B-223527, AUG 27, 1986, OFFICE OF THE GENERAL COUNSEL

B-223527, AUG 27, 1986, OFFICE OF THE GENERAL COUNSEL

PRECIS-UNAVAILABLE

THE HONORABLE STAN LUNDINE:

HOUSE OF REPRESENTATIVES

WE REFER TO YOUR LETTER OF JUNE 20, 1986, CONCERNING A REQUEST MADE BY ONTARIO KNIFE COMPANY OF FRANKLINVILLE, NEW YORK THAT THE U.S. ARMY ARMAMENT, MUNITIONS AND CHEMICAL COMMAND AT DOVER, NEW JERSEY EXTEND THE 60 DAYS ALLOTTED FOR SUBMITTING PROPOSALS FOR THE MULTI-PURPOSE BAYONET SYSTEM UNDER SOLICITATION NUMBER DAAA21-86-R-0155.

AS YOU KNOW, OUR OFFICE CONSIDERS PROTESTS CONCERNING THE AWARD OR PROPOSED AWARD OF CONTRACTS BY FEDERAL AGENCIES UNDER OUR BID PROTEST REGULATIONS, 4 C.F.R. PART 21 (1986). WE HAVE NO RECORD OF ONTARIO KNIFE COMPANY'S HAVING FILED A PROTEST WITH OUR OFFICE THAT WOULD HAVE ENABLED US TO CONSIDER THIS MATTER IN TIME TO RECOMMEND AN EXTENSION, IF APPROPRIATE. WE HAVE, HOWEVER, BEEN ADVISED INFORMALLY BY THE ARMY OF THE FOLLOWING.

ACCORDING TO THE ARMY, ITS SOLICITATION STRATEGY FOR THE MULTI PURPOSE BAYONET SYSTEM WAS BASED ON A MARKET SURVEY CONDUCTED BEGINNING IN AUGUST 1985. THE PURPOSE OF THE SURVEY WAS TO DETERMINE WHETHER THE ARMY'S NEEDS COULD BE MET BY SUPPLIERS WITH COMMERCIALLY AVAILABLE ITEMS OR WHETHER A CONTRACT TO DEVELOP A SUITABLE SYSTEM WOULD BE REQUIRED. AFTER THE SURVEY WAS ANNOUNCED IN COMMERCE BUSINESS DAILY (CBD) ON AUGUST 8, THE ARMY STATES THAT IT SENT QUESTIONNAIRES TO 27 FIRMS AND RECEIVED 13 RESPONSES. OF THESE, 6 FIRMS STATED THAT THEY HAD AN OFF-THE-SHELF PRODUCT THAT COULD SATISFY THE ARMY'S NEEDS.

ON THE BASIS OF THIS SURVEY, THE ARMY DECIDED AGAINST A DEVELOPMENT CONTRACT AND PROCEEDED WITH THE SOLICITATION IN QUESTION. THE SOLICITATION WAS ANNOUNCED IN THE CBD ON FEBRUARY 21, 1986 AND ISSUED ON MARCH 28, INCORPORATING PERFORMANCE, RATHER THAN DESIGN, SPECIFICATIONS. THE SYNOPSIS STATED THAT OFFERORS WOULD BE REQUIRED TO SUBMIT 55 TEST PACKAGES WITH THEIR PROPOSALS, DUE MAY 28. ON MAY 7, YOUR OFFICE, ON BEHALF OF ONTARIO KNIFE COMPANY (ONE OF THE 49 FIRMS WHICH HAD BEEN SENT A COPY OF THE SOLICITATION), REQUESTED THE ARMY TO EXTEND THE DUE DATE. YOU STATED THAT ONTARIO KNIFE COMPANY WOULD NOT BE ABLE TO DESIGN AND TEST THE BAYONET BY MAY 28, AND YOU NOTED THAT SIMILAR SOLICITATIONS USUALLY ALLOW 150 DAYS FOR SAMPLE PRODUCTION. BY LETTER DATED MAY 28, THE ARMY DECLINED TO EXTEND THE CLOSING DATE. PROPOSALS WERE RECEIVED FROM EIGHT VENDORS. THE AGENCY REJECTED ONTARIO KNIFE COMPANY'S PROPOSAL, ALONG WITH THAT OF ONE OTHER OFFEROR, FOR FAILURE TO INCLUDE THE REQUESTED 55 SAMPLES. THE ARMY ADVISES US THAT THE REMAINING 6 PROPOSALS THAT IT RECEIVED HAVE PASSED AN INITIAL REVIEW AND ARE CURRENTLY UNDERGOING USER EVALUATION.

UNDER OUR REGULATIONS, ONTARIO KNIFE COMPANY SHOULD HAVE PROTESTED EITHER TO THE AGENCY OR TO OUR OFFICE NO LATER THAN MAY 28, THE DUE DATE FOR RECEIPT OF PROPOSALS, SINCE THE REQUIREMENT FOR THE 55 SAMPLES BY THAT DATE WAS AN ALLEGED DEFICIENCY THAT WAS APPARENT ON THE FACE OF THE SOLICITATION. 4 C.F.R. SEC. 21.2(A)(1). EVEN IF WE WERE TO CONSIDER YOUR LETTER OF MAY 7 AS A FORMAL PROTEST TO THE AGENCY, ACCEPTANCE OF PROPOSALS WITHOUT ANY CHANGE IN THE DUE DATE WOULD HAVE CONSTITUTED INITIAL ADVERSE AGENCY ACTION ON THE PROTEST, SO THAT A SUBSEQUENT PROTEST TO OUR OFFICE SHOULD HAVE BEEN FILED WITHIN 10 WORKING DAYS THEREAFTER. FEDERAL ACQUISITION MANAGEMENT TRAINING SERVICE, B-220070, NOV. 26, 1985, 85-2 CPD PARA. 604; 4 C.F.R. SEC. 21.2(A)(3). HOWEVER, NO SUCH PROTEST WAS FILED, AND AT THIS POINT ANY PROTEST BY OR ON BEHALF OF ONTARIO KNIFE COMPANY WOULD BE UNTIMELY.

FOR YOUR INFORMATION, WE POINT OUT THAT WHEN A POTENTIAL OFFEROR OBJECTS TO THE LENGTH OF TIME SET FOR RESPONDING TO A SOLICITATION, WE GENERALLY EXAMINE WHETHER THE SOLICITATION ALLOWED THE MINIMUM 30 DAYS ESTABLISHED BY LAW AND THE FEDERAL ACQUISITION REGULATION, 48 C.F.R. SEC. 5.203(B) (1985). WE ALSO CONSIDER WHETHER THE RESPONSES TO THE SOLICITATION EVIDENCE ADEQUATE COMPETITION. HERE, THE SOLICITATION ALLOWED 60 DAYS, TWICE THE TIME REQUIRED BY REGULATION, AND THE ARMY RECEIVED 8 PROPOSALS. IN SIMILAR CIRCUMSTANCES WE HAVE DENIED PROTESTS ALLEGING THAT THE TIME FOR RESPONSE TO A SOLICITATION WAS INADEQUATE. SEE UNITED FOOD SERVICES, INC., B-220367, FEB. 20, 1986, 86-1 CPD PARA. 177.

THEREFORE, UNDER THE FACTS PRESENTED, WE CANNOT SAY THE ARMY'S REFUSAL TO EXTEND THE DATE FOR RECEIPT OF PROPOSALS IN ORDER TO ALLOW ONTARIO KNIFE COMPANY TO DESIGN AND TEST A PRODUCT THAT WAS COMMERCIALLY AVAILABLE FROM AT LEAST 6 OTHER SOURCES WOULD BE LEGALLY OBJECTIONABLE.

COPIES OF THE CITED DECISIONS ARE ENCLOSED.