tegral part of the step two bids and therefore the continuation of the restriction at step two against disclosure of any part of the FMC proposal requires rejection of that firm's bid under ASPR 2-404.4(a) as nonresponsive. Without addressing the question of whether the "complete engineering data" called for under paragraph 4(a) of the LRFTP is more closely aligned with the term "technical data" (ASPR, section IX, Part 2) than with "descriptive literature" (ASPR 2-202.5), we feel it is sufficient to state that we do not agree that the responsiveness of FMC's bid submitted under the step two procedures is affected by the continued exercise therein of the confidential privileges reasonably afforded that company's proposal package under step one. It is clear that, notwithstanding the provisions of ASPR 2-404.4 (a), any such material which had been marked in accordance with ASPR 3-507.1 would remain confidential during the step two process, and we do not perceive any compelling reason or requirement for a different rule concerning accepted step one material which that offeror has restricted by other means against unauthorized disclosure.

In connection with the noncompliance by the procuring activity with your request for the names of the responsive step one offerors, which inquiry you say was made to prepare for subcontracting opportunities, and the failure of such names to appear in the Commerce Business Daily, ASPR 1-1003.6 (a) (2) does not require the publication of the names of firms which have submitted acceptable technical proposals in the first step of two-step formal advertising when it is determined that publication is not in the Government's interest or subcontracting opportunities do not exist. The procuring activity reports that it was determined at the time the IFB was issued that it would serve no purpose to publicize the names of the successful offerors as far as subcontracting opportunities were concerned. While your firm did request that a list of responsive offerors to step one be furnished, it is reported that at no time was this request identified as an attempt on your part to obtain subcontracting opportunities, and had it been so identified you would have been advised that other step one offerors did not propose use of your equipment.

Concerning your contention that any proposal which does not fully comply with all sections of the specifications attached to the LRFTP should be regarded as nonresponsive, ASPR 2-503.1 provides under (a) (iv) that the request for technical proposals shall contain the criteria for evaluating the technical proposal, and under (d) that the technical evaluation of the proposals shall be based upon the criteria contained in such request. Although it is readily apparent how several areas of the proposal package which were not

completely clarified during the bidder's conference on November 22, 1965, might lead to the views expressed by you, we do not agree that the LRFTP requires the evaluation of all proposals be based on full compliance with all details of all sections of the specifications. As you point out, paragraph 5f of the LRFTP sets forth as a specific criterion that technical proposals will be evaluated for full compliance with all sections of the specifications. We believe, however, that such and other provisions of a somewhat similar import contained in the LRFTP and the specifications must be considered in conjunction with paragraph 9 of the LRFTP which authorizes and encourages offerors to submit proposals presenting different basic approaches to the automated material handling system described. Paragraph 9 is as follows:

In this, the first step of the two step formally advertised procurement, offerors are authorized and encouraged to submit multiple technical proposals presenting different basic approaches provided each meets the basic requirements of this letter Request for Technical Proposals, the specification and the drawings and illustrations. Where multiple Technical Proposals are submitted, each such proposal will be evaluated separately and, if appropriate, notice of unacceptability as indicated in the preceding paragraph will be furnished. [Italic supplied.]

In connection with such paragraph the transcript of the bidder's conference shows the following questions and answers:

Questions by Jules Gallo, Food Machinery Corporation

Question: If we have alternate approaches, must we submit two proposals? Answer: You need only submit one proposal as long as you meet the basic design requirements.

Question: If we have alternate design, do we have to qualify under procurement requirements?

Answer: As long as you meet basic requirements, you will be okay. Question by Charles A. Leslie, Columbus McKinnon Corporation

Question: On the overhead power and free system, will the government procure only this type of system or will anything go? Power and free only? Answer: We are procuring a power free routing system. Your proposal should be based on Specifications, and within reasonable variations, be based on the power free concept.

Questions by Jules Gallo, Food Machinery Corporation

Question: What are the manning requirements? Will the bidder determine these?

Answer: As you design your system, you will recommend where manning is necessary.

A previous question and the answer concerning the flexibility of the specifications are transcribed:

Questions by Charles A. Leslie, Columbus McKinnon Corporation

*

Question: Are we allowed to take any liberties with these Specifications? If we do something undesirable, what will the Air Force do?

Answer: The purpose of a two-step proposal is to allow you to submit your own ideas, particularly where they improve the proposal and drawings submitted to you by the Air Force. When we review the technical proposals, if we find equipment that is not desirable or marginal, we will contact the contractor and request him to further clarify his proposal or submit additional

277-066 O-68-5

data to verify that his equipment will indeed fill the requirements set forth in the Specifications.

We feel, however, that the answer to the first question of the conference which was presented by Mr. Leslie is most significant as to the intended nonrestrictiveness of the specifications for proposals presenting a system of a different design or concept than that described in the specification:

Question: Why are flow charts listed in Letter, Request for Technical Proposal, Page 2, paragraph 4e, necessary and why are operating procedure submittals required in view of the fact that they are spelled out in the specifications? Answer: In the specifications we have tried to spell out the operating proce dures and flow descriptions for that system. If your technical proposal describes a system essentially similar to the one in the specifications, then the operating procedures and flow charts described in the specifications will be applicable to your proposal and you need only refer to them. Should your technical proposal, however, be significantly different than that described in our specifications, you will be required to submit flow charts and operating procedures for the system you propose.

It is our view that prospective contractors were reasonably informed by the provisions of paragraph 9 of the LRFTP and the above explanations that the acceptability of those solicited proposals which presented new designs or different approaches for the system would be dependent upon the fulfillment of the basic requirements of the specifications rather than upon full compliance with all of the details specified for a system of the design outlined therein. It is reported, and our investigation confirms, that the FMC proposal presents a new design and basic approach to the automated material handling system, which is different than that usually followed in a conventional type of overhead power and free conveyor system as covered by the various sections of the subject specification. In view thereof, system features and attendant hardware differing in many respects from that described in the specification provisions are to be expected in the FMC proposal, and are permitted by the LRFTP provided the basic requirements of the proposal package are met. The procuring activity reports that the basic requirements for its automated material handling system as indicated in the proposal package are that (1) it be an overhead conveyor system which will service all of the bin areas in such a way that the stock pickers will not be restricted as they pick material from bins located on opposite sides of the conveyor system; (2) all pickup and delivery stations have the necessary gadgetry to allow automatic routing of material to and from pickup stations and the customer order accumulating area; (3) all pickup and delivery stations have capability of accumulating tow trays loaded or unloaded without pulsating a primary conveyor; (4) it will automatically accumulate and store customer orders in the customer holding area; and that (5) it will release loaded tow trays over the roller conveyor (express line) without

physical handling of the trays. The Air Force reports that the FMC proposal (as well as each of the other proposals) was first reviewed by competent technical personnel to see if it met the above basic requirements. Thereafter, the FMC proposal was reviewed to insure good engineering design and that the system was capable of handling the material described in the specifications in accordance with the outlined operational speeds, load capacities and the quantity of material that needed to be routed through the system. The procuring activity reports that the system offered by FMC is acceptable, meets all of the stated basic requirements, complies with other specification requirements which have proper application to appropriate features and characteristics incorporated in that system, and must satisfactorily complete the performance test outlined in the specifications.

As indicated in your letter, we are not in a position to consider the detailed technical aspects of a proposal, and in such connection it is well settled that the determination of the acceptability of technical proposals is vested in the procurement officials and their engineering advisers who are best qualified to evaluate them. In view thereof, and since our examination of the FMC proposal has revealed no basis for disagreement with the contracting agency's conclusion, we will not question the agency's determination that FMC's technical proposal will satisfy the agency's needs.

In view of the foregoing, we do not feel that the facts and circumstances present a proper basis for this Office to object to the administrative acceptance of the FMC proposal. Further, inasmuch as the system presented in such proposal does not incorporate all of the nonbasic requirements and details set forth in the specifications, which omissions in our view are authorized under the LRFTP, we perceive no useful purpose that would be served by an examination by your firm of the FMC proposal package for the purpose of noting such variations.

While your protest is denied for the reasons outlined above, we feel that in any future request for proposals of this nature, which describes an acceptable system of a conventional type, with prescribed evaluation criteria therefor, and solicits multiple or alternate proposals presenting new designs and different basic approaches, the request should clearly set forth the specific criteria, as required by ASPR 2-503.1, for evaluation of those proposals which may present new or basically different systems than that described in the LRFTP package. We are therefore calling this matter to the attention of the Secretary of the Air Force for such consideration as he deems is warranted in that area.

[B-159270]

Bids-Late-Invitation Mailing Requirements-Noncompliance Late quotations on a proposed cost-plus-a-fixed fee negotiated contract which were not sent by registered or certified mail as required by the Request for Proposals pursuant to paragraph 3–506(d) of the Armed Services Procurement Regulation may not be considered even though proof of mailing can be established by other means, late bid rules having been made applicable to quotations by paragraph 3-506(f), although a quotation is not an offer which can be accepted by the Government to form a binding contract, and the rules making no exception for cost-plus-a-fixed fee contracts, a reasonable cut-off date being necessary even in cases with little or no competition, the quotations, neither technically competent nor low in price, may not be considered on the basis of "extreme importance" to the Government; therefore, strict compliance with the certified or registered mail requirement, reasonable and necessary constituting a higher degree of proof than a postmark of limited evidentiary value, requires rejection of the late quotations.

To Radiation, Incorporated, July 18, 1966:

Further reference is made to your letter of May 24, 1966, protesting against rejection of your proposal RI-300924-4-13, submitted in response to request for quotations (RFQ) AMC (E) 28-043-6600837 (N), issued by the United States Army Electronics Command, Fort Monmouth, New Jersey, as a late proposal. We are advised that award of a contract is being withheld pending our decision.

The amended closing date for submission of proposals under the subject RFQ was April 18, 1966. The proposal of Radiation, Incorporated, was not received until April 20, 1966. Although it was established that the Radiation proposal was mailed in time to reach the procuring agency by the closing date and that the delay was caused by mishandling in the mails, the contracting officer determined that the proposal should be handled as a late proposal because it was not sent by registered or certified mail, as required by paragraph 3-506(d) of the Armed Services Procurement Regulation (ASPR), which was made a part of the RFQ. Before this determination was made, however, the Radiation proposal was opened in accordance with ASPR 3-506 (a) in order to determine whether its consideration was of such extreme importance to the Government that it warranted the authorization of an exception to the normal late proposal requirements by the Secretary of the Army. At the same time, the contracting officer directed that the proposal be evaluated as if it had been received on time in order to determine its relative standing as to price and technical capability, pending his decision as to its timeliness. The technical evaluation team found that, evaluated as a late proposal, the Radiation proposal did not warrant any further action, and that evaluated as an on-time proposal, the Radiation proposal was sixth on technical capability and second lowest on price. Thus, it appears that there is a very real