B-170228, SEP. 22, 1970

B-170228: Sep 22, 1970

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BID PROTEST - NEGOTIATION - MANNING REQUIREMENTS DENIAL OF PROTEST AGAINST REJECTION OF OFFER FOR FURNISHING MESS ATTENDANT SERVICES FOR NAVY ON BASIS THAT OFFEROR'S STAFFING PROPOSAL WAS INADEQUATE AND THAT OFFEROR WOULD NOT BE ABLE TO PERFORM AT PRICES STATED. 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 BASIS OF YOUR PROTEST IS THAT DYNAMIC ENTERPRISES OFFERED THE IDENTICAL SERVICE OFFERED BY THE SUCCESSFUL OFFEROR AT LOWER PRICES AND THE GOVERNMENT DID NOT NEGOTIATE IN GOOD FAITH. THE REPORT FURNISHED BY THE CONTRACTING OFFICER INDICATES THAT SIX OFFERS TO PERFORM THE SERVICES SET FORTH IN THE REQUEST FOR PROPOSALS WERE RECEIVED.

B-170228, SEP. 22, 1970

BID PROTEST - NEGOTIATION - MANNING REQUIREMENTS DENIAL OF PROTEST AGAINST REJECTION OF OFFER FOR FURNISHING MESS ATTENDANT SERVICES FOR NAVY ON BASIS THAT OFFEROR'S STAFFING PROPOSAL WAS INADEQUATE AND THAT OFFEROR WOULD NOT BE ABLE TO PERFORM AT PRICES STATED. ADVICE TO SECRETARY OF NAVY THAT AWARD MAY NOT BE DENIED ON SOLE BASIS THAT OFFEROR SUBMITTED AN UNPROFITABLE PRICE.

TO DYNAMIC ENTERPRISES, INC.:

BY TELEGRAM OF JUNE 11, 1970, YOU PROTESTED TO OUR OFFICE THROUGH THE CONTRACTING OFFICER AGAINST THE AWARD OF A CONTRACT FOR MESS ATTENDANT SERVICES UNDER DEPARTMENT OF THE NAVY REQUEST FOR PROPOSALS N00200-70 R0002 TO OTHER THAN YOUR COMPANY. YOU SUPPLEMENTED THE ORIGINAL PROTEST BY A LETTER OF AUGUST 28, 1970.

ALTHOUGH YOU INITIALLY PROTESTED BEFORE AWARD, THE CONTRACTING OFFICER DETERMINED THAT THE SERVICES WERE URGENTLY REQUIRED AND, IN VIEW THEREOF, AWARDED THE CONTRACT TO MILITARY BASE MANAGEMENT OF NEW JERSEY 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 BASIS OF YOUR PROTEST IS THAT DYNAMIC ENTERPRISES OFFERED THE IDENTICAL SERVICE OFFERED BY THE SUCCESSFUL OFFEROR AT LOWER PRICES AND THE GOVERNMENT DID NOT NEGOTIATE IN GOOD FAITH.

THE REPORT FURNISHED BY THE CONTRACTING OFFICER INDICATES THAT SIX OFFERS TO PERFORM THE SERVICES SET FORTH IN THE REQUEST FOR PROPOSALS WERE RECEIVED. THE PRICES ORIGINALLY RECEIVED RANGED FROM $202,692 TO $309,285 A YEAR. THE LOW OFFER WAS NOT RECEIVED FROM EITHER YOUR COMPANY OR MILITARY BASE MANAGEMENT. IT WAS RECEIVED FROM AN OFFEROR WHICH ESTIMATED THAT IT WOULD TAKE 100,776 MAN-HOURS A YEAR TO PERFORM THE CONTRACT. THIS WAS SUBSTANTIALLY BELOW THE 115,232 AND 137,228 MAN HOURS ORIGINALLY ESTIMATED BY YOUR COMPANY AND MILITARY BASE MANAGEMENT, RESPECTIVELY. THE CONTRACTING OFFICER DETERMINED THAT THE MANNING ESTIMATES PROVIDED BY ALL THE OFFERORS WERE INADEQUATE. THEREFORE, EACH OFFEROR WAS ADVISED IN GENERAL TERMS WHEREIN THE PROPOSED MANNING WAS DEFICIENT AND WAS GRANTED ADDITIONAL TIME TO MAKE MANNING AND PRICE REVISIONS. ALL THE OFFERORS, EXCEPT THE ONE OFFERING THE HIGHEST PRICE, SUBMITTED REVISIONS. THE LOW OFFEROR INCREASED ITS MANNING LEVEL TO 104,260 MAN-HOURS A YEAR AND ITS PRICE TO $204,293. YOUR COMPANY INCREASED THE MAN-HOURS TO 140,426 BUT MADE NO REVISION IN PRICE. MILITARY BASE MANAGEMENT INCREASED ITS MAN- HOURS TO 146,354 AND INCREASED ITS PRICE TO $271,320 A YEAR. THE MAN- HOURS ESTIMATED BY MILITARY BASE MANAGEMENT WERE MORE THAN THE MAN-HOURS ESTIMATED BY ANY OTHER OFFEROR.

THE CONTRACTING OFFICER CONCLUDED FROM THE REVISED MANNING ESTIMATES THAT MILITARY BASE MANAGEMENT WAS THE ONLY OFFEROR THAT HAD A COMPLETE UNDERSTANDING OF THE GOVERNMENT'S NEEDS AND DECIDED THAT AN AWARD TO THAT COMPANY WOULD BE IN THE GOVERNMENT'S BEST INTEREST. THE OFFER FROM YOUR COMPANY WAS DETERMINED TO BE UNACCEPTABLE BECAUSE THE PROPOSED CONTRACT STAFFING WAS CONSIDERED TO BE INADEQUATE TO PERFORM THE REQUIRED MESS ATTENDANT SERVICES AND BECAUSE YOUR COMPANY WOULD NOT BE ABLE TO PERFORM PROFITABLY AT THE PRICE YOU PROPOSED.

THE DETERMINATION MADE HERE IS NOT UNLIKE THAT WHICH WAS CONSIDERED IN DECISION B-167374 OF OCTOBER 6, 1969, TO YOU. IN THAT CASE, OUR OFFICE DECLINED TO QUESTION THE AWARD OF A MESS ATTENDANT SERVICES CONTRACT TO AN OFFEROR HIGHER THAN YOUR COMPANY WHERE THE CONTRACTING OFFICER DECIDED THERE, AS HERE, THAT THE MANNING LEVEL PROPOSED BY YOUR COMPANY 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.

YOUR COMPANY ADVISED THE CONTRACTING OFFICER THAT, NOTWITHSTANDING THE INFORMATION IN THE MANNING CHARTS, IT WAS PREPARED TO PROVIDE WHATEVER FORCES WERE NECESSARY FOR THE PERFORMANCE OF THE CONTRACT AT NO INCREASE IN PRICE. IN B-167983, MARCH 11, 1970, IT WAS INDICATED THAT SUCH STATEMENTS CANNOT OVERRIDE THE IMPORTANCE OF FURNISHING MANNING ESTIMATES AND CONTRACTING OFFICER'S EVALUATIONS OF SUCH ESTIMATES IN SELECTING A CONTRACTOR FOR PERFORMANCE. 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 UNDER A PROPOSED PROCUREMENT IS A LEGITIMATE AND PROPER SUBJECT FOR NEGOTIATION AND THAT THE MANNING CHART IS AN IMPORTANT MEASURE OF CONTRACT PERFORMANCE.

ACCORDINGLY, THE AWARD TO MILITARY BASE MANAGEMENT MAY NOT BE DISTURBED SINCE THE DETERMINATION THAT THE DYNAMIC ENTERPRISES MANNING LEVEL WAS INADEQUATE WAS A SUFFICIENT REASON FOR REJECTION OF THE OFFER SUBMITTED BY YOUR COMPANY.

HOWEVER, WE ARE ADVISING THE SECRETARY OF THE NAVY THAT AWARD MAY NOT BE DENIED ON THE SOLE BASIS THAT AN OFFEROR SUBMITTED AN UNPROFITABLE PRICE. SEE B-169465, JUNE 19, 1970; B-164951, SEPTEMBER 30, 1968; B 156888, JULY 2, 1965; AND B-164648, DECEMBER 16, 1968.