B-170999, NOV 10, 1970, 50 COMP GEN 355

B-170999, NOV 10, 1970, 50 COMP GEN 355

CONTRACTS - NEGOTIATION - PREBID CONFERENCE REQUIREMENT THE MANDATORY REQUIREMENT TO ATTEND A PREBID CONFERENCE CONTAINED IN A REQUEST FOR PROPOSALS FOR THE PURPOSE OF EXPLAINING AN EXTREMELY COMPLEX PROJECT MAY NOT BE CONSIDERED A CONDITION PRECEDENT TO THE SUBMISSION OF A PROPOSAL, AS CONDITIONS OR REQUIREMENTS THAT TEND TO RESTRICT COMPETITION ARE UNAUTHORIZED UNLESS REASONABLY NECESSARY TO ACCOMPLISH THE LEGISLATIVE PURPOSES OF THE CONTRACT APPROPRIATION INVOLVED OR ARE EXPRESSLY AUTHORIZED BY STATUTE. TO SATISFY THE MAXIMUM COMPETITIVE REQUIREMENTS OF THE FEDERAL PROCUREMENT REGULATIONS, A PROSPECTIVE OFFEROR WHO FAILED TO ATTEND THE CONFERENCE SHOULD BE PERMITTED TO SUBMIT A PROPOSAL AND GIVEN A COPY OF THE PREBID TRANSCRIPT. HOWEVER, THE DATE FOR THE RECEIPT OF PROPOSALS HAVING PASSED, A NEW CLOSING DATE SHOULD BE SET TO ENABLE THE FIRM DENIED AN OPPORTUNITY TO PARTICIPATE TO SUBMIT A PROPOSAL, AND RESPONDING OFFERORS TO REVISE PROPOSALS.

TO THE ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION, NOVEMBER 10, 1970:

REFERENCE IS MADE TO A REPORT, DATED OCTOBER 27, 1970, FROM THE GENERAL COUNSEL, RESPONDING TO THE PROTEST OF COMPUTER NETWORK CORPORATION (COMNET) AGAINST A MANDATORY REQUIREMENT TO ATTEND A PREBID CONFERENCE PROVIDED FOR IN REQUEST FOR PROPOSALS (RFP) NO. GS-00B-795, ISSUED BY THE GENERAL SERVICES ADMINISTRATION (GSA).

THE RFP, COVERING THE DEVELOPMENT OF A MANAGEMENT INFORMATION SYSTEM FOR BUILDING OPERATIONS, WAS ISSUED ON AUGUST 14, 1970. WE ARE ADVISED THAT THE CLOSING DATE FOR PROPOSALS WAS OCTOBER 30, 1970, I.E., 30 DAYS AFTER THE REQUIRED PREBID CONFERENCE. WITH RESPECT TO THE PREBID CONFERENCE, THE RFP STATES:

A PRE-BID CONFERENCE FOR ALL INTERESTED OFFERORS WILL BE HELD BY THE PUBLIC BUILDINGS SERVICE, GENERAL SERVICES ADMINISTRATION. IT IS A REQUIREMENT THAT INTERESTED OFFERORS ATTEND THIS CONFERENCE.

WE ARE ADVISED THAT ATTENDANCE AT THE PREBID CONFERENCE WAS CONSIDERED A CONDITION PRECEDENT TO THE SUBMISSION OF A PROPOSAL. COMNET DID NOT ATTEND THE PREBID CONFERENCE DUE TO AN OVERSIGHT ON ITS PART AND HENCE IS PRECLUDED BY GSA FROM SUBMITTING A PROPOSAL. UPON REJECTION OF ITS REQUEST FOR A GENERAL WAIVER OF THE PREBID CONFERENCE ATTENDANCE REQUIREMENT, COMNET PROTESTED TO OUR OFFICE ALLEGING THAT THE REQUIREMENT IS UNFAIR AND PRECLUDES COMPETITION.

BY WAY OF RESPONSE, THE REPORT STATES THAT MANDATORY ATTENDANCE AT THE PREBID CONFERENCE WAS NOT INTENDED TO LIMIT OR RESTRICT COMPETITION AND NEITHER LAW NOR REGULATION PROHIBITS SUCH A REQUIREMENT. IN SUPPORT OF THE MANDATORY ATTENDANCE REQUIREMENT, THE REPORT CONTAINS THE FOLLOWING JUSTIFICATION:

*** THE BASIC REASON FOR THE PREBID CONFERENCE AND MANDATORY ATTENDANCE WAS THAT WE FELT IT ABSOLUTELY NECESSARY TO VERBALLY EXPLAIN TO ALL INTERESTED FIRMS THE SYSTEMS CONCEPT WE HAD DEVELOPED AND AS BEST WE COULD WHAT WE EXPECTED THE CONTRACTOR TO DO. BECAUSE OF THE EXTREMELY COMPLEX NATURE OF THE PROJECT, WE FELT THAT IT WAS IMPOSSIBLE TO DO THIS BY ANY OTHER MEANS. FURTHER, WE FELT IT ESPECIALLY IMPORTANT THAT ALL FIRMS BE PRESENT TO HEAR AND PRESENT ANY QUESTIONS THAT MIGHT ARISE AND TO PARTICIPATE IN THE "GIVE AND TAKE." ***

OUR INTENT IN HOLDING A MANDATORY PREBID CONFERENCE WAS TO PROVIDE ALL INTERESTED FIRMS WITH INFORMATION WE FELT WAS ESSENTIAL IN ORDER FOR THEM TO SUBMIT INTELLIGENT OFFERS. ***

UNDOUBTEDLY, THE REQUIREMENT FOR MANDATORY ATTENDANCE WAS MOTIVATED BY WHAT GSA BELIEVED TO BE THE BEST INTERESTS OF THE GOVERNMENT. NONETHELESS, WE ARE OF THE OPINION THAT THE REQUIREMENT DOES UNNECESSARILY RESTRICT COMPETITION.

IT IS CONTENDED BY THE PROTESTANT AND CONCEDED IN THE REPORT THAT THE CONCEPTUAL FRAMEWORK SET OUT IN THE RFP IS FAR FROM A FINITE SET OF SPECIFICATIONS. GIVEN THIS FACT, WE THINK THERE IS MERIT IN COMNET'S FURTHER CONTENTION THAT THE PREBID CONFERENCE WOULD NOT PRODUCE FINITE SPECIFICATIONS BY ITSELF AND WITHOUT THE NEED OF NEGOTIATIONS. MOREOVER, EVEN IF THE PREBID CONFERENCE DID PRODUCE SUCH A RESULT, WE STILL FAIL TO SEE WHY ATTENDANCE AT THE CONFERENCE SHOULD BE CONSIDERED A CONDITION PRECEDENT TO THE SUBMISSION OF A PROPOSAL, ESPECIALLY SINCE WE HAVE BEEN INFORMALLY ADVISED THAT THE ENTIRE CONFERENCE PROCEEDINGS INCLUDING THE "GIVEN AND TAKE" PORTION WERE REDUCED TO WRITING AND COULD HAVE BEEN MADE AVAILABLE TO ALL OFFERORS.

ALTHOUGH IT IS MAINTAINED THAT NEITHER LAW NOR REGULATION PROHIBITS THE MANDATORY ATTENDANCE REQUIREMENT, WE ARE UNAWARE OF ANY STATUTE OR REGULATION WHICH AUTHORIZES MANDATORY PREBID CONFERENCES AS A CONDITION TO BIDDING OR PROPOSAL SUBMISSION. OUR OFFICE HAS CONSISTENTLY HELD THAT CONDITIONS OR REQUIREMENTS THAT TEND TO RESTRICT COMPETITION ARE UNAUTHORIZED UNLESS REASONABLY NECESSARY TO ACCOMPLISH THE LEGISLATIVE PURPOSES OF THE CONTRACT APPROPRIATION INVOLVED OR ARE EXPRESSLY AUTHORIZED BY STATUTE. SEE 42 COMP. GEN. 1 (1962) AND THE DECISIONS REFERRED TO THEREIN. WHILE NOT PERTINENT TO THIS PROCUREMENT, PARAGRAPH 3 -504.2 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) PRESCRIBES PROCEDURES FOR PREPROPOSAL CONFERENCES. THAT SECTION PROVIDES IN PERTINENT PART AS FOLLOWS:

(A) *** ADEQUATE NOTICE SHALL BE GIVEN TO PROSPECTIVE OFFERORS SO THAT ALL WHO WISH TO MAY ARRANGE FOR REPRESENTATION. ***

(C) ALL PROSPECTIVE OFFERORS SHALL BE FURNISHED IDENTICAL INFORMATION IN CONNECTION WITH THE PROPOSED PROCUREMENT. REMARKS AND EXPLANATIONS AT THE CONFERENCE SHALL NOT QUALIFY THE TERMS OF THE SOLICITATION AND SPECIFICATIONS. ALL CONFEREES SHALL BE ADVISED THAT UNLESS THE SOLICITATION IS AMENDED IN WRITING IT WILL REMAIN UNCHANGED AND THAT IF AN AMENDMENT IS ISSUED, NORMAL PROCEDURES RELATING TO THE ACKNOWLEDGMENT AND RECEIPT OF SOLICITATION AMENDMENTS SHALL BE APPLIED. A COMPLETE RECORD SHALL BE MADE OF THE CONFERENCE.

THE FOREGOING LANGUAGE CONTEMPLATES VOLUNTARY ATTENDANCE AT PREPROPOSAL CONFERENCES AND OUR OFFICE HAS HELD THAT THIS ASPR PROVISION PROVIDES NO BASIS FOR DISQUALIFYING FROM COMPETITION AN OFFEROR WHO FAILS TO ATTEND A SCHEDULED PREPOSAL CONFERENCE. SEE B 164675, SEPTEMBER 17, 1968; ALSO SEE B-170884, OCTOBER 19, 1970. MOREOVER, WE BELIEVE THAT SUBPARAGRAPH (C) PROPERLY STATES THE EFFECT TO BE GIVEN TO ANY REMARKS AND EXPLANATIONS MADE AT A CONFERENCE SUCH AS HERE IN QUESTION.

IN VIEW OF THE ABOVE, WE CONCLUDE THAT THE FAILURE TO ATTEND THE PREBID CONFERENCE PROPERLY MAY NOT BE USED AS A BASIS TO DENY COMNET AN OPPORTUNITY TO SUBMIT A PROPOSAL. WHILE IT MAY BE THAT ADEQUATE COMPETITION WOULD EXIST WITHOUT THE BENEFIT OF A PROPOSAL FROM COMNET, SUCH FACT WOULD NOT JUSTIFY A DENIAL OF COMPETITIVE OPPORTUNITY TO COMNET. THE REGULATORY REQUIREMENT FOR MAXIMUM COMPETITION WOULD NOT BE SERVED UNLESS THAT OPPORTUNITY IS EXTENDED TO COMNET. SEE SECTIONS 1- 1.301-1, 1-3.101(B)(C), AND 1-3.101(D) OF THE FEDERAL PROCUREMENT REGULATIONS (FPR).

ACCORDINGLY, COMNET SHOULD BE PERMITTED TO SUBMIT A PROPOSAL UNDER THE RFP FOR EVALUATION PURSUANT TO THE CRITERIA PRESCRIBED THEREIN. SINCE WE UNDERSTAND THAT ALL QUESTIONS AND ANSWERS AT THE PREBID CONFERENCE WERE REDUCED TO WRITING, WE SUGGEST THAT COMNET BE PROVIDED WITH A COPY OF THE TRANSCRIPT. HOWEVER, WE NOTE THAT THE CLOSING DATE FOR RECEIPT OF PROPOSALS WAS OCTOBER 30, 1970. IN VIEW THEREOF, IT WILL BE NECESSARY TO ADVISE ALL RESPONDING OFFERORS THAT THEY HAVE AN OPPORTUNITY TO SUBMIT REVISED PROPOSALS. WE SUGGEST THAT THE NEW CLOSING DATE PROVIDE SUFFICIENT TIME FOR COMET TO SUBMIT A PROPER PROPOSAL. SEE FPR SEC. 1- 3.805-1; 50 COMP. GEN. , SEPTEMBER 24, 1970.