B-170038, MAR 29, 1971, 50 COMP GEN 679

B-170038: Mar 29, 1971

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THE INFORMATION SECURED FROM A MANNING CHART MAY BE CONSIDERED AN "OTHER FACTOR" IN DETERMINING WHETHER AN OFFEROR IS WITHIN A COMPETITIVE RANGE FOR THE PURPOSES OF CONDUCTING THE MEANINGFUL DISCUSSIONS REQUIRED BY 10 U.S.C. 2304(G). UNDER A REQUEST FOR PROPOSALS TO FURNISH MESS ATTENDANT SERVICES FOR 1 YEAR WITH A 2-YEAR RENEWAL OPTION WAS IMPROPER. CANCELLATION OF THE AWARD IS NOT REQUIRED AS IT WAS MADE IN GOOD FAITH AND ON THE BASIS OF PRIOR MISINTERPRETATIONS OF THE PHRASE "PRICE AND OTHER FACTORS CONSIDERED.". COMMUNICATED TO OFFERORS AND INDICATING THE FACTORS ON WHICH AN AWARD WILL BE BASED. 1971: REFERENCE IS MADE TO YOUR TELEGRAM OF JUNE 29. CONTRACTOR REQUESTED TO QUOTE ON THE FOLLOWING OPTIONS: OPTION 1: BREAKFAST 0600-0745 1.75 DINNER 1100-1230 1.50 SUPPER 1530-1745 2.25 NIGHT MEAL 2300-0030 1.50 TOTAL 7.0 OPTION 2: BREAKFAST 0400-0900 5.0 DINNER 1030-1230 2.0 DINNER - SANDWICH LINE 1230 14001.5 SUPPER 1530-1730 2.0 NIGHT MEAL 1730-0100 7.5 (WEEKEND/HOLIDAY BRUNCH) 0600-1400 TOTAL 18.0 OPTION 3: BREAKFAST 0500-0830 3.5 DINNER 1030-1300 2.5 SUPPER 1530-1930 2.0 NIGHT MEAL 2200-0030 2.5 (WEEKEND/HOLIDAY BRUNCH) 0600-1300 TOTAL 12.5 THE PRICES FOR THE OPTIONS ON MONTHLY AND ANNUAL BASES WERE TO BE INSERTED IN SPACES PROVIDED FOR SUCH INFORMATION ON PAGE TWO OF THE RFP.

B-170038, MAR 29, 1971, 50 COMP GEN 679

CONTRACTS - NEGOTIATION - EVALUATION FACTORS - MANNING REQUIREMENTS ALTHOUGH IN THE EVALUATION OF OFFERS, THE INFORMATION SECURED FROM A MANNING CHART MAY BE CONSIDERED AN "OTHER FACTOR" IN DETERMINING WHETHER AN OFFEROR IS WITHIN A COMPETITIVE RANGE FOR THE PURPOSES OF CONDUCTING THE MEANINGFUL DISCUSSIONS REQUIRED BY 10 U.S.C. 2304(G), THE PRICE FACTOR OF AN OFFER MAY NOT BE DISREGARDED AND, THEREFORE, AN AWARD OF A CONTRACT TO OTHER THAN THE LOWEST OFFEROR, WHO HAD SUBMITTED AN ACCEPTABLE MANNING CHART, UNDER A REQUEST FOR PROPOSALS TO FURNISH MESS ATTENDANT SERVICES FOR 1 YEAR WITH A 2-YEAR RENEWAL OPTION WAS IMPROPER, BUT CANCELLATION OF THE AWARD IS NOT REQUIRED AS IT WAS MADE IN GOOD FAITH AND ON THE BASIS OF PRIOR MISINTERPRETATIONS OF THE PHRASE "PRICE AND OTHER FACTORS CONSIDERED." HOWEVER, THE OPTION SHOULD NOT BE EXERCISED AND PROPOSALS RESOLICITED UNDER REVISED PROCEDURES, COMMUNICATED TO OFFERORS AND INDICATING THE FACTORS ON WHICH AN AWARD WILL BE BASED.

TO THE MILITARY BASE MANAGEMENT OF NEW JERSEY, MARCH 29, 1971:

REFERENCE IS MADE TO YOUR TELEGRAM OF JUNE 29, 1970, AND SUBSEQUENT CORRESPONDENCE CONCERNING YOUR PROTEST UNDER REQUEST FOR PROPOSALS (RFP) N00421-70-R-7568, ISSUED BY THE NAVAL AIR STATION, PATUXENT RIVER, MARYLAND ON MARCH 4, 1970, FOR MESS ATTENDANT SERVICES FOR THE PERIOD FROM JULY 1, 1970, TO JUNE 30, 1971, WITH AN OPTION FOR RENEWAL FOR 2 YEARS. THE RFP STATED THAT A FIRM, FIXED-PRICE CONTRACT WOULD BE AWARDED.

SECTION 11.2, MEAL HOURS AND ESTIMATED NUMBER OF MEALS, OF THE RFP REQUESTED OFFERORS TO QUOTE ON THREE "OPTIONS" FOR THE SERVICES AS FOLLOWS:

11.2 MEAL HOURS AND ESTIMATED NUMBER OF MEALS

A. CONTRACTOR REQUESTED TO QUOTE ON THE FOLLOWING OPTIONS:

OPTION 1:

BREAKFAST 0600-0745 1.75

DINNER 1100-1230 1.50

SUPPER 1530-1745 2.25

NIGHT MEAL 2300-0030 1.50

TOTAL 7.0

OPTION 2:

BREAKFAST 0400-0900 5.0

DINNER 1030-1230 2.0

DINNER - SANDWICH LINE 1230 14001.5

SUPPER 1530-1730 2.0

NIGHT MEAL 1730-0100 7.5

(WEEKEND/HOLIDAY BRUNCH) 0600-1400

TOTAL 18.0

OPTION 3:

BREAKFAST 0500-0830 3.5

DINNER 1030-1300 2.5

SUPPER 1530-1930 2.0

NIGHT MEAL 2200-0030 2.5

(WEEKEND/HOLIDAY BRUNCH) 0600-1300

TOTAL 12.5

THE PRICES FOR THE OPTIONS ON MONTHLY AND ANNUAL BASES WERE TO BE INSERTED IN SPACES PROVIDED FOR SUCH INFORMATION ON PAGE TWO OF THE RFP. THERE IS NO INDICATION IN THE RECORD TO SHOW THAT OFFERS WERE EVALUATED ON OTHER THAN OPTION THREE.

SECTION 5.0, NOTICE TO OFFERORS, OF THE RFP REQUIRED ALL OFFERORS TO SUBMIT MANNING CHARTS WITH THEIR PROPOSALS IN ACCORDANCE WITH A FORMAT SET FORTH IN ATTACHMENT A OF THE RFP TO SHOW THE ESTIMATED NUMBER OF PERSONNEL REQUIRED TO PERFORM THE SERVICES FOR EACH HALF HOUR OF A REPRESENTATIVE WEEKDAY AND WEEKEND DAY.

ADDITIONALLY, SECTION 9.36 OF THE RFP PROVIDED THAT THE MANNING LEVELS PROPOSED BY THE CONTRACTOR WOULD BECOME A PART OF THE CONTRACT AS FOLLOWS:

9.36 STAFFING LEVELS (NUMBER OF EMPLOYEES)

THE STAFFING LEVELS ENTERED BY THE CONTRACTOR ON THE MANNING CHARTS (ATTACHMENT A) SHALL BECOME AN INTEGRAL PART OF THE CONTRACT, AND THE CONTRACTING OFFICER MAY REQUIRE THAT THIS STAFFING LEVEL BE FULFILLED SHOULD PERFORMANCE OF THIS CONTRACT FALL BELOW ACCEPTABLE STANDARDS. THE CONTRACTOR MAY BE REQUIRED TO MAKE MONETARY ADJUSTMENTS FOR ANY MANHOURS LESS THAN THOSE SPECIFIED, SHOULD THE CONTRACTING OFFICER DETERMINE THAT A LESS THAN SATISFACTORY LEVEL OF PERFORMANCE IS CAUSED BY PERSONNEL STAFFING BELOW THAT SET FORTH IN ATTACHMENT A, MANNING CHARTS. NOTWITHSTANDING THE FOREGOING, THE CONTRACTOR IS RESPONSIBLE IN ANY EVENT FOR SUPPLYING SUFFICIENT PERSONNEL TO PERFORM THE CONTRACT SATISFACTORILY.

ON APRIL 9, 1970, THE CLOSING DATE SET FOR RECEIPT OF PROPOSALS, PROPOSALS WERE RECEIVED FROM EIGHT OFFERORS, INCLUDING YOUR CONCERN, MANPOWER, INC., AND DYNAMIC ENTERPRISES, INC. AFTER REVIEW OF THE OFFERS, THE CONTRACTING OFFICER DETERMINED THAT THE ESTIMATED MANHOURS PROPOSED BY ALL THE OFFERORS TO ACCOMPLISH THE WORK WERE LESS THAN THE MINIMUM CONSIDERED NECESSARY TO PERFORM THE SERVICES. ACCORDINGLY, ALL OFFERORS WERE ADVISED THAT THE GOVERNMENT'S ESTIMATES WERE 538 HOURS FOR WEEKDAYS AND 389 HOURS FOR WEEKEND DAYS, AND WERE ASKED TO SUBMIT REVISED PROPOSALS BY MAY 22, 1970. ALL CONCERNS RESPONDED BY THAT DATE WITH REVISED PROPOSALS.

ON THE BASIS OF THE REVISED PROPOSALS RECEIVED ON MAY 22 THE RECORD INDICATES THAT THE CONTRACTING OFFICER CONCLUDED A FIXED-PRICE "ORAL" AWARD WITH MANPOWER ON JUNE 8, 1970, ALTHOUGH YOUR COMPANY HAD SUBMITTED A PRICE FOR THE SERVICES WHICH WAS $50 A MONTH LOWER THAN MANPOWER PROPOSED.

SUBSEQUENTLY, THE CONTRACTING OFFICER DIVULGED MANPOWER'S PRICE TO ALL OTHER OFFERORS, PRESUMABLY ON THE BASIS THAT SUCH ACTION WAS REQUIRED BY ARMED SERVICES PROCUREMENT REGULATION (ASPR) 3-508.3(A)(IV) QUOTED, AS FOLLOWS:

3-508.3 POST-AWARD NOTICE OF OFFERORS.

(A) PROMPTLY AFTER MAKING ALL AWARDS IN ANY PROCUREMENT IN EXCESS OF $10,000, THE CONTRACTING OFFICER SHALL GIVE WRITTEN NOTICE TO THE UNSUCCESSFUL OFFERORS THAT THEIR PROPOSALS WERE NOT ACCEPTED, EXCEPT THAT SUCH NOTICE NEED NOT BE GIVEN WHERE NOTICE HAS BEEN PROVIDED PURSUANT TO 3 -508.2(A). SUCH NOTICE SHALL INCLUDE:

(IV) THE ITEMS, QUANTITIES, AND UNIT PRICES OF EACH AWARD; PROVIDED THAT, WHERE THE NUMBER OF ITEMS OR OTHER FACTORS MAKES THE LISTING OF UNIT PRICES IMPRACTICABLE, ONLY THE TOTAL CONTRACT PRICE NEED BE FURNISHED; ***

ON JUNE 9, 1970, DYNAMIC ENTERPRISES, INC., CONTACTED THE CONTRACTING OFFICER AND COMPLAINED THAT THE RFP DID NOT CONTAIN THE ESTIMATED NUMBER OF MONTHLY MEALS TO BE PROVIDED UNDER THE CONTRACT AND THAT IF NEGOTIATIONS WERE NOT REOPENED DYNAMICS WOULD LODGE A PROTEST WITH THIS OFFICE IN THE MATTER. THE RECORD INDICATES THAT THE CONTRACTING OFFICER WAS SUBSEQUENTLY DIRECTED TO REOPEN NEGOTIATIONS AND CONVEY THE ESTIMATED NUMBER OF MONTHLY MEALS TO ALL OFFERORS. THE CONTRACTING OFFICER ACCOMPLISHED THIS ON JUNE 11, 1970, AND ADVISED ALL OFFERORS THAT ANY REVISIONS TO THEIR PROPOSALS SHOULD BE SUBMITTED BY JUNE 12, 1970.

THEREAFTER, YOU SUBMITTED A REVISED PROPOSAL WHICH MADE YOUR OFFER CONSIDERABLY LOWER IN PRICE THAN THE REVISED PROPOSAL SUBMITTED BY MANPOWER. IN VIEW THEREOF, THE CONTRACTING OFFICER MAILED AN AWARD FOR THE SERVICES TO YOUR CONCERN ON JUNE 15, 1970.

THIS OFFICE RECEIVED A PROTEST FROM MANPOWER ON JUNE 15, 1970, IN WHICH MANPOWER PROTESTED THE PUBLIC DISCLOSURE OF ITS REVISED PRICE WHICH FORMED THE BASIS OF THE JUNE 8 "ORAL" AWARD MADE TO THE CONCERN. THE COMPANY CONTENDED THAT SUCH DISCLOSURE, WHEN VIEWED IN THE CONTEXT OF THE REOPENED NEGOTIATIONS CONCLUDED ON JUNE 12, 1970, CONSTITUTED AN UNAUTHORIZED "AUCTION" TECHNIQUE AND MAINTAINED THAT THE AWARD TO YOUR COMPANY SHOULD THEREFORE BE CANCELED.

PRESUMABLY BECAUSE OF THE PROTEST THE MBM CONTRACT WAS TERMINATED BY THE PROCURING ACTIVITY IN LATE JUNE 1970 AND THE "ORAL" AWARD ORIGINALLY MADE TO MANPOWER ON JUNE 8, 1970, WAS REINSTATED. AS NOTED ABOVE, THE MANPOWER PRICE FOR THIS AWARD WAS $50 A MONTH MORE THAN THE COMPARABLE PRICE YOU PROPOSED.

ON JUNE 29, 1970, YOU PROTESTED THE TERMINATION OF YOUR JUNE 15 CONTRACT. THE ESSENTIAL THRUST OF YOUR PROTEST INVOLVES THE PROPOSITION THAT IT WAS IMPROPER FOR THE PROCURING ACTIVITY TO EFFECT AN AWARD TO MANPOWER AT A HIGHER PRICE WHEN THERE WAS NO INDICATION THAT THE PROCURING ACTIVITY CONSIDERED YOUR MANNING PROPOSAL TO BE DEFICIENT. YOU ALSO MAINTAIN THAT THE PROCURING ACTIVITY SHOULD HAVE CONSIDERED MANPOWER'S OFFER TO BE NONRESPONSIVE BECAUSE IT FAILED TO LIST MAN HOURS BY FUNCTION FOR EACH HALF HOUR PERIOD, AS CONTEMPLATED BY THE MANNING SCHEDULE FORMAT, AND INSTEAD LISTED ONLY LUMP-SUM TOTALS. FURTHERMORE, YOU STATE THAT MANPOWER'S OFFER SHOULD BE CONSIDERED NONRESPONSIVE BECAUSE IT TOOK CREDIT FOR CERTAIN CONTRACTS PERFORMED BY ITS FRANCHISEES, BUT FAILED TO IDENTIFY A CONTRACT OF ITS FRANCHISEE WHICH YOU STATE WAS TERMINATED FOR DEFAULT. ACCORDINGLY, YOU REQUEST THAT WE DIRECT EITHER CANCELLATION OF THE MANPOWER CONTRACT AND AWARD TO YOUR CONCERN, OR A REPROCUREMENT OF THE REMAINING SERVICES.

WITH RESPECT TO YOUR CONTENTION THAT MANPOWER'S OFFER SHOULD HAVE BEEN CONSIDERED NONRESPONSIVE SINCE ITS MANNING SCHEDULE FAILED TO LIST MAN HOURS BY FUNCTION FOR EACH HALF HOUR PERIOD, THE PERTINENT PROVISIONS OF THE RFP ARE SECTIONS 5.0(A) AND 9.36, WHICH READS AS FOLLOWS:

SECTION 5. NOTICE TO OFFERORS

(A) ALL OFFERORS SHALL SUBMIT WITH THEIR PROPOSAL, MANNING CHARTS IN THE FORMAT OF ATTACHMENT A, SHOWING THE ESTIMATED NUMBER OF PERSONNEL REQUIRED IN EACH SPACE EACH HALF HOUR OF A REPRESENTATIVE WEEKDAY AND WEEKEND DAY TO SATISFACTORILY PERFORM THE CONTRACT SERVICES. NOTHING IN THIS SECTION, OR ELSEWHERE IN THIS CONTRACT SHALL BE CONSTRUED AS LIMITING THE CONTRACTOR'S RESPONSIBILITY FOR PROVIDING SUFFICIENT PERSONNEL TO ACCOMPLISH ALL OF THE REQUIREMENTS SET FORTH HEREIN.

9.36 STAFFING LEVELS (NUMBER OF EMPLOYEES)

THE STAFFING LEVELS ENTERED BY THE CONTRACTOR ON THE MANNING CHARTS (ATTACHMENT A) SHALL BECOME A INTEGRAL PART OF THE CONTRACT, AND THE CONTRACTING OFFICER MAY REQUIRE THAT THIS STAFFING LEVEL BE FULFILLED SHOULD PERFORMANCE OF THIS CONTRACT FALL BELOW ACCEPTABLE STANDARDS. THE CONTRACTOR MAY BE REQUIRED TO MAKE MONETARY ADJUSTMENTS FOR ANY MAN HOURS LESS THAN THOSE SPECIFIED, SHOULD THE CONTRACTING OFFICER DETERMINE THAT A LESS THAN SATISFACTORY LEVEL OF PERFORMANCE IS CAUSED BY PERSONNEL STAFFING BELOW THAT SET FORTH IN ATTACHMENT A, MANNING CHARTS. NOTWITHSTANDING THE FOREGOING, THE CONTRACTOR IS RESPONSIBLE IN ANY EVENT FOR SUPPLYING SUFFICIENT PERSONNEL TO PERFORM THE CONTRACT SATISFACTORILY.

WHILE ATTACHMENT A, TO WHICH REFERENCE IS MADE IN BOTH OF THE SECTIONS QUOTED ABOVE, WAS OBVIOUSLY CONSTRUCTED SO AS TO ELICIT INFORMATION FROM OFFERORS RELATIVE TO THEIR PROPOSED STAFFING AT HALF HOUR INTERVALS, AND SUCH INFORMATION WAS APPARENTLY INTENDED FOR USE (AS YOU CONTEND) IN EVALUATING THE OFFER, THERE IS NO PROVISION IN THE RFP THAT AN OFFEROR'S FAILURE TO SUBMIT ALL OF THE INFORMATION CONTEMPLATED BY ATTACHMENT A WOULD RENDER HIS OFFER NONRESPONSIVE, OR WOULD OTHERWISE REQUIRE OR RESULT IN REJECTION OF HIS OFFER. IN VIEW THEREOF, AND SINCE THE TOTAL NUMBER OF MAN HOURS PER EACH HALF HOUR PERIOD IS SET OUT ON MANPOWER'S ATTACHMENT A, AND SUCH INFORMATION WOULD APPEAR TO PRECLUDE ANY COMPETITIVE BIDDING ADVANTAGE TO MANPOWER AND APPARENTLY IS CONSIDERED SUFFICIENT BY THE PROCURING ACTIVITY FOR CONTRACT ADMINISTRATION PURPOSES, WE ARE UNABLE TO CONCLUDE THAT THE DEFICIENCIES IN MANPOWERS MANNING SCHEDULE WOULD REQUIRE OR JUSTIFY CANCELLATION OF ITS CONTRACT.

YOUR BELIEF THAT MANPOWER'S OFFER WAS NONRESPONSIVE BECAUSE IT FAILED TO LIST CERTAIN CONTRACTS ON WHICH ITS FRANCHISEE DEFAULTED IS BASED UPON INFORMATION CONTAINED IN A LETTER DATED APRIL 17, 1970, SUBMITTED WITH MANPOWER'S OFFER IN WHICH THE STATEMENT IS MADE THAT "MANPOWER, INC., HAS NEVER DEFAULTED A CONTRACT IN OUR 22 YEARS OF BUSINESS. OVER 400 CONTRACTS SUCCESSFULLY COMPLETED." YOU POINT OUT THAT ELSEWHERE IN THE SAME LETTER MANPOWER LISTS CONTRACTS WHICH WERE PERFORMED BY VARIOUS OF ITS FRANCHISEES, AND THAT ONE OF SUCH FRANCHISEES DEFAULTED ON A GOVERNMENT CONTRACT IN DECEMBER 1969. YOU CONTEND THAT, SINCE MANPOWER TAKES CREDIT FOR CONTRACTS COMPLETED BY ITS FRANCHISEES IT SHOULD ALSO ASSUME RESPONSIBILITY FOR THEIR DEFAULTS, AND THAT ITS FAILURE TO DO SO IN ITS LETTER OF APRIL 17 RENDERS ITS OFFER NONRESPONSIVE.

IT IS OUR OPINION THAT THE INFORMATION RELATIVE TO CONTRACT COMPLETIONS AND DEFAULTS, AS SET OUT IN MANPOWER'S LETTER OF APRIL 17, IS FOR CONSIDERATION IN DETERMINING WHETHER MANPOWER IS A RESPONSIBLE OFFEROR, RATHER THAN IN DETERMINING WHETHER MANPOWER'S OFFER IS RESPONSIVE. ASSUMING THAT YOUR ADVICE RELATIVE TO A DEFAULT BY ONE FRANCHISEE IS CORRECT, THE QUESTION RAISED THEREBY WOULD BE WHETHER SUCH INFORMATION, IF KNOWN TO THE CONTRACTING OFFICER AT TIME OF AWARD, WOULD HAVE REQUIRED OR SUPPORTED A DETERMINATION THAT MANPOWER, INC., WAS NOT A RESPONSIBLE OFFEROR. SINCE WE ARE UNABLE TO CONCLUDE THAT ONE DEFAULT IN 400 CONTRACTS WOULD REQUIRE OR SUPPORT SUCH A DETERMINATION WE MUST REJECT THIS PORTION OF YOUR PROTEST.

WITH RESPECT TO THAT PART OF YOUR PROTEST WHICH QUESTIONS THE AWARD TO MANPOWER AT A HIGHER TOTAL PRICE THAN THE PRICE OFFERED BY MBM, THE ADMINISTRATIVE REPORTS SUBMITTED TO OUR OFFICE BY THE NAVY IN RESPONSE TO YOUR PROTEST STATE THAT THE PROCURING ACTIVITY CONSIDERED AN AWARD TO MANPOWER AS MOST ADVANTAGEOUS TO THE GOVERNMENT, NOTWITHSTANDING THE LOWER PRICE SUBMITTED BY YOUR CONCERN, SINCE MANPOWER OFFERED THE "GREATEST TOTAL HOURS TO MEET THE REQUIREMENTS AT THE LOWEST COST." ADDITIONALLY, IT IS REPORTED THAT THE CONTRACTING OFFICER DETERMINED THAT THE "NUMBER OF HOURS OFFERED BY MANPOWER PROVIDED THE CONFIDENCE NECESSARY TO ASSURE ADEQUATE SERVICE ON THE BASIS OF A STANDARD OF SATISFACTORY." UNDERSTAND THIS TO MEAN THAT A DIVISION OF THE ESTIMATED NUMBER OF MAN HOURS IN THE MANNING SCHEDULES, INTO THE LUMP SUM BID PRICES RESULTED IN A LOWER PRICE PER MAN HOUR FOR MANPOWER THAN FOR YOUR CONCERN. ASPR 3- 805.1, WHICH PRESCRIBES THE NEGOTIATION PROCEDURES TO BE APPLIED IN THE SELECTION OF OFFERORS FOR NEGOTIATION AND AWARD, IS AN IMPLEMENTATION OF 10 U.S.C. 2304(G). THAT PROVISION OF LAW READS AS FOLLOWS:

(G) IN ALL NEGOTIATED PROCUREMENTS IN EXCESS OF $2,500 IN WHICH RATES OR PRICES ARE NOT FIXED BY LAW OR REGULATION AND IN WHICH TIME OF DELIVERY WILL PERMIT, PROPOSALS, INCLUDING PRICE, SHALL BE SOLICITED FROM THE MAXIMUM NUMBER OF QUALIFIED SOURCES CONSISTENT WITH THE NATURE AND REQUIREMENTS OF THE SUPPLIES OR SERVICES TO BE PROCURED, AND WRITTEN OR ORAL DISCUSSIONS SHALL BE CONDUCTED WITH ALL RESPONSIBLE OFFERORS WHO SUBMIT PROPOSALS WITHIN A COMPETITIVE RANGE, PRICE, AND OTHER FACTORS CONSIDERED: PROVIDED, HOWEVER, THAT THE REQUIREMENTS OF THIS SUBSECTION WITH RESPECT TO WRITTEN OR ORAL DISCUSSIONS NEED NOT BE APPLIED TO PROCUREMENTS IN IMPLEMENTATION OF AUTHORIZED SET-ASIDE PROGRAMS OR TO PROCUREMENTS WHERE IT CAN BE CLEARLY DEMONSTRATED FROM THE EXISTENCE OF ADEQUATE COMPETITION OR ACCURATE PRIOR COST EXPERIENCE WITH THE PRODUCT, THAT ACCEPTANCE OF AN INITIAL PROPOSAL WITHOUT DISCUSSION WOULD RESULT IN FAIR AND REASONABLE PRICES AND WHERE THE REQUEST FOR PROPOSALS NOTIFIES ALL OFFERORS OF THE POSSIBILITY THAT AWARD MAY BE MADE WITHOUT DISCUSSION.

THE QUOTED STATUTE OBVIOUSLY CONTEMPLATES THAT, IN A NEGOTIATED PROCUREMENT, PROCUREMENT OFFICIALS ARE TO DETERMINE A COMPETITIVE RANGE, OR A SERIES OF COMPETITIVE RANGES, FOR EVALUATION OF THE SUBMITTED PROPOSALS BASED ON AN ANALYSIS OF PRICE AND "OTHER FACTORS," SO THAT MEANINGFUL DISCUSSIONS MAY BE CONDUCTED WITH THOSE CONCERNS SUBMITTING PROPOSALS WITHIN SUCH RANGES. IN THIS CONNECTION OUR OFFICE HAS NOTED THAT THE INFORMATION TO BE SECURED FROM AN OFFEROR'S MANNING CHART FOR THE AWARD OF A MESS ATTENDANT SERVICES CONTRACT IS AN "OTHER FACTOR" IN DETERMINING WHETHER THE OFFEROR IS WITHIN A COMPETITIVE RANGE FOR PURPOSES OF CONDUCTING DISCUSSIONS WITH THAT CONCERN. B 167685, OCTOBER 21, 1969.

IN THE INSTANT PROCUREMENT IT IS OUR OPINION THAT THE MANNING SCHEDULE MUST ALSO BE CONSIDERED IN THE CONTEXT OF A FACTOR OTHER THAN PRICE. CONCEDING THAT CONSIDERATION OF THE MANNING SCHEDULE WOULD BE PROPER IN DETERMINING WHETHER THE OFFER WAS RESPONSIVE (I.E., WHETHER THE OFFEROR PROPOSED TO ADEQUATELY STAFF THE OPERATION IN A MANNER CONTEMPLATED BY AND ACCEPTABLE TO THE PROCURING ACTIVITY) IT IS OUR FURTHER OPINION THAT AN AWARD SHOULD HAVE BEEN MADE TO THAT RESPONSIBLE OFFEROR WHO, IN ADDITION TO SUBMITTING AN ACCEPTABLE MANNING SCHEDULE, HAD ALSO SUBMITTED THE LOWEST TOTAL PRICE. IN THIS CONNECTION, SEE 43 COMP. GEN. 353, 370 (1963) AND 41 COMP. GEN. 484, 491 (1962), HOLDING THAT CONGRESS HAS DENIED THE AUTHORITY TO NEGOTIATE CONTRACTS AT PREMIUM PRICES IN ORDER TO OBTAIN SUPPLIES OR SERVICES OF SUPERIOR QUALITY.

WE MUST THEREFORE CONCLUDE THAT THE SUBSEQUENT USE OF ACCEPTABLE MANNING SCHEDULES TO DETERMINE THE LOWEST PRICE PER ESTIMATED MAN HOUR, AND THE RESULTING AWARD TO MANPOWER ON THAT BASIS, WAS IMPROPER. SINCE THERE IS NOTHING IN THE RECORD TO INDICATE THAT YOUR MANNING SCHEDULE WAS NOT ACCEPTABLE, OR THAT YOU WERE NOT CONSIDERED A RESPONSIBLE BIDDER, AND SINCE YOUR TOTAL BID PRICE WAS LOWER THAN THAT OF MANPOWER, WE MUST CONCLUDE THAT THE AWARD TO MANPOWER WAS IMPROPER.

THE REMAINING QUESTION IS WHETHER THE ACTION OF THE CONTRACTING OFFICER, IN AWARDING A CONTRACT TO MANPOWER WAS SO PLAINLY OR PALPABLY ILLEGAL AS TO REQUIRE ITS CANCELLATION. SEE JOHN REINER AND COMPANY V UNITED STATES, 163 CT. CL. 381 (1963), CERT. DENIED, 377 U.S. 931 (1964); COASTAL CARGO COMPANY, INC. V UNITED STATES, 173 CT. CL. 259 (1965); WARREN BROS. ROADS CO. V U.S., 173 CT. CL. 714 (1965). AS INDICATED THEREIN THE QUESTION OF WHETHER THE CONTRACTING OFFICER WAS ACTING IN "GOOD FAITH" IN MAKING THE AWARD IS A PERTINENT FACTOR IN DETERMINING WHETHER THE AWARD IS PALPABLY ILLEGAL, AND THE FACTORS WHICH INFLUENCED THE CONTRACTING OFFICER'S DECISION ARE MATERIAL CONSIDERATIONS IN DETERMINING WHETHER THE AWARD WAS MADE IN GOOD FAITH OR WHETHER IT MUST BE CONSIDERED PLAINLY ILLEGAL. THE INSTANT CASE THE RECORD INDICATES THAT THE CONTRACTING OFFICER SOUGHT AND OBTAINED ADVICE OF COMMAND COUNSEL BEFORE MAKING THE AWARD. ADDITIONALLY, IT APPEARS FROM THE RECORD IN THIS, AS WELL AS OTHER CURRENT PROTESTS INVOLVING THE PROCUREMENT OF IDENTICAL SERVICES AT OTHER NAVY BASES, THAT THE PHRASE "PRICE AND OTHER FACTORS CONSIDERED" IN 10 U.S.C. 2304(G) WAS RATHER GENERALLY INTERPRETED AS PERMITTING AWARD TO OTHER THAN THE LOW RESPONSIVE AND RESPONSIBLE OFFEROR IF A SLIGHTLY HIGHER OFFEROR INCLUDED A SIGNIFICANTLY HIGHER NUMBER OF ESTIMATED MAN HOURS IN HIS MANNING SCHEDULE. IN VIEW THEREOF, WE ARE UNABLE TO CONCLUDE THAT THE CONTRACTING OFFICER WAS ACTING IN OTHER THAN GOOD FAITH, OR THAT THERE WAS NO REASONABLE BASIS FOR HIS ACTION, IN AWARDING A CONTRACT TO MANPOWER. ADDITIONALLY, THERE IS NOTHING IN THE RECORD TO INDICATE THAT MANPOWER HAD ACTUAL OR CONSTRUCTIVE NOTICE THAT IT WAS NOT ENTITLED TO THE AWARD UNDER THE PROCEDURES FOLLOWED IN THIS TYPE OF PROCUREMENT, OR THAT IT DID NOT ACCEPT THE AWARD AND PROCEED WITH PERFORMANCE IN GOOD FAITH. IN VIEW THEREOF, YOUR REQUEST THAT THE CONTRACT BE CANCELED MUST BE DENIED.

HOWEVER, BECAUSE OF THE NUMBER AND NATURE OF THE QUESTIONABLE PROCEDURES WHICH WERE FOLLOWED IN THIS PROCUREMENT, WE QUESTION WHETHER THE GOVERNMENT HAS RECEIVED THE BENEFITS OF FULL AND FREE COMPETITION; AND WE ARE THEREFORE ADVISING THE SECRETARY OF THE NAVY BY LETTER OF TODAY, THAT THE OPTIONS UNDER MANPOWER'S CONTRACT SHOULD NOT BE EXERCISED, AND THAT PROPOSALS FOR SERVICES FOR THE NEXT FISCAL YEAR SHOULD BE RESOLICITED UNDER REVISED PROCEDURES WHICH WILL MORE FULLY ADVISE OFFERORS OF THE NEGOTIATION PROCEDURES TO BE FOLLOWED AND THE FACTORS ON WHICH AN AWARD WILL BE BASED.