B-173248, MAY 9, 1972

B-173248, MAY 9, 1972

BID PROTEST - MINIMUM MANNING REQUIREMENT - UNFAIR COMPETITIVE ADVANTAGE - REQUEST FOR RECONSIDERATION OF PRIOR DECISION CONCERNING A REQUEST OF ACTION INDUSTRIES, INC., FOR RECONSIDERATION OF A DECISION WHICH ALLOWED THE PROTEST OF TECDATA, INC., AGAINST THE AWARD OF A FIXED-PRICE CONTRACT COVERING THE PERFORMANCE OF MAINTENANCE AND OPERATIONS SERVICES FOR THE CIVIL ENGINEERING, PROTOTYPE TECHNICAL LABORATORY AT THE LOS ANGELES AIR FORCE STATION. ASPR 3-805.1(E) RECOGNIZES THAT IN A NEGOTIATED PROCUREMENT, A SOLICITATION REQUIREMENT CAN ONLY BE RELAXED BY AN AMENDMENT PROMPTLY FURNISHED TO ALL OFFERORS. IN THE INSTANT CASE, THE CONTRACTING OFFICER'S AGREEMENT DURING NEGOTIATION TO PERMIT ACTION TO PERFORM AT LESS THAN THE REQUIRED MANNING LEVEL WAS NOT COMMUNICATED TO OTHER OFFERORS. ACCORDINGLY, ACTION'S COMPETITORS WERE DENIED THE SAME CHANCE TO ADJUST THEIR QUOTED PRICES ON THE BASIS THAT THE SPECIFIED NUMBER OF PERSONNEL WAS SUBJECT TO WAIVER OR RELAXATION. FURTHER, IT SHOULD BE NOTED THAT THE FAILURE OF A PROTEST TO MENTION A PARTICULAR DEFICIENCY DOES NOT PRECLUDE FULL CONSIDERATION BY GAO OF THE ENTIRE CIRCUMSTANCES SURROUNDING THE PROCUREMENT. IN VIEW OF THE FOREGOING, THE PRIOR DECISION OF THE COMP. GEN. IS AFFIRMED.

TO INTERSERVCO, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTERS OF FEBRUARY 29 AND MARCH 24, 1972, OFFERING YOUR VIEWS AND COMMENTS ON OUR DECISION OF FEBRUARY 24, 1972, B-173248, RELATIVE TO THE PROTEST OF TECDATA, INC., AGAINST THE AWARD OF A CONTRACT TO ACTION INDUSTRIES, INCORPORATED (ACTION).

YOUR FIRST AREA OF CONCERN IS THAT SINCE IT WOULD APPEAR THAT ACTION IS OFFERING LESS PERSONNEL THAN REQUIRED BY THE CONTRACT, YOU ARE HOPEFUL THAT THE GOVERNMENT WILL BE PRUDENT AND WITHHOLD THE LAST THREE OR FOUR MONTHS' PAYMENTS UNTIL THE LEVEL OF ACTUAL COST IS DETERMINED. ANY WITHHOLDING OF PAYMENTS WOULD BE A MATTER OF ADMINISTERING THE CONTRACT IN ACCORDANCE WITH ITS TERMS AND NOT FOR INITIAL CONSIDERATION BY OUR OFFICE. IN THIS CONNECTION, YOUR ATTENTION IS DIRECTED TO THE FIRST SENTENCE OF THE PENULTIMATE PARAGRAPH OF OUR DECISION STATING THAT IN VIEW OF THE JUNE 23, 1971, AGREEMENT WE COULD NOT CONCLUDE THAT UTILIZATION OF LESS THAN 142 EMPLOYEES WAS CONTRARY TO THE CONTRACT AS INTENDED BY THE PARTIES THERETO.

YOUR SECOND OBJECTION APPEARS TO BE THAT ACTION "CREATED OUT OF A PUFF OF SMOKE TO CAPTURE THE CONTRACT LAST YEAR" WILL BE GIVEN AN OPPORTUNITY TO COMPETE ON THE NEW SOLICITATION. THIS CONCERNS THE QUESTION OF ACTION'S RESPONSIBILITY WHICH IS A MATTER PRIMARILY FOR DETERMINATION BY THE PROCURING ACTIVITY AT OR NEAR THE TIME OF AWARD.

THIRDLY, YOU STATE

" *** BY YOUR OWN REVIEW, MY COMPANY WAS THE BEST QUALIFIED TO FILL THE CONTRACT IN TERMS OF TECHNICAL PROPOSAL EVALUATION" AND YOU SUGGEST THAT THIS BEING THE CASE YOUR COMPANY SHOULD BE AWARDED THE NEXT FISCAL YEAR'S CONTRACT ON A SOLE-SOURCE BASIS.

IT SHOULD FIRST BE NOTED THAT IT WAS NOT OUR OFFICE THAT RATED THE PROPOSALS. RATHER, IT WAS THE AIR FORCE WHICH GAVE YOUR COMPANY THE INITIAL HIGHEST TECHNICAL SCORE, HOWEVER, THE PROPOSALS OF ACTION AND TECDATA WERE ALSO WITHIN THE CLOSE COMPETITIVE RANGE. WE KNOW OF NO STATUTE OR REGULATION WHICH WOULD PERMIT THE DEPARTMENT OF THE AIR FORCE TO MAKE A SOLE-SOURCE AWARD TO YOUR FIRM IN A FUTURE SOLICITATION ON THE BASIS THAT YOUR PROPOSAL IN A PRIOR PROCUREMENT RECEIVED THE HIGHEST TECHNICAL SCORE.

TO FURTHER ASSIST YOU IN UNDERSTANDING OUR EARLIER DECISION WE ENCLOSE HEREWITH A COPY OF OUR LETTER OF TODAY TO ACTION AFFIRMING OUR DECISION OF FEBRUARY 24. WE CONSIDER THIS TO BE DISPOSITIVE OF YOUR PROTEST IN THIS MATTER.