B-152228, NOV. 15, 1963

B-152228, NOV. 15, 1963

TO MANPOWER, INC.:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 5, 1963, PROTESTING AN AWARD TO ANOTHER CONCERN UNDER INVITATION FOR BIDS NO. SA-5-64, ISSUED BY THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE.

BIDS WERE REQUESTED FOR FURNISHING LABORING SERVICES AS NEEDED BY THE DEPARTMENT FOR THE PERIOD JULY 1, 1963, THROUGH FEBRUARY 29, 1964. HOURLY RATES WERE TO BE QUOTED ON FOUR TYPES OF SERVICE, NAMELY, (A) 8 HOURS REGULAR TIME; (B) 8 HOURS ON SUNDAYS OR HOLIDAYS; (C) OVERTIME IN EXCESS OF 8 HOURS ON WEEKDAYS; AND (D) OVERTIME ON SUNDAYS OR HOLIDAYS.

YOU QUOTED $1.69 PER HOUR FOR A AND B ABOVE, AND $2.14 PER HOUR FOR C AND D. LABOR POOL, INC., QUOTED $1.68 PER HOUR FOR A AND B AND $2.50 PER HOUR FOR C AND D. AWARD WAS MADE TO LABOR POOL, INC., AS THE LOW RESPONSIBLE AND RESPONSIVE BIDDER AND YOU HAVE PROTESTED THIS AWARD ON THE GROUNDS THAT THERE WAS NO ASSIGNMENT OF WEIGHTS AND MEASURES ON A BID CALLING FOR AN INDEFINITE QUANTITY, AND THAT YOUR COMPETITOR HAD AN UNFAIR ADVANTAGE OVER YOU IN KNOWING HOW MUCH OVERTIME WAS INVOLVED LAST YEAR, WHILE YOU WERE DENIED THIS PUBLIC INFORMATION.

PARAGRAPH NO. 1 OF THE SPECIFICATIONS READS AS FOLLOWS:

"THERE IS NO WAY OF ANTICIPATING THE VOLUME OF BUSINESS WHICH MAY ACCRUE FROM AN AWARD ON THIS CONTRACT. HOWEVER, AN ESTIMATE OF APPROXIMATELY 250 MAN DAYS (2000 MAN HOURS) WERE UTILIZED MONTHLY DURING FY 1963. THIS ESTIMATE IS FURNISHED SOLELY FOR INFORMATIONAL PURPOSES AND IS GIVEN WITH THE DISTINCT UNDERSTANDING THAT THERE IS NOTHING EXPRESSED OR IMPLIED AS TO THE VOLUME OF BUSINESS WHICH MAY BE EXPECTED BY THE SUCCESSFUL BIDDER.'

IT HAS BEEN REPORTED BY THE DEPARTMENT THAT THE CONTRACTING OFFICER HAD NO MORE DATA CONCERNING CONTRACT LABORING SERVICES THAT HAD BEEN PERFORMED DURING THE FISCAL YEAR 1963 THAN WAS INCLUDED IN THE INVITATION FOR BIDS, AND THAT WHAT INFORMATION WAS AVAILABLE COULD NOT BE CONSIDERED AS AN ACCURATE FORECAST OF THE PROBABLE NEEDS FOR THE CONTRACT PERIOD. IN THIS CONNECTION IT IS REPORTED THAT AT THE TIME THE INVITATION WAS ISSUED, STEPS WERE BEING TAKEN TO INCREASE THE STAFF OF THE DEPARTMENTAL LABORING SERVICE WHICH WOULD HAVE A DEFINITE BUT INDETERMINABLE EFFECT ON FUTURE NEEDS.

SINCE THE CONTRACTING OFFICER DID NOT HAVE DEFINITE INFORMATION AS TO THE TOTAL NUMBER OF HOURS OR THE PERCENTAGE OF STRAIGHT TIME AND OVERTIME WORKED UNDER THE PREVIOUS CONTRACT, HE COULD NOT USE ANY COMBINATION OF RATES AND HOURS FOR PURPOSES OF EVALUATION. IT WAS LOGICAL TO ASSUME, HOWEVER, THAT THE GREATEST DEMAND WOULD BE FOR STRAIGHT TIME UNDER "A" AND "B" ABOVE. IT WAS FOR THIS REASON THAT HE ADVISED YOU PRIOR TO THE BID OPENING THAT LITTLE, IF ANY, CONSIDERATION WOULD BE GIVEN TO OVERTIME IN MAKING THE AWARD. IN THE CIRCUMSTANCES IT WOULD NOT APPEAR THAT A KNOWLEDGE OF THE AMOUNT OF OVERTIME WORKED UNDER THE PREVIOUS CONTRACT WOULD BE OF ANY ADVANTAGE.

WHILE THERE WAS NO DEFINITE INFORMATION AVAILABLE, SINCE IT WAS BELIEVED THAT BY FAR THE GREATEST REQUIREMENT FOR CONTRACT PERFORMANCE WOULD OCCUR UNDER ITEMS "A" AND "B" , AWARD WAS MADE TO LABOR POOL, INC., THE LOW BIDDER ON THESE ITEMS. THIS ACTION APPEARS TO HAVE BEEN FULLY JUSTIFIED AND THERE IS NOTHING TO INDICATE THAT THE RIGHTS OF ANY OTHER BIDDER WERE PREJUDICED THEREBY. THE EVALUATION WAS MADE BY THE CONTRACTING OFFICER IN GOOD FAITH AND IN THE EXERCISE OF HIS BEST INDEPENDENT JUDGMENT, BASED ON THE FACTS AT HAND, AND WE WOULD NOT BE JUSTIFIED IN DISTURBING THE AWARD AS MADE. YOUR PROTEST MUST THEREFORE BE DENIED.