B-193210, MARCH 12, 1979

B-193210, MARCH 12, 1979

DIGEST: WHERE AGENCY RETURNS PROTESTER'S UNSOLICITED PROPOSAL AND THEN CONDUCTS COMPETITIVE PROCUREMENT FOR SAME ITEM IN WHICH PROTESTER PARTICIPATES, PROTEST FILED AFTER SUBMISSION OF BEST AND FINAL OFFERS ALLEGING THAT ITEM SHOULD HAVE BEEN OBTAINED FROM PROTESTER ON SOLE SOURCE BASIS AND THAT SOLICITATION CONTAINED DATA PROPRIETARY TO PROTESTER IS UNTIMELY.

ACR ELECTRONICS, INC.:

ACR ELECTRONICS, INC. (ACR) HAS PROTESTED THE AWARD OF A CONTRACT PURSUANT TO REQUEST FOR PROPOSALS (RFP) F41608-78-R-4408 ISSUED BY THE SAN ANTONIO AIR LOGISTICS CENTER, DEPARTMENT OF THE AIR FORCE TO ANY OTHER PARTY ON THE GROUNDS THAT THE CONTRACT SHOULD HAVE BEEN NEGOTIATED WITH IT NONCOMPETITIVELY BASED ON AN UNSOLICITED PROPOSAL. ACR ALSO CONTENDS THAT THE RFP CONTAINED ACR PROPRIETARY DATA THAT HAD BEEN IN ITS UNSOLICITED PROPOSAL.

ON JUNE 25, 1976, ACR SUBMITTED AN UNSOLICITED PROPOSAL TO THE AIR FORCE FOR AN IMPROVED RADIO TEST SET. THE AIR FORCE REVIEWED THE PROPOSAL AND IN FEBRUARY 1977 ACR DEMONSTRATED THE EQUIPMENT AND PROVIDED A TECHNICAL DESCRIPTION TO THE AIR FORCE. HOWEVER, THE AIR FORCE DETERMINED THE ACR TEST SET DID NOT CONTAIN "ANY UNIQUE METHODS OR TECHNIQUES" AND RETURNED THE PROPOSAL.

THEREAFTER, ACR SUBMITTED ANOTHER UNSOLICITED PROPOSAL ON MARCH 8, 1977 FOR THE TEST SET. THIS PROPOSAL WAS ALSO RETURNED TO ACR AND BY LETTER DATED APRIL 5, 1977, THE AIR FORCE ADVISED ACR THAT THE AIR FORCE PROPOSED TO PROCURE A RADIO BEACON TEST SET COMPETITIVELY. ACR REQUESTED THE AIR FORCE TO "RECONSIDER" THE DECISION TO PURCHASE BY FORMAL SOLICITATION AND A MEETING TO DISCUSS THIS PROCUREMENT WAS HELD ON JUNE 16, 1977. LETTER DATED JUNE 17, 1977, ACR WAS AGAIN ADVISED THAT AS DISCUSSED DURING THE JUNE 16, 1977 MEETING, PROCUREMENT OF THE TEST SET WOULD BE ACCOMPLISHED DURING TWO-STEP PROCUREMENT PROCEDURES.

THUS, IN APRIL AND AGAIN IN JUNE, 1977, THE AIR FORCE ADVISED ACR THAT IT WAS GOING TO PROCURE THIS ITEM COMPETITIVELY. ACR DID NOT PROTEST THAT DECISION BUT PARTICIPATED IN THE COMPETITIVE PROCUREMENT UNTIL OCTOBER 1978 -- 16 MONTHS LATER -- WHEN IT BECAME APPARENT THAT ACR WOULD NOT RECEIVE THE AWARD. UNDER OUR BID PROTEST PROCEDURES, ACR SHOULD HAVE PROTESTED THE ALLEGED IMPROPRIETY OF THE COMPETITIVE SOLICITATION AND THE INCLUSION OF PROPRIETARY DATA PRIOR TO THE CLOSING DATE FOR INITIAL PROPOSALS. 4 C.F.R. 20.2(B)(1) (1978). ITS FAILURE TO DO SO RENDERS ITS PROTEST UNTIMELY. FRANCIS & JACKSON, ASSOCIATES, 57 COMP.GEN. 224 (1978), 78-1 CPD 79.

ACR ARGUES THAT ITS PROTEST SHOULD NOT BE DISMISSED AS UNTIMELY BECAUSE IT RAISES IMPORTANT ISSUES CONCERNING THE MANNER IN WHICH THE AIR FORCE PROCESSES THE LARGE VOLUME OF UNSOLICITED PROPOSALS IT RECEIVES FROM SMALL BUSINESS CONCERNS. WE DO NOT BELIEVE THE PROTEST RAISES A SIGNIFICANT ISSUE AS THAT TERM IS USED IN OUR BID PROTEST PROCEDURES, 4 C.F.R. 20.2(C).

ALTHOUGH ACR STATES THAT THE REJECTION OF ITS UNSOLICITED PROPOSAL RUNS COUNTER TO THE GOVERNMENT'S POLICY OF ENCOURAGING THE SUBMISSION OF SUCH PROPOSALS, SEE DEFENSE ACQUISITION REGULATION (DAR) PARAGRAPH 4 902 (1976 ED.), WE NOTE THAT AN UNSOLICITED PROPOSAL MAY LEAD TO A NONCOMPETITIVE PROCUREMENT ONLY UNDER LIMITED CIRCUMSTANCES. DAR PARAGRAPH 4-910(A). THE AIR FORCE'S CONCLUSION THAT ACR'S PROPOSAL DID "NOT CONTAIN ANY UNIQUE METHODS OR TECHNOLOGIES" AND "DID NOT OFFER OTHER THAN STATE-OF-THE-ART TECHNOLOGY," AND ANY DISAGREEMENT ACR HAS WITH THAT CONCLUSION IS NOT, IN OUR VIEW, A MATTER RAISING A SIGNIFICANT ISSUE. MOREOVER, WHILE ACR ALSO ALLEGES THAT AS A SMALL BUSINESS CONCERN WHICH HAS EXPENDED CONSIDERABLE EFFORT AND MONEY ON ITS UNSOLICITED PROPOSAL, IT SHOULD HAVE RECEIVED A SOLE SOURCE AWARD PURSUANT TO THE SMALL BUSINESS ACT, 15 U.S.C. 631 ET SEQ. (1976), WHICH "WAS SPECIFICALLY GENERATED BY CONGRESS TO PROVIDE AN OVERRIDING EXCEPTION TO GENERAL COMPETITIVE REQUIREMENTS UNDER CERTAIN CONDITIONS," WE NEED ONLY POINT OUT THAT THE SMALL BUSINESS STATUTES AND IMPLEMENTING REGULATIONS DO NOT REQUIRE THE NON-COMPETITIVE AWARD OF A CONTRACT SOLELY BECAUSE A SMALL BUSINESS CONCERN HAS EXPENDED MONEY PREPARING AN UNSOLICITED PROPOSAL, WITHOUT REGARD TO THE MERITS OF THAT PROPOSAL. IN THIS RESPECT, WE ARE ADVISED THAT THE COMPETITIVE PROCUREMENT FOR THIS ITEM WAS TOTALLY SET ASIDE FOR SMALL BUSINESS CONCERNS, THEREBY FURTHERING THE STATUTORY POLICY FAVORING THE PLACING OF A FAIR PROPORTION OF GOVERNMENT CONTRACTS WITH SMALL BUSINESS ENTERPRISES.

ACR HAS REQUESTED THAT WE WITHHOLD OUR DECISION UNTIL IT HAS HAD TIME TO OBTAIN AND COMMENT UPON INTERNAL AIR FORCE DOCUMENTS CONCERNING THE PROJECT TO UPDATE THE RADIO TEST SETS. IN VIEW OF OUR CONCLUSIONS, WE DO NOT BELIEVE A USEFUL PURPOSE WOULD BE SERVED BY DELAYING OUR DECISION.

THE PROTEST IS DISMISSED.