BNUMBER:  B-266145
DATE:  January 25, 1996
TITLE:  Metermod Instrument Associates, Inc.

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Matter of:Metermod Instrument Associates, Inc.

File:     B-266145

Date:     January 25, 1996

Frank M. Rapoport, Esq., Pepper, Hamilton & Scheetz, for the 
protester.
Tony Casoria, for MK Electronics, an interested party.
Charles J. Roedersheimer, Esq., Defense Logistics Agency, for the 
agency.
Jacqueline Maeder, Esq., and Paul Lieberman, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Protest that agency improperly disclosed protester's price during 
conduct of procurement is denied where allegation is unsupported by 
any evidence in the record.

DECISION

Metermod Instrument Associates, Inc. protests the issuance of purchase 
order No. SPO920-95-M-124 to MK Electronics under a request for 
quotations (RFQ) issued by the Defense Electronics Supply Center 
(DESC), Defense Logistics Agency, for 33 wattmeters used in a load 
bank tester.  Metermod alleges that the agency disclosed its price to 
MK Electronics and failed to either inform Metermod of an extended 
closing date for quotations or ask Metermod for a best and final offer 
(BAFO).

We deny the protest.

The RFQ in question was issued by DESC under the simplified procedures 
initiated by the agency for purchases up to $25,000 in which RFQs are 
transmitted directly to an electronic bulletin board (EBB) maintained 
by the agency and generally remain on the EBB for 30 days.  Firms 
desiring access to the EBB to review the RFQs and to submit quotes are 
required to register with the agency.  Once registered, vendors can 
access the EBB by contacting an Electronic Data Interchange (EDI) 
service provider,[1] or through the vendors' own personal computers by 
dialing a telephone number or logging on to the Internet.  Currently, 
vendors can provide quotes in response to RFQs issued by DESC under 
these automated procedures or in paper format. 

Here, the RFQ, posted on the EBB during May 1995, requested quotations 
by       May 26 for 11 wattmeters, stock number PR YPE 95009-00094.  
Metermod quoted a price of $694 per unit; MK Electronics quoted a 
price of $739.10 per unit.  MK Electronics also quoted a price of 
$713.40 per unit for 25 wattmeters.  Metermod responded via the EBB; 
MK Electronics submitted a paper quote.

DESC subsequently issued a second RFQ with a requested response date 
of July 28 for 22 of the same wattmeters.  Subsequently, the agency 
consolidated the two RFQs.  The DESC contract specialist contacted 
both Metermod and MK Electronics and requested that the firms quote on 
33 wattmeters.  Metermod submitted via the EBB on July 27 a unit price 
of $587; MK Electronics submitted a paper quote of $586.95 per unit.  
MK Electronics's handwritten quote was dated August 10 and stated that 
$586.95 was the firm's "[b]est & [f]inal price."  A purchase order for 
the 33 wattmeters was issued to MK Electronics on August 21.  Metermod 
protested to our Office on September 14.  

Metermod protests that MK Electronics' price reduction to within $.05 
per unit of Metermod's price cannot be a coincidence and argues that 
"[i]t is more likely than not" that the DESC contract specialist 
improperly informed MK Electronics of the price quoted by Metermod and 
"is biased in favor of MK Electronics."  The protester argues that MK 
Electronics's price reduction is suspect since MK Electronics offered 
only a $25.70 price reduction per unit from $739.10 for 11 units to 
$713.40 for 25 units, yet reduced its price $126.45 per unit after 
being contacted by the contract specialist and asked to quote a price 
for only 8 additional units.  The protester also alleges that DESC 
failed to inform Metermod that the closing date for the submission of 
quotes had been extended and failed to request a BAFO from Metermod 
although the agency did request a BAFO from MK Electronics.[2]    

While Metermod contends that MK Electronics's price reduction to 
within $.05 per unit cannot be a coincidence, the record contains no 
evidence of bias on behalf of the awardee and no evidence that 
Metermod's prices were disclosed.  We recognize that the closeness of 
submitted quotes such as occurred in this case can raise an 
apprehension that quotes received via electronic means are not 
protected from electronic "eavesdropping."  Agencies must, of course, 
take appropriate steps to ensure the security of business information 
that is transmitted via electronic means.  National Institute of 
Standards and Technology-Use of Electronic Data Interchange Technology 
to Create Valid Obligations, 71 Comp. Gen. 109 (1991).  However, we 
will not sustain a protest against alleged improper price disclosures, 
bias or other wrongdoing by a contracting agency based upon 
speculation only.  Advanced Seal Technology, Inc., B-239191, July 24, 
1990, 90-2 CPD  para.  73.

Here, the protester has not provided any probative evidence to show 
bias or to show that prices were disclosed and has merely asserted 
that it appears that prices were disclosed.  The mere existence of 
substantially similar prices does not constitute proof that a 
disclosure actually occurred.  Indeed, the contract specialist has 
submitted an affidavit in which she states that she did not disclose 
Metermod's prices to MK Electronics.  Similarly, MK Electronics's vice 
president submitted an affidavit stating that no one from DESC 
disclosed to MK Electronics the prices being offered by Metermod on 
this procurement.  While MK Electronics's price on the increased 
requirement was just slightly lower than the protester's and lower 
than previous quotes MK Electronics submitted, in the absence of any 
probative evidence, we are not willing to conclude, as the protester 
does, that this must have resulted from improper government conduct, 
rather than from competition or mere coincidence.  

In response to Metermod's allegations that the agency failed to 
request a BAFO from Metermod and failed to inform Metermod of the 
extension for the submission of quotes, the agency states that it 
never requested a BAFO from any offeror and it did not extend the date 
for the submission of quotes.  Specifically, as to the BAFO, the 
agency states that it never requested a BAFO from MK Electronics.  
Rather, the contract specialist, in her affidavit to our Office, 
states that while she did contact MK Electronics, she merely requested 
pricing for the additional units to be purchased.  According to the 
contract specialist, the use of the term "best and final" in MK 
Electronics's August 10 quote "was strictly [the firm's] choice of 
words."  MK Electronics has also submitted an affidavit in which its 
vice president states that the contract specialist did not request a 
BAFO and that the firm, in confirming its price for the increased 
quantity, simply used its standard terminology "our best & final 
price."  In any event, because Metermod was given a similar 
opportunity and did submit a price on the increased quantity of 
wattmeters, we see no reason to conclude that the protester was 
prejudiced or competitively disadvantaged.  

Similarly, the agency states that it did not extend the due date for 
the submission of quotes.  While the RFQ requested that quotes be 
submitted by July 28, an RFQ is a means of gathering information on 
the availability and/or prices of commercial items or services.  Thus, 
an agency is not precluded from considering information that it 
receives any time prior to its issuance of a purchase order, even if 
that information becomes available after the date established by an 
RFQ for receipt of quotations.  See John Blood, B-261477, Sept. 27, 
1995, 95-2 CPD  para.  147.  Accordingly, the agency could properly consider 
MK Electronics's submission of August 10.    

The protest is denied.

Comptroller General
of the United States
 
1. The agency maintains and makes available to interested vendors a 
list of EDI service providers that have been certified by the 
Department of Defense.

2. DESC argues that this protest is untimely because it was filed more 
than            10 working days after August 28, the date Metermod 
knew or should have known of its protest grounds.  DESC states that 
its EBB system is programmed to post award notifications no later than 
7 days after award.  Since award was made on August 21, the agency 
states that the notification appeared on the EBB no later than August 
28 and therefore Metermod should have protested to our Office by 
September 13.  Upon our request for written evidence of award 
notification, the agency specifically stated that it had no paper 
records of when the announcement was posted on the EBB and could not 
through its system programming generate an after-the-fact "time tag" 
for the posting.  Metermod submitted an affidavit from its government 
procurement representative in which she states that she first became 
aware of the award to MK Electronics on September 12 and that she did 
not see any notification of the award on the EBB prior to that date.  
Because DESC has no evidence as to the actual time the notification 
appeared on the EBB and the protester has sworn that it first learned 
of the award on September 12, we resolve the possible doubt as to when 
the protester became aware of its basis for protest in favor of the 
protester for purposes of determining timeliness.  See Warren Pumps, 
Inc., B-258710, Feb. 13, 1995, 95-1 CPD  para.  79; Eklund Infrared, 69 
Comp. Gen. 354 (1990), 90-1 CPD  para.  328.