B-173665, APR 4, 1972

B-173665, APR 4, 1972

BID PROTEST - WALSH-HEALEY ACT - AMENDED RFP - EXCLUSION OF NEW OFFERORS DECISION DENYING THE PROTEST OF TYCO, INC., AGAINST AWARD OF A CONTRACT TO PESCO PRODUCTS DIVISION, BORG-WARNER CORPORATION (PESCO), UNDER AN RFP ISSUED BY THE DEFENSE GENERAL SUPPLY CENTER, DEFENSE SUPPLY AGENCY, RICHMOND, VA., FOR MANUFACTURE AND DELIVERY AT SEVERAL DESTINATIONS OF THIRTEEN FAN AND MOTOR ASSEMBLIES. TYCO'S ORIGINAL LOW OFFER WAS DISQUALIFIED SINCE IT WAS NOT THE MANUFACTURER OF A CERTAIN PART AS REQUIRED BY THE WALSH-HEALEY ACT. THE CONTRACTING OFFICER CONSIDERED THE ADDITION OF THE TYCO PART TO THE RFP TO BE A SUBSTANTIAL CHANGE IN THE GOVERNMENT'S REQUIREMENTS WITHIN THE MEANING OF ASPR 3-805.1(E). FURTHER, HE DETERMINED THIS AMENDMENT TO PROPERLY BE IN THE NATURE OF A NEW PROCUREMENT, THEREBY PERMITTING THE SOLICITATION OF A NEW OFFEROR, PESCO. ALTHOUGH IT HAS BEEN PREVIOUSLY HELD THAT ONLY ORIGINAL BIDDERS ARE ENTITLED TO SUBMIT PROPOSALS UNDER AN AMENDED RFP, WHERE THE AMENDMENT PROVIDES A CHANGE SO MATERIAL AS TO CONSTITUTE A NEW PROCUREMENT, THE EXCLUSION OF CERTAIN OFFERORS BASED ON THEIR PRIOR STATUS IS WHOLLY INAPPROPRIATE. IN THE INSTANT CASE, THE PROTEST MUST BE DENIED SINCE THE CONTRACTING OFFICER'S DECISION WAS NOT SO UNREASONABLE AS TO WARRANT OBJECTION BY GAO.

TO TYCO, INCORPORATED:

WE REFER TO YOUR LETTER OF JULY 18, 1971, PROTESTING AGAINST THE AWARD OF CONTRACT NO. DSA-400-71-C-1027 TO PESCO PRODUCTS DIVISION, BORG-WARNER CORPORATION (PESCO), UNDER REQUEST FOR PROPOSALS (RFP) DSA 400-70-R-5173, AMENDMENT 0001, ISSUED ON AUGUST 28, 1970, BY THE DEFENSE GENERAL SUPPLY CENTER (DGSC), DEFENSE SUPPLY AGENCY, RICHMOND, VIRGINIA, FOR MANUFACTURE AND DELIVERY AT SEVERAL DESTINATIONS OF THIRTEEN FAN AND MOTOR ASSEMBLIES.

PESCO WAS THE LOW OFFEROR UNDER THE AMENDED RFP AND THE CONTRACT WAS AWARDED TO THAT FIRM ON SEPTEMBER 8, 1970.

THE ORIGINAL RFP CITED FAIRCHILD HILLER CORPORATION PART NUMBER 202208 AND PERMITTED THE OFFERING OF PRODUCTS EITHER IDENTICAL OR FUNCTIONALLY, PHYSICALLY, MECHANICALLY AND ELECTRICALLY INTERCHANGEABLE WITH THE FAIRCHILD HILLER PART. TYCO AND FAIRCHILD HILLER WERE THE ONLY OFFERORS THAT INITIALLY RESPONDED TO THE RFP. TYCO WAS THE LOWER OFFEROR, BUT WAS DISQUALIFIED UPON A DETERMINATION THAT IT WAS NOT THE MANUFACTURER OF PART 2500-124D AS REQUIRED BY THE WALSH-HEALEY ACT, SINCE THE EQUIPMENT IT OFFERED WOULD BE PART 189087-300 AS MANUFACTURED BY PESCO. THE RFP WAS THEREAFTER AMENDED TO INCLUDE TYCO PART 2500 124D AND PESCO PART 189087- 300 IN THE PURCHASE DESCRIPTION AND TO REDUCE THE PROCUREMENT FROM 30 UNITS TO 13. THE AMENDMENT WAS ISSUED TO PESCO, TYCO AND FAIRCHILD HILLER.

PARAGRAPH 3-805.1(E) OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) PROVIDES:

"WHEN, DURING NEGOTIATIONS, A SUBSTANTIAL CHANGE OCCURS IN THE GOVERNMENT'S REQUIREMENTS OR A DECISION IS REACHED TO RELAX, INCREASE OR OTHERWISE MODIFY THE SCOPE OF THE WORK OR STATEMENT OF REQUIREMENTS, SUCH CHANGE OR MODIFICATION SHALL BE MADE IN WRITING AS AN AMENDMENT TO THE REQUEST FOR PROPOSAL OR REQUEST FOR QUOTATIONS, AND A COPY SHALL BE FURNISHED TO EACH PROSPECTIVE CONTRACTOR. *** "

THE CONTRACTING OFFICER ADVISED THAT HE CONSIDERED THE ADDITION OF THE TYCO AND PESCO PART NUMBERS TO THE PURCHASE DESCRIPTION AND THE REDUCTION IN QUANTITY IN THE NUMBER OF UNITS TO BE A SUBSTANTIAL CHANGE IN THE GOVERNMENT'S REQUIREMENTS WITHIN THE MEANING OF ASPR 3-805.1(E) AND THE SOLICITATION AMENDMENT TO BE IN THE NATURE OF A NEW PROCUREMENT.

YOU HAVE PROTESTED AGAINST THE AWARD BECAUSE PESCO HAD NOT RESPONDED TO THE ORIGINAL RFP AND ONLY SUBMITTED AN OFFER AFTER THE RFP WAS AMENDED AFTER THE RECEIPT OF INITIAL PROPOSALS TO INCLUDE THE PESCO PART NUMBER AND TO REDUCE THE QUANTITY TO BE PROCURED FROM 30 UNITS TO 13. IN THAT CONNECTION, YOU HAVE STATED THAT PESCO WAS A LATE OFFEROR NOT ENTITLED TO CONSIDERATION, CITING B-170268, NOVEMBER 9, 1970, 50 COMP. GEN. 346 (1970).

AS YOU HAVE INDICATED, OUR OFFICE HELD IN THE CITED DECISION THAT THE LATE PROPOSALS PROVISIONS APPLY TO OFFERS FROM FIRMS THAT DID NOT ORIGINALLY SUBMIT PROPOSALS UNDER THE RFP. HOWEVER, UPON REVIEW OF THAT ASPECT OF THE CASE IN LIGHT OF THE CIRCUMSTANCES OF THE INSTANT SITUATION, WE BELIEVE IT NECESSARY TO CONSIDER ALSO THE QUESTION WHETHER THE AMENDMENT PROVIDES FOR A CHANGE SO MATERIAL AS TO EFFECTIVELY CONSTITUTE A NEW PROCUREMENT. WHERE SUCH IS THE CASE, IT WOULD SEEM WHOLLY INAPPROPRIATE TO EXCLUDE PROPOSALS BY THOSE MEETING THE AMENDED REQUIREMENTS IRRESPECTIVE OF THEIR PRIOR STATUS AS OFFERORS.

IN THE INSTANT CASE, WHILE THERE MIGHT BE QUESTION AS TO THE CONTRACTING OFFICER'S CONCLUSION IN THAT REGARD, WE DO NOT BELIEVE HE MAY BE SAID TO HAVE ACTED SO UNREASONABLY AS TO REQUIRE ANY OBJECTION BY THIS OFFICE.