B-205537, FEB 1, 1982

B-205537, FEB 1, 1982

DIGEST: PROTEST CONCERNING ALLEGED FAILURE OF LOW BIDDER TO MEET SOLICITATION'S MINIMUM MANHOURS REQUIREMENT IS DENIED WHERE RECORD SUPPORTS AGENCY DETERMINATION THAT BID WAS BASED ON THE REQUIREMENT.

W.M.GRACE, INC.:

W.M.GRACE, INC. PROTESTS THE AWARD OF A CONTRACT FOR JANITORIAL SERVICES TO KIRSCH AND PARTNERS (KP) BY THE NAVY PUBLIC WORKS CENTER, NORFOLK, VIRGINIA UNDER INVITATION FOR BIDS (IFB) NO. N62470-81-B 4165. THE BIDS WERE OPENED ON FEBRUARY 17, 1981 AND KP WAS THE LOW BIDDER. THE NAVY MADE AWARD TO KP ON NOVEMBER 17 AND ON NOVEMBER 18, GRACE FILED ITS PROTEST WITH THIS OFFICE. FOR THE REASONS DISCUSSED BELOW, WE DENY THE PROTEST.

GRACE CONTENDS THAT KP'S BID SHOULD HAVE BEEN REJECTED UNDER THE TERMS OF THE SOLICITATION BECAUSE KP'S BID WAS NOT BASED ON FURNISHING THE REQUIRED MINIMUM OF 85,100 MANHOURS SPECIFIED AS NECESSARY TO PROPERLY PERFORM ALL THE SERVICES OVER A TWELVE MONTH PERIOD.

THE SOLICITATION, IN PARAGRAPH 1.2 OF SECTION 00005 OF THE SPECIFICATIONS, PROVIDED THAT THE GOVERNMENT HAD DETERMINED THAT A MINIMUM OF 85,100 MANHOURS WERE NECESSARY FOR CONTRACT PERFORMANCE, THAT "IN NO CASE WILL THE PROVISION OF LESS THAN THE MINIMUM NUMBER OF MANHOURS BE ACCEPTABLE TO THE GOVERNMENT," AND THAT THE GOVERNMENT COULD REJECT THE BID IF IT HAD NOT BEEN PREPARED ON THE BASIS OF 85,100 MANHOURS OF EFFORT. THE SOLICITATION FURTHER PROVIDED THAT PRIOR TO AWARD THE SUCCESSFUL LOW BIDDER WOULD BE REQUIRED TO FURNISH COPIES OF BID PREPARATION PAPERS AND WORKSHEETS SO THAT THE GOVERNMENT COULD MAKE THE NECESSARY DETERMINATION. GRACE ASSERTS THAT KP'S DISCOUNTED BID PRICE SHOULD HAVE BEEN REJECTED UNDER THESE SOLICITATION PROVISIONS BECAUSE, IN GRACE'S VIEW, KP'S PRICE WAS INSUFFICIENT TO COVER THE 85,100 MANHOURS.

THE RECORD SHOWS THAT KP WAS REQUESTED TO AND DID FURNISH APPROPRIATE DOCUMENTS INDICATING HOW IT ARRIVED AT ITS BID PRICE AND SHOWING THAT THE BID WAS BASED ON ITS FURNISHING 85,100 MANHOURS. THE RECORD FURTHER SHOWS THAT THE NAVY EVALUATED THESE DOCUMENTS AND MADE THE AWARD ONLY AFTER CONCLUDING THAT THE MINIMUM MANHOUR REQUIREMENT WAS MET.

THE PAPERS SUBMITTED BY KP SHOW THAT THE VARIOUS COST ELEMENTS OF ITS BID TOTAL THE BID PRICE OF $535,000, BUT EXCEED THE DISCOUNTED PRICE (KP OFFERED A 9 PERCENT PROMPT PAYMENT DISCOUNT). THE FACT THAT THE NAVY MAY EARN THE DISCOUNT AND THEREFORE PAY KP 9 PERCENT LESS THAN ITS BASIC BID PRICE INDICATES ONLY THAT KP COULD END UP WITH A LESS PROFITABLE OR BELOW COST CONTRACT; IT DOES NOT INDICATE THAT THE BID IS NOT BASED ON FURNISHING THE REQUIRED MINIMUM NUMBER OF MANHOURS. WE FIND NO BASIS TO DISAGREE WITH THE NAVY'S DETERMINATION THAT KP'S BID WAS BASED ON THE SPECIFIED MINIMUM EFFORT.

FURTHER, WE POINT OUT THAT THE SUBMISSION OF A BID WHICH A COMPETITOR CONSIDERS TOO LOW DOES NOT CONSTITUTE A LEGAL BASIS FOR PRECLUDING A CONTRACT AWARD. COLUMBIA LOOSE-LEAF CORPORATION, B-193659, JANUARY 23, 1979, 79-1 CPD 45. MOREOVER, THE REJECTION OF A BID AS UNREALISTICALLY LOW REQUIRES A DETERMINATION THAT THE BIDDER IS NONRESPONSIBLE. FUTRONICS INDUSTRIES, INC., B-185896, MARCH 10, 1976, 76-1 CPD 169. HERE, THE AGENCY MADE AN AFFIRMATIVE DETERMINATION WITH RESPECT TO KP'S RESPONSIBILITY AND GRACE'S PROTEST IN ESSENCE CHALLENGES THIS DETERMINATION. THIS OFFICE DOES NOT REVIEW SUCH DETERMINATIONS UNLESS FRAUD IS SHOWN ON THE PART OF PROCURING OFFICIALS OR THE SOLICITATION CONTAINS DEFINITIVE RESPONSIBILITY CRITERIA WHICH ALLEGEDLY HAVE NOT BEEN MET. CONSOLIDATED ELEVATOR COMPANY, B-190929, MARCH 3, 1978, 78-1 CPD 166. NEITHER EXCEPTION IS PRESENT IN THIS CASE.

THE PROTEST IS DENIED.