B-154734, AUG. 26, 1964

B-154734, AUG. 26, 1964

TO STRASSER, SPIEGELBERG, FRIED, FRANK AND KAMPELMAN:

REFERENCE IS MADE TO YOUR LETTER OF JULY 15, 1964, WITH ENCLOSURES, WRITTEN AS COUNSEL FOR BUILDING MAINTENANCE CORPORATION AND PROTESTING AGAINST THE AWARD MADE BY THE PURCHASING AND CONTRACTING OFFICE, FORT MYER, VIRGINIA, UNDER INVITATION FOR BIDS NO. MDW-44-040-64-51.

THE PROCUREMENT WAS SET ASIDE FOR EXCLUSIVE SMALL BUSINESS PARTICIPATION AND BIDS WERE SOLICITED FOR FURNISHING COMPLETE CUSTODIAL SERVICES (INCLUDING SUPPLIES, LABOR AND NECESSARY CLEANING EQUIPMENT) IN ACCORDANCE WITH FOUR ATTACHED SCHEDULES AND OTHER PROVISIONS, FOR SPECIFIED BUILDINGS AT FORT MYER, VIRGINIA, FOR THE TWELVE MONTHS BEGINNING JULY 1, 1964, AND TERMINATING JUNE 30, 1965. THE TASKS REQUIRED TO BE PERFORMED, TIME OF PERFORMANCE, AND FREQUENCY OF SUCH OPERATIONS IN THE INDIVIDUAL BUILDINGS WERE DESCRIBED IN DETAIL IN THE SCHEDULES, AND COMPLETE STANDARDS FOR THE PERFORMANCE OF EACH TYPE OF PRESCRIBED TASK, TOGETHER WITH SPECIFICATIONS FOR MATERIALS TO BE USED IN CONNECTION THEREWITH, WERE SET FORTH UNDER TECHNICAL PROVISIONS OF THE INVITATION.

PARAGRAPH 15, PAGE 6, OF THE INVITATION PROVIDED AS FOLLOWS:

"15. METHOD OF OPERATIONS: EACH BIDDER SHALL INCLUDE WITH HIS BID AN OUTLINE OF THE PROPOSED METHOD OF OPERATION FOR EXECUTION OF ANY CONTRACT AWARDED. FAILURE TO SUBMIT OUTLINE OF METHOD OF OPERATION AS REQUIRED IS CAUSE FOR REJECTION OF BID.

"A. ORGANIZATION OF THE JOB.

"B. ORGANIZATION OF CONTRACTOR'S WORK FORCE INCLUDING NUMBER OF MAN HOURS USED DAILY.

"C. METHOD OF SUPERVISION OF WORK, TO INCLUDE NUMBER OF SUPERVISORS, HOURS ON THE JOB, AND WHETHER OR NOT PHYSICALLY SUPERVISING, ETC.

"D. TYPE AND QUANTITIES OF EQUIPMENT, MATERIALS, AND TRANSPORTATION TO BE USED.

"E. SECURITY PRECAUTIONS TO BE TAKEN AND CONTRACTOR'S LIABILITY FOR DAMAGE AND/OR THEFT BY HIS EMPLOYEES.

"CONTRACTOR WILL BE REQUIRED TO SUBMIT DAILY REPORTS OF WORK ACCOMPLISHED FOR EACH PRECEDING DAY. ANY WORK NOT DESIGNATED AS ACCOMPLISHED IN SAID REPORTS SHALL BE CONSIDERED AS UNACCOMPLISHED AND SUBJECT TO PROVISIONS OF THE SCHEDULE.'

THE BIDS WERE OPENED AS SCHEDULES ON JUNE 19, 1964. THE BID OF CENTRAL BUILDING MAINTENANCE COMPANY AT A MONTHLY PRICE OF $4,193.09 (3 PERCENT--- 10 DAYS DISCOUNT) WAS DETERMINED TO BE THE LOW RESPONSIVE BID, AND AWARD WAS MADE TO THAT FIRM. BUILDING MAINTENANCE CORPORATION'S BID OF $4,268.90 A MONTH (1/10 OF 1 PERCENT--- 10 DAYS DISCOUNT) WAS SECOND LOW. IN RESPONSE TO PARAGRAPH 15 OF THE INVITATION, CENTRAL BUILDING MAINTENANCE COMPANY SUBMITTED THE FOLLOWING INFORMATION:

"IN REFERENCE TO ORGANIZATION OF THE JOB AND METHOD OF OPERATION PROPOSED REGARDING INVITATION NUMBER MDW-44-040-64-51, WE SUBMIT THE FOLLOWING.

SCHEDULE A

"WE PLAN TO WORK ONE MAN EIGHT HOURS DAILY IN SCHEDULE A.

SCHEDULE B

"WE PLAN TO WORK AN ELEVEN MAN CREW FOR A TOTAL OF APPROXIMATELY 50 TO 70 HOURS IN THE SCHEDULE B BUILDINGS. ONE OF THESE MEN WILL BE ASSIGNED AS A WORKING SUPERVISOR.

SCHEDULE C

"WE PLAN TO WORK EIGHT MAN CREW FOR A TOTAL OF APPROXIMATELY 32 TO 40 HOURS DAILY IN SCHEDULE C AREA. ONE OF THESE MEN WILL BE ASSIGNED AS A WORKING SUPERVISOR.

SCHEDULE D

"WE WILL PROVIDE ONE EMPLOYEE AS DIRECTED IN SCHEDULE DBETWEEN HOURS OF 7:30 A.M. AND 4:15 P.M.

"SEPARATE CREWS WILL BE SENT TO PERFORM PERIODIC WORK SUCH SERVICES AS--- WINDOW CLEANING, VENETIAN BLIND WASHING, ETC.

"OVERALL SUPERVISOR WILL BE EMPLOYED TO CHECK ALL PHASES OF WORK THAT WILL BE PERFORMED. PERIODIC CHECKS WILL BE MADE BY OUR SUPERVISOR OR NON- SUPERVISOR DAILY.

"ALL EQUIPMENT AND SUPPLIES SUCH AS FLOOR MACHINES, BUFFERS AND ITEMS WILL BE LEFT ON THE JOB AND WE WILL FURNISH ONE VEHICLE USED ON INSTALLATION.'

ESSENTIALLY, YOU CONTEND THAT THE INFORMATION SUBMITTED BY CENTRAL DOES NOT CONSTITUTE A SUBSTANTIAL COMPLIANCE WITH THE REQUIREMENTS OF PARAGRAPH 15, PARTICULARLY AS TO PARTS "A" , "E" AND "D" , AND THAT ITS BID SHOULD, THEREFORE, BE REJECTED AS NONRESPONSIVE PURSUANT TO THE PROVISIONS OF 10 U.S.C. 2305 (C) AND PARAGRAPH 2-404.2 (A) OF THE ARMED SERVICES PROCUREMENT REGULATION WHICH REQUIRE REJECTION OF BIDS THAT FAIL TO CONFORM TO THE ESSENTIAL REQUIREMENTS OF THE INVITATION FOR BIDS. YOU FEEL THAT A STATEMENT UNDER PART "D" OF THE TYPE OF MATERIALS TO BE USED IS IMPORTANT BECAUSE GOVERNMENT SPECIFICATIONS DO NOT ALLOW USE OF ALL KINDS OF WAXES, DETERGENTS, SCOURING POWDERS, ETC.

THE CONTRACTING OFFICER REPORTS THAT THE OUTLINE OF PROPOSED METHOD OF OPERATION REQUIRED BY PARAGRAPH 15 WAS FOR THE PURPOSE OF DETERMINING "THAT EACH BIDDER WAS AWARD OF THE WORK REQUIRED, MAN HOURS REQUIRED TO PERFORM, FORM OF SUPERVISION, ETC.' THE CONTRACTING OFFICER FURTHER REPORTS THAT HE HAS DETERMINED THE OUTLINE SUBMITTED BY CENTRAL IS ADEQUATE FOR THE PURPOSE INTENDED AND THAT THE POST JUDGE ADVOCATE CONCURS WITH SUCH DETERMINATION.

IT IS, AS YOU CONTEND, AN ESTABLISHED RULE OF THE COMPETITIVE BIDDING SYSTEM FOR THE AWARDING OF GOVERNMENT CONTRACTS THAT A BID MUST CONFORM TO ALL ESSENTIAL REQUIREMENTS OF THE INVITATION IN ORDER TO BE RESPONSIVE THERETO AND CONSIDERED FOR AWARD. THIS RULE IS FOR THE PURPOSE OF ENSURING THAT AN AWARD ON THE BID WILL RESULT IN A BINDING CONTRACT THE TERMS AND CONDITIONS OF WHICH DO NOT VARY IN ANY MATERIAL RESPECT FROM THE TERMS AND CONDITIONS OF THE INVITATION. THE CONTRACT HERE CONCERNED IS ONE FOR THE FURNISHING OF CUSTODIAL SERVICES AND NOT FOR THE FURNISHING OF SPECIFIC MATERIALS EXCEPT AS THE USE OF SUCH MATERIALS IS AN INCIDENT TO PERFORMING THE SERVICES. THE TERMS AND CONDITIONS UNDER WHICH SUCH SERVICES ARE REQUIRED TO BE PERFORMED, AS WELL AS SPECIFICATIONS FOR THE MATERIALS TO BE USED, ARE SET FORTH IN PROVISIONS OF THE INVITATION OTHER THAN PARAGRAPH 15 AND WOULD NOT BE AFFECTED EVEN HAD PARAGRAPH 15 BEEN ELIMINATED ENTIRELY FROM THE INVITATION. INSTEAD OF CONSTITUTING AN ESSENTIAL ELEMENT OF THE INVITATION, THE REQUIREMENT THAT A BIDDER DESCRIBE HIS METHOD OF OPERATION WAS DESIGNED TO ENABLE THE CONTRACTING OFFICER TO EVALUATE IN ADVANCE OF AWARD THE BIDDER'S CAPACITY AND ABILITY TO PERFORM IN TERMS OF HIS COMPREHENSION AND UNDERSTANDING OF THE WORK REQUIRED AND THE MAN HOURS, SUPERVISION AND MATERIALS ESSENTIAL TO THE PERFORMANCE OF THE DESIGNATED TASKS. THE SECURING OF INFORMATION OF THAT NATURE FROM A PROSPECTIVE CONTRACTOR IS AUTHORIZED UNDER ASPR 1-905.3 (I) TO ASSIST THE CONTRACTING OFFICER IN DETERMINING RESPONSIBILITY. ALTHOUGH THE QUESTION AS TO WHETHER THE INFORMATION SUBMITTED BY CENTRAL SUBSTANTIALLY COMPLIED WITH THE REQUIREMENTS OF PARAGRAPH 15 IS NOT FREE FROM DOUBT, THE DETERMINATION TO BE MADE BY THE CONTRACTING OFFICER INVOLVING THE USE OF SUCH DATA CLEARLY PERTAINS NOT TO THE RESPONSIVENESS OF THE BID TO ESSENTIAL REQUIREMENTS OF THE INVITATION BUT TO THE BIDDER'S RESPONSIBILITY.

WE HAVE CONSISTENTLY HELD THAT WHERE THE REQUIREMENT FOR THE SUBMISSION OF DESCRIPTIVE DATA IS FOR THE PURPOSE OF DETERMINING THE CAPACITY OR RESPONSIBILITY OF THE BIDDER RATHER THAN THE RESPONSIVENESS OF THE BID, THE FAILURE OF THE BIDDER TO SUBMIT ADEQUATE DATA WITH HIS BID FOR SUCH USE IS NOT FATAL TO CONSIDERATION OF THE BID, INASMUCH AS A BIDDER'S CAPACITY OR RESPONSIBILITY MAY BE DETERMINED ON THE BASIS OF INFORMATION SUBMITTED AFTER BID OPENING. 39 COMP. GEN. 247; ID. 881, 41 ID. 555. THE RESULT IS THE SAME EVEN IN CASES WHERE BIDDERS ARE WARNED THAT FAILURE TO CONFORM TO DATA SUBMISSION REQUIREMENTS MAY RESULT IN REJECTION OF THEIR BIDS. 39 COMP. GEN. 655. FURTHERMORE, THE PROVISION IN THE INVITATION REQUIRING DATA ON A BIDDER'S PROPOSED METHOD OF OPERATION FOR EXECUTION OF ANY CONTRACT AWARDED WAS INSERTED FOR THE CONVENIENCE OF THE GOVERNMENT AND IN NO WAY AFFECTS THE RIGHTS OF COMPETING BIDDERS. THE LOW BIDDER LEGALLY COULD NOT HAVE REFUSED TO ACCEPT AWARD OF THE CONTRACT ON THE GROUND THAT HIS BID WAS DEFECTIVE BECAUSE IT DID NOT INCLUDE A DETAILED OUTLINE AS TO ALL PARTS OF PARAGRAPH 15. IN SUCH CIRCUMSTANCES STRICT COMPLIANCE WITH THE REQUIREMENT MAY BE WAIVED BY THE GOVERNMENT AS AN INFORMALITY AS EXPRESSLY AUTHORIZED BY PARAGRAPH 8 (B) ON THE REVERSE OF STANDARD FORM 33 USED IN THE INVITATION.

FINALLY, WE BELIEVE THAT THE INFORMATION CALLED FOR BY PARAGRAPH 15 IS CLEARLY OF THE NATURE DEALT WITH IN PART 9 OF THE ARMED SERVICES PROCUREMENT REGULATION, WHICH PROVIDES FOR OBTAINING, FROM VARIOUS SOURCES, OF SUFFICIENT INFORMATION BY THE CONTRACTING OFFICER ON WHICH TO BASE HIS DETERMINATIONS OF RESPONSIBILITY AND NONRESPONSIBILITY. IN THE CASE OF A SMALL BUSINESS CONCERN, THE CONTRACTING OFFICER IS AUTHORIZED TO ACCEPT A CERTIFICATE BY THE SMALL BUSINESS ADMINISTRATION AS TO THE COMPETENCY OF THE CONCERN AS TO ITS CAPACITY AND CREDIT. "CAPACITY" IS DEFINED IN ASPR 1-705.4 AS MEANING "THE OVER ALL ABILITY OF A PROSPECTIVE SMALL BUSINESS CONTRACTOR TO MEET QUALITY, QUANTITY, AND TIME REQUIREMENTS OF A PROPOSED CONTRACT AND INCLUDES ABILITY TO PERFORM, ORGANIZATION, EXPERIENCE, TECHNICAL KNOWLEDGE, SKILLS,"KNOW-HOW," TECHNICAL EQUIPMENT, AND FACILITIES OR THE ABILITY TO OBTAIN THEM.' HENCE, EVEN HAD THE CONTRACTING OFFICER CONSIDERED THE OPERATIONAL DATA SUBMITTED BY CENTRAL TO BE INSUFFICIENT FOR DETERMINING WHETHER OR NOT IT COULD PERFORM, THAT FIRM'S BID COULD NOT PROPERLY HAVE BEEN REJECTED SOLELY FOR THAT REASON,EVEN THOUGH LANGUAGE INDICATING OTHERWISE WAS CONTAINED IN PARAGRAPH 15 OF THE INVITATION.

IN THIS CONNECTION, HEADQUARTERS, DEPARTMENT OF THE ARMY, OFFICE OF THE ASSISTANT SECRETARY, HAS ADVISED THIS OFFICE THAT IT RECOGNIZES THE MANNER OF CALLING FOR THE INFORMATION ON METHOD OF OPERATION IN THE INVITATION FOR BIDS IN THIS CASE DOES NOT REPRESENT GOOD PROCUREMENT PRACTICE, AND ACTION IS BEING TAKEN TO SO ADVISE THE PURCHASING OFFICE AND TO FURNISH APPROPRIATE GUIDANCE. WHILE THE PROCUREMENT MAY PROPERLY BE SUBJECT TO CRITICISM ON THAT BASIS, WE ARE UNABLE TO CONCLUDE THAT A VALID LEGAL BASIS EXISTS UPON WHICH TO QUESTION THE AWARD, AND YOUR PROTEST MUST THEREFORE BE DENIED.