMINATION AND FINDINGS DATED JANUARY 12, 1972, TO JUSTIFY PROCUREMENT BY NEGOTIATION PURSUANT TO THE AUTHORITY OF 10 U.S.C. 2304(A)(2); THAT A SOLICITATION CONTAINING CONDITIONS AND TERMS APPROPRIATE FOR A REQUEST FOR PROPOSALS WAS ISSUED ON JANUARY 25, 1972; BUT THAT THE DOCUMENT CLERK INADVERTENTLY TYPED AN X IN THE SPACE FOR IFB.

THE CONTRACTING OFFICER QUESTIONED THE TIMELINESS OF YOUR PROTEST IN VIEW OF THE PROVISION OF TITLE 4, CHAPTER 1, PART 20, SECTION 20.2 OF THE CODE OF FEDERAL REGULATIONS, WHICH STATES THAT BID PROTESTS SHALL BE FILED NOT LATER THAN FIVE DAYS AFTER THE BASIS FOR PROTEST IS KNOWN OR SHOULD HAVE BEEN KNOWN, WHICHEVER IS EARLIER. HE SUGGESTED THAT YOU MUST HAVE KNOWN THAT THE NAVY WAS FOLLOWING PROCEDURES APPLICABLE TO NEGOTIATED PROCUREMENT SINCE THERE WAS NO PUBLIC OPENING OF BIDS ON FEBRUARY 14, 1972; AND THAT, IF NEGOTIATION WAS A VALID CAUSE FOR PROTEST, THE PROTEST SHOULD HAVE BEEN FILED NO LATER THAN FEBRUARY 19, 1972. THE CONTRACTING OFFICER STATED THAT, IF THE PROCUREMENT HAD BEEN CONDUCTED IN ACCORDANCE WITH FORMAL ADVERTISING PROCEDURES, THE INITIAL OFFER OF YOUR COMPANY WOULD HAVE BEEN REJECTED AS NONRESPONSIVE BECAUSE IT PLAINLY FAILED TO DEMONSTRATE AN INTENTION TO DELIVER EQUIPMENT MEETING THE SPECIFICATION REQUIREMENTS; AND THAT, INSTEAD OF OUTRIGHT REJECTION OF YOUR OFFER, DISCUSSIONS WERE HELD DURING WHICH DEFICIENCIES AND INADEQUACIES WERE POINTED OUT TO YOUR COMPANY. THE CONTRACTING OFFICER FURTHER STATED THAT YOU TOOK FULL ADVANTAGE OF EACH OPPORTUNITY TO CLARIFY, REVISE AND IMPROVE YOUR PROPOSAL, OPPORTUNITIES WHICH COULD NOT BE PERMITTED UNDER FORMAL ADVERTISING PROCEDURES.

YOUR LETTER OF APRIL 14, 1972, INDICATES YOUR UNDERSTANDING THAT THIS PROCUREMENT WAS BEING CARRIED OUT UNDER FORMAL ADVERTISING PROCEDURES, AND THAT YOU HAD NO REASON TO BELIEVE OTHERWISE SINCE THE SOLICITATION WAS MARKED AS AN IFB. YOU ALSO CONTEND THAT YOUR PROPOSAL WAS NOT ALTERED IN ANY WAY THROUGH YOUR RESPONSE TO CERTAIN INQUIRIES BY LETTER OF FEBRUARY 25, 1972. WITH REFERENCE TO THE MATTERS DISCUSSED IN YOUR LETTER OF MARCH 7, 1972, YOU CONTEND, IN EFFECT, THAT THE MODIFICATIONS PROPOSED IN THAT LETTER WERE NOT REQUIRED IN ORDER TO MAKE YOUR PROPOSAL COMPLY WITH ALL OF THE ESSENTIAL REQUIREMENTS OF THE IFB, BUT WERE OFFERED SOLELY AS AN ACCOMODATION TO THE GOVERNMENT IN THAT YOU WERE STILL OPERATING UNDER FORMAL ADVERTISING PROCEDURES AND AGREED TO USE A BETTER DETECTOR AND MAKE OTHER MINOR CHANGES.

WE NOTE THAT WHILE THE SOLICITATION WAS MARKED AS AN IFB, CLAUSES C14, C24 AND C60 WHICH APPEAR ON PAGES 6 AND 7 OF THE SOLICITATION ARE CLEARLY INTENDED FOR USE IN NEGOTIATED PROCUREMENTS AND THEIR USE IS INCONSISTENT WITH FORMAL ADVERTISING. CLAUSE C14, DISCLOSURE OF DATA, REFERS TO A PROPOSAL OR QUOTATION SUBMITTED "IN RESPONSE TO THIS REQUEST FOR PROPOSALS (QUOTATIONS)." OTHER LANGUAGE IN THE CLAUSE IS CLEARLY APPLICABLE TO NEGOTIATED PROCUREMENTS AND IS INCONSISTENT WITH PROCEDURES FOLLOWED IN FORMAL ADVERTISING. CLAUSE C24 IS TITLED IN PART, "UNNECESSARILY ELABORATE CONTRACTOR'S PROPOSALS/QUOTATIONS", AND CLAUSE C60 IS CALLED "LATE PROPOSALS". PROPOSALS AND QUOTATIONS ARE TERMS RESERVED SOLELY FOR NEGOTIATED PROCUREMENTS. IN ADDITION, C14 AND C24 REFER IN THEIR TITLES TO ASPR 3-507.1(A) AND ASPR 3 501(BCXXIV), WHICH CALL FOR THE USE OF THESE CLAUSES IN CERTAIN NEGOTIATED PROCUREMENTS. SECTION III OF ASPR, FROM WHICH THE PROVISIONS ARE TAKEN, DEALS SOLELY WITH NEGOTIATED PROCUREMENTS.

IN OUR VIEW, THE FOREGOING WAS SUFFICIENT TO HAVE PUT ALL PARTIES ON NOTICE THAT EITHER THE DESIGNATION OF THE SOLICITATION AS AN IFB WAS WRONG OR THE CITED PROVISIONS SHOULD NOT HAVE BEEN INCLUDED. IN EITHER CASE, EVEN DISREGARDING THE ABSENCE OF A PUBLIC BID OPENING, THE INTERESTED PARTIES COULD NOT HAVE BEEN UNAWARE OF SOME DEFECT IN THE SOLICITATION. IN THESE CIRCUMSTANCES, WE BELIEVE A PRUDENT PARTY SHOULD HAVE CALLED THE INDIVIDUAL DESIGNATED ON THE FIRST PAGE OF THE SOLICITATION (THE NUMBER IS FURNISHED) FOR CLARIFICATION PRIOR TO THE STATED DEADLINE.

IT SHOULD BE NOTED THAT 4CFR 20.2(A) PROVIDES IN PART:

"PROTESTS BASED UPON ALLEGED IMPROPRIETIES IN ANY TYPE OF SOLICITATION WHICH ARE APPARENT PRIOR TO BID OPENING OR THE CLOSING DATE FOR RECEIPT OF PROPOSALS SHALL BE FILED PRIOR TO BID OPENING OR THE CLOSING DATE FOR RECEIPT OF PROPOSALS."

WE THINK IT NOT UNREASONABLE TO APPLY THE FOREGOING PROVISION IN THIS CASE. HOWEVER, UNDER 4CFR 20.2(B), THE COMPTROLLER GENERAL RESERVES THE RIGHT TO CONSIDER PROTESTS NOT TIMELY FILED IN THE APPROPRIATE CIRCUMSTANCES. IN THIS INSTANCE, WE DO NOT FIND THAT ANY PARTY HAS BEEN MATERIALLY PREJUDICED BY THE MISDESIGNATION OF THE SOLICITATION AS AN IFB. THE PROCUREMENT WAS INTENDED TO BE NEGOTIATED AND THE PROPER DETERMINATION AND FINDINGS TO SUPPORT NEGOTIATION HAD BEEN MADE. THE CLERICAL ERROR WAS A SUFFICIENT BASIS TO REJECT ALL BIDS AND RESOLICIT. THE PROCEDURE ACTUALLY FOLLOWED WAS IN NO WAY MATERIALLY DIFFERENT, AT LEAST FOR THOSE PARTIES RESPONDING TO THE SOLICITATION, THAN CANCELLING THE SOLICITATION AND BEGINNING OVER EXCEPT FOR THE SAVINGS IN TIME. HAD THE LATTER COURSE BEEN FOLLOWED THERE WOULD HAVE BEEN NO LEGAL BASIS TO QUESTION THE ACTION. SINCE THE JUSTIFICATION FOR USING NEGOTIATION WAS THE LACK OF TIME WE THINK IT WAS ENTIRELY REASONABLE TO ADOPT THE PROCEDURE ACTUALLY EMPLOYED.

WE REGRET THAT YOU MAY HAVE BEEN MISLED BY THE TYPOGRAPHICAL ERROR, BUT THE PROCURING ACTIVITY SHOULD NOT BE PRECLUDED FROM USING THE PROCEDURE IT INTENDED TO APPLY AND WHICH IT HAD AUTHORITY TO USE, BECAUSE OF A SIMPLE CLERICAL ERROR.

ACCORDINGLY, YOUR PROTEST IS DENIED.