B-170590, OCT. 1, 1970

B-170590: Oct 1, 1970

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UPON REVIEW INCLUSION OF DEDUCTION SCHEDULE REQUIREMENT IS JUSTIFIED. BIDDING TIME OF 39 DAYS WAS NOT UNREASONABLY SHORT AND AWARD UNDER FIRST INVITATION WHICH WAS AMBIGUOUS WOULD NOT BE PROPER. THEREFORE IS NO LEGAL BASIS TO REJECT PROCUREMENT. ALLOWING THE GOVERNMENT TOO MUCH LATITUDE IN SELECTING OR DETERMINING RESPONSIVENESS OF CONTRACTORS TAKING PART IN IFB. "(4) THIS CONTRACTOR WAS LOW RESPONSIVE BIDDER IN PRIOR IFB - ALL PARTICIPANTS LOWERED BIDS IN 2ND IFB AFTER GETTING RESULTS OF 1ST IFB. "(5) CLEAN-RITE INC WAS DISCRIMINATED IN THE CANCELLATION OF FIRST IFB.". UNDER THE SPECIFICATIONS BIDDERS WERE REQUIRED TO PREPARE A DEDUCTION SHEET WHICH WAS TO BE USED AS A BASIS FOR DETERMINING DEDUCTIONS TO BE MADE IN THE EVENT THE CONTRACTOR DID NOT PERFORM SERVICES REQUIRED UNDER THE CONTRACT.

B-170590, OCT. 1, 1970

BID PROTEST DENIAL OF PROTEST AGAINST PROCEDURES USED IN PROCUREMENT OF CUSTODIAL SERVICES AT ELMENDORF AIR FORCE BASE, ALASKA. UPON REVIEW INCLUSION OF DEDUCTION SCHEDULE REQUIREMENT IS JUSTIFIED, BIDDING TIME OF 39 DAYS WAS NOT UNREASONABLY SHORT AND AWARD UNDER FIRST INVITATION WHICH WAS AMBIGUOUS WOULD NOT BE PROPER, THEREFORE IS NO LEGAL BASIS TO REJECT PROCUREMENT.

TO CLEAN-RITE, INC.:

WE REFER TO YOUR TELEFAX DATED AUGUST 13, 1970, PROTESTING THE AWARD OF A CONTRACT TO ANY OTHER FIRM UNDER INVITATION FOR BIDS (IFB) F65501 71-B- 0010 ISSUED BY ELMENDORF AIR FORCE BASE, ALASKA, ON JULY 8, 1970. THE INVITATION SOLICITED BIDS FOR FURNISHING CUSTODIAL SERVICES FOR A TOTAL OF 23 BUILDINGS AT ELMENDORF AIR FORCE BASE, ALASKA.

IN YOUR TELEFAX OF AUGUST 13, 1970, PROTESTING THE REJECTION OF YOUR COMPANY'S BID UNDER IFB -0010, YOU CONTEND AS FOLLOWS:

"(1)REQUEST FOR CONTRACTOR TO MAKE DEDUCTION SHEET FOR GOVERNMENT COMPATIBLE OR EQUAL TO ESTIMATES OF ITEMS BIDDED ON.

"(2) INSUFFICIENT TIME TO COMPLETE BID.

"(3) CLAUSES IN IFB ILLOGICAL AND RESTRICTIVE, UNPRECEDENTED. ALLOWING THE GOVERNMENT TOO MUCH LATITUDE IN SELECTING OR DETERMINING RESPONSIVENESS OF CONTRACTORS TAKING PART IN IFB.

"(4) THIS CONTRACTOR WAS LOW RESPONSIVE BIDDER IN PRIOR IFB - ALL PARTICIPANTS LOWERED BIDS IN 2ND IFB AFTER GETTING RESULTS OF 1ST IFB.

"(5) CLEAN-RITE INC WAS DISCRIMINATED IN THE CANCELLATION OF FIRST IFB."

UNDER THE SPECIFICATIONS BIDDERS WERE REQUIRED TO PREPARE A DEDUCTION SHEET WHICH WAS TO BE USED AS A BASIS FOR DETERMINING DEDUCTIONS TO BE MADE IN THE EVENT THE CONTRACTOR DID NOT PERFORM SERVICES REQUIRED UNDER THE CONTRACT. "EVALUATION OF DEDUCTION," PAGE 18, PART I, SECTION "D" OF THE SOLICITATION, PROVIDES, IN PERTINENT PART, THAT:

" *** BIDS WHICH DO NOT INCLUDE THE COMPLETED DEDUCTION SCHEDULE WILL BE CONSIDERED NON-RESPONSIVE AND WILL BE REJECTED. THE UNIT PRICES THAT ARE SET FORTH IN THE DEDUCTION SCHEDULE BY THE BIDDER SHALL BE COMPATIBLE WITH OR EQUAL TO HIS BID FOR REQUIREMENTS AS SET FORTH IN THIS INVITATION FOR EACH BUILDING ON THE BID SCHEDULE. UNBALANCED DEDUCTION SCHEDULES MAY BE CAUSE FOR BIDS TO BE DETERMINED AS NON RESPONSIVE AND REJECTED."

BIDS WERE OPENED ON AUGUST 12, 1970, WITH THE FOLLOWING APPARENT LOW BIDS:

MARWAN MAINTENANCE & JANITORIAL SERVICE (GROUP "A," 4 BUILDINGS) $114,899.60

CLEAN-RITE, INC. (GROUP "B," 5 BUILDINGS) $15,030

STAFFORD COMPANY (GROUP "C," 10 BUILDINGS) $38,838.80

SERVICE TECHNICIANS (GROUP "D," 3 BUILDINGS) $34,683.80

SPIC & SPAN JANITORIAL SERVICE (GROUP "E," 1 BUILDING) $41,400

THE PRESENT CONTRACT WAS THE SUBJECT OF A PRIOR SOLICITATION, F65501 70-B -4006, ISSUED APRIL 29, 1970. THAT SOLICITATION CALLED FOR CUSTODIAL SERVICES SIMILAR TO THOSE UNDER THE PRESENT SOLICITATION. HOWEVER, BUILDINGS WERE INCLUDED IN IFB -0010 WHICH WERE NOT CONTAINED IN THE PRIOR SOLICITATION AND CERTAIN SERVICES, AND THE FREQUENCY OF SUCH SERVICES IN THE PREVIOUS SOLICITATION, WERE CHANGED IN THE PRESENT SOLICITATION. AWARD WAS MADE UNDER THE PREVIOUS SOLICITATION, AND THE SOLICITATION WAS CANCELED BECAUSE OF THE CONTRACTING OFFICER'S DETERMINATION THAT THE BIDDERS DID NOT BID ON AN EQUAL BASIS DUE TO AMBIGUOUS SPECIFICATIONS AND ERRONEOUS CALCULATIONS IN THE DEDUCTION SCHEDULE. YOUR FIRM SUBMITTED A BID UNDER THE PREVIOUS SOLICITATION AND PROTESTED THE CANCELLATION OF THE IFB. YOUR PROTEST WAS DENIED BY THE CONTRACTING OFFICER BY STATEMENT OF FACTS AND FINDINGS DATED JUNE 23, 1970.

IN RESPONSE TO YOUR FIRST CONTENTION THE CONTRACTING OFFICER STATES IN HER REPORT:

"A. *** THE REQUIREMENT THAT THE BIDDER PREPARE A DEDUCTION SHEET (SCHEDULE) COMPATIBLE OR EQUAL TO BID PRICES WAS ESTABLISHED FOR THE PURPOSE OF INSURING BIDDER UNDERSTANDING OF THE CORRELATION BETWEEN THE TOTAL BID PRICE AND THE TOTAL DEDUCTIONS THAT COULD BE MADE FOR WORK NOT PERFORMED IN ACCORDANCE WITH THE CONTRACT. ALL TOO FREQUENTLY, THIS OFFICE HAS HAD THE OCCASION TO OBSERVE THAT CONTRACTORS ARE INCLINED TO LOOK UPON DEDUCTIONS FROM THEIR INVOICES AS PUNITIVE ACTION TAKEN BY THE CONTRACTING OFFICER RATHER THAN NON-PAYMENT AS A RESULT OF NON- PERFORMANCE. BIDDERS WERE ADVISED IN 'EVALUATION OF DEDUCTION' (PAGE 18, PART I, SECTION D) THAT 'THE DEDUCTION SCHEDULE IS TO BE USED AS A GUIDE FOR DEDUCTIONS IN THE EVENT THE CONTRACTOR DOES NOT PERFORM THE REQUIRED SERVICES. BIDS WHICH DO NOT INCLUDE THE COMPLETED DEDUCTION SCHEDULE WILL BE CONSIDERED NON-RESPONSIVE AND WILL BE REJECTED. THE UNIT PRICES THAT ARE SET FORTH IN THE DEDUCTION SCHEDULE BY THE BIDDER SHALL BE COMPATIBLE WITH OR EQUAL TO HIS BID FOR REQUIREMENTS AS SET FORTH IN THIS INVITATION FOR EACH BUILDING ON THE BID SCHEDULE. UNBALANCED DEDUCTION SCHEDULES MAY BE CAUSE FOR BIDS TO BE DETERMINED AS NON-RESPONSIVE AND REJECTED.' FURTHER SPECIFICATIONS SER 9-1 AND 10-1, PAGE 1-9, PARAGRAPH 1-12, STATES: 'THE UNIT PRICES SHALL BE REALISTIC AND WHEN EXTENDED BY THE SPECIFIED FREQUENCIES THE SUM COST FOR THE CALCULATED EXTENSIONS SHALL APPROXIMATE THE BID PRICES FOR THE BUILDING.' THIS DEDUCTION SCHEDULE WAS ALSO AN ITEM OF INSPECTION BY THE AUDITOR GENERAL AND WAS SPECIFICALLY RECOMMENDED BY THE AUDIT REPORT NO. 4326-79, 5 MAY 1970. AFTER THE BID OPENING, MR. COLEMAN HANDED THE CONTRACTING OFFICER A COPY OF A DEDUCTION SCHEDULE UTILIZED BY ANOTHER MILITARY INSTALLATION, FOR WHICH THE COST OF PERFORMANCE IS ENTERED BY THE GOVERNMENT. GUIDE SPECIFICATION AFM 85 22 WAS USED IN THIS INVITATION FOR BID, FORMING THE BASIS FOR REQUIRING THE BIDDER TO INSERT HIS FIGURES IN THE DEDUCTION SCHEDULE."

YOU HAVE CONTENDED, IN EFFECT, THAT THERE WAS NO JUSTIFICATION FOR REQUIRING BIDDERS TO PREPARE A DEDUCTION SCHEDULE, BUT YOU PRESENT NO REASON IN SUPPORT OF THIS CONTENTION. HOWEVER, IT IS OUR OPINION, BASED UPON THE CONTRACTING OFFICER'S STATEMENT ABOVE QUOTED, THAT THERE WAS AMPLE JUSTIFICATION FOR THE INCLUSION OF THE DEDUCTION SCHEDULE.

IN RESPONSE TO YOUR ALLEGATION THAT THERE WAS INSUFFICIENT TIME WITHIN WHICH TO COMPLETE YOUR BID, WE WOULD LIKE TO POINT OUT THAT PARAGRAPH 2- 202.1 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) PROVIDES THAT, EXCEPT UNDER SPECIAL CIRCUMSTANCES, AS "A GENERAL RULE, BIDDING TIME SHALL BE NOT LESS THAN 15 CALENDAR DAYS WHEN PROCURING STANDARD COMMERCIAL ARTICLES AND SERVICES AND NOT LESS THAN 30 CALENDAR DAYS WHEN PROCURING OTHER THAN STANDARD COMMERCIAL ARTICLES OR SERVICES." SINCE THE BIDDERS HERE WERE GIVEN A TOTAL OF 39 DAYS WITHIN WHICH TO PREPARE AND SUBMIT THEIR BIDS, IT IS OBVIOUS THAT THE BIDDING TIME ALLOWED WAS NOT UNDULY SHORT.

YOU ALSO CONTEND THAT YOU WERE THE LOW RESPONSIVE BIDDER UNDER THE FIRST INVITATION AND THAT YOU WERE DISCRIMINATED AGAINST WHEN THAT INVITATION WAS CANCELED. IN RESPONSE TO THE ALLEGATION, THE CONTRACTING OFFICER IN HER REPORT STATED:

"CLEAN-RITE, INC., WAS LOW BIDDER FOR THREE GROUPS UNDER F65501-70-B 4006 IN THE AMOUNT OF $233,087.25. STAFFORD COMPANY BID LOW ON TWO GROUPS IN THE AMOUNT OF $107,846.75. COMPARISON OF BIDS SUBMITTED UNDER BOTH INVITATIONS REVEALS THE FOLLOWING:

"(1) CLEAN-RITE, INC. RAISED THEIR BID ON TWELVE BUILDINGS, LOWERING FIVE.

"(2) STAFFORD COMPANY RAISED THEIR BID ON NINE BUILDINGS, LOWERING IT ON 13 BUILDINGS.

"(3) MARWAN MAINTENANCE BID ON ONLY FOUR BUILDINGS UNDER F65501-71-B 0010, LOWERING ALL FOUR.

"(4) SPIC AND SPAN BID ON ALL BUILDINGS UNDER B-0010, ONLY SEVEN BUILDINGS UNDER B-4006. OF THESE SEVEN, THEY RAISED THREE AND LOWERED PRICES ON FOUR BUILDINGS.

"(5) COMPARISONS OF BIDS SUBMITTED BY SERVICE TECHNICIANS IS INAPPLICABLE SINCE THEY WERE CLAIMING A MISTAKE IN BID UNDER B-4006.

"ALTHOUGH COMPARISONS HAVE BEEN MADE IT MUST BE RECOGNIZED THAT THE CONTRACTING OFFICER COULD NOT MAKE AN AWARD UNDER B-4006 DUE TO A DETERMINATION BY THE CONTRACTING OFFICER CONCURRED BY LEGAL OFFICER, THAT BIDDERS DID NOT BID ON AN EQUAL BASIS DUE TO AMBIGUOUS SPECIFICATIONS AND ERRONEOUS CALCULATIONS IN THE DEDUCTION SCHEDULE. IT FOLLOWS THAT THE PURPOSE OF READVERTISEMENT WAS TO ASSURE THAT CLEAR, UNAMBIGUOUS SPECIFICATIONS WERE PROVIDED, REMOVING ANY DOUBT FROM THE BIDDERS' MINDS AS TO WHAT REQUIREMENTS WERE TO BE MET."

WE AGREE WITH THE CONTRACTING OFFICER THAT UNDER THE FIRST INVITATION BIDDERS DID NOT BID ON AN EQUAL BASIS DUE TO AMBIGUOUS SPECIFICATIONS AND ERRONEOUS CALCULATIONS IN THE DEDUCTION SCHEDULE. FOR EXAMPLE, THE ENTIRE SECTION OF "SPECIAL SERVICES" WAS OMITTED IN THE DEDUCTION SCHEDULE LEAVING NO PROVISION FOR PRICES IN THIS AREA BECAUSE OF THE REQUIREMENT THAT THE DEDUCTION SCHEDULE TOTAL OF EACH BUILDING MUST MATCH THE PRICE BID FOR EACH BUILDING ON THE STANDARD FORM 36 SCHEDULE. IN VIEW THEREOF AND SINCE THE SCOPE OF THE PROCUREMENT WAS SUBSTANTIALLY MODIFIED, WE THINK THAT THE CONTRACTING OFFICER'S ACTION IN CANCELING THE INVITATION AND READVERTISING WAS PROPER. ASPR 2 404.1(B)(I) PROVIDES THAT INVITATIONS FOR BIDS MAY BE CANCELED AFTER BID OPENING BUT BEFORE AWARD WHERE INADEQUATE OR AMBIGUOUS SPECIFICATIONS WERE CITED IN THE INVITATION. SEE B-155025, MARCH 3, 1965; B-154415, AUGUST 4, 1964.

UPON REVIEW OF THE ENTIRE RECORD BEFORE US, WE FIND NO LEGAL BASIS TO OBJECT TO ACTIONS OF THE CONTRACTING OFFICER IN THIS PROCUREMENT. ACCORDINGLY, YOUR PROTEST MUST BE DENIED.