B-171899, JUN 4, 1971, 50 COMP GEN 830

B-171899, JUN 4, 1971, 50 COMP GEN 830

CONTRACTS - REQUIREMENTS - WORLDWIDE PERFORMANCE LOCATIONS AN INVITATION FOR BIDS THAT CONTEMPLATES A CONSTRUCTION TYPE REQUIREMENTS CONTRACT FOR THE RECONDITIONING AND MAINTENANCE OF RADOMES LOCATED WORLDWIDE, AND WHICH REQUESTED ONE BID PRICE FOR EACH TYPE SERVICE FOR A PARTICULAR SIZE RADOME REGARDLESS OF LOCATION AND MADE SITE INSPECTION IMPRACTICABLE, IS NOT A DEFICIENT INVITATION AND NEED NOT BE REVISED TO REQUIRE SEPARATE BIDS FOR THE MORE THAN 200 POSSIBLE PERFORMANCE SITES - AN INSURMOUNTABLE ADMINISTRATIVE WORKLOAD - TO ALLOW FOR VARYING TRAVEL AND TRANSPORTATION EXPENSE FACTORS SINCE REGARDLESS OF LOCATION, THE WORK IS ESSENTIALLY THE SAME AT EACH SITE, MAKING SITE INSPECTIONS UNNECESSARY, AND THE SCHEDULING OF SERVICE CONSECUTIVELY FOR ADJACENT LOCATIONS WILL MINIMIZE TRAVEL EXPENSES. REQUIREMENTS CONTRACTS ARE VALID AND THE CONTRACTING AGENCY UNABLE TO STATE LOCATIONS AND PERFORMANCE DATES, HAVING ESTIMATED ITS REQUIREMENTS IN GOOD FAITH MAY MAKE AN AWARD UNDER THE INVITATION. CONTRACTS - LABOR STIPULATIONS - DAVIS-BACON ACT - SUSPENSION - REVOKED THE DAVIS-BACON ACT PROVISIONS AND WAGE DETERMINATIONS IN AN INVITATION FOR BIDS THAT WERE TO APPLY ONLY TO SOME OF THE WORLDWIDE PERFORMANCE SITES AT WHICH RADOMES ARE TO BE RECONDITIONED AND MAINTAINED UNDER A REQUIREMENTS CONTRACT, WHICH WERE DELETED BY AMENDMENT UPON ISSUANCE OF PRESIDENTIAL PROCLAMATION 4031, NEED NOT BE REINSTATED BECAUSE THE SUSPENSION OF THE ACT WAS REVOKED BY PROCLAMATION 4040. THE DETERMINATION TO RESOLICIT A PROCUREMENT AND INCLUDE THE DAVIS-BACON ACT PROVISIONS ALTHOUGH RECOMMENDED WAS LEFT TO THE DISCRETION OF CONTRACTING AGENCIES BY THE DEPARTMENT OF LABOR, AND A DETERMINATION HAVING BEEN MADE THAT A RESOLICITATION OF THE PROCUREMENT WOULD BE PREJUDICIAL TO BIDDERS, A CONTRACT WITHOUT THE PROVISIONS MAY BE AWARDED TO THE LOWEST RESPONSIVE AND RESPONSIBLE BIDDER.

TO THE ELECTRONIC SPACE SYSTEMS CORPORATION, JUNE 4, 1971:

WE REFER TO YOUR PROTEST, BY LETTER OF FEBRUARY 8, 1971, AND SUBSEQUENT CORRESPONDENCE, AGAINST AWARD BY THE DEPARTMENT OF THE AIR FORCE OF A CONTRACT TO ANY BIDDER UNDER INVITATION FOR BIDS (IFB) F04606-71-B0080, ISSUED OCTOBER 30, 1970, BY SACRAMENTO AIR MATERIEL AREA, MCCLELLAN AIR FORCE BASE, CALIFORNIA. THE PROCUREMENT, WHICH IS SET ASIDE FOR SMALL BUSINESS, INVOLVES A CONSTRUCTION TYPE REQUIREMENTS CONTRACT FOR THE PERFORMANCE OF DEPOT LEVEL RECONDITIONING AND MAINTENANCE OF GOVERNMENT- OWNED RADOMES LOCATED THROUGHOUT THE WORLD.

IN LIGHT OF YOUR PROTEST, THE DEPARTMENT OF THE AIR FORCE HAS WITHHELD AWARD UNDER THE IFB. HOWEVER, THE PROCURING ACTIVITY STATES IT IS IMPERATIVE THAT AWARD BE MADE NO LATER THAN JUNE 1, 1971, IN ORDER TO ALLOW SUFFICIENT TIME FOR THE SUCCESSFUL BIDDER TO OBTAIN THEATER AND SECURITY CLEARANCES, TRAVEL ORDERS AND IMMUNIZATION SHOTS FOR HIS PERSONNEL, DEVELOP LOGISTICS PLANS FOR MOVEMENT OF PERSONNEL TO REMOTE SITES AND SCHEDULE RADAR SITE DOWNTIME. THE CURRENT CONTRACT, IT IS STATED, MAY BE EXTENDED UNDER OPTION ONLY THROUGH JUNE 30, 1971. ADDITION, THE PROCURING ACTIVITY CALLS ATTENTION TO THE FACT THAT THE MAJORITY OF THE RADOME SITES ARE LOCATED IN THE NORTHERN HEMISPHERE AND MAINTENANCE MUST BE ACCOMPLISHED DURING THE SUMMER MONTHS. ANY SLIPPAGE FROM THE PERIODS OF OPTIMUM WEATHER CONDITIONS, IT IS ADDED, WILL CAUSE CURTAILMENT OF DEPOT LEVEL MAINTENANCE EFFORT WHICH COULD RESULT IN SEVERE DAMAGE TO VITAL GFM DEFENSE EQUIPMENT.

THE SUBSTANCE OF YOUR PROTEST IS THAT THE IFB IS DEFICIENT FOR LACK OF SUFFICIENT INFORMATION REGARDING PLACE OF PERFORMANCE AND ESTIMATED QUANTITIES TO ENABLE BIDDERS TO PROPERLY BID. YOU STATE THAT ONE BID PRICE IS REQUESTED FOR EACH TYPE OF SERVICE FOR A PARTICULAR SIZE RADOME REGARDLESS OF ITS LOCATION, WHEREAS TRAVEL AND TRANSPORTATION EXPENSES OBVIOUSLY MAKE PERFORMANCE MORE COSTLY FOR SITES FAR REMOVED FROM THE CONTRACTOR'S PLACE OF BUSINESS THAN FOR CLOSER SITES. YOU THEREFORE URGE THAT SEPARATE BIDS SHOULD BE SOLICITED FOR EACH OF THE MORE THAN 200 POSSIBLE PERFORMANCE SITES SO AS TO ALLOW FOR THE VARYING TRAVEL AND TRANSPORTATION EXPENSE FACTORS. IN THIS CONNECTION, YOU CITE AS AN EXAMPLE OF A PROPERLY PREPARED SOLICITATION AN INVITATION FOR BIDS ISSUED BY THE FEDERAL AVIATION ADMINISTRATION UNDER DATE OF MARCH 18, 1971, COVERING RECONDITIONING OF FIBERGLASS REINFORCED PLASTIC RADOMES, WHICH SPECIFIES 12 SITES IN EACH OF TWO SCHEDULES, ALL LOCATED WITHIN THE CONTINENTAL UNITED STATES, AT WHICH THE REQUIRED WORK IS TO BE PERFORMED.

YOU ALSO COMPLAIN THAT SINCE THE PROCURING ACTIVITY DID NOT PROVIDE BIDDERS WITH A LIST OF THE POSSIBLE PLACES OF PERFORMANCE UNTIL 12 DAYS BEFORE THE ORIGINALLY SCHEDULED BID OPENING, BIDDERS WERE NOT ABLE TO INSPECT THE RADOME SITES. ACCORDINGLY, YOU CONTEND, THE GOVERNMENT WILL BE DENIED THE BENEFIT OF THE CLAUSES "CONDITIONS AFFECTING THE WORK" AND "SITE INVESTIGATION" INCLUDED IN THE IFB.

THE DEFICIENCIES REGARDING PLACE OF PERFORMANCE AND IMPRACTICABILITY OF INSPECTION BY BIDDERS OF THE POSSIBLE WORK SITES, YOU FURTHER CONTEND, WORK TO THE ADVANTAGE OF THE INCUMBENT CONTRACTOR. IN THIS REGARD, YOU ASSERT THAT SUCH CONTRACTOR HAS KNOWLEDGE OF AIR FORCE PRACTICE REGARDING PLACE OF PERFORMANCE AND ALSO IS IN A POSITION TO BE AWARE OF SITE CONDITIONS.

IN ADDITION, YOU ASSERT THAT WHILE VARIOUS TERMS ARE USED FOR THE REQUIRED WORK, NO DISTINCTION IS DRAWN BETWEEN TERMS WHICH ARE SIMILAR. FURTHER, YOU CHARGE THAT THE IFB FAILS TO IDENTIFY THE ADDITIONAL SERVICES REQUIRED BY LINE ITEMS 61 AND 62 AND THAT LINE ITEM 59 COVERING EMERGENCY SERVICES IS TOO VAGUE, EVEN WITH AN ESTIMATE OF 12 EMERGENCIES OVER A PERIOD OF 9 MONTHS, TO RESULT IN REAL COMPETITION, SINCE THE EMERGENCIES COULD TOTAL 221, THE NUMBER OF UNCLASSIFIED WORK SITES LISTED IN THE IFB. A PRUDENT BIDDER, YOU CONTEND, WOULD BE UNWILLING TO ASSUME THE RISKS INVOLVED IN BIDDING ON THE ITEM AND WOULD THEREFORE BE DETERRED FROM BIDDING LEAVING THE COMPETITION TO THOSE WHO ARE SO IMPRUDENT AS TO BID A FIRM FIXED PRICE ON COSTS WHICH MAY VARY ON A SCALE OF 1 TO 100 OR MORE.

IN LINE WITH THE FOREGOING ARGUMENTS, YOU URGE THAT IN ORDER TO BE FAIR THE IFB SHOULD BE REVISED TO REQUIRE A SEPARATE PRICE FOR EACH GEOGRAPHIC AREA IN WHICH WORK MAY BE REQUIRED (TO ALLOW FOR VARIANCES IN TRAVEL AND TRANSPORTATION COSTS) AND, IF THE ESTIMATED QUANTITIES PER SITE ARE TO BE A FACTOR IN THE EVALUATION OF BIDS, TO PROVIDE INFORMATION TO BIDDERS AS TO QUANTITIES ACTUALLY ORDERED FOR EACH SITE IN AT LEAST EACH OF THE PAST 3 FISCAL YEARS.

YOU ALSO CONTEND THAT THE IFB SHOULD INCLUDE PROVISIONS MAKING THE DAVIS- BACON ACT, 40 U.S.C. 276A, APPLICABLE TO THE CONTRACT AND - THAT IT SHOULD INCORPORATE A WAGE RATE DETERMINATION FOR EACH OF THE AREAS IN WHICH SERVICES MAY BE PERFORMED. IN THIS CONNECTION, YOU ASSERT THAT WHILE PRESIDENTIAL PROCLAMATION 4031 OF FEBRUARY 23, 1971, SUSPENDED APPLICATION OF THE ACT, THE REVOCATION OF THE SUSPENSION BY PRESIDENTIAL PROCLAMATION 4040 OF MARCH 29, 1971, AS IMPLEMENTED BY MEMORANDUM NO. 93, ISSUED BY THE DEPARTMENT OF LABOR, MAKES THIS PROCUREMENT, INITIATED PRIOR TO FEBRUARY 23, SUBJECT TO THE ACT. FROM PAGE 3 OF THE MEMORANDUM YOU QUOTE THE FOLLOWING PARAGRAPH IN SUPPORT OF YOUR POSITION ON THIS ISSUE:

WHERE BIDS OR PROPOSALS FOR CONTRACT WORK WERE SOLICITED SUBJECT TO DAVIS -BACON PROVISIONS PRIOR TO PROCLAMATION 4031 SUSPENDING SUCH PROVISIONS WITH RESPECT TO "CONTRACTS ENTERED INTO" ON OR AFTER FEBRUARY 23, 1971, AND NO FURTHER ACTION HAS BEEN TAKEN AND NO CONTRACT ENTERED INTO PURSUANT TO SUCH SOLICITATION BETWEEN FEBRUARY 23 AND MARCH 29, 1971, INCLUSIVE, IT WOULD APPEAR THAT NO CONTRACT OR SOLICITATION THEREFOR BECAME SUBJECT TO THE SUSPENSION PROCLAMATION BEFORE THE REVOCATION BY PROCLAMATION 4040 AND THAT THE ADDITIONAL EFFORT AND EXPENSE OF ISSUING A RESOLICITATION AFTER MARCH 29, 1971 WOULD NOT BE REQUIRED AS A RESULT SOLELY OF THE TWO PROCLAMATIONS. SO LONG AS THE WAGE DETERMINATION ON THE BASIS OF WHICH THE SOLICITATION WAS MADE REMAINS IN EFFECT, A CONTRACT SUBJECT TO ITS PROVISIONS MAY BE ENTERED INTO AS IT WOULD HAVE BEEN IF THERE HAD BEEN NO SUSPENSION DURING THE INTERVENING PERIOD.

THE IFB DESCRIBES THE WORK AS TECHNICAL NONPERSONAL SERVICES AND SUPPLIES FOR DEPOT LEVEL RECONDITIONING, MAINTENANCE, AND EMERGENCY TECHNICAL ASSISTANCE OF GOVERNMENT-OWNED AIR SUPPORTED, RIGID, SPACE FRAME, AND FLAT PLANE RADOMES LOCATED WORLDWIDE. THE PERIOD OF PERFORMANCE IS 1 YEAR COMMENCING JULY 1, 1971, SUBJECT TO EXTENSION FOR 90 ADDITIONAL DAYS AT THE OPTION OF THE GOVERNMENT, AND THE WORK IS REQUIRED TO BE PERFORMED IN ACCORDANCE WITH CERTAIN TECHNICAL ORDERS, DIRECTIVES, AND SPECIFICATIONS INCORPORATED BY REFERENCE IN APPENDIX "A" OF THE IFB.

LINE ITEMS 1 THROUGH 57 COVER MAINTENANCE SERVICES FOR AIR SUPPORTED, RIGID AND SPACE FRAME RADOMES. FOR EACH TYPE OF SERVICE OR COMBINATION OF SERVICES SPECIFIED, BIDS ARE REQUESTED ON EACH OF SEVERAL SIZES OF RADOMES ON A UNIT PRICE BASIS. NEXT TO EACH ITEM A BEST ESTIMATED QUANTITY IS STATED. THE TECHNICAL ORDER WHICH APPLIES TO THESE ITEMS, T.O. 31-1-69, AS AMENDED, WHICH IS ATTACHED TO THE IFB, DEFINES THE TERM "REFURBISHMENT" AND SPECIFIES IN DETAIL THE WORK WHICH IS TO BE PERFORMED IN RECONDITIONING, REPLACEMENT, CLEANING, REPAIRING, PAINTING, CAULKING AND APPLYING POLYESTER RESIN, AMONG OTHER SERVICES.

LINE ITEM 58 COVERS RENOVATION AND/OR REPAIR OF FLAT PLANE RADOMES AT EGLIN FIELD AIR FORCE BASE, FLORIDA, AND THE BEST ESTIMATED QUANTITY IS STATED AS 1 UNIT. THE WORK ON THIS ITEM IS REQUIRED TO BE PERFORMED IN ACCORDANCE WITH T.O. 31P1-2FPS85-262, DATED APRIL 1, 1969, WHICH IS AMONG THE APPLICABLE TECHNICAL ORDERS LISTED IN APPENDIX "A" TO THE IFB. THE CONTRACTING OFFICER EXPLAINS THAT THE WORDS "RENOVATE AND/OR REPAIR" WERE USED FOR THIS ITEM TO AVOID CONFUSION WITH THE WORDS "RECONDITION AND PAINT" WHICH APPLY TO THE OTHER TYPES OF RADOMES.

LINE ITEM 59 COVERS EMERGENCY TECHNICAL SERVICES, AND THE ESTIMATED NUMBER OF EMERGENCIES IS 12 FOR THE MAXIMUM PERIOD OF 9 MONTHS, AND THE MAXIMUM NUMBER OF PERSONNEL IS THREE FOR ANY EMERGENCY. BID PRICES ARE SOLICITED FOR THIS ITEM ON A "PER MONTH" BASIS. THE CONTRACTING OFFICER STATES THAT THIS REQUIREMENT HAS BEEN INCLUDED IN GOVERNMENT CONTRACTS FOR MANY YEARS TO INSURE PROTECTION OF VITAL COMMUNICATIONS AND ELECTRONICS EQUIPMENT. WHILE THE FREQUENCY OF EMERGENCIES IS SAID BE UNPREDICTABLE, THE CONTRACTING OFFICER STATES THAT PAST EXPERIENCE HAS PROVEN THAT IT IS MINIMAL, AND THE ESTIMATE IN THE IFB REPRESENTS THE AVERAGE NUMBER OF EMERGENCIES, WHICH ARE NORMALLY CAUSED BY ACTS OF GOD, EXPERIENCED OVER THE PAST SEVERAL YEARS. THE MONTHLY PRICE IS SOLICITED, ACCORDING TO THE CONTRACTING OFFICER, SO THAT SERVICES MAY BE ORDERED UNDER THIS REQUIREMENTS CONTRACT AT THE BEGINNING OF EACH MONTH AND FUNDS MAY BE OBLIGATED TO COVER A SPECIFIC PERIOD OF TIME, THUS DISPENSING WITH NEED FOR ANY FURTHER ORDER IF AN EMERGENCY OCCURS AND MINIMIZING REACTION TIME ON THE PART OF THE CONTRACTOR IN LINE WITH THE GOVERNMENT'S REQUIREMENT UNDER THIS ITEM.

LINE ITEM 60 COVERS COST REIMBURSABLE TRANSPORTATION SERVICES, WHICH INCLUDE TRANSPORTATION TO OVERSEAS SITES AND EMERGENCY SERVICES TRAVEL. WITHIN THE CONTINENTAL UNITED STATES, EXCEPT ALASKA, TRANSPORTATION OF PERSONNEL AND EQUIPMENT AND SUPPLIES IS THE OBLIGATION OF THE CONTRACTOR FOR OTHER THAN EMERGENCY SERVICES.

LINE ITEM 61 COVERS ADDITIONAL WORK OF AN IN SEVERABLE NATURE NOT COVERED BY ITEMS 1 THROUGH 58. PARAGRAPH 6 OF THE SPECIAL PROVISIONS OF THE IFB DESCRIBES THE IN SEVERABLE WORK COVERED BY THIS ITEM AS SUPPLIES OR SERVICES SO IN SEVERABLE FROM THE BASIC ITEM OF WORK THAT FAILURE TO PERFORM BY THE CONTRACTOR WOULD PRECLUDE PERFORMANCE OF THE BASIC WORK REQUIRED BY A PARTICULAR WORK ORDER. AS AN EXAMPLE OF WORK WHICH WOULD BE COVERED BY THE ITEM, THE CONTRACTING OFFICER CITES MISSING RADOME PANELS OR PANELS NEEDING REPAIR, EITHER OF WHICH PROBLEM MUST BE REMEDIED BEFORE AN ORDER TO PAINT MAY BE FILLED.

LINE ITEM 62 COVERS ADDITIONAL WORK OF A SEVERABLE NATURE NOT OTHERWISE INCLUDED IN ITEMS 1 THROUGH 58. PARAGRAPH 7 OF THE SPECIAL PROVISIONS IN THE IFB DESCRIBES THIS WORK AS SUPPLIES OR SERVICES, THE NATURE OF WHICH COULD NOT BE DETERMINED AT INCEPTION OF THE WORK ORDER AND PERFORMANCE OF WHICH WOULD NOT PRECLUDE THE CONTRACTOR FROM PERFORMING THE BASIC TASK COVERED BY THE WORK ORDER. SEVERABLE WORK, THE CONTRACTING OFFICER FURTHER EXPLAINS, IS WORK WHICH SHOULD BE ACCOMPLISHED WHILE THE CONTRACTOR IS ON THE SITE TO PREVENT POSSIBLE DAMAGE TO THE RADOME OR CEM EQUIPMENT (COMMUNICATIONS, ELECTRONICS, METEOROLOGICAL). THIS WORK, WHICH WOULD INCLUDE TORQUEING OF BOLTS, REPAIRING HATCH ASSEMBLIES, ETC., CANNOT BE DETERMINED IN ADVANCE.

LINE ITEM 63 COVERS COST REIMBURSABLE CONTRACTOR ACQUIRED PROPERTY.

ONLY ITEMS 1 THROUGH 59 WILL BE CONSIDERED IN THE EVALUATION OF BIDS. ITEMS 60 THROUGH 63 DO NOT CALL FOR BID PRICES, AND PAYMENT FOR SUCH ITEMS WILL BE MADE AS THE WORK IS GENERATED AND PERFORMED.

PAGE 33 OF THE IFB CARRIES THE REQUIREMENTS CLAUSE PRESCRIBED BY ARMED SERVICES PROCUREMENT REGULATION (ASPR) 7-1102.2(B) WHICH ADVISES BIDDERS, AMONG OTHER THINGS, THAT THE QUANTITIES OF SUPPLIES OR SERVICES SPECIFIED IN THE IFB ARE ESTIMATES ONLY AND ARE NOT PURCHASED THEREBY AND THAT THE SUPPLIES OR SERVICES REQUIRED BY THE GOVERNMENT WILL BE ORDERED BY THE ISSUANCE OF DELIVERY ORDERS.

AS ISSUED ON OCTOBER 30, 1970, WITH AN AMENDMENT, THE IFB INCLUDED A DAVIS-BACON ACT CLAUSE AND WAGE DETERMINATIONS FOR 19 OF THE AREAS IN WHICH SERVICES MIGHT BE REQUIRED. YOU PROTESTED THE ABSENCE OF WAGE DETERMINATIONS FOR EACH PERFORMANCE SITE BY YOUR LETTER OF FEBRUARY 8, 1971. ON MARCH 4, 1971, THE PROCURING ACTIVITY, ACTING IN ACCORDANCE WITH SPECIFIC INSTRUCTIONS IN A MEMORANDUM ISSUED ON FEBRUARY 24, 1971, BY THE ASSISTANT SECRETARY OF DEFENSE (INSTALLATIONS AND LOGISTICS) IN IMPLEMENTATION OF PRESIDENTIAL PROCLAMATION 4031, ISSUED AN AMENDMENT TO THE IFB DELETING THE DAVIS-BACON ACT PROVISIONS AND SPECIFICALLY PROVIDING THAT THE CONTRACTOR IS NOT REQUIRED TO COMPLY WITH THE PROVISIONS OF THE ACT. ON APRIL 12, 1971, THE IFB WAS FURTHER AMENDED TO PROVIDE, AMONG OTHER THINGS, FOR A NEW BID OPENING DATE OF APRIL 27. FURTHER, IN A LETTER DATED APRIL 20, HEADQUARTERS UNITED STATES AIR FORCE ADVISED YOU THAT REINSTATEMENT OF THE DAVIS-BACON ACT BY PRESIDENTIAL PROCLAMATION 4040 OF MARCH 29, 1971, DID NOT APPLY TO THE IFB IN VIEW OF THE FACT THAT IT WAS ISSUED PRIOR TO MARCH 29, 1971.

HEADQUARTERS UNITED STATES AIR FORCE HAS INFORMED OUR OFFICE THAT THREE BIDS, THE SAME NUMBER AS WERE RECEIVED ON LAST YEAR'S REQUIREMENTS, WERE RECEIVED BY THE APRIL 27 BID OPENING TIME, BUT YOU WERE NOT AMONG THE BIDDERS. FURTHER, THE BID PRICES ARE REPORTED TO BE $428,795 (WHICH IS $4,205 LOWER THAN THE PRICE OF LAST YEAR'S CONTRACT WITH CENTURY AIRCRAFT), $501,600, AND $639,261. YOUR BID ON LAST YEAR'S REQUIREMENTS, ACCORDING TO THE RECORD, WAS HIGHEST AT $1,434,000. THE PROCURING ACTIVITY STATES THAT THE IFB IS STRUCTURED ALONG THE SAME LINES AS PREVIOUS SOLICITATIONS WHICH HAVE BEEN ISSUED SINCE 1967 WITHOUT COMPLAINT FROM ANY OF THE SOURCES SOLICITED, INCLUDING YOU. IN ADDITION, THE PROCURING ACTIVITY MAINTAINS THAT THERE IS NO VIOLATION OF ASPR, AND THEREFORE AWARD SHOULD BE PERMITTED UNDER THE IFB. THE SUPPORTING STATEMENT OF THE CONTRACTING OFFICER IS DISCUSSED BELOW.

THE CONTRACTING OFFICER ASSERTS THAT THE PROVISIONS OF T.O. 31-1-69, WHICH IS INCLUDED IN THE BID PACKAGE, ADEQUATELY DESCRIBE THE SERVICES REQUIRED BY THE IFB. ANY WORK NOT ENCOMPASSED IN THE TERMS USED IN THE IFB AS DEFINED IN THE T.O., THE CONTRACTING OFFICER CLAIMS, WOULD CONSTITUTE THE SEVERABLE OR IN SEVERABLE WORK FOR WHICH REIMBURSEMENT IS PROVIDED UNDER ITEMS 61 AND 62.

ON THE ISSUE OF SEPARATE PRICES FOR WORK AT EACH OF THE RADOME SITES, THE CONTRACTING OFFICER OBSERVES THAT REGARDLESS OF LOCATION THE WORK IS ESSENTIALLY THE SAME AT EACH SITE. IN ADDITION, THE CONTRACTING OFFICER STATES THAT PRICING BY LOCATION WOULD REQUIRE INCLUSION OF COST OF ROUND TRIP TRAVEL BETWEEN THE BIDDER'S PLANT AND EACH SITE, WHICH WOULD INCREASE THE COST OF RADOME MAINTENANCE. CURRENTLY, THE CONTRACTING OFFICER STATES, IN LINE WITH GOVERNMENT POLICY OF SCHEDULING SERVICES AT ADJACENT LOCATIONS CONSECUTIVELY WHEREVER POSSIBLE, ALL RADOMES IN NEED OF MAINTENANCE IN ALASKA ARE SCHEDULED CONSECUTIVELY FOR THE SUMMER MONTHS, AND RADOMES REQUIRING MAINTENANCE IN KOREA AND JAPAN ARE LIKEWISE SCHEDULED CONSECUTIVELY. FURTHER, THE WORK CREWS USED IN KOREA AND JAPAN MAY BE UTILIZED IN TAIWAN AND IN THE PHILIPPINES PRIOR TO THEIR RETURN TO THE CONTRACTOR'S PLANT, AND THE CONTRACTOR HAS SUFFICIENT LATITUDE IN SCHEDULING THE WORK TO MINIMIZE TRAVEL TO, FROM AND WITHIN THE GENERAL GEOGRAPHICAL AREAS INVOLVED. IF PRICES WERE REQUIRED BY INDIVIDUAL TASKS, THAT IS, BY RADOME TYPE AND SITE LOCATION THROUGHOUT THE WORLD, THE CONTRACTING OFFICER POINTS OUT, THE ADMINISTRATIVE WORKLOAD WOULD BE INSURMOUNTABLE. AS AN EXAMPLE, IT IS STATED THAT FOR A 55-FOOT RIGID MOLDED FIBERGLASS DOME, OF WHICH THERE ARE SOME 75 LOCATED THROUGHOUT THE WORLD, 75 PRICES WOULD BE REQUIRED, AND, IF A SEPARATE PRICE IS ALSO REQUIRED FOR EACH TYPE OF WORK SPECIFIED IN THE IFB, I.E., PAINT, OR PAINT AND CAULK, OR CAULK ALONE, 225 LINE ITEMS WOULD BE INVOLVED FOR ONLY THIS PARTICULAR SIZE RADOME.

AS TO SITE INSPECTION, THE CONTRACTING OFFICER OBSERVES THAT A RADOME OF ONE TYPE IN ONE LOCATION WOULD BE THE SAME AS A RADOME OF THE SAME TYPE IN ANOTHER LOCATION, AND THE SPECIFIED WORK WOULD ALSO BE THE SAME. WHILE THE ADDITIONAL WORK MIGHT VARY FROM RADOME TO RADOME, BIDDING IS NOT AFFECTED SINCE SUCH WORK WILL BE PRICED SEPARATELY BY ISSUANCE OF A WORK REQUEST. FINALLY, THE CONTRACTING OFFICER ASSERTS THAT SINCE YOU AND OTHER QUALIFIED BIDDERS ARE THOROUGHLY FAMILIAR WITH THE TYPES AND QUANTITIES OF LABOR AND MATERIALS REQUIRED TO PERFORM THE WORK INVOLVED UNDER ANY OF THE SPECIFIED CONDITIONS, ACTUAL SITE VISITS ARE NOT REQUIRED TO PREPARE A BID.

AS TO THE ADVANTAGE OF THE IFB STRUCTURE INSOFAR AS EXPERIENCED BIDDERS ARE CONCERNED, THE CONTRACTING OFFICER URGES THAT SIMPLY BY REQUIRING BIDS ON A "PER SITE" OR SPECIFIC GEOGRAPHIC AREA BASIS WOULD NOT ELIMINATE SUCH FACTOR. CONVERSELY, IT IS URGED, A CONTRACTOR WITH PAST EXPERIENCE OR KNOWLEDGE OF PAST WORK, WHO COULD HAVE COMPILED A MAINTENANCE HISTORY, MIGHT BE AT AN ADVANTAGE IN BIDDING ON A PER SITE BASIS. BY NOT SPECIFYING WORK LOCATIONS, IT IS ASSERTED, THE POSSIBILITY THAT A PREVIOUS CONTRACTOR MIGHT TAKE ADVANTAGE OF ESOTERIC INFORMATION IS REMOVED.

REQUIREMENTS CONTRACTS ARE VALID CONTRACTS. 1 CORBIN ON CONTRACTS 156; 1 WILLISTON ON CONTRACTS 104A. FURTHER, WHERE A REQUIREMENTS TYPE OF CONTRACT IS CONTEMPLATED BY AN AGENCY, THE COURTS AND OUR OFFICE HAVE HELD THAT SUCH CONTRACTS ARE VALID IF THE ESTIMATE OF THE PROBABLE AMOUNT OF GOODS OR SERVICES TO BE GENERATED WAS DETERMINED IN GOOD FAITH. 47 COMP. GEN. 365 (1968); 37 ID. 688 (1958) AND COURT CASES THEREIN CITED. SEE, ALSO, SHADER CONTRACTORS, INC. V UNITED STATES, 149 CT. CL. 539 (1960). CONSISTENT WITH THE DECISIONS OF OUR OFFICE AND THE COURTS, ASPR 3-409.2 PROVIDES THAT THE ESTIMATE OF THE GOVERNMENT'S NEEDS UNDER REQUIREMENTS CONTRACTS MUST BE AS REALISTIC AS POSSIBLE. WHILE SUCH ESTIMATE MAY BE OBTAINED FROM RECORDS PERTAINING TO PREVIOUS REQUIREMENTS OR CONSUMPTION, THERE IS NO REQUIREMENT IN ASPR THAT THE PROCURING ACTIVITY FURNISH SUCH INFORMATION TO BIDDERS.

THE RECORD IN THIS CASE SHOWS THAT, BASED ON PAST EXPERIENCE, THE AIR FORCE ANTICIPATES NEED FOR THE SERVICES IN QUESTION WITH RESPECT TO ONE OR MORE OF THE RADOMES LOCATED THROUGHOUT THE WORLD BUT IS NOT NOW IN A POSITION TO STATE THE NUMBER AND LOCATIONS OF THE RADOMES. THE QUANTITIES STATED IN THE IFB, HOWEVER, ARE DESCRIBED BY THE AIR FORCE AS THE BEST ESTIMATED QUANTITIES, AND THERE IS NO EVIDENCE OF RECORD THAT SUCH ESTIMATES WERE MADE IN OTHER THAN GOOD FAITH.

IN ADDITION, THE VARIOUS DOCUMENTS INCORPORATED IN THE IFB SPELL OUT IN DETAIL THE SERVICES REQUIRED FOR EACH OF THE SEVERAL TYPES OF RADOMES, AND THE ADDITIONAL SERVICES ARE ALSO WELL DELINEATED. FURTHER, WHILE THE AIR FORCE IS UNABLE AT THIS TIME TO SPECIFY THE AREAS IN WHICH THE VARIOUS SERVICES WILL BE REQUIRED, IT HAS STATED ITS INTENT TO SCHEDULE WORK IN ADJACENT AREAS CONSECUTIVELY WHEREVER POSSIBLE. THIS PROCEDURE, IT WOULD APPEAR, SHOULD RESULT IN PERFORMANCE OF SERVICES AT MORE THAN ONE AREA WITH MINIMUM TRAVEL AND TRANSPORTATION EXPENSES, A RESULT WHICH COULD NOT BE ACHIEVED IF THE PRICES PAYABLE UNDER THE CONTRACT FOR THE SERVICING OF RADOMES IN EACH AREA INCLUDED TRAVEL AND TRANSPORTATION EXPENSES.

AS TO THE CONTEXT OF THE IFB, WE DO NOT CONCUR WITH YOUR VIEW THAT THE IFB SHOULD HAVE BEEN PATTERNED AFTER THE IFB ISSUED BY THE FEDERAL AVIATION ADMINISTRATION. EACH CONTRACTING AGENCY BEARS THE PRIMARY RESPONSIBILITY FOR DRAFTING SPECIFICATIONS TO REFLECT ITS MINIMUM NEEDS. THE FEDERAL AVIATION ADMINISTRATION, WE NOTE, WAS IN A POSITION TO SPECIFY 24 SITES WITHIN THE CONTINENTAL UNITED STATES WITH KNOWN REQUIREMENTS TOGETHER WITH A SCHEDULE OF PERFORMANCE COVERING ONLY THE SUMMER MONTHS. IN THIS CASE, AS THE AIR FORCE HAS STATED, THERE IS NEED AT NUMEROUS SITES THROUGHOUT THE WORLD FOR THE SERVICES IN QUESTION, BUT AT THIS TIME THE AIR FORCE IS NOT IN A POSITION TO STATE WITH PARTICULARITY THE EXACT PLACES INVOLVED OR THE DATES OF PERFORMANCE. FURTHER, THE FORMAT USED IN THE IFB IS SIMILAR TO THAT WHICH HAS BEEN EMPLOYED IN PREVIOUS PROCUREMENTS, AND THERE HAS BEEN NO DECLINE IN THE NUMBER OF BIDS RECEIVED BY THE PROCURING ACTIVITY. ACCORDINGLY, AND SINCE THE CURRENT BID PRICES ARE COMPARABLE TO THE BID PRICES FOR LAST YEAR'S REQUIREMENTS, WITH THE EXCEPTION THAT THIS YEAR'S HIGH BID IS MORE THAN 50 PERCENT LOWER THAN YOUR HIGH BID OF $1,434,000 UNDER LAST YEAR'S SOLICITATION, IT WOULD NOT APPEAR THAT THE IFB STRUCTURE HAS DETERRED COMPETITIVE BIDDING ON THE PROCUREMENT.

ON THE DAVIS-BACON ACT ISSUE, YOU ARE ADVISED THAT IN A MEMORANDUM ISSUED FEBRUARY 24, 1971, BY THE ASSISTANT SECRETARY OF DEFENSE (INSTALLATIONS AND LOGISTICS), IN IMPLEMENTATION OF PROCLAMATION 4031, COMPONENTS OF THE DEPARTMENT OF DEFENSE WERE INSTRUCTED, WITH RESPECT TO PENDING PROCUREMENTS, THAT IN CASES IN WHICH BIDS OR OFFERS HAD NOT BEEN OPENED THE OPENING DATE SHOULD BE EXTENDED AND THE SOLICITATION MODIFIED TO REMOVE ALL DAVIS-BACON ACT REQUIREMENTS. THE MARCH 4 AMENDMENT TO THE IFB IN THIS PROCUREMENT WAS IN ACCORD WITH SUCH INSTRUCTIONS.

AFTER THE ISSUANCE OF PROCLAMATION 4040, THE ASSISTANT SECRETARY OF DEFENSE ISSUED A MEMORANDUM DATED MARCH 30, 1971, WHICH SUPERSEDED THE FEBRUARY 24 MEMORANDUM AND STATED, AMONG OTHER THINGS, THAT SOLICITATIONS ISSUED AFTER MARCH 29, 1971, WOULD BE SUBJECT TO THE DAVIS-BACON ACT BUT SOLICITATIONS WHICH HAD BEEN ISSUED BETWEEN FEBRUARY 23, 1971, AND MARCH 30, 1971, SHOULD NOT INCLUDE DAVIS-BACON ACT PROVISIONS. NO REFERENCE WAS MADE IN THE MARCH 30 MEMORANDUM TO THOSE SOLICITATIONS WHICH HAD BEEN ISSUED PRIOR TO FEBRUARY 23, 1971, AND WHICH HAD BEEN AMENDED BETWEEN FEBRUARY 23 AND MARCH 30 TO DELETE DAVIS-BACON ACT PROVISIONS IN ACCORDANCE WITH THE INSTRUCTIONS INCLUDED IN THE ASSISTANT SECRETARY'S MEMORANDUM OF FEBRUARY 24.

DEPARTMENT OF LABOR MEMORANDUM NO. 93, DATED APRIL 6, 1971, ALSO ISSUED IN IMPLEMENTATION OF PROCLAMATION 4040, INCLUDED ON PAGE 2 THIS STATEMENT BY THE UNDER SECRETARY OF LABOR, "BY ITS TERMS, PROCLAMATION 4040 DOES NOT SPECIFICALLY REQUIRE CHANGES IN PENDING PROCUREMENT ACTIONS OR CONTRACT PROCEDURES WITH RESPECT THERETO WHICH WERE INITIATED PRIOR TO THE REVOCATION OF THE SUSPENSION." IN ADDITION, THE DEPARTMENT ISSUED MEMORANDUM NO. 94 ON APRIL 27, 1971, IN WHICH THE SECRETARY OF LABOR MADE THE FOLLOWING PERTINENT STATEMENTS:

IT HAS BEEN BROUGHT TO OUR ATTENTION THAT A NUMBER OF AGENCIES HAVE PENDING PROCUREMENT ACTIONS FOR CONSTRUCTION PROJECTS ON WHICH BIDS OR PROPOSALS WERE SOLICITED WITHOUT DAVIS-BACON WAGE PAYMENT PROVISIONS DURING THE PERIOD FROM FEBRUARY 23 TO MARCH 29, INCLUSIVE, AS A RESULT OF THE SUSPENSION BY PROCLAMATION 4031, AND TO WHICH THE DAVIS-BACON ACT, EXCEPT FOR THE EFFECT OF THE SUSPENSION, WOULD BE APPLICABLE.

FOR THE FURTHER GUIDANCE OF THE AGENCIES OF THE FEDERAL GOVERNMENT AND THE DISTRICT OF COLUMBIA WITH RESPECT TO THESE PENDING PROCUREMENT ACTIONS, THE PRESIDENT HAS ASKED ME TO EXPLAIN THAT IN THE CASE OF CONTRACTS NOT YET ENTERED INTO AS A RESULT OF THE SOLICITATION OF BIDS OR PROPOSALS DURING THE PERIOD WHEN PROCLAMATION 4031 WAS EFFECTIVE, EACH AGENCY SHOULD, IF IT CAN DO SO LEGALLY AND WITHOUT UNDUE HARDSHIP, TAKE SUCH ACTION TO ACCOMPLISH A RESOLICITATION OF BIDS OR PROPOSALS AS IS AUTHORIZED UNDER GOVERNING PROCUREMENT LAWS AND REGULATIONS AND IS MOST APPROPRIATE TO EFFECT A REINSTATEMENT OF THE APPLICATION OF THE DAVIS- BACON PROVISIONS TO THE PROPOSED CONTRACT WORK.

WHILE THE DEPARTMENT'S MEMORANDUM NO. 94 OF APRIL 27, 1971, EXPRESSES THE SENTIMENT OF THE PRESIDENT THAT PROCUREMENTS PENDING ON MARCH 30, 1971, WHICH, BUT FOR THE SUSPENSION OF THE DAVIS-BACON ACT UNDER PROCLAMATION 4031 DURING THE PERIOD FEBRUARY 24 TO MARCH 29, 1971, INCLUSIVE, WOULD HAVE INCLUDED DAVIS-BACON ACT PROVISIONS BE RESOLICITED WITH SUCH PROVISIONS, THE MEMORANDUM ALSO INDICATES THAT THE DECISION IN EACH CASE IS FOR THE PARTICULAR CONTRACTING AGENCY TO MAKE. IN THIS CONNECTION, THE DEPARTMENT OF THE AIR FORCE HAS ADVISED OUR OFFICE THAT INASMUCH AS BIDS HAD BEEN OPENED ON APRIL 27, 1971, UNDER THE AMENDED IFB, WHICH DID NOT INCLUDE DAVIS-BACON ACT PROVISIONS, PRIOR TO RECEIPT OF NOTICE BY THE PROCURING ACTIVITY OF THE ISSUANCE OF DEPARTMENT OF LABOR MEMORANDUM NO. 94 OF THE SAME DATE, THE AIR FORCE DOES NOT CONSIDER THAT RESOLICITATION OF BIDS UNDER A NEW IFB WITH DAVIS-BACON ACT PROVISIONS WOULD BE IN THE INTEREST OF THE GOVERNMENT OR OF THE COMPETITIVE BIDDING SYSTEM. IN THIS REGARD, THE DEPARTMENT POINTS OUT THAT ASIDE FOR THE NEED OF AWARD BEFORE JUNE 1, 1971, FOR THE REASONS ADVANCED BY THE PROCURING ACTIVITY, BID PRICES HAVE BEEN PUBLICLY EXPOSED, AND TO RESOLICIT THE PROCUREMENT WOULD THEREFORE WORK TO THE PREJUDICE OF THE THREE BIDDERS WHO IN GOOD FAITH AND AT SOME EXPENSE RESPONDED TO THE IFB. IN THE CIRCUMSTANCES, WE ARE UNABLE TO CONCLUDE THAT THE PROPOSAL BY THE DEPARTMENT OF THE AIR FORCE TO MAKE AWARD UNDER THE IFB AS PRESENTLY CONSTITUTED, TO THE LOWEST BIDDER WHO IS DETERMINED TO BE BOTH RESPONSIVE AND RESPONSIBLE, IS NOT IN ACCORD WITH THE REQUIREMENTS OF THE PERTINENT LAW AND REGULATIONS. FOR YOUR INFORMATION, HOWEVER, WE ENCLOSE A COPY OF OUR LETTER OF TODAY TO THE SECRETARY OF THE AIR FORCE IN WHICH WE SUGGEST THAT ACTION BE TAKEN TO MAKE CONTRACT REQUIREMENTS MORE SPECIFIC IN FUTURE PROCUREMENTS.

FOR THE REASONS STATED, YOUR PROTEST IS DENIED.