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SECRETARY: ENCLOSED FOR YOUR INFORMATION IS A COPY OF OUR DECISION OF TODAY TO MAXSON-MACON WHICH IS SELF-EXPLANATORY. THIS MATTER WAS THE SUBJECT OF A LETTER. OFFERORS INCLUDING MAXSON-MACON WERE REQUESTED TO SUBMIT CHANGES OR REVISIONS TO THEIR PROPOSALS BY JUNE 11. THIS CLOSING DATE WAS EXTENDED TO JUNE 14 BUT MAXSON-MACON WAS NOT ADVISED OF THE EXTENSION. THE CONTRACTING OFFICER STATES THAT THE FAILURE TO NOTIFY MAXSON-MACON WAS NOT PREJUDICIAL TO THAT FIRM SINCE IN RESPONSE TO THE JUNE 5 LETTER IT HAD ADVISED BY TELETYPE OF JUNE 11 THAT "ALL PRICES. IN THE CIRCUMSTANCES THE CONTRACTING OFFICER CONCLUDED THAT MAXSON-MACON WOULD NOT HAVE SUBMITTED ANY REVISION OF ITS OFFER IN THE THREE-DAY EXTENSION PERIOD EVEN IF NOTIFIED THEREOF.

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B-164728, SEPT. 3, 1968

TO MR. SECRETARY:

ENCLOSED FOR YOUR INFORMATION IS A COPY OF OUR DECISION OF TODAY TO MAXSON-MACON WHICH IS SELF-EXPLANATORY. THIS MATTER WAS THE SUBJECT OF A LETTER, YOUR REFERENCE AMCGC-P, DATED AUGUST 6, 1968, FROM MR. PAUL E. ATWOOD, ACTING DEPUTY DIRECTOR, PROCUREMENT AND PRODUCTION, HEADQUARTERS, UNITED STATES ARMY MATERIEL COMMAND, TRANSMITTING A REPORT AND RELATED DOCUMENTS.

THE ADMINISTRATIVE FILE INDICATES THAT BY LETTER OF JUNE 5, 1968, OFFERORS INCLUDING MAXSON-MACON WERE REQUESTED TO SUBMIT CHANGES OR REVISIONS TO THEIR PROPOSALS BY JUNE 11. THIS CLOSING DATE WAS EXTENDED TO JUNE 14 BUT MAXSON-MACON WAS NOT ADVISED OF THE EXTENSION. IN THE INTERIM BETWEEN THE JUNE 5 LETTER AND THE LETTER OF JUNE 10 WHICH EXTENDED THE CLOSING DATE, THE CONTRACTING OFFICER HAD RECEIVED AUTHORITATIVE INFORMATION INDICATING THAT MAXSON-MACON COULD NOT BE CONSIDERED RESPONSIBLE. THE CONTRACTING OFFICER STATES THAT THE FAILURE TO NOTIFY MAXSON-MACON WAS NOT PREJUDICIAL TO THAT FIRM SINCE IN RESPONSE TO THE JUNE 5 LETTER IT HAD ADVISED BY TELETYPE OF JUNE 11 THAT "ALL PRICES, TERMS AND CONDITIONS REMAIN UNCHANGED.' IN THE CIRCUMSTANCES THE CONTRACTING OFFICER CONCLUDED THAT MAXSON-MACON WOULD NOT HAVE SUBMITTED ANY REVISION OF ITS OFFER IN THE THREE-DAY EXTENSION PERIOD EVEN IF NOTIFIED THEREOF.

WHILE THE CONTRACTING OFFICER MAY BE CORRECT IN BELIEVING THAT THE THREE DAY EXTENSION WOULD NOT HAVE RESULTED IN ANY REVISED OFFER FROM MAXSON- MACON, WE CANNOT AGREE (ALL OTHER CONSIDERATIONS INCLUDING THE QUESTION OF RESPONSIBILITY ASIDE) THAT THE FAILURE TO OFFER THE EXTENSION GIVEN TO THE OTHER THREE OFFERORS CONSTITUTED NO VIOLATION OF THE NEGOTIATION PROCEDURES CONTEMPLATED BY 10 U.S.C. 2304 (G) AND ASPR 3-805.1. THESE STATUTORY AND REGULATORY PROVISIONS CLEARLY CONTEMPLATE, IN OUR OPINION, THAT WHEN NEGOTIATIONS ARE REQUIRED ALL OFFERORS IN A COMPETITIVE RANGE WILL BE GIVEN AN EQUAL OPPORTUNITY TO SUBMIT REVISED PROPOSALS WHICH INCLUDES, CERTAINLY, AN EQUAL TIME FOR THE CONSIDERATION AND SUBMISSION OF SUCH PROPOSALS. WHILE THE VIEW WE TAKE OF THIS CASE MAKES THE FOREGOING DEFICIENCY IMMATERIAL, WE MUST, NEVERTHELESS, EMPHASIZE THAT THE LEGAL ADEQUACY OF NEGOTIATIONS CONTEMPLATED BY 10 U.S.C. 2304 (G) CANNOT BE MEASURED BY A SUBJECTIVE CONCLUSION THAT AN OBVIOUS DEFICIENCY WILL RESULT IN NO REAL PREJUDICE TO THE AFFECTED OFFEROR.

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