BNUMBER: B-271760
DATE: May 14, 1996
TITLE: Robotic Systems Technology
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Matter of:Robotic Systems Technology
File: B-271760
Date:May 14, 1996
Donald J. Walsh, Esq., Scaldara & Potler, for the protester.
James J. McCullough, Esq., Joel R. Feidelman, Esq., and Catherine E.
Pollack, Esq., Fried, Frank, Harris, Shriver & Jacobson, for Minowitz
Manufacturing Company, the intervenor.
Capt. David P. Harney, Department of the Army, for the agency.
Guy R. Pietrovito, Esq., Office of the General Counsel, GAO,
participated in the preparation of the decision.
DIGEST
The protester is not an interested party eligible to challenge the
award of a contract where the protester during negotiations withdrew
its proposed pricing with a promise to perform the contract at pricing
to be provided in its best and final offer (BAFO) and the protester
did not submit a BAFO or to otherwise confirm its earlier offer by the
date and time specified for receipt of BAFOs.
DECISION
Robotic Systems Technology protests the award of a contract to
Minowitz Manufacturing Company under request for proposals (RFP) No.
DAAE20-95-R-0251, issued by the Department of the Army for smoke
generator sets.
We dismiss the protest because Robotic is not an interested party to
challenge the award to Minowitz.
The RFP provided for the award of a fixed-price contract on a best
value basis. Technical and cost proposals were requested. The Army
received proposals from three offerors, including Robotic and
Minowitz, by the December 11, 1995, closing date for receipt of
proposals. All three offerors were included in the competitive range
and received discussions. In response to discussions, Robotic
modified its initial proposal on January 19, 1996, to substantially
lower its proposed price. Thereafter, by amendments 0003 and 0004 to
the RFP, the Army modified the solicitation's scope of work. On
February 26, the Army directed offerors to agree to the terms of the
RFP, as amended, and "at the prices that will be set forth in your
[BAFO]." Robotic responded on the same date by informing the Army
that:
"Robotic . . . agrees to furnish and deliver all items or perform
all the services set forth or otherwise identified in the subject
solicitation and amendments 0001 through 0004 for the prices that
will be set forth in our [BAFO]."
On February 27, the Army requested, by amendment 0005, that BAFOs be
submitted by February 29. Offerors were cautioned that "offerors who
do not intend to modify their original offer, but who do want to be
considered for award, must confirm their offers by responding to this
request for [BAFOs] to remain in consideration for award."
Robotic did not submit a BAFO or confirm its offer by the February 29
closing date for receipt of BAFOs. The contracting officer contacted
Robotic on March 1 and discovered that Robotic mistakenly had failed
to file a BAFO or confirmation. On March 1 after the contracting
officer's call, the agency received a statement from Robotic that the
protester did not intend to submit a BAFO but wished to have its
January 19 revised offer considered for award. On March 4, Robotic
submitted another statement proposing an $89,804 reduction in its
proposed price due to "further material reductions in price from our
vendors."
After receipt of Robotic's March 4 offer, the contracting officer
directed that all BAFOs, including Robotic's March 4 offer, be
evaluated to determine "whether it was clearly in the government's
best interests to reopen discussions and allow [Robotic] to submit a
timely BAFO." Because the remaining offerors had submitted timely,
technically acceptable, and reasonably priced BAFOs, the contracting
officer determined that reopening discussions was not in the
government's best interest. Contract award was made to Minowitz on
March 29.
Robotic protests the evaluation of its and Minowitz's proposals, the
content of discussions, and the selection of Minowitz's higher-priced
proposal. The Army and Minowitz respond that Robotic is not an
interested party to protest the award to Minowitz because Robotic, in
response to discussions from the agency and prior to the date for
BAFOs, revoked its offer and then failed to either timely submit a
BAFO for consideration or confirm its earlier offer.
Robotic replies that its March 1 confirmation of its January 19 offer
was timely because the agency's request for BAFOs did not state a date
by which confirmation of offers must be received; in Robotic's view,
confirmation of an existing offer could be submitted at any time up to
award. Robotic also argues that its March 1 confirmation of its
revised offer is acceptable under the authority of Federal Acquisition
Regulation (FAR) sec. 52.215-10, which was incorporated in the RFP and
which permits the government to consider a late modification of any
otherwise successful proposal. Finally, Robotic argues that the
agency's actions after receipt of its March 1 confirmation of its
revised offer waived the government's right to assert that Robotic's
confirmation was untimely.
First, we disagree with Robotic that the RFP did not state a date by
which an offeror's confirmation of its offer must be submitted under
the agency's request for BAFOs. Amendment 0005 plainly stated that
its purpose was to close discussions and request BAFOs; offerors were
informed that negotiations would close and BAFOs were due February 29,
1996, and that "offerors who do not intend to modify their original
offer, but who do want to be considered for award, must confirm their
offers by responding to this request for [BAFOs] to remain in
consideration for award." This amendment is in accord with FAR sec.
15.611, which mandates a "common cutoff date and time" for the closure
of discussions and receipt of BAFOs; after receipt of BAFOs
contracting agencies are admonished by FAR sec. 15.611(c) to reopen
discussions only where it is clearly in the government's interests to
do so. The only reasonable interpretation of amendment 0005 is that
an offeror's confirmation of its offer must be received by the date
and time specified for receipt of BAFOs; any other interpretation
would be inconsistent with FAR sec. 15.611.
We also disagree with Robotic's apparent belief that the protester had
an existing offer which the Army could accept at the time of the
agency's request for BAFOs. As noted above, on February 26, Robotic,
as well as the other offerors, acknowledged RFP amendments 0003 and
0004, and agreed to perform all the amended services "for the prices
that will be set forth in our [BAFO]." This communication (which
admittedly is in the form requested by the Army) revoked Robotic's
earlier January 19 offer because it withdrew Robotic's promise to
perform the contract services for the fixed-prices stated in its
January 19 offer. When Robotic withdrew its promise to perform the
contract for the fixed-prices stated in its January 19 offer, that
offer could no longer be accepted by the agency. See Sonshine
Enters., B-246268, Feb. 26, 1992, 92-1 CPD para. 232.
Robotic argues, however, that the Army could consider the protester's
late confirmation of its offer pursuant to the standard "Late
Submission, Modifications, and Withdrawal of Proposals" clause, FAR sec.
52.215-10, which was incorporated in the RFP. FAR sec. 52.215-10(g),
permits the government to consider a late modification of an
"otherwise successful proposal" that makes it terms more favorable to
the government. The term "otherwise successful" means that the
government may accept a favorable late modification only from the
offeror already in line for contract award. Environmental Control
Div., Inc., B-255181, Feb. 16, 1994, 94-1 CPD para. 115. As noted above,
Robotic did not have an offer before the Army which the agency could
accept; thus, the protester's late submission could not be considered
as modifying an "otherwise successful proposal" that would allow the
agency to consider the late submission.
Robotic also argues that the Army's evaluation and consideration of
its late confirmation of its offer and later offer to reduce its offer
price, as well as the agency's failure to promptly notify Robotic that
its proposal confirmation was considered late, essentially waived the
agency's right to assert that Robotic's proposal confirmation was
late. We disagree. As explained above, because Robotic's proposal
confirmation was untimely submitted, there was not a fixed-price offer
before the Army which the agency could accept. Accordingly, Robotic's
proposal was properly rejected. The agency's post-submission actions
do not operate to waive Robotic's error or to estop the agency from
rejecting Robotic's late offer. See Brookfield Dev., Inc.; Fuller and
Co., and Colorado National Bank, B-255944, Apr. 21, 1994, 94-1 CPD para.
273.
Robotic finally argues that its untimely submission of its proposal
confirmation was waivable as a minor informality. However, price is
a material requirement in all negotiated procurements, and the failure
to submit required pricing information concerns a material
solicitation requirement and cannot be viewed as a minor informality.
10 U.S.C. sec. 2305(b) (1994); Technical Micronics Control, Inc.,
B-206843, Sept. 13, 1982, 82-2 CPD para. 221.
Under the bid protest provisions of the Competition in Contracting Act
of 1984, 31 U.S.C. sec. 3551-3556, only an "interested party" may
protest a federal procurement. That is, a protester must be an actual
or prospective supplier whose direct economic interest would be
affected by the award of a contract or the failure to award a
contract. 4 C.F.R. sec. 21.0(a) (1996). Determining whether a party is
interested involves consideration of a variety of factors, including
the nature of issues raised, the benefit of relief sought by the
protester, and the party's status in relation to the procurement.
Black Hills Refuse Serv., 67 Comp. Gen. 261 (1988), 88-1 CPD para. 151. A
protester is not an interested party where it would not be in line for
contract award were its protest to be sustained. ECS Composites,
Inc., B-235849.2, Jan. 3, 1990, 90-1 CPD para. 7.
Because, as explained above, Robotic's proposal was properly rejected,
the protester would not be in line for award even if its protest were
sustained. Accordingly, Robotic is not an interested party eligible
to object to the technical evaluation of its and Minowitz's proposal,
the content of discussions, and award to Minowitz.
The protest is dismissed.
Comptroller General
of the United States