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