B-169946, OCT. 15, 1970

B-169946, OCT. 15, 1970

BID PROTEST - NONRESPONSIVENESS DENIAL OF PROTEST BY MANPOWER INCORPORATED OF TIDEWATER AGAINST THE AWARD OF CONTRACT TO ANY OTHER BIDDER PROVIDING FOOD SERVICE AT BOLLING AIR FORCE, WASHINGTON, D.C. A BIDDER WHOSE RECORD REFLECTS AN UNSATISFACTORY RATING FROM A PRIOR CONTRACT, AND WHO ALLEGES THAT THE SPECIFICATIONS FOR A "MANNING TABLE" FOR PROVIDING FOOD SERVICE, EVEN THOUGH SOME OF THE SPECIFICATIONS HAVE BEEN CLARIFIED BY AN AMENDMENT, IS AMBIGUOUS AND MISLEADING AS TO THE NUMBER OF EMPLOYEES TO PERFORM THE WORK, AND STATES THAT THE SANITATION STANDARDS ARE ALMOST UNENFORCEABLE, IS DENIED PROTEST, SINCE THE CONTRACTING OFFICE DETERMINED THAT THE AMENDMENT COULD HELP ESTABLISH PROCEDURE WHERE A MINIMUM BASIC WORK FORCE COULD MAINTAIN THE FOOD SERVICE FACILITY REGARDLESS OF THE WORKLOAD INVOLVED AND NOT MINIMIZE THE CONTRACTOR'S OBLIGATION TO USE THE NECESSARY NUMBER OF EMPLOYEES TO INSURE PROPER PERFORMANCE. ALTHOUGH A COPY OF THE FOOD SERVICE MANUAL WAS NOT AVAILABLE AT THE PRE-BID CONFERENCE IT WAS AVAILABLE ON REQUEST, AND SINCE BID WAS NOT ACCOMPANIED

TO ROWLEY & SCOTT:

REFERENCE IS MADE TO A LETTER DATED MAY 29, 1970, WITH ENCLOSURE, FROM YOUR CLIENT, MANPOWER INCORPORATED OF TIDEWATER, AND YOUR LETTERS ON THEIR BEHALF DATED JUNE 16, 1970 AND JULY 20, 1970, WITH ENCLOSURES, PROTESTING ANY AWARD OF CONTRACT UNDER INVITATION FOR BIDS NO. F49604 70-B-0153, ISSUED BY THE BASE PROCUREMENT OFFICE, BOLLING AIR FORCE BASE, WASHINGTON, D.C.

INVITATION FOR BIDS NO. F49604-70-B-0153, FOR PROVIDING FOOD SERVICE AT BOLLING AIR FORCE BASE, WASHINGTON, D.C., FROM JULY 1, 1970 THROUGH JUNE 30, 1971, WAS ISSUED ON MAY 8, 1970. BIDS WERE OPENED ON JUNE 8, 1970; IT IS REPORTED THAT THE FOLLOWING BIDS WERE RECEIVED:

DYNAMIC INTERNATIONAL, INC. $.641 PER MEAL

NASH JANITORIAL SERVICE, INC. .4888 PER MEAL

PACE INDUSTRIES, INC. .69 PER MEAL

K.P. FOOD SERVICE OF FT. BLISS .5099 PER MEAL

SPACE SERVICE OF GEORGIA .508 PER MEAL

P.J.K. COMPANY .4655 PER MEAL

MANPOWER, INC. .65PER MEAL

IRA GELBER FOOD SERVICE .459 PER MEAL

ABC FOOD SERVICE, INC. .4926 PER MEAL

THE RECORD INDICATES THAT PROSPECTIVE BIDDERS ATTENDED A PREBID CONFERENCE ON MAY 22, 1970. IT IS REPORTED THAT AMENDMENT NO. 3 TO THE SOLICITATION WAS ISSUED ON MAY 27, 1970, TO CLARIFY SOME OF THE SPECIFICATIONS. ESSENTIALLY, YOUR PROTEST ALLEGES THAT THE CONTRACT SPECIFICATIONS WERE SO VAGUE AS TO BE MISLEADING AND MEANINGLESS.

MANPOWER ALLEGES IN ITS LETTER OF MAY 27, 1970, TO THE DEPARTMENT OF THE AIR FORCE THAT THE REQUIREMENTS FOR A "MANNING TABLE" ARE AMBIGUOUS AND CONTRADICTORY STATING AS FOLLOWS:

"PART II, SECTION 'F' ON PAGE 2F OF THE INVITATION ESTABLISHES 'A LIST OF THE MINIMUM NUMBER OF PERSONNEL/WORK FORCE REQUIRED TO OPERATE THE DINING HALL.' WE WILL REFER TO THIS AS THE MANNING TABLE. THIS IS ESTABLISHED PURSUANT TO PARAGRAPH 3.3 OF MIL-F-9882A (USAF), AND PARAGRAPH 8.2.1 MIL-F -9892BUSAF). THIS IS THE FIRST POINT IN QUESTION. MIL-F-9882A PARAGRAPH 3.3 STATES 'THE NUMBER OF PERSONNEL LISTED IN THE INVITATION FOR BIDS IS ESTIMATED ONLY. IT WILL BE THE RESPONSIBILITY OF THE CONTRACTOR TO PROVIDE ADEQUATE PERSONNEL ... AS MAY BE REQUIRED TO SATISFACTORILY PERFORM THE SERVICES REQUIRED ... ' MIL-F-9892B PARAGRAPH 8.2.1 CALLS FOR, 'A MINIMUM BASIC WORK FORCE WILL BE REQUIRED AND AGREED UPON TO MAN EACH FOOD SERVICE FACILITY REGARDLESS OF THE NUMBER OF MEALS SERVED OR THE WORK LOAD INVOLVED.'"

IN THIS REGARD, THE CONTRACTING OFFICER STATES IN HIS SUPPLEMENTAL REPORT:

"IN ESTABLISHING THE MANNING TABLE AS A REQUIREMENT FOR THE OPERATION OF THE DINING HALL, IN ACCORDANCE WITH MIL SPEC MIL-F-9882 (USAF) DATED 24 MAY 1966 AND MIL SPEC MIL-F-9892B (USAF) DATED 8 SEPTEMBER 1967, A DETERMINATION WAS MADE BY THE CONTRACTING OFFICER TO ESTABLISH A MINIMUM BASIC WORK FORCE TO MAN THE FOOD SERVICE FACILITY REGARDLESS OF THE NUMBER OF MEALS SERVED OR THE WORKLOAD INVOLVED. THIS REQUIREMENT IS NECESSARY TO ASSURE PERFORMANCE. THIS REQUIREMENT DOES NOT IN ANY WAY MINIMIZE THE CONTRACTOR'S OBLIGATION TO USE AS MANY EMPLOYEES AS NECESSARY TO INSURE PROPER PERFORMANCE. OUR RECORDS OF THE PREVIOUS CONTRACT, PERFORMED BY THE PROTESTANT, INDICATES THAT A MINIMUM WORK FORCE WAS NOT ON DUTY AT TIMES SPECIFIED AND PERFORMANCE WAS FOUND, BY INSPECTION, TO BE UNSATISFACTORY, IT IS MY OPINION THAT AN AMBIGUITY DOES NOT EXIST BETWEEN THE TWO SPECIFICATIONS BASED ON THE ABOVE DETERMINATION." PARAGRAPH "K" OF AMENDMENT NO. 3 TO THE SOLICITATION INCORPORATES A DETERMINATION BY THE CONTRACTING OFFICER THAT THE MANNING TABLE IS NECESSARY TO ASSURE PROPER PERFORMANCE OF THE CONTRACT AND STATES THAT IT DOES NOT IN ANY WAY MINIMIZE THE CONTRACTOR'S OBLIGATION TO USE AS MANY EMPLOYEES AS ARE NECESSARY FOR PROPER CONTRACT PERFORMANCE. IN OUR OPINION THE TWO SPECIFICATIONS AS CLARIFIED BY PARAGRAPH K OF THE AMENDMENT ARE NOT AMBIGUOUS OR CONTRADICTORY AND, THEREFORE, WE AGREE WITH THE CONTRACTING OFFICER'S STATEMENT QUOTED ABOVE.

MANPOWER'S LETTER OF MAY 27, 1970, ALSO ALLEGED THAT THE STANDARDS FOR SANITATION CALLED FOR IN THE INVITATION WERE SO VAGUE AND SUBJECTIVE AS TO BE COMPLETELY UNENFORCEABLE. PARAGRAPH "H" OF AMENDMENT NO. 3 PROVIDES "PAGE 5C CHANGE AFM 160-36 TO READ: AFM 161 6." YOU ALLEGE THAT THE INCORPORATED AFM 161-6 ("MEDICAL ASPECTS OF FOOD SERVICE") IS CENTRAL TO THE ISSUE OF SANITARY STANDARDS THROUGH A CHANGE INCORPORATED BY PARAGRAPH "I" OF AMENDMENT NO. 3. IN THIS REGARD YOU STATE:

" *** ON PAGE 5-C OF THE IFB THERE IS A PARAGRAPH HEADED 'NOTE:'. THIS PARAGRAPH STATES THAT ONLY ONE COPY OF THE REFERENCED DIRECTIVES WILL BE FURNISHED THE CONTRACTOR AT THE TIME OF AWARD AND THAT HE SHALL SATISFY THE REQUIREMENTS OF EACH SUCH DIRECTIVE. THE SUCCEEDING PARAGRAPH STATES THAT ONE COPY OF EACH DIRECTIVE WILL BE MADE AVAILABLE FOR REFERENCE BY PROSPECTIVE BIDDERS AT THE PRE-BID CONFERENCE. THESE INTERDICTIONS OF THE IFB AND THESE DIRECTIVES REFERRED TO WERE IN NO WAY MADE APPARENT AT THE PRE-BID CONFERENCE. THIS INCLUDES AFM 160-36 AS WELL AS AFM 161-6. FURTHER, NO OFFER OF INSPECTION WAS MADE BY EITHER MRS. SEAY OR MR. CUMMINGS. PROTESTANT EMPHASIZES THE FACT THAT AFM 161-6 WAS INCORPORATED INTO THE CONTRACT SUBSEQUENT TO THE PRE-BID CONFERENCE AND NO PROVISION WAS MADE FOR PROSPECTIVE BIDDERS TO REVIEW IT PRIOR TO BID SUBMISSION."

THE CONTRACTING OFFICER'S SUPPLEMENTAL REPORT STATES THAT ALL OF THE DIRECTIVES REFERENCED IN THE INVITATION WERE AVAILABLE FOR REVIEW BY PROSPECTIVE BIDDERS AT THE PRE-BID CONFERENCE WITH THE EXCEPTION OF AFM 161-6. THE REPORT CONTAINS SIGNED STATEMENTS TO THAT EFFECT FROM THE CHIEF, CONSTRUCTION SERVICES, AND THE CONTRACTING OFFICER'S REPRESENTATIVE. IT HAS LONG BEEN THE RULE OF OUR OFFICE TO ACCEPT THE ADMINISTRATIVE VERSION OF DISPUTED FACTS IN THE ABSENCE OF EVIDENCE SUFFICIENTLY CONVINCING TO OVERCOME THE PRESUMPTION OF CORRECTNESS OF THE ADMINISTRATIVE REPORT. 41 COMP. GEN. 47 (1961). BASED ON THE RECORD BEFORE US, WE MUST CONCLUDE THAT ALL OF THE DIRECTIVES REFERENCED IN THE ORIGINAL INVITATION WERE AVAILABLE FOR REVIEW AT THE PRE-BID CONFERENCE.

FURTHERMORE, IT IS REPORTED THAT SUBSEQUENT TO THE ISSUANCE OF AMENDMENT NO. 3 AND PRIOR TO BID OPENING DATE, MANPOWER DID NOT REQUEST A COPY OF AFM 161-6 IN ACCORDANCE WITH THE GENERAL PROVISIONS (FOOD SERVICE CONTRACTS) CLAUSE 7(A), ENTITLED "MANUALS, REGULATIONS, TECHNICAL ORDERS AND SPECIFICATIONS" WHICH PROVIDES AS FOLLOWS:

"(A) ALL MANUALS, REGULATIONS, TECHNICAL ORDERS, AND SPECIFICATIONS, INCLUDE AMENDMENTS THERETO, WHICH ARE REFERRED TO IN THIS CONTRACT ARE INCORPORATED HEREIN BY REFERENCE. COPIES OF MANUALS, REGULATIONS, TECHNICAL ORDERS AND SPECIFICATIONS AND AMENDMENTS THERETO, REFERENCED IN THIS CONTRACT MAY BE OBTAINED FROM THE CONTRACTING OFFICER UPON REQUEST." ALTHOUGH THE MANUAL WAS NOT AVAILABLE FOR REVIEW AT THE PRE BID CONFERENCE, UNDER THE PROVISIONS OF THE INVITATION, A COPY COULD HAVE BEEN OBTAINED HAD IT BEEN REQUESTED.

THE CONTRACTING OFFICER STATES FURTHER IN THIS REGARD AS FOLLOWS:

"CLAUSE 4 OF THE GENERAL PROVISIONS (FOOD SERVICE CONTRACTS,) ENTITLED 'SANITARY CONDITIONS' IS A REQUIREMENT FOR FOOD SERVICE CONTRACTS IN ACCORDANCE WITH HQ USAF ASPR SUPPLEMENT AND THIS OFFICE HAS NO AUTHORITY TO DEVIATE FROM THE ASPR. REFERENCE PARAGRAPH 8.1 OF MILITARY SPECIFICATION FOOD SERVICE CONTRACTS MIL-F-9892B (USAF) ENTITLED 'FACILITIES' WHICH WAS A PART OF THE INVITATION FOR BID AND READS AS FOLLOWS:

'ALL KITCHENS, DINING HALLS, FOOD PROCESSING FACILITIES, AND PROPERTY USED BY THE CONTRACTOR IN THE PERFORMANCE OF THE CONTRACT SHALL BE KEPT IN A CLEAN AND SANITARY CONDITION, THE STANDARDS OF WHICH ARE ESTABLISHED BY CURRENT GOVERNMENT MEDICAL AND FOOD SERVICE DIRECTIVES PERTINENT TO WORK CONCERNED. MEDICAL AND FOOD SERVICE PERSONNEL WILL FURNISH THE CONTRACTOR ALL PERTINENT PUBLICATIONS CONCERNING THE REQUIREMENTS WHICH SHOULD BE MET.'

"AFM 146-1, FOOD SERVICE MANAGEMENT, AFM 146-7, SANITARY TECHNIQUES AND PERSONAL HYGIENE, AFM 146-8, OPERATION AND FIRST ECHELON MAINTENANCE OF FOOD SERVICE EQUIPMENT, AND AFM 161-6, MEDICAL ASPECTS OF FOOD SERVICE, WERE INCORPORATED BY REFERENCE IN THE INVITATION FOR BID ON PAGE 4C AND 5C TO COVER THIS PARAGRAPH IN THE SPECIFICATIONS."

FOR YOUR INFORMATION, AFM 161-6 IS ENTITLED "MEDICAL ASPECTS OF FOOD SERVICE (FOOD POISONING AND FOOD INFECTION)", OCTOBER 1, 1965. THE TITLE PAGE STATES:

"THIS MANUAL DIRECTS, INFORMS, AND GUIDES THE COMMANDER, OFFICERS OF THE MEDICAL SERVICE, AND OFFICERS IN CHARGE OF FOOD SERVICE, IN PREVENTING, EARLY RECOGNITION, INVESTIGATING, AND REPORT OF FOOD POISONING, FOOD BORNE INFECTIONS, AND FOR PROVIDING WHOLESOME NUTRITIVE, AND (ATTRACTIVE) FOOD AT AIR FORCE INSTALLATIONS." IT CONTAINS CHAPTERS ENTITLED "DEFINITIONS AND DISEASES", "DISEASE PREVENTION", "MEDICAL INSPECTION OF FOOD SERVICE FACILITIES," AND "ACTION IN DISEASE OUTBREAKS."

IN VIEW OF THE FOREGOING, ESPECIALLY THE FACT THAT SPECIFICATIONS WITH REGARD TO SANITATION WERE MODIFIED BY AMENDMENT NO. 3, WE FIND NO JUSTIFICATION TO QUESTION THE SPECIFICATIONS IN THIS REGARD.

YOU ALLEGE THAT AFM 146-7 HAS BEEN SUPERSEDED BY AFP 161-22 "SANITARY FOOD SERVICES INSTRUCTOR'S GUIDE". WHILE THE COPIES OF THE TITLE PAGE AND ITS REVERSE OF AFP 161-22 WHICH YOU ENCLOSED WITH YOUR LETTER STATES "(SUPERSEDES AFM 146-7, 4 SEP 56)", AFM 146-7 IS STILL A CURRENT DIRECTIVE PUBLISHED BY THE AIR FORCE ACCORDING TO AIR FORCE REGULATION 0-2 "NUMERICAL INDEX OF STANDARD AIR FORCE AND RECURRING PUBLICATIONS" DATED JANUARY 9, 1970. ALTHOUGH IT APPEARS THAT AFP 161-22 WAS INTENDED TO SUPERSEDE AFM 146-7, WE WOULD NOT FEEL JUSTIFIED IN CRITICIZING THE CONTRACTING OFFICER'S GOOD FAITH RELIANCE ON AIR FORCE REGULATION 0-2.

ADDITIONALLY, IT IS REPORTED THAT MANPOWER'S BID WAS CONSIDERED NON RESPONSIVE SINCE IT DID NOT INCLUDE A BID BOND AS REQUIRED BY THE INVITATION. BEGINNING WITH OUR DECISION RENDERED TO THE SECRETARY OF THE ARMY ON FEBRUARY 5, 1959, 39 COMP. GEN. 532, OUR OFFICE HAS CONSISTENTLY TAKEN THE POSITION THAT A BID GUARANTEE REQUIREMENT IN AN INVITATION FOR BIDS IS MATERIAL AND THE PROCURING AGENCY CANNOT WAIVE A FAILURE TO COMPLY WITH THE REQUIREMENT BUT MUST REJECT AS NONRESPONSIVE A BID NOT ACCOMPANIED BY A BID GUARANTEE IN THE FORM AND AMOUNT REQUIRED. ACCORDINGLY, THE CONTRACTING OFFICER'S REJECTION OF MANPOWER'S BID ON THIS GROUND WAS PROPER.

FOR THE REASONS STATED, YOUR PROTEST IS DENIED.