B-182266, MAY 13, 1975

B-182266, MAY 13, 1975

1. PRIOR DECISION IN THIS MATTER IS CLARIFIED AS TO BASIS FOR ALLOWING CONTINUANCE OF CONTRACT. PRIOR DECISION'S RECOMMENDATION THAT AWARDEE AGREE TO WEEKLY CLEANING OF BUILDING 33 WAS INTENDED TO LIMIT AGREEMENT TO WEEKLY CLEANING OF TOILET AND BATH AREAS IN BUILDING 33, ALL OTHER CLEANING SCHEDULES REMAINING AS CONTRACTED FOR. 2. RECOMMENDATION IN PRIOR DECISION THAT OPTIONAL PORTION OF CONTRACT NOT BE EXERCISED IS AFFIRMED, AS IFB UNDER WHICH AWARD WAS MADE WAS CLEARLY DEFECTIVE AND READVERTISEMENT FOR OPTIONAL PERIOD WOULD BE, IN OUR OPINION, IN BEST INTEREST OF ALL PARTIES CONCERNED.

SCHRAMM'S BUILDING MAINTENANCE CORP. REQUEST FOR CLARIFICATION OF PRIOR DECISION:

BY LETTER DATED APRIL 7, 1975, SCHRAMM'S BUILDING MAINTENANCE CORP. (SCHRAMM'S) REQUESTED THAT WE CLARIFY THE POSITION TAKEN BY OUR OFFICE IN OUR PRIOR DECISION IN THIS MATTER, MATTER OF KLEENRITE CORPORATION, B- 182266, APRIL 1, 1975. IN THAT DECISION, OUR OFFICE WAS OF THE OPINION THAT THE INVITATION FOR BIDS (IFB) WAS AMBIGUOUS AS CONCERNS THE ESTIMATED NUMBER OF CLEANINGS FOR ITEM 3D (TOILET AND BATH AREA CLEANING FOR BUILDINGS 33 AND 167). THEREFORE, ALTHOUGH TERMINATION FOR CONVENIENCE OF THE GOVERNMENT WAS NOT RECOMMENDED, WE WERE OF THE OPINION THAT:

"*** THE PRESENT CONTRACT SHOULD BE PERMITTED TO PROCEED NOTWITHSTANDING THE DEFICIENCY IN THE IFB ONLY IF SCHRAMM'S AGREES TO CLEAN BUILDING 33 ON A WEEKLY BASIS AT NO INCREASE IN COST. ADDITIONALLY, IN VIEW OF THE DEFICIENCY IN THE IFB WE RECOMMEND THAT THE OPTION FOR AN ADDITIONAL YEAR OF SERVICE UNDER THE EXISTING CONTRACT NOT BE EXERCISED."

SCHRAMM'S FIRST QUESTIONS WHETHER OUR DECISION ALLOWING CONTINUANCE OF THE CONTRACT WAS CONTINGENT ON AN AGREEMENT TO CLEAN BUILDING 33 ON A WEEKLY BASIS OR ITEM 3D ON A WEEKLY BASIS. THE IFB, ON PAGE 19 OF SECTION 14, DETAILS THE USES AND CLASS OF SERVICE BUILDING 33 WAS TO RECEIVE. THE GENERAL OFFICES WERE TO RECEIVE CLASS "B" SERVICE WHICH IS DETAILED AS TO NATURE AND FREQUENCY IN SECTION 8 OF THE IFB. THE FREQUENCY OF CLEANING, DEPENDING UPON THE ITEM, VARIES FROM DAILY TO ONCE A YEAR. THE TOILET AND BATH AREAS, ITEM 3D, ON THE OTHER HAND, WERE TO BE CLEANED ON A DAILY BASIS. IT WAS ITEM 3D THAT CAUSED THE AMBIGUITY IN THE IFB AND IT WAS ITEM 3D THAT WAS THE SUBJECT OF OUR EARLIER DECISION.

ACCORDINGLY, OUR STATEMENT IN B-182266, SUPRA, WAS INTENDED TO MEAN THAT THE PRESENT CONTRACT SHOULD BE PERMITTED TO PROCEED NOTWITHSTANDING THE DEFICIENCY IN THE IFB ONLY IF SCHRAMM'S AGREES TO CLEAN THE TOILET AND BATH AREAS IN BUILDING 33 ON A WEEKLY BASIS AT NO INCREASE IN COST. ALL OTHER FREQUENCY SCHEDULES FOR CLEANING SERVICES SHOULD REMAIN AS CONTRACTED FOR.

SECONDLY, SCHRAMM'S OBJECTS AGAINST THE RECOMMENDATION IN OUR EARLIER DECISION THAT THE ADDITIONAL YEAR OF SERVICE UNDER THE EXISTING CONTRACT NOT BE EXERCISED. SCHRAMM'S CONTENDS THAT "IN VIEW OF THE ENORMOUS EXPENSE TO THE CONTRACTOR OF ORGANIZING AND EQUIPPING A CONTRACT OF THIS SIZE, THIS RECOMMENDATION IS UNFAIR."

WHERE, AS HERE, WE HAVE CONCLUDED THAT A DEFECTIVE SOLICITATION EXISTS, WE HAVE ALWAYS TAKEN INTO CONSIDERATION CERTAIN FACTORS - GOOD FAITH OF THE PARTIES, URGENCY OF THE PROCUREMENT, AND EXTENT OF PERFORMANCE - IN DECIDING WHETHER THE RESULTANT AWARD, OR A PORTION THEREOF, SHOULD BE DISTURBED. WE CONSIDERED THOSE FACTORS IN OUR EARLIER DECISION. UPON RECONSIDERATION, WE FIND NO BASIS TO CHANGE OUR POSITION IN THIS REGARD. WHILE WE CAN UNDERSTAND THE POSITION ASSERTED BY SCHRAMM'S, WE MUST COUNTERBALANCE THIS WITH THE FACT THAT THE IFB WAS CLEARLY DEFECTIVE AND HAD OUR OFFICE BEEN IN A POSITION TO ISSUE A DECISION PRIOR TO AN AWARD, IN ALL PROBABILITY WE WOULD HAVE RECOMMENDED CANCELLATION OF THE INVITATION AND THAT IT BE CORRECTED AND READVERTISED. HOWEVER, NOT BEING IN A POSITION TO DO SO AND RECOGNIZING THE GOOD FAITH OF THE PARTIES BY ALLOWING COMPLETION OF THE 1-YEAR SERVICE CONTRACT BUT RECOMMENDING AGAINST AN EXERCISE OF THE OPTIONAL YEAR OF SERVICE. THIS WOULD ALLOW ALL INTERESTED PARTIES TO RECOMPETE FOR THE AWARD UNDER AN UNAMBIGUOUS SOLICITATION.

ACCORDINGLY, OUR RECOMMENDATION IN OUR PRIOR DECISION IS AFFIRMED.