B-173436, OCT 12, 1971

B-173436: Oct 12, 1971

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IT IS CLEAR THAT THE MANNING CHARTS WERE TO BE USED TO DETERMINE RESPONSIBILITY. THERE IS NO INDICATION THAT THE EXPERIENCED OFFERORS. WERE IN ANY WAY MISLED AS TO THE INTENDED USE OF SUCH CHARTS. CONNER & CUNEO: FURTHER REFERENCE IS MADE TO YOUR PROTEST ON BEHALF OF ABC MANAGEMENT SERVICES. WHEN BIDS WERE OPENED MAY 27. THE TWO LOWEST WERE AS FOLLOWS: DYNETERIA. ACCORDINGLY YOU SUBMIT THAT DYNETERIA WAS A NONRESPONSIVE BIDDER AND ITS BID SHOULD NOT HAVE BEEN CONSIDERED. OUR OFFICE WAS CRITICAL OF TWO SIMILAR. NEGOTIATED PROCUREMENTS ISSUED BY THE DEPARTMENT OF THE NAVY BECAUSE THE OFFERORS WERE NOT INFORMED OF ALL EVALUATION FACTORS. CONCERNING YOUR CONTENTION THAT DYNETERIA'S BID WAS LESS THAN THAT REQUIRED TO PAY MINIMUM WAGES SPECIFIED BY THE DEPARTMENT OF LABOR.

B-173436, OCT 12, 1971

BID PROTEST - RESPONSIVENESS VS. RESPONSIBILITY DECISION DENYING PROTEST BY SECOND LOW BIDDER AGAINST AWARD OF A CONTRACT TO DYNETERIA, INC., LOW BIDDER, UNDER A SOLICITATION ISSUED BY THE CHANUTE AFB FOR MESS ATTENDANT SERVICES. THE RECORD INDICATES THAT DYNETERIA'S AGGREGATE ESTIMATED MANHOURS EXCEEDED THE GOVERNMENT FIGURE AND ITS LOW BID PRICE WOULD MORE THAN PAY THE MINIMUM WAGES AND REQUIRED PAYROLL TAXES. FURTHER, THE COMP. GEN. HAS HELD THAT THE FACT THE LOW BIDDER MAY INCUR A LOSS IN PERFORMING THE CONTRACT DOES NOT JUSTIFY REJECTING AN OTHERWISE ACCEPTABLE BID. FINALLY, IT IS CLEAR THAT THE MANNING CHARTS WERE TO BE USED TO DETERMINE RESPONSIBILITY, NOT RESPONSIVENESS, AND THERE IS NO INDICATION THAT THE EXPERIENCED OFFERORS, HERE INVOLVED, WERE IN ANY WAY MISLED AS TO THE INTENDED USE OF SUCH CHARTS.

TO SELLERS, CONNER & CUNEO:

FURTHER REFERENCE IS MADE TO YOUR PROTEST ON BEHALF OF ABC MANAGEMENT SERVICES, INC. (ABC), UNDER SOLICITATION NO. F11602-71-B-1674, ISSUED BY THE CHANUTE AIR FORCE BASE ON MAY 14, 1971.

THE INVITATION REQUESTED BIDS FOR MESS ATTENDANT SERVICES IN THE DINING HALLS AT CHANUTE FOR THE PERIOD JULY 1, 1971, THROUGH JUNE 30, 1972. WHEN BIDS WERE OPENED MAY 27, 1971, THE TWO LOWEST WERE AS FOLLOWS:

DYNETERIA, INC. (DYNETERIA) $761,324

ABC 841,543

AFTER RECEIVING A FAVORABLE PREAWARD SURVEY REPORT ON DYNETERIA FROM DCAS, ATLANTA, THE CONTRACTING OFFICER AWARDED THE CONTRACT TO THAT FIRM ON JUNE 16, 1971, AS THE LOW, RESPONSIVE AND RESPONSIBLE BIDDER.

ABC CONTENDS THAT THE SUCCESSFUL BIDDER FAILED TO INCLUDE ENOUGH MONEY IN ITS BID PRICES TO PAY FOR THE MINIMUM LABOR COSTS AND PAYROLL TAXES WHICH IT PROMISED IN ITS MANNING CHARTS. ACCORDINGLY YOU SUBMIT THAT DYNETERIA WAS A NONRESPONSIVE BIDDER AND ITS BID SHOULD NOT HAVE BEEN CONSIDERED.

YOU ALSO CONTEND THAT THE CONTRACT AWARD VIOLATED THE CLEAR LANGUAGE OF OUR DECISIONS IN B-170206 AND B-170706, BOTH DATED MARCH 29, 1971, WHEREIN, AMONG OTHER THINGS, OUR OFFICE WAS CRITICAL OF TWO SIMILAR, BUT NEGOTIATED PROCUREMENTS ISSUED BY THE DEPARTMENT OF THE NAVY BECAUSE THE OFFERORS WERE NOT INFORMED OF ALL EVALUATION FACTORS, AND THE GOVERNMENT'S ESTIMATE OF THE REQUIRED NUMBER OF MANNING HOURS DID NOT APPEAR TO BE REALISTIC.

CONCERNING YOUR CONTENTION THAT DYNETERIA'S BID WAS LESS THAN THAT REQUIRED TO PAY MINIMUM WAGES SPECIFIED BY THE DEPARTMENT OF LABOR, PLUS REQUIRED PAYROLL TAXES AND HEALTH AND WELFARE BENEFITS, THE PROCURING ACTIVITY REPORTS THAT DYNETERIA'S AGGREGATE ESTIMATED MANHOURS EXCEEDED THE LIKE GOVERNMENT FIGURE BY ABOUT 80 HOURS PER DAY AND CONSEQUENTLY ITS LOW BID PRICE WOULD MORE THAN PAY FOR THE COST OF THE GOVERNMENT'S ESTIMATED MANHOURS. MORE IMPORTANT, WE THINK, IS THE FACT THAT WHILE IT WOULD APPEAR FROM THE RECORD THAT DYNETERIA'S LOW BID MAY BE BELOW THAT REQUIRED TO ENABLE IT TO PAY THE COST OF PERFORMANCE (IF ALL OF THE OFFERED HOURS ARE UTILIZED) AND STILL BE ABLE TO ENJOY A PROFIT, WE ARE UNABLE TO CONCLUDE THAT ITS BID PRICES ARE INSUFFICIENT TO PERMIT IT TO SATISFACTORILY PERFORM THE CONTRACT. IN THIS CONNECTION, WE HAVE HELD THAT THE FACT THAT THE LOW BIDDER OR OFFEROR MIGHT INCUR A LOSS IN PERFORMING THE CONTRACT AT THE PRICE SHOWN IN ITS BID OR OFFER DOES NOT JUSTIFY REJECTING AN OTHERWISE ACCEPTABLE BID. 49 COMP. GEN. 311 (1969); B-173088, JULY 27, 1971.

RELATIVE TO YOUR CONTENTION THAT THE CONTRACTING OFFICER IGNORED THE REQUIREMENT OF SUBMISSION OF AN ADEQUATE MANNING CHART, WHICH WAS ONE OF THE IMPORTANT CRITERIA IN SELECTING THE PROSPECTIVE CONTRACTOR IN VIOLATION OF OUR REFERENCED DECISIONS, AND AWARDED THE CONTRACT TO A BIDDER WHO PLAINLY DID NOT INTEND TO PROVIDE THE SERVICES OFFERED, PARAGRAPH 31 OF SECTION C OF THE IFB PROVIDED:

"31. MANNING CHARTS

EACH OFFEROR SHALL SUBMIT WITH HIS PROPOSAL, A MANNING CHART IN THE FORMAT OF ATTACHMENT 3 TO SECTION F, SHOWING THE ESTIMATED NUMBER OF PERSONNEL REQUIRED IN EACH SPACE EACH HALF HOUR OF A REPRESENTATIVE WEEKDAY AND WEEKEND DAY TO SATISFACTORILY PERFORM THE CONTRACT SERVICES. NOTHING IN THIS SECTION, OR ELSEWHERE IN THIS CONTRACT, SHALL BE CONSTRUED AS LIMITING THE CONTRACTOR'S RESPONSIBILITY FOR PROVIDING SUFFICIENT PERSONNEL TO ACCOMPLISH ALL OF THE REQUIREMENTS SET FORTH HEREIN."

IN A SIMILAR VEIN PARAGRAPH 7 OF SECTION J STATED:

"7. STAFFING LEVELS (NUMBER OF EMPLOYEES)

THE STAFFING LEVELS ENTERED ON THE MANNING CHARTS (ATTACHMENT 2 TO SECTION F) SHALL BECOME AN INTEGRAL PART OF THE CONTRACT, AND THE CONTRACTING OFFICER WILL REQUIRE THAT THIS STAFFING LEVEL BE FULFILLED. THE CONTRACTOR MAY BE REQUIRED TO MAKE MONETARY ADJUSTMENTS FOR ANY MANHOURS LESS THAN THOSE SPECIFIED, SHOULD THE CONTRACTING OFFICER DETERMINE THAT A LESS THAN SATISFACTORY LEVEL IS CAUSED BY PERSONNEL STAFFING BELOW THAT SET FORTH IN ATTACHMENT 2 TO SECTION F, MANNING CHARTS. NOTWITHSTANDING THE FOREGOING, THE CONTRACTOR IS RESPONSIBLE IN ANY EVENT FOR SUPPLYING SUFFICIENT PERSONNEL TO PERFORM THE CONTRACT SATISFACTORILY."

IN ITS REPORT TO OUR OFFICE, THE DEPARTMENT OF THE AIR FORCE OBSERVES:

" *** ABC HAS MISCONSTRUED THE INTENT AND APPLICATION OF THE IFB PROVISION ENTITLED 'STAFFING LEVELS' AND QUOTED ABOVE. THE FIRST SENTENCE OF THAT CLAUSE DOES INDICATE THAT THE CONTRACTING OFFICER WILL LOOK TO THE STAFFING LEVELS ENTERED IN THE MANNING CHARTS IN ENFORCING THE REQUIREMENTS OF THE CONTRACT. HOWEVER, WHEN THE CLAUSE IS READ AS A WHOLE, IT IS APPARENT THAT THE CONTRACTOR WILL ONLY BE PENALIZED FOR FAILURE TO COMPLETE THE NUMBER OF MANHOURS SPECIFIED IF THIS RESULTS IN A LACK OF SATISFACTORY PERFORMANCE IN SOME OTHER REGARD. THEREFORE, A CONTRACTOR MAY CHOOSE TO REDUCE SOME OF THE STAFFING LEVELS IN THE MANNING CHARTS IF IT IS CONFIDENT THAT IT NONETHELESS CAN SATISFACTORILY PERFORM."

WHILE THIS OBSERVATION MAY REFLECT THAT THE PROCUREMENT OFFICIALS OF THE DEPARTMENT OF THE AIR FORCE WERE NOT FULLY COGNIZANT OF THE RATIONALE OF OUR REFERENCED DECISIONS IN THE NAVY NEGOTIATED PROCUREMENTS, TO THE EFFECT THAT OFFERORS SHOULD BE MADE AWARE OF THE EXACT ROLE THAT MANNING CHARTS ARE TO PLAY IN EVALUATING OFFERS, IT IS ALSO CLEAR THAT THE AIR FORCE IN THIS ADVERTISED PROCUREMENT TREATED THE MANNING CHARTS AS AN AID IN DETERMINING RESPONSIBILITY, NOT RESPONSIVENESS, OF THE BIDDER. THIS IS REFLECTED IN THE REPORT WHICH STATED:

"A REVIEW OF THE CONTRACTOR'S ABILITY TO PERFORM AS A RESPONSIBLE CONTRACTOR WAS MADE BY USE OF A PREAWARD SURVEY AT WHICH TIME THE MANHOURS SUBMITTED WERE THOROUGHLY DISCUSSED. THE CONTRACTOR SUBMITTED MANNING CHARTS REFLECTING SUFFICIENT HOURS TO PERFORM IN ALL DINING HALLS. FACT THEY REFLECTED MORE HOURS THAN WERE SUBMITTED BY FOOD SERVICE PERSONNEL AND REPRESENTATIVES OF THE MANAGEMENT ENGINEERING DETACHMENT ASSIGNED TO THIS BASE."

FURTHER THE ASSISTANT STAFF JUDGE ADVOCATE CONCLUDED:

"THE BIDDER'S MANNING CHARTS ARE FOR RESPONSIBILITY DETERMINATION PURPOSES. THEY ARE NOT REALLY PROMISSORY IN NATURE AS THE CONTRACT IS FOR SERVICES, NOT MANHOURS. MORE OR FEWER MANHOURS MAY PROVE TO BE APPROPRIATE TO PROPERLY PERFORM THE CONTRACT. (IFB SEC C CLAUSE 31)."

THESE OPINIONS ARE IN KEEPING WITH OUR CITED DECISION OF B-160537, OCTOBER 17, 1967, WHERE WE HELD:

"WE DO NOT AGREE THAT THE REQUIREMENT FOR SUBMISSION OF THE MANNING CHART UNDER THE INVITATION AFFECTED THE RESPONSIVENESS OF BIDDERS. IT IS WELL ESTABLISHED THAT A BIDDER IS ENTITLED AT ANY TIME AFTER BID AND PRIOR TO AWARD TO SUBMIT INFORMATION THAT BEARS ON ITS RESPONSIBILITY TO PERFORM THE CONTRACT. 43 COMP. GEN. 285; 41 ID. 555. *** "

ALSO, WE THINK PARAGRAPH 31, SECTION C, QUOTED ABOVE, MAKES IT CLEAR THAT THE MANNING CHARTS WERE TO BE USED TO DETERMINE WHETHER THE CONTRACTOR CAN SATISFACTORILY PERFORM THE CONTRACT SERVICES.

FROM THE FOREGOING, WE ARE UNABLE TO CONCLUDE THAT DYNETERIA'S MANNING CHARTS WERE IMPROPERLY EVALUATED IN THE COURSE OF DETERMINING ITS RESPONSIBILITY, FOR WHICH THE CONTRACTING OFFICER HAS QUITE BROAD DISCRETION. ALSO, WE FAIL TO FIND THAT THE EXPERIENCED BIDDERS HERE INVOLVED WERE IN ANYWAY MISLED AS TO THE INTENDED USE OF THE MANNING CHARTS, OR WERE PLACED AT A COMPETITIVE DISADVANTAGE BY SUCH USE. IN VIEW THEREOF, WE SEE NO VALID BASIS ON WHICH TO QUESTION THE LEGALITY OF THE AWARD, AND YOUR PROTEST IS THEREFORE DENIED.