B-173453(1), DEC 9, 1971

B-173453(1): Dec 9, 1971

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PROTESTANT CONTENDS THAT THE OFFER OF MBM WAS INSUFFICIENT TO COVER THE LABOR COSTS FOR THE MANHOURS INVOLVED. IF ALL OF THE OFFERED HOURS ARE UTILIZED. GAO IS UNABLE TO CONCLUDE THAT ITS OFFERED PRICE IS INSUFFICIENT TO PERMIT IT TO SATISFACTORILY PERFORM. THE PROTEST IS DENIED. AS THE RECORD IS SILENT AS TO WHETHER A NEW DETERMINATION WAS MADE AFTER THE CHANGE IN APPLICABLE WAGE RATES. INC.: FURTHER REFERENCE IS MADE TO YOUR PROTEST UNDER SOLICITATION NO. THE PRINCIPAL BASIS OF YOUR PROTEST YOU STATE IS: "THAT WE BID IN ACCORDANCE WITH THE BID EVALUATION CRITERIA STATED IN SECTION 5.1 OF THE SOLICITATION. MBM'S PRICE IS NOT CONSISTENT WITH THE MANHOURS IT PROMISED IN ITS PROPOSAL. THE INCONSISTENCY IS GROSS.

B-173453(1), DEC 9, 1971

BID PROTEST - ABILITY TO PERFORM - LABOR COSTS PER MANHOUR DECISION DENYING PROTEST OF MANPOWER, INC. AGAINST AWARD OF A CONTRACT TO MILITARY BASE MANAGEMENT OF NEW JERSEY, INC. (MBM) UNDER A SOLICITATION ISSUED BY THE PATUXENT RIVER NAVAL AIR STATION, LEXINGTON PARK, MD., FOR MESS ATTENDANT SERVICES AT THAT FACILITY FOR PERIOD JULY 1, 1971 THROUGH JUNE 30, 1972. PROTESTANT CONTENDS THAT THE OFFER OF MBM WAS INSUFFICIENT TO COVER THE LABOR COSTS FOR THE MANHOURS INVOLVED. MBM DID NOT CHANGE ITS BID BASED ON $1.70 PER HOUR MINIMUM WAGE, AFTER LABOR DEPARTMENT REVISED THE FIGURE TO $2.00 PER HOUR PLUS FRINGE BENEFITS. WHILE IT WOULD APPEAR FROM THE RECORD THAT MBM'S LOW OFFER 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, GAO IS UNABLE TO CONCLUDE THAT ITS OFFERED PRICE IS INSUFFICIENT TO PERMIT IT TO SATISFACTORILY PERFORM. THEREFORE, THE PROTEST IS DENIED. THE SECRETARY OF THE NAVY HAS BEEN ADVISED TO INSURE THAT A NEW DETERMINATION OF COMPETITIVE RANGE BE MADE AFTER EVERY MATERIEL CHANGE IN SOLICITATIONS OF THIS TYPE, AS THE RECORD IS SILENT AS TO WHETHER A NEW DETERMINATION WAS MADE AFTER THE CHANGE IN APPLICABLE WAGE RATES.

TO MANPOWER, INC.:

FURTHER REFERENCE IS MADE TO YOUR PROTEST UNDER SOLICITATION NO. N00421- 71-R-7798, ISSUED BY THE PATUXENT RIVER NAVAL AIR STATION, LEXINGTON PARK, MARYLAND.

THE SOLICITATION REQUESTED OFFERS FOR MESS ATTENDANT SERVICES AT THAT FACILITY FOR THE PERIOD JULY 1, 1971, THROUGH JUNE 30, 1972. THE PROCUREMENT RESULTED IN AN AWARD TO MILITARY BASE MANAGEMENT OF NEW JERSEY, INC. (MBM), AS THE FIRM OFFERING THE MOST ADVANTAGEOUS PROPOSAL, PRICE AND OTHER FACTORS CONSIDERED.

THE PRINCIPAL BASIS OF YOUR PROTEST YOU STATE IS:

"THAT WE BID IN ACCORDANCE WITH THE BID EVALUATION CRITERIA STATED IN SECTION 5.1 OF THE SOLICITATION. MBM DID NOT. MBM'S PRICE IS NOT CONSISTENT WITH THE MANHOURS IT PROMISED IN ITS PROPOSAL. THE INCONSISTENCY IS GROSS. THIS DEVIATION FROM THE SOLICITATION SPECIFICATIONS ENABLED MBM TO OFFER A PRICE SUBSTANTIALLY LOWER THAN COMPETITION."

SECTION 5.1 OF THE RFP PROVIDED:

"ALL OFFERORS SHALL SUBMIT MANNING CHARTS WITH THEIR PROPOSALS, IN THE FORMAT OF ATTACHMENT A, SHOWING THE ESTIMATED NUMBER OF PERSONNEL PROPOSED IN EACH SPACE EACH HALF HOUR OF A REPRESENTATIVE WEEKDAY AND OF A REPRESENTATIVE WEEKEND DAY. THE GOVERNMENT ESTIMATES THAT UNDER PRESENT CONDITIONS SATISFACTORY PERFORMANCE WILL REQUIRE TOTAL MANNING HOURS OF BETWEEN 350 AND 400 ON A REPRESENTATIVE WEEKDAY AND BETWEEN 250 AND 275 ON A REPRESENTATIVE WEEKEND DAY. MANNING CHARTS WHOSE HOURS DO NOT APPROXIMATE THESE RANGES MAY RESULT IN REJECTION OF THE OFFER WITHOUT DISCUSSION. FOR THE PURPOSE OF ESTABLISHING A COMPETITIVE RANGE, EVALUATION OF THE OFFERORS MANNING CHARTS WILL BE BASED ON THE FOLLOWING FACTORS:

1. THE COST OF THE NUMBER OF MANHOURS PER YEAR SHOWN ON THE MANNING CHART INCLUDING WAGE RATES; IF APPLICABLE, FRINGE BENEFITS, (HEALTH AND WELFARE, VACATION, AND HOLIDAYS); AND OTHER EMPLOYEE-RELATED EXPENSES (FOR EXAMPLE, FICA), WILL BE COMPARED WITH THE OFFEROR'S PRICE TO VERIFY THAT OFFEROR'S MANHOURS ARE CONSISTENT WITH THE OFFERED PRICE. THE GOVERNMENT WILL USE 253 WEEKDAYS AND 112 WEEKEND DAYS (INCLUDING HOLIDAYS) TO COMPUTE THE OFFEROR'S NUMBER OF MANHOURS PER YEAR. THE GOVERNMENT MAY REJECT ANY OFFER WITHOUT DISCUSSION WHEN THE NUMBER OF HOURS IS NOT SUPPORTED BY THE PRICE OFFERED.

2. ACCEPTABILITY OF DISTRIBUTION OF MANHOURS TO PERFORM THE REQUIRED SERVICES SATISFACTORILY, AND TO ASSURE PROPER STAFFING IN SPACE/JOB CATEGORIES PRIOR TO, DURING, AFTER MEAL HOURS AND AT PEAK PERIODS.

"NOTHING IN THIS SECTION, OR ELSEWHERE IN THIS CONTRACT, SHALL BE CONSTRUED AS LIMITING THE CONTRACTOR'S RESPONSIBILITY FOR FULFILLING ALL OF THE REQUIREMENTS SET FORTH IN THIS CONTRACT."

THE EVALUATION CRITERIA QUOTED ABOVE ARE THOSE THAT ARE NOW BEING EMPLOYED BY THE DEPARTMENT OF THE NAVY IN MESS ATTENDANT SOLICITATIONS FOLLOWING DECISIONS OF OUR OFFICE IN B-170206, B-170706 AND B-170038, ALL DATED MARCH 29, 1971, SO AS TO MEET RECOMMENDATIONS MADE IN THE CITED CASES. SUCH CRITERIA ARE INTENDED TO MORE FULLY ADVISE OFFERORS OF THE EXACT ROLE THE MANNING CHARTS ARE TO PLAY IN EVALUATING THE OFFERS; TO HELP MINIMIZE THE RECEIPT OF OFFERS WHICH QUOTE PRICES THAT BEAR NO REASONABLE RELATION TO THE NUMBER OF MANNING HOURS OFFERED; AND TO PRECLUDE ACCEPTANCE OF THE LOWEST RATE PER MANHOUR, RATHER THAN THE LOWEST OVERALL PROPOSAL, A SITUATION FOUND TO HAVE EXISTED LAST YEAR AT PATUXENT AND DISCUSSED IN OUR B-170038 DECISION.

YOU SUBMIT, HOWEVER, THAT SINCE ISSUANCE OF THE REFERENCED DECISIONS, PARTICULARLY B-170038, THE NUMBER OF SPECIFICATION DEFICIENCIES AND THE UNORTHODOX NEGOTIATION PROCEDURES HAVE WORSENED, RATHER THAN IMPROVED. YOU CITE AS A SPECIFIC EXAMPLE OF THIS CONTENTION THE CIRCUMSTANCES SURROUNDING THE CONTESTED PROCUREMENT WHEREIN YOU ASSERT THAT MBM FAILED TO INCLUDE ENOUGH MONEY IN ITS OFFERED PRICES TO EVEN PAY THE MINIMUM WAGES SPECIFIED IN THE SOLICITATION AND STILL BE ABLE TO DELIVER THE MINIMUM HOURS SPECIFIED. IN THIS REGARD, THE GOVERNMENT ESTIMATED MINIMUM HOURS OF 116,550, AND MBM HAS OFFERED THE SAME NUMBER IN ITS MANNING CHARTS.

IT IS ADMINISTRATIVELY REPORTED THAT ON THE CLOSING DATE OF JUNE 14, 1971, FOR RECEIPT OF PROPOSALS MBM'S NET OFFER WAS $231,968, OR A PRICE OF $1.99 PER HOUR, WHEREAS THE WAGE DETERMINATION ATTACHED TO THE SOLICITATION REQUIRED A MINIMUM WAGE OF $1.70. CONSEQUENTLY, IT WAS DETERMINED THAT MBM'S PROPOSAL WAS WITHIN THE COMPETITIVE RANGE AND THAT FURTHER DISCUSSION WOULD BE HELD WITH MBM. THEREAFTER THE PURCHASING ACTIVITY WAS INFORMED BY THE DEPARTMENT OF LABOR THAT THE WAGE DETERMINATION HAD BEEN REVISED TO $2.00 PER HOUR, PLUS FRINGE BENEFITS. THEREFORE, ALL OFFERORS WERE AFFORDED AN OPPORTUNITY TO REVISE THEIR PROPOSALS BY NOON OF JUNE 29, 1971. BY LETTER DATED JUNE 24, MBM ADVISED THE CONTRACTING OFFICER THAT IT DID NOT WISH TO CHANGE ITS OFFER. AT THIS POINT IN TIME MBM'S OFFER REMAINED THE LOWEST OFFER RECEIVED BY THE ACTIVITY. CONSEQUENTLY, SINCE THE PROCUREMENT GOAL WAS TO PROCURE ADEQUATE SERVICES AT THE LOWEST OVERALL PRICE, AND MBM WAS STILL CONSIDERED TO BE WITHIN THE COMPETITIVE RANGE, AWARD WAS MADE TO MBM AS THE BEST MEANS OF MEETING SUCH A GOAL.

WHILE IT WOULD APPEAR FROM THE RECORD THAT MBM'S LOW OFFER 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 OFFERED PRICE IS INSUFFICIENT TO PERMIT IT TO SATISFACTORILY PERFORM THE CONTRACT, OR TO REQUIRE IT TO BE CONSIDERED OUTSIDE A COMPETITIVE RANGE ESTABLISHED ON THE BASIS OF OFFERS REFLECTING THE REVISED REQUIREMENTS. SEE B-173576, B-173579, OCTOBER 12, 1971.

AS STATED IN OUR DECISION OF NOVEMBER 22, 1971, WHEREIN WE RECONSIDERED OUR OCTOBER 12 HOLDING IN B-173576, B-173579:

" *** WHILE IT MAY BE ARGUED THAT THE LANGUAGE, 'MANNING CHARTS WHOSE HOURS DO NOT APPROXIMATE THESE RANGES (THE GOVERNMENT'S ESTIMATES) MAY RESULT IN REJECTION OF THE OFFER WITHOUT DISCUSSION' IS SOMEWHAT AKIN TO THE FAILURE OF A BIDDER UNDER AN ADVERTISED PROCUREMENT TO FURNISH SOMETHING REQUIRED BY THE INVITATION (E.G., A BID BOND) RESPONSIBILITY MAY NOT BE MADE A QUESTION OF RESPONSIVENESS BY REQUIRING EVIDENCE OF RESPONSIBILITY. WE THINK THE MANNING CHARTS, WHEN VIEWED IN THE CONTEXT OF THE QUOTED LANGUAGE, ARE INITIALLY PROBATIVE EVIDENCE OF AN OFFEROR'S RESPONSIBILITY. RESPONSIBILITY ORDINARILY CANNOT BE DETERMINED BY THE OFFER ALONE. HENCE, THE REASON FOR ADVISING OFFERORS OF THE FACTORS TO BE USED IN EVALUATING THE MANNING CHARTS FOR THE PURPOSE OF ESTABLISHING A COMPETITIVE RANGE, AND USE OF THE WORD 'MAY RESULT IN REJECTION OF THE OFFER WITHOUT DISCUSSION.' EVEN WHERE AN OFFEROR'S MANNING CHART DOES NOT APPROXIMATE THE GOVERNMENT'S ESTIMATE AND IT IS DETERMINED THAT DISCUSSIONS SHOULD NOT BE CONDUCTED WITH HIM, IN OUR VIEW THIS IS AN INITIAL DETERMINATION OF NONRESPONSIBILITY BASED UPON AN APPARENT MISUNDERSTANDING OF THE REQUIREMENTS NECESSARY TO SATISFACTORILY PERFORM THE SERVICES IN QUESTION.

"WE THEREFORE CONTINUE TO BE OF THE BELIEF THAT MANNING CHARTS DO NOT AFFECT THE RESPONSIVENESS OF BIDS OR OFFERS. B-160537, OCTOBER 17, 1967. THE QUOTED LANGUAGE DOES NOT CHANGE THE ESSENCE OF THE PURPOSE FOR WHICH THE MANNING CHARTS ARE REQUIRED, AND SINCE IT IS OUR UNDERSTANDING THEY ARE REQUIRED BY THE CONTRACTING ACTIVITY AS AN AID IN DETERMINING RESPONSIBILITY, THEY CANNOT BE MADE A MATTER OF RESPONSIVENESS BY ANY LANGUAGE IN THE RFP.

"THE QUESTION, OF COURSE, TO BE DECIDED IN EACH CASE IS WHETHER THE OFFERED PRICE IS SUBSTANTIALLY AT VARIANCE WITH THE OFFERED MANHOURS. THIS REGARD, OUR OFFICE HAS CONSISTENTLY RECOGNIZED THE BROAD AUTHORITY VESTED IN THE PROCURING ACTIVITIES IN NEGOTIATED PROCUREMENTS TO ESTABLISH A COMPETITIVE RANGE FOR THE PURPOSE OF DETERMINING THOSE BIDDERS WITH WHOM WRITTEN OR ORAL NEGOTIATIONS WILL BE UNDERTAKEN. WE CONTINUE TO BE OF THE VIEW THAT THE CONTRACTS HERE INVOLVED WERE AWARDED IN A MANNER CONSISTENT WITH THE LANGUAGE AND INTENT OF THE SOLICITATIONS, AND WE FAIL TO FIND THAT THE EXPERIENCED OFFERORS 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.

"THE SOLICITATIONS DID NOT REQUIRE THE OFFEROR'S PRICE, WHEN COMPARED TO MANHOURS, TO COVER SUCH ELEMENTS (OTHER EMPLOYEE-RELATED BENEFITS). DID GIVE AS AN EXAMPLE OF OTHER EMPLOYEE-RELATED EXPENSES THE COST FOR FICA. HOWEVER, WE THINK THE REQUIREMENT THAT OFFEROR'S MANHOURS BE CONSISTENT WITH OFFERED PRICES CONNOTES A TEST OF REASONABLENESS, RATHER THAN AN EXACT REQUIREMENT TO QUOTE A CERTAIN MINIMUM PRICE PER MANHOUR. EVEN IF ABC'S CALCULATIONS ARE ACCEPTED, WE CANNOT SAY THAT A 5 PERCENT OR A 10 PERCENT DISCREPANCY SHOULD AUTOMATICALLY OUST AN OFFEROR FROM CONSIDERATION BECAUSE ITS OFFER DID NOT APPROXIMATE THE GOVERNMENT'S ESTIMATED RANGE. ON THE OTHER HAND, WE HAVE HELD THAT A 30 PERCENT DISCREPANCY WAS SUFFICIENT TO JUSTIFY THE CONTRACTING OFFICER'S REFUSAL TO NEGOTIATE WITH THE OFFEROR THERE INVOLVED. B 173628, SEPTEMBER 9, 1971. SINCE WE DO NOT THINK THAT MANNING CHARTS CAN PROPERLY BE USED AS AN EXACT FORMULA IN THE EXERCISE OF THE DISCRETIONARY AUTHORITY GIVEN THE CONTRACTING AGENCIES IN THIS AREA, UNLESS THERE IS A CLEAR ABUSE OF SUCH AUTHORITY WE WOULD NOT BE JUSTIFIED IN INTERPOSING ANY OBJECTION TO THE DETERMINATIONS OF WHICH OFFERORS ARE PROPERLY CONSIDERED TO BE WITHIN THE COMPETITIVE RANGE."

WE HAVE CONSIDERED YOUR ADDITIONAL ALLEGATIONS THAT THE SOLICITATION SPECIFICATIONS ARE AMBIGUOUS IN THAT THEY DO NOT ACCURATELY DESCRIBE WHAT THE GOVERNMENT INTENDED TO PURCHASE, AND FIND THEM TO BE WITHOUT MERIT, ESPECIALLY IN VIEW OF THE FACT THAT NO OTHER OFFEROR QUESTIONED THE TERMS THEREOF, AND YOUR FIRM WAS THE INCUMBENT CONTRACTOR FOR SIMILAR SERVICES. WE BELIEVE YOUR ASSERTION THAT THERE WAS NOT SUFFICIENT TIME ALLOTTED TO PROPERLY EVALUATE OFFERS IS LIKEWISE UNFOUNDED, SINCE THE ACTIVITY HAD FROM JUNE 14 TO JUNE 29 TO INITIALLY EVALUATE THE PROPOSALS AND TWO DAYS IN WHICH TO EVALUATE ANY CHANGES IN THE OFFERS BROUGHT ABOUT BY THE NEW WAGE DETERMINATION.

IN VIEW OF THE FOREGOING, WE ARE UNABLE TO CONCLUDE THAT THE CONTRACT HERE INVOLVED WAS AWARDED IN A MANNER WHICH WAS CONTRARY TO THE LANGUAGE AND INTENT OF THE SOLICITATION, OR CONTRARY TO THE DECISIONS OF OUR OFFICE. ACCORDINGLY, YOUR PROTEST IS DENIED.