B-162945, FEB. 14, 1968

B-162945: Feb 14, 1968

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UNDER 10 U.S.C. 2310 (B) THE CONTRACTING OFFICER'S DETERMINATION IS FINAL AND CONCLUSIVE AND GAO HAS NO AUTHORITY TO SUBSTITUTE ITS JUDGMENT FOR THAT OF THE CONTRACTING OFFICER. THIS DECISION IS NOT TO BE VIEWED AS STATING THE POSITION OF THE GAO WITH REGARD TO THE VALIDITY OF GUARD SERVICE CONTRACTS AT GODDARD UNDER CIVIL SERVICE LAWS AND THE OPINION OF GENERAL COUNSEL. YOU NOTE THAT A CONTRACT FOR THE SERVICE IS PRESENTLY BEING NEGOTIATED UNDER REQUEST FOR PROPOSALS NO. 51751/620 OF NOVEMBER 3. IT WAS IMPRACTICABLE TO OBTAIN COMPETITION AND. NEGOTIATION WAS AUTHORIZED PURSUANT TO 10 U.S.C. 2304 (S) (10). WERE RECEIVED BY THE AMENDED OPENING DATE. METROPOLITAN BELIEVES THAT THE PROCUREMENT INVOLVES RELATIVELY FIXED GUARD SERVICES WHICH HAVE BEEN STANDARDIZED UNDER PRECEDING CONTRACTS.

B-162945, FEB. 14, 1968

BIDS - NEGOTIATION - PROPRIETY DECISION TO METROPOLITAN SECURITY SERVICES, INC., DENYING PROTEST THAT CONTRACT FOR GUARD SERVICES FOR GODDARD SPACE FLIGHT CENTER, NASA, SHOULD BE PROCURED THROUGH ADVERTISING RATHER THAN NEGOTIATION PROCEDURES. WHILE THE DETERMINATION AND FINDINGS THAT FORMAL ADVERTISED BIDDING PROCEDURES FOR GUARD SERVICES DO NOT CLEARLY AND CONVINCINGLY ESTABLISH THAT FORMAL ADVERTISING WOULD NOT BE FEASIBLE, UNDER 10 U.S.C. 2310 (B) THE CONTRACTING OFFICER'S DETERMINATION IS FINAL AND CONCLUSIVE AND GAO HAS NO AUTHORITY TO SUBSTITUTE ITS JUDGMENT FOR THAT OF THE CONTRACTING OFFICER. B-154847, AUGUST 20, 1964. THIS DECISION IS NOT TO BE VIEWED AS STATING THE POSITION OF THE GAO WITH REGARD TO THE VALIDITY OF GUARD SERVICE CONTRACTS AT GODDARD UNDER CIVIL SERVICE LAWS AND THE OPINION OF GENERAL COUNSEL, CSC, RE LEGALITY OF TECHNICAL SERVICE CONTRACTS.

TO METROPOLITAN SECURITY SERVICES, INCORPORATED:

WE REFER TO YOUR LETTER OF NOVEMBER 15, 1967, AND SUBSEQUENT CORRESPONDENCE, WHEREIN YOU CONTEND THAT THE SECURITY GUARD SERVICE FOR GODDARD SPACE FLIGHT CENTER (GODDARD), GREENBELT, MARYLAND, SHOULD BE PROCURED THROUGH ADVERTISED BID PROCEDURES RATHER THAN BY NEGOTIATION. YOU NOTE THAT A CONTRACT FOR THE SERVICE IS PRESENTLY BEING NEGOTIATED UNDER REQUEST FOR PROPOSALS NO. 51751/620 OF NOVEMBER 3, 1967.

THE CONTRACTING OFFICER DETERMINED THAT SINCE ADEQUATE SPECIFICATIONS TO DESCRIBE THE DESIRED SERVICES COULD NOT BE DRAFTED, IT WAS IMPRACTICABLE TO OBTAIN COMPETITION AND, THEREFORE, NEGOTIATION WAS AUTHORIZED PURSUANT TO 10 U.S.C. 2304 (S) (10).

FIVE PROPOSALS, INCLUDING ONE FROM METROPOLITAN SECURITY SERVICES, INCORPORATED, WERE RECEIVED BY THE AMENDED OPENING DATE, NOVEMBER 30, 1967. AWARD ACTION UNDER THIS SOLICITATION HAS BEEN POSTPONED PENDING THE RESOLUTION OF THIS PROTEST.

METROPOLITAN BELIEVES THAT THE PROCUREMENT INVOLVES RELATIVELY FIXED GUARD SERVICES WHICH HAVE BEEN STANDARDIZED UNDER PRECEDING CONTRACTS. IS SUGGESTED THAT SUCH SERVICES DO NOT SATISFY THE GENERALLY ACCEPTED CRITERIA FOR THE NEGOTIATION OF CONTRACTS, BECAUSE THEY ARE CAPABLE OF BEING ADEQUATELY DESCRIBED FOR ADVERTISED BID PURPOSES. IN THIS CONNECTION, IT IS NOTED THAT A CONTRACT FOR SIMILAR SERVICES AT WALLOPS STATION WAS BEING AWARDED PURSUANT TO FORMAL ADVERTISING.

FURTHER, METROPOLITAN'S EXPERIENCE HAS LED IT TO CONCLUDE THAT THE USE OF THE NEGOTIATION TECHNIQUE, WITH ITS INHERENT DISCRETIONARY POWER, PERMITS CONTRACTING AGENCIES TO REJECT PROPOSALS WHICH MAY WELL BE ADVANTAGEOUS TO THE GOVERNMENT.

THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION (KDI) REPORT OF JANUARY 5, 1968, TO THIS OFFICE CONTAINS A COPY OF THE CONTRACTING OFFICER'S OCTOBER 9, 1967, DETERMINATION AND FINDING WHICH AUTHORIZED THE SUBJECT NEGOTIATION. THIS DETERMINATION EXPLAINS THE CIRCUMSTANCES UNDER WHICH GODDARD SECURITY GUARDS MUST OPERATE IN THE FOLLOWING MANNER:

"2.THE GODDARD COMPLEX IS A COMMUNITY ENGAGED IN THE SCIENTIFIC EXPLORATION OF SPACE WHICH IS POPULATED BY SOME 4,000 ENGINEERS, TECHNICIANS AND RELATED SUPPORT PERSONNEL - SOME OF WHOM REPRESENT FOREIGN GOVERNMENTS WORKING ON CULTURAL AND SCIENTIFIC EXCHANGE MISSIONS - AND WHICH DUE TO ITS CLOSE PROXIMITY TO THE NATION'S CAPITOL, RECEIVES APPROXIMATELY 10,000 VISITORS EACH MONTH. IN ORDER TO MAINTAIN AN ECONOMICAL AND EFFICIENT SECURITY OPERATION IN THIS UNIQUE ENVIRONMENT AND THE CHANGING PROGRAMS OF THIS CENTER, IT IS ABSOLUTELY ESSENTIAL THAT THE INDIVIDUAL SECURITY GUARD CHARGED WITH THE RESPONSIBILITY FOR CONDUCTING THE PROGRAM, BE NOT ONLY WELL TRAINED IN THE FUNDAMENTAL PRINCIPLES OF HIS FIELD, BUT IN ADDITION KNOWLEDGEABLE IN THE DAY TO DAY WORKINGS OF THE CENTER AND FLEXIBLE IN HIS TIMELY RESPONSE TO ITS NEEDS. FURTHER THE INDIVIDUAL SECURITY GUARD MUST POSSESS THE PHYSICAL ABILITY AND MENTAL CAPACITY TO REACT APPROPRIATELY IN THE SITUATIONS RANGING FROM THAT REQUIRING A COURTEOUS AND INFORMATIVE REPLY TO A VISITOR'S QUESTION TO THAT WHERE A CIVIL DISTURBANCE OR A DISASTER EMERGENCY MAY BE INVOLVED.' ON THIS BASIS, THE CONTRACTING OFFICER CONCLUDED: "* * * TO DESCRIBE IN WRITING THE MENTAL AND PHYSICAL ATTRIBUTES OF THE HIGHLY QUALIFIED, CAREER -TYPE SECURITY GUARD IN A MANNER SUITABLE FOR THE FORMALLY ADVERTISED BIDDING PROCEDURE IS NEITHER PRACTICABLE NOR FEASIBLE.'

THE CONTRACTING OFFICER'S STATEMENT OF FACTS, CONTAINED IN THE JANUARY 5, 1968, REPORT TO THIS OFFICE FURTHER EXPLAINS THAT GODDARD SECURITY GUARDS MUST NOT ONLY ESCORT AND PROTECT VARIOUS VISITING DIGNITARIES, BUT, IN ADDITION, MUST BE CAPABLE OF ADMINISTERING FIRST AID, INVESTIGATING ACCIDENTS AND THEFTS, IMPLEMENTING ANTI-SABOTAGE MEASURES AND FIGHTING FIRES.

WHILE WE DO NOT NECESSARILY AGREE THAT THE CONTRACTING OFFICER'S DETERMINATION AND FINDINGS OF OCTOBER 9, 1967,"CLEARLY AND CONVINCINGLY" ESTABLISH "FORMAL ADVERTISING WOULD NOT HAVE BEEN FEASIBLE AND PRACTICABLE" AS REQUIRED BY 10 U.S.C. 2304 (A) (10), OUR OPINION IS NOT CONTROLLING, SINCE UNDER 10 U.S.C. 2310 (B) THE CONTRACTING OFFICER'S DETERMINATION AND FINDINGS IN SUCH MATTERS ARE FINAL AND CONCLUSIVE. THEREFORE, WHATEVER MAY BE OUR OPINION REGARDING THE FEASIBILITY OF ADVERTISING FOR GUARD SERVICE AT GODDARD, THIS OFFICE HAS NO AUTHORITY TO SUBSTITUTE ITS JUDGMENT FOR THAT OF THE CONTRACTING OFFICER, OR TO REFUSE TO PERMIT THE AWARD OF A CONTRACT UNDER THE REQUEST FOR PROPOSALS ISSUED PURSUANT TO SAID DETERMINATION. B-154847, AUGUST 20, 1964. WE ARE, HOWEVER, PLEASED TO NOTE THAT NASA HAS DECIDED TO REVIEW THE FEASIBILITY OF USING FORMAL ADVERTISING FOR FUTURE PROCUREMENTS AT GODDARD AND TO INSTITUTE SUCH PROCEDURE FOR FUTURE PROCUREMENTS IF CONSISTENT WITH THE RESULTS OF THE STUDY.

FOR THE AFORESAID REASONS, YOUR PROTEST IS DENIED.

NOTHING IN THIS DECISION SHOULD BE VIEWED AS STATING THE POSITION OF THIS OFFICE WITH REGARD TO THE VALIDITY OF GUARD SERVICE CONTRACTS AT GODDARD UNDER THE CIVIL SERVICE LAWS AND UNDER THE OPINION OF THE GENERAL COUNSEL, UNITED STATES CIVIL SERVICE COMMISSION OF OCTOBER 1967, RELATING TO THE LEGALITY OF CERTAIN TECHNICAL SERVICE CONTRACTS AT GODDARD.