B-170027, OCT. 20, 1970

B-170027: Oct 20, 1970

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CONTRACTING OFFICER'S DETERMINATION THAT PROTESTANT'S LOW OFFER WOULD NOT PROVIDE AN ADEQUATE MANNING LEVEL FOR THE REQUESTED SERVICES IS AN IMPORTANT MEASURE OF CONTRACT PERFORMANCE WITHIN HIS DISCRETION. IS A SUFFICIENT REASON FOR REJECTION THUS AFFORDING NO BASIS FOR OBJECTION. INC.: FURTHER REFERENCE IS MADE TO YOUR TELEFAX OF JUNE 11. THE CONTRACTING OFFICER DETERMINED THAT THE SERVICES WERE URGENTLY REQUIRED AND. THIS IS AUTHORIZED UNDER SUCH CIRCUMSTANCES BY PARAGRAPH 2-407.8(B)(3) OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR). THE REPORT FURNISHED BY THE CONTRACTING OFFICER INDICATES THAT 12 OFFERS TO PERFORM THE SERVICES SET FORTH IN THE REQUEST FOR PROPOSALS WERE RECEIVED AND OPENED MAY 22.

B-170027, OCT. 20, 1970

BID PROTEST - BIDDER RESPONSIVENESS DENIAL OF PROTEST AGAINST THE REJECTION OF LOW OFFER TO FURNISH MESS ATTENDANT SERVICES AT THE NAVAL AIR STATION, KINGSTON, TEXAS AND AWARD OF NEGOTIATED CONTRACT TO DYNAMIC ENTERPRISES, INC. CONTRACTING OFFICER'S DETERMINATION THAT PROTESTANT'S LOW OFFER WOULD NOT PROVIDE AN ADEQUATE MANNING LEVEL FOR THE REQUESTED SERVICES IS AN IMPORTANT MEASURE OF CONTRACT PERFORMANCE WITHIN HIS DISCRETION, AND IS A SUFFICIENT REASON FOR REJECTION THUS AFFORDING NO BASIS FOR OBJECTION.

TO HUNTSVILLE FOOD SERVICE, INC.:

FURTHER REFERENCE IS MADE TO YOUR TELEFAX OF JUNE 11, 1970, PROTESTING THE AWARD OF CONTRACT UNDER REQUEST FOR PROPOSALS (RFP) NO. N00216-70-R- 0089, ISSUED BY THE NAVAL PURCHASE DIVISION, NAVAL AIR STATION, CORPUS CHRISTI, TEXAS. THE SUBJECT SOLICITATION, ISSUED APRIL 22, 1970, CALLED FOR MESS ATTENDANT SERVICES AT THE NAVAL AIR STATION, KINGSVILLE, TEXAS.

ALTHOUGH YOU PROTESTED BEFORE AWARD, THE CONTRACTING OFFICER DETERMINED THAT THE SERVICES WERE URGENTLY REQUIRED AND, IN VIEW THEREOF, AWARDED THE CONTRACT TO DYNAMIC ENTERPRISES, INC., ON JUNE 12, 1970, BEFORE RESOLUTION OF THE PROTEST BY OUR OFFICE. THIS IS AUTHORIZED UNDER SUCH CIRCUMSTANCES BY PARAGRAPH 2-407.8(B)(3) OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR).

THE REPORT FURNISHED BY THE CONTRACTING OFFICER INDICATES THAT 12 OFFERS TO PERFORM THE SERVICES SET FORTH IN THE REQUEST FOR PROPOSALS WERE RECEIVED AND OPENED MAY 22, 1970. THE LOW OFFER WAS RECEIVED FROM YOUR COMPANY. THE NUMBER OF HOURS SUBMITTED BY YOUR FIRM ON THE WEEKDAY MANNING CHART TOTALED 207-1/2 HOURS, WHILE THE TOTAL NUMBER OF HOURS SUBMITTED BY YOUR FIRM FOR WEEKEND DAY MANNING WAS 131 HOURS. MR. DON R. NEWSOM OF YOUR FIRM WAS CONTACTED BY TELEPHONE JUNE 1, 1970, BY THE CONTRACTING OFFICER, AND VARIOUS AREAS IN YOUR PROPOSAL REQUIRING CLARIFICATION OR REVISION NECESSARY TO MAKE IT ACCEPTABLE WERE DISCUSSED. DURING THE CONVERSATION MR. NEWSOM WAS ADVISED THAT THE MANNING ESTIMATES SUBMITTED BY YOUR COMPANY WERE INADEQUATE AND YOUR COMPANY WAS GIVEN AN OPPORTUNITY TO REVISE ITS PROPOSAL.

A REVISED MANNING SCHEDULE SUBMITTED BY YOUR FIRM WAS RECEIVED ON JUNE 3, 1970. IN YOUR REVISED MANNING SCHEDULE, YOU DECREASED THE NUMBER OF HOURS IN THE WEEKDAY MANNING CHART TO 204.5 AND INCREASED THE NUMBER OF HOURS IN THE WEEKEND DAY MANNING CHART TO 135. YOU ALSO REVISED YOUR PRICE UPWARDS.

THE CONTRACTING OFFICER REVIEWED YOUR REVISED MANNING ESTIMATES AND DETERMINED THEM TO BE NONACCEPTABLE. THEY WERE DETERMINED TO BE NONACCEPTABLE BECAUSE A COMPARISON BETWEEN YOUR PROPOSED MANNING SCHEDULE AND THE GOVERNMENT'S ESTIMATED MANNING SCHEDULE INDICATED THAT YOUR PROPOSAL DID NOT PROVIDE SUFFICIENT MANNING TO MEET THE ESTIMATED REQUIREMENTS OF THE GOVERNMENT. ALSO, NO PROVISION WAS MADE FOR MANNING SPACES FOR SERVING AND CLEANUP DURING THE MIDNIGHT MEAL FOR EITHER WEEKDAY OR WEEKEND. IT WAS CONCLUDED THEREFORE THAT THE QUALITY OF PERFORMANCE BY YOUR FIRM WOULD BE SUBSTANDARD. THEREAFTER, AWARD OF CONTRACT NO. N00216- 70-C-0252 WAS MADE TO DYNAMIC ENTERPRISES, INC., AS THE LOWEST RESPONSIVE OFFEROR.

THE BASIS OF YOUR PROTEST IS THAT HUNTSVILLE FOOD SERVICE OFFERED THE IDENTICAL SERVICES OFFERED BY THE SUCCESSFUL OFFEROR AT LOWER PRICES AND THAT THE GOVERNMENT DID NOT NEGOTIATE IN GOOD FAITH.

THE FACTUAL SITUATION IN THE INSTANT CASE IS NOT UNLIKE THAT WHICH WAS CONSIDERED IN DECISION B-167374 OF OCTOBER 6, 1969. IN THAT CASE, OUR OFFICE DECLINED TO QUESTION THE AWARD OF A MESS ATTENDANT SERVICES CONTRACT TO A HIGHER OFFEROR WHERE THE CONTRACTING OFFICER DECIDED THERE, AS HERE, THAT THE MANNING LEVEL PROPOSED WAS "INSUFFICIENT TO MEET THE NEEDS OF THE ACTIVITY." AS STATED IN THAT CITED DECISION, THE AWARD WAS A MATTER OF JUDGMENT AND WAS WITHIN THE DISCRETION OF THE CONTRACTING OFFICER.

IN B-167685, OCTOBER 21, 1969, IT WAS INDICATED THAT MANNING CHARTS ARE AN INDICATION OF THE OFFEROR'S UNDERSTANDING OF AND HIS ABILITY TO FULFILL THE CONTRACT REQUIREMENTS. MOREOVER, IT WAS STATED IN THE LATTER DECISION THAT THE DETERMINATION OF AN APPROPRIATE LEVEL OF MANNING NECESSARY TO PERFORM THE WORK IS A LEGITIMATE AND PROPER SUBJECT FOR NEGOTIATION AND THAT THE MANNING CHART IS AN IMPORTANT MEASURE OF CONTRACT PERFORMANCE.

ACCORDINGLY, THE AWARD TO DYNAMIC ENTERPRISES MAY NOT BE DISTURBED SINCE THE DETERMINATION THAT THE HUNTSVILLE FOOD SERVICE'S MANNING LEVEL WAS INADEQUATE WAS A SUFFICIENT REASON FOR REJECTION OF THE OFFER SUBMITTED BY YOUR COMPANY. YOUR PROTEST IS, THEREFORE, DENIED.