B-171669(2), MAR 24, 1971

B-171669(2): Mar 24, 1971

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PROTESTANT'S CONTENTION THAT THE ESTIMATED SERVICES FOR WALL WASHING ARE GROSSLY MISSTATED WILL NOT STAND AS THE PROCURING ACTIVITY HAS REVIEWED ITS ANNUAL ESTIMATED REQUIREMENT OF 100. WILL NOT QUESTION THE DETERMINATION IN THE ABSENCE OF BAD FAITH. THE SUBSTANCE OF YOUR PROTEST IS THAT THE ESTIMATED SERVICES OUTLINED IN BID SCHEDULE G. FOR WALL WASHING ARE GROSSLY MISSTATED. THAT THIS ASSERTED MISREPRESENTATION BY THE GOVERNMENT WILL RESULT IN IMMEDIATE RENEGOTIATION AFTER AWARD. THAT REVIEW OF THE BIDS ON THE PROCUREMENT EVIDENCES THAT SOME BIDDERS WERE AWARE OF THE ASSERTED MISREPRESENTATION AND THEREBY HAD AN UNFAIR ADVANTAGE TO THE EXTENT THAT THEIR BID PRICES WERE CONSIDERABLY BELOW COST ON AN ITEM WHICH THEY KNEW WOULD NOT BE REQUIRED.

B-171669(2), MAR 24, 1971

BID PROTEST - REQUIREMENTS DENIAL OF PROTEST OF KAHOE SUPPLY COMPANY AGAINST THE AWARD OF CONTRACT ISSUED UNDER AN IFB FOR JANITORIAL SERVICES AT ABERDEEN PROVING GROUND. PROTESTANT'S CONTENTION THAT THE ESTIMATED SERVICES FOR WALL WASHING ARE GROSSLY MISSTATED WILL NOT STAND AS THE PROCURING ACTIVITY HAS REVIEWED ITS ANNUAL ESTIMATED REQUIREMENT OF 100,000 SQUARE FEET AND HAS FOUND THIS TO BE THE BEST ESTIMATE. THE CONTRACTING AGENCY HAS THE RESPONSIBILITY FOR DETERMINING THE GOVERNMENT'S REQUIREMENTS; THE COMP. GEN. WILL NOT QUESTION THE DETERMINATION IN THE ABSENCE OF BAD FAITH.

TO KAHOE SUPPLY COMPANY, INC.:

WE REFER TO YOUR PROTEST, BY LETTER OF JANUARY 14, 1971, AGAINST AWARD OF A CONTRACT UNDER INVITATION FOR BIDS (IFB) DAAD05-71-B-0116, DATED DECEMBER 11, 1970, FOR THE PERFORMANCE OF JANITORIAL SERVICES AT ABERDEEN PROVING GROUND, ABERDEEN, MARYLAND.

THE SUBSTANCE OF YOUR PROTEST IS THAT THE ESTIMATED SERVICES OUTLINED IN BID SCHEDULE G, ITEM M, FOR WALL WASHING ARE GROSSLY MISSTATED; THAT THIS ASSERTED MISREPRESENTATION BY THE GOVERNMENT WILL RESULT IN IMMEDIATE RENEGOTIATION AFTER AWARD; AND THAT REVIEW OF THE BIDS ON THE PROCUREMENT EVIDENCES THAT SOME BIDDERS WERE AWARE OF THE ASSERTED MISREPRESENTATION AND THEREBY HAD AN UNFAIR ADVANTAGE TO THE EXTENT THAT THEIR BID PRICES WERE CONSIDERABLY BELOW COST ON AN ITEM WHICH THEY KNEW WOULD NOT BE REQUIRED. YOU THEREFORE CONTEND THAT THE BIDDING WAS NOT TRULY COMPETITIVE.

THE PURCHASE DESCRIPTION ON PAGES 12 AND 13 OF THE IFB INDICATES THAT THE TOTAL AREA TO BE SERVICED UNDER THE SEVERAL SCHEDULES SET FORTH IN THE SPECIFICATIONS EXCEEDS 1,800,000 SQUARE FEET. SCHEDULE G READS AS FOLLOWS:

"SCHEDULE 'G' CUSTODIAL SERVICES ABERDEEN PROVING GROUND MARYLAND"

"THIS SERVICE SHALL CONSIST OF WASHING WALLS AND/OR CEILINGS AND EXTERIOR PORCH WALLS AND CEILINGS IN BUILDINGS OR PORTIONS OF BUILDINGS LISTED IN THE VARIOUS SCHEDULES IN ACCORDANCE WITH TM 5-609."

"THIS SERVICE SHALL ONLY BE PERFORMED UPON ISSUANCE OF DELIVERY ORDERS BY THE CONTRACTING OFFICER. (IT SHOULD BE NOTED THAT BUILDING 2501 (SCHEDULES 'E' AND 'F') ALREADY INCLUDES REQUIREMENT FOR THIS SERVICE ONCE PER YEAR, THEREFORE, DELIVERY ORDERS WILL BE ISSUED UNDER THIS SCHEDULE FOR ANY ADDITIONAL REQUIREMENT BEYOND THAT ONE TIME SERVICE)."

"ESTIMATED ANNUAL REQUIREMENT - 100,000 SQ. FT."

SECTION H OF THE IFB SET FORTH THE REQUIREMENTS CLAUSE PRESCRIBED BY ARMED SERVICES PROCUREMENT REGULATION (ASPR) 7-1102.2(B) ADVISING BIDDERS, AMONG OTHER THINGS, THAT PERFORMANCE OF SERVICES SHALL BE MADE ONLY AS AUTHORIZED BY ORDERS ISSUED IN ACCORDANCE WITH THE TERMS OF THE CONTRACT AND STATING THAT THE QUANTITIES SPECIFIED WERE ESTIMATES ONLY.

ON JANUARY 13, 1971, BIDS WERE OPENED. THE LOWEST BID WAS IN THE AMOUNT OF $626,901.72; THE NEXT THREE BIDS WERE BETWEEN $670,000 AND $692,000; TWO BIDS WERE BETWEEN $710,000 AND $715,000; AND FOUR BIDS, INCLUDING YOUR BID, EXCEEDED $800,000.

THE PROCURING ACTIVITY, UPON RECEIPT OF YOUR PROTEST, REQUESTED THE REQUIRING AGENCY TO VERIFY SCHEDULE G. IN A STATEMENT DATED JANUARY 15, 1971, THE REQUIRING AGENCY INFORMED THE PROCURING ACTIVITY THAT THE REQUIREMENT IN SCHEDULE G HAD BEEN REVIEWED AND THAT THE ANNUAL ESTIMATED REQUIREMENT OF 100,000 SQUARE FEET IS THE AGENCY'S BEST ESTIMATE.

THE RESPONSIBILITY FOR ASCERTAINING THE GOVERNMENT'S MINIMUM NEEDS RESTS PRIMARILY WITH THE CONTRACTING AGENCY CONCERNED, AND OUR OFFICE WILL NOT QUESTION THE DETERMINATION OF THE AGENCY IN THIS REGARD IN THE ABSENCE OF EVIDENCE OF BAD FAITH OR LACK OF A SUBSTANTIAL BASIS FOR THE DETERMINATION. WHERE A REQUIREMENTS TYPE OF CONTRACT IS CONTEMPLATED BY AN AGENCY, THE COURTS AND OUR OFFICE HAVE HELD THAT SUCH CONTRACTS ARE VALID PROVIDED THAT THE ESTIMATE OF THE PROBABLE AMOUNT OF GOODS OR SERVICES TO BE GENERATED WAS DETERMINED IN GOOD FAITH. SEE 47 COMP. GEN. 365 (1968) AND 37 ID. 688 (1958) AND COURT CASES THEREIN CITED. SEE, ALSO, SHADER CONTRACTORS, INC. V UNITED STATES, 149 CT. CL. 539 (1960).

ASPR 3-409.2(A) REQUIRES THAT THE ESTIMATE OF THE GOVERNMENT'S NEEDS UNDER REQUIREMENTS CONTRACTS BE AS REALISTIC AS POSSIBLE.. ASPR 3 409.2(B) CITES AS ONE OF THE ADVANTAGES OF A REQUIREMENTS CONTRACT (WHICH MAY BE USED FOR PROCUREMENTS WHERE IT IS IMPOSSIBLE TO DETERMINE IN ADVANCE THE PRECISE QUANTITIES OF THE SUPPLIES OR SERVICES THAT WILL BE NEEDED BY DESIGNATED ACTIVITIES DURING A DEFINITE PERIOD OF TIME) THE FACT THAT THE SUPPLIES OR SERVICES NEED BE ORDERED ONLY AFTER ACTUAL NEEDS HAVE MATERIALIZED.

IN THIS CASE, THE REQUIRING AGENCY ESTIMATED THAT IN ADDITION TO THE WALL WASHING WHICH IS REQUIRED ON A ONE-TIME BASIS UNDER SCHEDULES E AND F FOR BUILDING 2501, THERE IS NEED FOR WASHING OF 100,000 SQUARE FEET OF WALLS AND/OR CEILINGS. FURTHER, THE REQUIREMENT HAS BEEN VERIFIED AS THE GOVERNMENT'S BEST ESTIMATE. THERE IS NOTHING OF RECORD TO INDICATE THAT SUCH ESTIMATE WAS NOT MADE IN GOOD FAITH OR THAT ANY BIDDER BELIEVED THAT THE ITEM WAS NOT BONA FIDE.

IN THE CIRCUMSTANCES, IT IS OUR VIEW THAT THE RECORD DOES NOT SUPPORT YOUR PROTEST AGAINST AWARD UNDER THE IFB. WE THEREFORE FIND NO LEGAL BASIS FOR OBJECTION TO AWARD UNDER THE IFB TO THAT FIRM WHO IS DETERMINED TO BE THE LOWEST RESPONSIVE AND RESPONSIBLE BIDDER AS CONTEMPLATED BY 10 U.S.C. 2305(C). YOUR PROTEST IS ACCORDINGLY DENIED.