B-171692, AUG 18, 1971

B-171692: Aug 18, 1971

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PROTESTANT'S CONTENTION THAT THEIR SERVICES UNDER THE PRIOR CONTRACT WERE TERMINATED IMPROPERLY IS WITHOUT MERIT. THE RECORD SHOWS THAT THE CONTRACT WAS ALLOWED TO EXPIRE. WAS NOT CANCELLED AS ALLEGED. THE QUESTION OF BIDDER RESPONSIBILITY IS FOR THE DETERMINATION OF THE CONTRACTING OFFICER. THERE IS NOTHING IN THIS RECORD TO INDICATE THAT THERE WOULD BE ANY INFRINGEMENT OF ANY ARA PROPRIETARY INTEREST IN ANY OF THE MENUS. THE REQUIREMENT THAT A BIDDER FILE EVIDENCE OF AN AFFIRMATIVE ACTION PROGRAM IS TREATED AS A MINOR INFORMALITY UNDER FPR 1-12.805-4(B)(1). INC.: REFERENCE IS MADE TO YOUR LETTER OF MARCH 17. BIDS WERE OPENED ON DECEMBER 28. WAS THE LOW BIDDER AND SPECIALIZED MANAGEMENT SERVICES.

B-171692, AUG 18, 1971

BID PROTEST - BIDDING DATES - BIDDER RESPONSIBILITY - MINOR INFORMALITY IN BID DENIAL OF PROTEST BY ARA SERVICES, INC. AGAINST AWARD OF A CONTRACT UNDER AN IFB WHICH SOLICITED BIDS ON A REQUIREMENTS BASIS COVERING FOOD SERVICE OPERATIONS FOR THE MERCHANT MARINE ACADEMY. PROTESTANT'S CONTENTION THAT THEIR SERVICES UNDER THE PRIOR CONTRACT WERE TERMINATED IMPROPERLY IS WITHOUT MERIT. THE RECORD SHOWS THAT THE CONTRACT WAS ALLOWED TO EXPIRE, AND WAS NOT CANCELLED AS ALLEGED. SECTION 1-2.202-1(C) OF THE FEDERAL PROCUREMENT REGULATIONS PROVIDES THAT BIDDING TIME ON A CONTRACT SHOULD BE NO LESS THAN 15 DAYS. THE INVITATION HERE ALLOWED MORE THAN 30 DAYS. THE QUESTION OF BIDDER RESPONSIBILITY IS FOR THE DETERMINATION OF THE CONTRACTING OFFICER. THERE IS NOTHING IN THIS RECORD TO INDICATE THAT THERE WOULD BE ANY INFRINGEMENT OF ANY ARA PROPRIETARY INTEREST IN ANY OF THE MENUS. THE REQUIREMENT THAT A BIDDER FILE EVIDENCE OF AN AFFIRMATIVE ACTION PROGRAM IS TREATED AS A MINOR INFORMALITY UNDER FPR 1-12.805-4(B)(1).

TO ARA SERVICES, INC.:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 17, 1971, AND PRIOR CORRESPONDENCE, PROTESTING AGAINST THE AWARD OF A CONTRACT UNDER INVITATION FOR BIDS (IFB) NO. 1-35419. THE INVITATION, ISSUED ON NOVEMBER 27, 1970, SOLICITED BIDS ON A REQUIREMENTS BASIS COVERING FOOD SERVICE OPERATIONS FOR THE MERCHANT MARINE ACADEMY, KINGS POINT, LONG ISLAND, NEW YORK, FOR THE PERIOD JANUARY 1, 1971, THROUGH JUNE 30, 1971, WITH AN OPTION TO EXTEND THE SERVICE FROM JULY 1, 1971, THROUGH JUNE 30, 1972.

BIDS WERE OPENED ON DECEMBER 28, 1970, AND UNITED FOOD MANAGEMENT SERVICES, INC., WAS THE LOW BIDDER AND SPECIALIZED MANAGEMENT SERVICES, INC., AND ARA SERVICES, INC., WERE THE SECOND AND THIRD LOW BIDDERS, RESPECTIVELY. AWARD WAS MADE TO UNITED FOOD MANAGEMENT SERVICES SOME TIME PRIOR TO DECEMBER 30, 1970.

ARA HAD BEEN THE INCUMBENT CONTRACTOR FOR FOOD SERVICE OPERATIONS AT THE MERCHANT MARINE ACADEMY AND WAS OPERATING UNDER EXTENSIONS TO CONTRACT MA1 -3775. YOU CONTEND THAT YOUR SERVICES UNDER THE CONTRACT WERE TERMINATED CONTRARY TO ITS TERMS. THE RECORD REVEALS, HOWEVER, THAT THE CONTRACT PERFORMANCE PERIOD UNDER CONTRACT NO. MA1-3775 HAD BEEN EXTENDED SEVERAL TIMES BY MUTUAL AGREEMENT OF THE PARTIES. IN THIS RESPECT, ARA HAD ACCEPTED AN EXTENSION BY TELEGRAM OF DECEMBER 31, 1970, TO THE PROCUREMENT ACTIVITY, AND SUBSEQUENTLY AGREED TO EXTEND THE CONTRACT PERIOD UNTIL JANUARY 15, 1971. SINCE FURTHER EXTENSIONS WERE NOT AGREED TO BY THE PARTIES, THE CONTRACT WAS NOT TERMINATED FOR THE CONVENIENCE OF THE GOVERNMENT, AS YOU CONTEND, BUT RATHER THE CONTRACT EXPIRED BY ITS OWN TERMS. HENCE, NO NOTICE WAS REQUIRED UNDER ARTICLE XIX THAT THE GOVERNMENT WAS EXERCISING ITS RIGHT TO TERMINATE THE CONTRACT FOR ITS CONVENIENCE, SUBJECT TO THE PROCEDURES PRESCRIBED THEREIN FOR SETTLEMENT OF CLAIMS PERTAINING TO THE TERMINATED CONTRACT PORTION.

YOUR NEXT CONTENTION IS THAT INSUFFICIENT TIME WAS ALLOWED TO PREPARE AND SUBMIT A BID UNDER IFB NO. 1-35419. THE INVITATION WAS MAILED TO ARA AT THE SAME TIME, NOVEMBER 27, 1970, THAT IT WAS MAILED TO OTHER BIDDERS, WITH THE BID OPENING SCHEDULED FOR DECEMBER 28, 1970. AMENDMENT NO. 1, ISSUED ON DECEMBER 18, 1970, RELAXED THE COLLECTION POINT, GRADING AND INSPECTIONS SYSTEMS, THUS REDUCING THE REQUIREMENTS UNDER THE INVITATION, AND IT WAS ADMINISTRATIVELY DETERMINED THAT NO EXTENSION OF THE OPENING DATE WAS NECESSARY. IN ANY EVENT, YOUR BID WAS DELIVERED TO THE PROCUREMENT BRANCH ON DECEMBER 22, 1970, 6 DAYS BEFORE SCHEDULED BID OPENING. IN THIS RESPECT, SECTION 1-2.202-1(C) OF THE FEDERAL PROCUREMENT REGULATIONS (FPR) PROVIDES, AS A GENERAL RULE, THAT BIDDING TIME SHOULD BE NOT LESS THAN 15 CALENDAR DAYS WHEN PROCURING STANDARD COMMERCIAL ARTICLES OR SERVICES. THE INVITATION AS ISSUED ALLOWED MORE THAN 30 DAYS FOR THE SUBMISSION OF BIDS. HENCE, IT SEEMS TO US THAT SUFFICIENT BIDDING TIME WAS PERMITTED ESPECIALLY SINCE THE ADVERTISED REQUIREMENTS WERE REDUCED BY AMENDMENT SOME 10 DAYS BEFORE THE BID OPENING DATE.

YOU NEXT CONTEND THAT ARTICLE VI, DEALING WITH QUALITY ASSURANCE PROVISIONS, WOULD REQUIRE 100-PERCENT SAMPLING OF THE FOOD SERVICE INVOLVED, AND THAT SUCH WOULD BE BOTH A TECHNOLOGICAL AND PRACTICAL IMPOSSIBILITY IN A FOOD SERVICE OPERATION. APPARENTLY, THE PROCURING ACTIVITY AGREED WITH YOU BECAUSE THE 100-PERCENT SAMPLING REQUIREMENT, AS WELL AS A STATISTICAL SAMPLING REQUIREMENT, WAS DELETED FROM THE INVITATION BY AMENDMENT NO. 1, THUS CURING ANY OBJECTION YOU MAY HAVE HAD TO THIS PROVISION.

YOU HAVE ALSO CONTENDED THAT YOUR FIRM IS THE ONLY ONE THAT HAS THE NECESSARY BACKGROUND AND EXPERIENCE TO MEET THE REQUIREMENT OF ARTICLE II- H (DEALING WITH THE BASIC MENU NUTRIENT COMPOSITION) APPEARING ON PAGE 18 OF THE INVITATION. IN THIS REGARD, WHETHER OR NOT A BIDDER IS CAPABLE OF PERFORMING IN ACCORDANCE WITH ADVERTISED REQUIREMENTS IS A MATTER OF RESPONSIBILITY TO BE DETERMINED BY THE CONTRACTING OFFICER. IN THIS PROCUREMENT, THE CONTRACTING OFFICER DETERMINED THAT THE PROSPECTIVE CONTRACTOR, UNITED FOOD MANAGEMENT SERVICES, INC., WAS A RESPONSIBLE FIRM UNDER THE CRITERIA PRESCRIBED BY FPR SEC. 1-1.310-5, AND YOU HAVE PRESENTED NO EVIDENCE TO CONTRAVENE THAT FINDING OF RESPONSIBILITY.

WHILE YOU GENERALLY CONTEND THAT ANY BIDDER OTHER THAN YOUR FIRM IN PERFORMING THIS CONTRACT WOULD HAVE TO UTILIZE "PROPRIETARY" RECIPES OF ARA, WE HAVE FOUND NOTHING IN THE RECORD WHICH WOULD INDICATE THAT ARA HAD A PROPRIETARY INTEREST IN "STANDARD AND TESTED RECIPES" OR MENUS REFERENCED IN THE IFB. IN THIS RESPECT, ARTICLE II-I.4 OF THE INVITATION PROVIDES AS FOLLOWS:

"4. THE CONTRACTOR WILL USE THE STANDARD AND TESTED RECIPES WHICH HAVE BEEN INCORPORATED IN THE FOOD SERVICE PROGRAM AND CYCLE MENU. HOWEVER, IF THE CONTRACTOR HAS A RECIPE WHICH WILL PRODUCE SUPERIOR QUALITY AND/OR VARIETY AS COMPARED TO THE ACADEMY RECIPES, SUCH A CHANGE, IF AGREED UPON BY THE COTR AND THE CONTRACTOR, MAY BE MADE."

THE PROCUREMENT ACTIVITY HAS STATED THAT THE TERM "FOOD SERVICE PROGRAM" AS USED IN THE IFB IS OF GENERAL APPLICATION AND HAS NO RELATIONSHIP TO ANY INDIVIDUAL CONTRACTOR'S PROPRIETARY, EXCLUSIVE, OR NOVEL RECIPES. FIND NOTHING IN THE RECORD WHICH CONTRADICTS THIS STATEMENT.

FINALLY, YOU CONTEND THAT ARTICLE XXIX OF THE INVITATION REQUIRED EVERY BIDDER TO SUBMIT EVIDENCE THAT HE HAD DEVELOPED AND HAD ON FILE AN AFFIRMATIVE ACTION PROGRAM BUT THAT ONLY ARA COMPLIED WITH THIS REQUIREMENT. HOWEVER, A READING OF THIS PROVISION CLEARLY INDICATES THAT BIDDERS WERE NOT REQUIRED TO SUBMIT SUCH INFORMATION WITH THEIR BIDS IN ORDER TO BE ELIGIBLE FOR AWARD. IN ANY EVENT, FPR SEC. 1 12.805-4(B)(1) PROVIDES THAT A FAILURE TO EXECUTE SUCH A REPRESENTATION IN THE BID SHALL BE REGARDED AS AN INFORMALITY WHICH MAY BE SATISFIED BEFORE AWARD.

IN VIEW OF THE FOREGOING, WE ARE UNABLE TO QUESTION THE VALIDITY OF THE AWARD MADE TO UNITED FOOD MANAGEMENT SERVICES AS THE LOWEST RESPONSIVE, RESPONSIBLE BIDDER UNDER THE INVITATION. ACCORDINGLY, YOUR PROTEST IS DENIED.