B-178955, MAR 11, 1974, 53 COMP GEN 656

B-178955: Mar 11, 1974

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THE STATEMENT MADE DURING NEGOTIATIONS THAT THE GOVERNMENT ESTIMATES WERE REALISTIC AND THAT SATISFACTORY SERVICE COULD NOT BE ASSURED WITH A LOWER MAXIMUM STAFFING LEVEL. DID NOT PREJUDICE ANY OF THE OFFERORS SINCE THE AGENCY'S INTERPRETATION THAT THE OFFEROR'S MANNING CHART LEVEL WAS THE MAXIMUM STAFFING THAT THE GOVERNMENT WOULD REQUIRE OF A SUCCESSFUL OFFEROR WAS NOT USED IN THE EVALUATION OF OFFERS AND OFFERORS ARE REQUIRED BY TERMS OF RFP TO PERFORM SERVICES SATISFACTORILY EVEN AT LEVELS ABOVE THOSE STATED IN MANNING CHARTS. WHICH WAS BASED IN PART ON THE OFFEROR'S ADDITIONAL GUARANTEE TO PROVIDE MANNING WITHIN THE GOVERNMENT'S ESTIMATED RANGE SHOULD NEED ARISE. IS IRRELEVANT IN THAT THE REQUEST FOR PROPOSALS REQUIRES THE SUCCESSFUL OFFEROR TO PERFORM AT THAT LEVEL OR HIGHER SHOULD NEED ARISE.

B-178955, MAR 11, 1974, 53 COMP GEN 656

CONTRACTS - NEGOTIATION - EVALUATION FACTORS - MANNING REQUIREMENTS - PROPRIETY WHERE THE SUCCESSFUL OFFEROR UNDER A REQUEST FOR PROPOSALS (RFP) TO FURNISH MESS ATTENDANT SERVICES COULD BE REQUIRED TO PERFORM AT MANNING LEVELS ABOVE THOSE STATED ON THE MANNING CHART WITHOUT ANY INCREASE IN CONTRACT PRICE, THE STATEMENT MADE DURING NEGOTIATIONS THAT THE GOVERNMENT ESTIMATES WERE REALISTIC AND THAT SATISFACTORY SERVICE COULD NOT BE ASSURED WITH A LOWER MAXIMUM STAFFING LEVEL, DID NOT PREJUDICE ANY OF THE OFFERORS SINCE THE AGENCY'S INTERPRETATION THAT THE OFFEROR'S MANNING CHART LEVEL WAS THE MAXIMUM STAFFING THAT THE GOVERNMENT WOULD REQUIRE OF A SUCCESSFUL OFFEROR WAS NOT USED IN THE EVALUATION OF OFFERS AND OFFERORS ARE REQUIRED BY TERMS OF RFP TO PERFORM SERVICES SATISFACTORILY EVEN AT LEVELS ABOVE THOSE STATED IN MANNING CHARTS. CONTRACTS - NEGOTIATION - EVALUATION FACTORS - MANNING REQUIREMENTS - GOVERNMENT ESTIMATED BASIS THE ACCEPTANCE OF AN OFFER TO PROVIDE MESS ATTENDANT SERVICES, WHICH WAS BASED IN PART ON THE OFFEROR'S ADDITIONAL GUARANTEE TO PROVIDE MANNING WITHIN THE GOVERNMENT'S ESTIMATED RANGE SHOULD NEED ARISE, IS IRRELEVANT IN THAT THE REQUEST FOR PROPOSALS REQUIRES THE SUCCESSFUL OFFEROR TO PERFORM AT THAT LEVEL OR HIGHER SHOULD NEED ARISE. CONTRACTS - NEGOTIATION - EVALUATION FACTORS - MANNING REQUIREMENTS - MANNING CHART STAFFING LEVEL EFFECT UNDER A REQUEST FOR PROPOSALS (RFP) THAT REQUIRED THE SUBMISSION OF MANNING CHARTS FOR A REPRESENTATIVE WEEKDAY AND A REPRESENTATIVE WEEKEND/HOLIDAY TO FOSTER EVALUATION OF OFFEROR'S OVERALL UNDERSTANDING OF FOOD SERVICE OPERATIONS, THE EVALUATION OF TOTAL MANNING OFFERED NEED NOT BE RESTRICTED SOLELY TO THE LEVEL INDICATED IN THE MANNING CHART, AND ALTHOUGH THE RFP APPARENTLY ASSUMES THAT OFFEROR'S MANNING LEVELS WILL BE TOTALLY REFLECTED RATHER THAN PARTIALLY REFLECTED, THIS ASSUMPTION WAS NOT INTENDED TO BE A CONDITION PRECEDENT TO THE EVALUATION OF THE OFFER. CONTRACTS - NEGOTIATION - EVALUATION FACTORS MANNING REQUIREMENTS - GOVERNMENT ESTIMATED BASIS THE ESTIMATE OF MAN-HOURS REQUIRED TO PERFORM MESS ATTENDANT WORK NEED NOT BE REVISED MERELY BECAUSE ONE OFFEROR SUBMITTED A SUBSTANTIATED PROPOSAL BELOW 95 PERCENT OF THE GOVERNMENT ESTIMATE, SINCE ALL OFFERORS HAD THE SAME OPPORTUNITY, SPECIFICALLY STATED IN THE REQUEST FOR PROPOSALS (RFP) TO SUBMIT A JUSTIFICATION FOR THEIR LOWER FIGURES AND THERE HAS BEEN NO LESSENING OF THE RFP REQUIREMENTS. FURTHERMORE, THE SUCCESSFUL OFFEROR SHOWED THE REASONABLENESS OF THE GOVERNMENT'S REPRESENTATIVE DAY ESTIMATES AND ADDITIONALLY SHOWED THAT FEWER HOURS ARE NEEDED ANNUALLY; THAT IS THE ANNUAL TOTAL NEED FOR MAN HOURS AND NOT THE MATHEMATICAL TOTAL OF REPRESENTATIVE DAYS. CONTRACTS - NEGOTIATION - EVALUATION FACTORS - MANNING REQUIREMENTS - COMPLIANCE WHERE A REQUEST FOR PROPOSALS (RFP) FOR MESS ATTENDANT SERVICES CONTEMPLATED THAT OFFERS WOULD BE IN A CERTAIN FORMAT AND THE SUCCESSFUL OFFEROR ONLY PARTIALLY COMPLIED STATING THAT IT WOULD USE REPRESENTATIVE DAY FIGURES ONLY A CERTAIN SPECIFIED NUMBER OF TIMES DURING THE YEAR, BUT ON OTHER SPECIFIED DAYS, IT COULD AND WOULD USE LESS MANNING DUE TO LESSER USAGE OF MESS HALLS, THE OFFEROR DID NOT DEPART FROM THE RFP REQUIREMENTS (ASPR 3-805.1(A)(5)) SINCE USE OF A CALENDAR YEAR CONTAINING 252 REPRESENTATIVE WEEKDAYS AND 113 REPRESENTATIVE WEEKEND/HOLIDAYS WAS NOT A RFP REQUIREMENT.

IN THE MATTER OF ABC MANAGEMENT SERVICES, INC.; TIDEWATER MANAGEMENT SERVICES, INC.; CHEMICAL TECHNOLOGY, INC., MARCH 11, 1974:

REQUEST FOR PROPOSALS (RFP) N66314-73-R-2745 WAS ISSUED ON MARCH 30, 1973, BY THE NAVAL REGIONAL PROCREMENT OFFICE, OAKLAND, CALIFORNIA.

SECTION D1(A) OF THE RFP STATES THAT:

*** SUBMISSION OF MANNING CHARTS WHOSE TOTAL HOURS FALL MORE THAN 5 PERCENT BELOW THESE ESTIMATES MAY RESULT IN REJECTION OF THE OFFER WITHOUT FURTHER NEGOTIATIONS UNLESS THE OFFEROR CLEARLY SUBSTANTIATES THE MANNING DIFFERENCE WITH SPECIFIC DOCUMENTATION DEMONSTRATING THAT THE OFFEROR CAN PERFORM THE REQUIRED SERVICES SATISFACTORILY WITH SUCH FEWER HOURS.

SECTION "D" FURTHER STATES THAT:

(2) THE HOURS SHOWN IN THE MANNING CHARTS MUST BE SUPPORTED BY THE PRICE OFFERED WHEN COMPARED AS FOLLOWS. THE TOTAL HOURS REFLECTED IN THE MANNING CHARTS FOR THE CONTRACT PERIOD (I.E., BASED ON A CONTRACT YEAR CONTAINING 252 WEEKDAYS AND 113 WEEKEND DAYS/HOLIDAYS) WILL BE DIVIDED INTO THE TOTAL OFFERED PRICE (LESS ANY EVALUATED PROMPT PAYMENT DISCOUNT) TO ASSURE THAT THIS DOLLAR/HOUR RATIO IS AT LEAST SUFFICIENT TO COVER THE FOLLOWING BASIC LABOR EXPENSES:

(I) THE BASIC WAGE RATE;

(II) IF APPLICABLE, FRINGE BENEFITS (HEALTH AND WELFARE, VACATION, AND HOLIDAYS); AND

(III) OTHER EMPLOYEE-RELATED EXPENSES AS FOLLOWS:

(A) FICA (INCLUDING HOSPITAL INSURANCE) AT THE RATE OF 5.2%;

(B) UNEMPLOYMENT INSURANCE AT THE RATE SET FORTH BY THE OFFEROR IN THE PROVISION IN SECTION B OF THIS SOLICITATION ENTITLED "OFFEROR'S STATEMENT AS TO UNEMPLOYMENT INSURANCE RATE AND WORKMEN'S COMPENSATION INSURANCE RATE APPLICABLE TO HIS COMPANY"; AND

(C) WORKMEN'S COMPENSATION INSURANCE AT THE RATE SET FORTH BY THE OFFEROR IN THE PROVISION REFERRED TO IN (B) ABOVE.

FAILURE OF THE PRICE OFFERED TO THUS SUPPORT THE OFFEROR'S MANNING CHART MAY RESULT IN REJECTION OF THE PROPOSAL WITHOUT FURTHER NEGOTIATIONS.

(C) AWARD WILL BE MADE TO THE RESPONSIBLE OFFEROR WHOSE PROPOSAL, MEETING THE CRITERIA SET FORTH IN (A) AND (B) ABOVE, OFFERS THE LOWEST EVALUATED TOTAL PRICE.

NOTE TO OFFEROR: THE PURPOSE OF THE ABOVE PRICE-TO-HOURS EVALUATION IS TO ASSURE:

(I) THAT MANNING CHARTS SUBMITTED ARE NOT UNREALISTICALLY INFLATED IN HOPES OF SECURING A MORE FAVORABLE PROPOSAL EVALUATION; AND

(II) THAT AWARD IS NOT MADE AT A PRICE SO LOW IN RELATION TO BASIC PAYROLL AND RELATED EXPENSES ESTABLISHED BY LAW AS TO JEOPARDIZE SATISFACTORY PERFORMANCE.

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

SECTION "J" OF THE RFP STATES IN PERTINENT PART:

THE STAFFING LEVELS ENTERED BY THE CONTRACTOR ON THE MANNING CHARTS (ATTACHMENT E) SHALL BECOME AN INTEGRAL PART OF THE CONTRACT, AND THE CONTRACTING OFFICER MAY REQUIRE THAT THIS STAFFING LEVEL BE FULFILLED SHOULD PERFORMANCE ON THIS CONTRACT FALL BELOW ACCEPTABLE STANDARDS. 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 OF PERFORMANCE IS CAUSED BY PERSONNEL STAFFING BELOW THAT SET FORTH IN ATTACHMENT E, MANNING CHARTS. NOTWITHSTANDING THE FOREGOING, THE CONTRACTOR IS REPONSIBLE IN ANY EVENT FOR SUPPLYING SUFFICIENT PERSONNEL TO PERFORM THE CONTRACT SATISFACTORILY.

THUS, THE NAVY SOUGHT BY SECTION "D" OF THE RFP THE ASSURANCE THAT THE SUCCESSFUL OFFEROR WOULD BE ABLE TO COVER ITS MOST BASIC EXPENSES (LABOR) AT WHAT INITIALLY APPEARED TO BE A WORK LEVEL GUARANTEEING ADEQUATE PERFORMANCE (ITS MANNING CHART LEVELS). HOWEVER, SECTION "J" OF THE RFP ALSO AUTHORIZED THE CONTRACTING OFFICER TO REQUIRE THE CONTRACTOR TO SUPPLY SUFFICIENT PERSONNEL TO PERFORM THE CONTRACT SATISFACTORILY, EVEN AT LEVELS ABOVE ITS MANNING CHARTS WITH A RESULTANT INCREASE IN COSTS TO THE CONTRACTOR. (NOTE: SUBJECT CONTRACT IS OF FIRM FIXED-PRICE TYPE.)

ALL 13 FIRMS RESPONDING TO THE RFP WERE CONSIDERED WITHIN THE COMPETITIVE RANGE. TIDEWATER AND AT LEAST ONE OTHER OFFEROR, ABC (INCUMBENT CONTRACTOR), INITIALLY SUBMITTED PROPOSALS SHOWING MANHOURS OF LESS THAN 95 PERCENT OF THE GOVERNMENT'S ESTIMATE. (TIDEWATER'S HOURS WERE 85 PERCENT AND UNSUBSTANTIATED; ABC'S HOURS WERE ALSO UNDER 95 PERCENT OF THE ESTIMATE. INTEGRITY'S INITIAL OFFER EXCEEDED 95 PERCENT OF THE GOVERNMENT'S ESTIMATE.)

CONCERNING NEGOTIATIONS THE NAVY STATED IN ITS REPORT THAT:

*** ALL (OFFERORS) WERE ADVISED THAT THE GOVERNMENT'S ESTIMATED HOURS (MINUS THE 5% ALLOWANCE) WERE REALISTIC AND THAT IT WAS THE JUDGMENT OF THE FOOD SERVICE OFFICER THAT SATISFACTORY SERVICE COULD NOT BE ASSURED WITH A LOWER MAXIMUM STAFFING LEVEL AS WRITTEN INTO THE CONTRACT UNDER SECTION J, "STAFFING LEVELS" ***.

(AS NOTED ABOVE, WE DO NOT CONSTRUE THE LANGUAGE IN SECTION "J" OF THE RFP AS MAKING THE MANNING CHART LEVEL THE MAXIMUM STAFFING LEVEL. THE PROCURING ACTIVITY, ON THE OTHER HAND, CONSTRUES SECTION "J" AS PROVIDING THAT THE MANNING CHART IS THE MAXIMUM LEVEL THE CONTRACTOR IS OBLIGATED TO FURNISH.)

IN RESPONSE TO THIS ADVICE, TIDEWATER'S BEST AND FINAL OFFER INCLUDED MANNING ABOVE THE 95-PERCENT LEVEL. ABC, ON THE OTHER HAND, SUBMITTED A MANNING CHART WHICH INDICATED A 92-PERCENT MANNING LEVEL BUT OTHERWISE GUARANTEED TO PERFORM AT 99 PERCENT OF THE GOVERNMENT'S ESTIMATED HOURS SHOULD ITS PERFORMANCE AT ANY TIME BE LESS THAN SATISFACTORY. SIMILARLY, INTEGRITY'S MANNING CHART WAS REVISED TO INDICATE EXACTLY 95 PERCENT, WHILE IN AN ACCOMPANYING LETTER INTEGRITY INDICATED THAT IT COULD SATISFACTORILY PERFORM AT 84 PERCENT OF THE GOVERNMENT ESTIMATE. INTEGRITY OFFERED SUBSTANTIATION FOR THE 84 PERCENT FIGURE WHICH THE CONTRACTING OFFICER ACCEPTED.

PRICES RECEIVED ON BEST AND FINAL OFFERS WERE:

HRS. STATED

ON MANNING

PRICES DISCOUNT CHART

INTEGRITY $385,143.73 (1.5%) 106,343

ABC 437,656.00 (1.1%) 103,162

TIDEWATER 462,549.00 (2%) 108,029

THE CONTRACT WAS THEREAFTER AWARDED TO INTEGRITY ON THE BASIS OF ITS 84- PERCENT OFFER.

IT IS CONTENDED THAT: (1) INTEGRITY'S MANNING CHART HOURS ARE NOT SUPPORTED BY ITS PRICE AND THAT, IN ESSENCE, INTEGRITY PROPOSED ONE FIGURE (106,343 HOURS) FOR EVALUATION VIS-A-VIS THE PARAGRAPH D1(A) OF THE RFP (MANNING) AND ANOTHER FOR EVALUATION UNDER PARAGRAPH D1(B) (DOLLARS/HOUR); (2) THE GOVERNMENT DID NOT EVALUATE INTEGRITY'S OFFER BASED ON ITS RESPONSE TO THE RFP; AND (3) THE OTHER OFFERORS WERE NOT GIVEN AN OPPORTUNITY TO SUBMIT OFFERS FOR EVALUATION ON THE SAME BASIS AS THAT UPON WHICH AWARD TO INTEGRITY WAS MADE; THAT IS, THE BASIS OF A MAN-HOUR FIGURE BELOW THAT SUPPOSEDLY ANNOUNCED IN THE DISCUSSIONS WITH ALL OFFERORS AS THE MINIMUM ACCEPTABLE (95 PERCENT) FOR AWARD EVALUATION PURPOSES.

THE AGENCY STATES THAT INTEGRITY'S 84-PERCENT MAN-HOUR FIGURE WAS USED BOTH IN REGARD TO THE REQUIREMENTS OF PARAGRAPH D1(A) (MANNING) AND D1(B) (DOLLAR/HOUR). IN MAKING THE AWARD, HOWEVER, THE GOVERNMENT ACCEPTED THE ADDITIONAL "GUARANTEE" IT ASSERTS WAS OFFERED BY INTEGRITY TO PERFORM UP TO THE 106,343-HOUR (95 PERCENT) MANNING LEVEL WHENEVER NECESSARY, AND FOR THAT PURPOSE INCLUDED SUCH MANNING CHARTS IN THE AWARD. (THE CONTRACTING OFFICER CONCLUDED THAT BECAUSE INTEGRITY'S OFFER CONTAINED THE REQUIRED TWO MANNING CHARTS AND EACH INDICATED A FIGURE 95 PERCENT OF THE GOVERNMENT'S CORRESPONDING DAILY ESTIMATE, INTEGRITY'S TOTAL MANNING CHART LEVEL, WHAT THE GOVERNMENT TOOK AS A "GUARANTEE," COULD BE COMPUTED BY MULTIPLYING THE DAILY MANNING CHART FIGURES BY 252 AND 113, RESPECTIVELY, AND SUMMING THE RESULTS. THUS, INTEGRITY'S TOTAL MANNING CHART LEVEL WAS COMPUTED TO BE 106,343 HOURS OR 95 PERCENT OF THE GOVERNMENT'S TOTAL ANNUAL ESTIMATE.) THIS GUARANTEE ACCEPTANCE IS INDICATIVE OF THE CONTRACTING ACTIVITY'S UNDERLYING AND IMPROPER INTERPRETATION OF THE RFP THAT THE LEVEL OF PERFORMANCE INDICATED ON THE OFFEROR'S MANNING CHARTS CONSTITUTES THE MAXIMUM STAFFING LEVEL THE CONTRACTOR IS OBLIGATED TO FURNISH. AS STATED EARLIER, SECTION "J" OF THE RFP REQUIRES THE OFFEROR TO PERFORM THE SPECIFIED SERVICES ADEQUATELY EVEN AT LEVELS EXCEEDING ITS MANNING CHARTS. THIS WOULD BIND A SUCCESSFUL OFFEROR TO PERFORM, SHOULD IT BECOME NECESSARY, AT OR EVEN ABOVE ITS MANNING CHART LEVEL WITHOUT ANY INCREASE IN CONTRACT PRICE, IRRESPECTIVE OF ANY "GUARANTEE" GIVEN BY THE OFFEROR. (UPWARD ADJUSTMENTS OF THE CONTRACT PRICE ARE CONTEMPLATED BY SECTION JA) OF THE RFP ONLY IN THE EVENT THAT THE ACTUAL NUMBER OF MEALS SERVED PER MONTH VARIES SIGNIFICANTLY FROM THE NUMBER ESTIMATED.) THEREFORE, THE GUARANTEE ASPECT OF INTEGRITY'S MANNING CHARTS BECOMES IRRELEVANT FOR AWARD PURPOSES.

MOREOVER, WE FEEL THAT NO OFFEROR WAS PREJUDICED BY THE PROCURING ACTIVITY'S DETERMINATION THAT SOME SORT OF A 95-PERCENT (OR ABOVE) "GUARANTEE" WAS REQUIRED, SINCE THE SUCCESSFUL OFFEROR WAS BOUND BY SECTION "J" TO ASSURE ADEQUATE PERFORMANCE EVEN IF LEVELS ABOVE ANY "GUARANTEE" WERE REQUIRED.

THE RFP DID, HOWEVER, SEEK AN ASSURANCE BY PARAGRAPH D1(B) THAT THE OFFEROR COULD MEET ITS BASIC LABOR COSTS AT WHAT WAS CONSIDERED TO BE AN ADEQUATE LEVEL OF PERFORMANCE WHICH WAS TO HAVE BEEN INDICATED ON THE OFFEROR'S MANNING CHARTS. INTEGRITY APPARENTLY DEMONSTRATED TO THE CONTRACTING OFFICER THAT THE JOB COULD BE ADEQUATELY PERFORMED WITH 84 PERCENT OF THE GOVERNMENT'S ESTIMATED MANNING AND HAS OFFERED A DOLLAR/HOUR RATIO AT THAT LEVEL SUPPORTIVE OF ITS OFFERED HOURS EVEN THOUGH THIS LEVEL OF PERFORMANCE CANNOT BE DERIVED FROM REVIEWING THE MANNING CHARTS ALONE.

INTEGRITY'S MANNING CHARTS, SUBMITTED UNDER SECTION B3(A) OF THE RFP, SHOWED THE NUMBER OF PERSONNEL PROPOSED FOR EACH HALF HOUR OF A REPRESENTATIVE WEEKDAY AND OF A REPRESENTATIVE WEEKEND DAY/HOLIDAY, WHICH PERSONNEL FIGURES WERE EQUAL TO 95 PERCENT OF THE GOVERNMENT'S ESTIMATES. INTEGRITY, IN A LETTER ACCOMPANYING ITS OFFER, WENT ON TO STATE THAT IT WOULD USE THE NUMBER OF HOURS SET FORTH ON ITS WEEKDAY CHART 137 TIMES DURING THE YEAR AND USE THE REPRESENTATIVE WEEKEND DAY CHART FIGURE ON ONLY 52 OCCASIONS. ON THE REMAINING 176 DAYS, IT WOULD USE MANNING FIGURES WHICH IT HAD ESTABLISHED BY EXAMINING THE TROOP UTILIZATION OF THE MESS FACILITIES ON CERTAIN DAYS OF THE WEEK (I.E., FRIDAYS, PAYDAYS, ETC.). SUCH AN ARRANGEMENT, WHEN ACCOMPANIED BY A TIME AND MOTION STUDY, HAS BEEN RECOGNIZED BY OUR OFFICE IN 53 COMP. GEN. 198 (1973) TO BE A VALID METHOD FOR SUBSTANTIATING A DEFICIENCY FROM THE 95-PERCENT MANNING LEVEL.

COUNSEL FOR TIDEWATER QUESTIONS THE ADEQUACY OF INTEGRITY'S JUSTIFICATION FOR ITS 84-PERCENT FIGURE. HOWEVER, WE FEEL THAT HE ANSWERS HIS OWN QUESTION BY SAYING THAT: "THE REDUCED HOURS REQUIRED FOR FRIDAYS, SATURDAYS, HOLIDAYS, PAYDAYS, AND 'PREMIUM' DAYS ARE NO SECRET TO OTHER CONTRACTORS IN THIS BUSINESS." AS SUCH, WE CAN SEE HOW THE CONTRACTING OFFICER ACCEPTED SUCH A PROPOSAL WITHOUT REQUIRING FURTHER JUSTIFICATION. NEXT, COUNSEL QUESTIONS INTEGRITY'S JUSTIFICATION ON THE BASIS THAT TIDEWATER'S JUSTIFICATION FOR ITS INITAL 85-PERCENT PROPOSAL WAS REJECTED ALTHOUGH IT IS ASSERTED THAT ITS JUSTIFICATION WAS SUPERIOR TO THAT OF INTEGRITY. WE HAVE REVIEWED EACH OFFEROR'S JUSTIFICATION AND NOTE THE LACK OF SPECIFICITY VIS-A-VIS TIDEWATER'S APPROACH TO FURNISHING FEWER THAN 95 PERCENT OF THE GOVERNMENT'S ESTIMATED MAN-HOURS. TIDEWATER, IN ESSENCE, RELIES ON ITS ALLEGED SUPERIOR MANAGEMENT TO JUSTIFY ITS FIGURES. INTEGRITY, ON THE OTHER HAND, PROPOSED A DEFINITE PLAN WHICH DEMONSTRATED A REDUCED NEED FOR MANNING. AS SUCH, WE FEEL THAT NEITHER THE CONTRACTING OFFICER'S DETERMINATION TO REJECT TIDEWATER'S JUSTIFICATION NOR HIS DETERMINATION TO ACCEPT INTEGRITY'S JUSTIFICATION WAS UNREASONABLE. SEE 53 COMP. GEN., SUPRA; B-179041, OCTOBER 26, 1973.

SECTION B3(B) OF THE RFP STATES THAT:

*** MANNING CHARTS ARE REQUIRED IN ORDER TO FOSTER EVALUATION OF:

(I) THE OFFEROR'S UNDERSTANDING OF NAVY FOOD SERVICE OPERATIONS IN GENERAL AND OF THE SPECIFIC SERVICES REQUIRED; AND

(II) THE SOUNDNESS AND ACCEPTABILITY OF THE OFFEROR'S APPROACH TO PERFORMANCE OF THE SERVICES REQUIRED.

WE DO NOT FEEL THAT SUCH LANGUAGE LIMITS EVALUATION OF AN OFFEROR'S PROPOSED MAN-HOURS TO THE MANNING CHARTS WHICH ARE BUT ONE AID TO THE CONTRACTING OFFICER IN DETERMINING THE DEGREE TO WHICH AN OFFEROR UNDERSTANDS THE PROBLEM AND THE FEASIBILITY OF ITS PROPOSES APPROACH THERETO. ACCORDINGLY, THE CONTRACTING OFFICER COULD WITHIN THE TERMS OF THE RFP EXAMINE EXTRANEOUS MATERIAL, SUCH AS INTEGRITY'S LETTER, AT LEAST WITH REGARD TO THE ABOVE-NOTED CRITERIA.

INDEED, IN 53 COMP. GEN., SUPRA, WE NECESSARILY CONSTRUED THE RFP THERE INVOLVED AS REQUIRING THAT THE OFFEROR'S TOTAL MANNING LEVEL BE SUFFICIENT TO PERFORM THE REQUIRED SERVICES. THERE, WE DID NOT FEEL THAT IT WOULD BE PROPER TO CONSTRAIN AN OBVIOUSLY INGENIOUS PROPOSAL, SUCH AS INTEGRITY'S, BY REQUIRING THAT ONLY THE LEVELS INDICATED ON ITS MANNING CHARTS COULD BE EVALUATED. TRUE, BOTH RFP'S ASSUMED THAT AN OFFEROR'S MANNING LEVELS WILL BE TOTALLY REFLECTED, RATHER THAN PARTIALLY, IN ITS MANNING CHARTS. HOWEVER, WE DO NOT BELIEVE THAT THE SUBSTANCE OF THIS ASSUMPTION WAS INTENDED TO BE A CONDITION PRECEDENT TO EVALUATION OF THE TOTAL OFFER. ONCE A MANNING CHART IS EVALUATED VIS-A-VIS MANNING DISTRIBUTION, SO THAT THE OFFEROR'S MANAGEMENT APPROACH CAN BE ESTABLISHED FOR A REPRESENTATIVE DAY, THE CHARTS OFFER LITTLE MORE FOR EVALUATION PURPOSES. THE TOTAL MANNING FIGURES STATED THEREON, WHICH ARE TO BE USED IN THE SECTION "D" EVALUATION, MIGHT JUST AS WELL BE SEPARATELY LISTED, AS INTEGRITY DID IN ITS LETTER. ACCORDINGLY, WE THINK THE AGENCY PROPERLY EVALUATED INTEGRITY'S OFFERED MANNING LEVEL RATHER THAN ITS MANNING CHARTS PER SE UNDER SECTION "D" CRITERIA, ESPECIALLY SINCE THE MANNING CHARTS THEMSELVES WERE EVALUATED UNDER SECTION B3(B).

COUNSEL FOR THE PROTESTERS FURTHER CONTEND THAT WHEN AN OFFEROR, SUCH AS INTEGRITY, SUBMITS A SUBSTANTIATED PROPOSAL SUBSTANTIALLY BELOW THE 95- PERCENT MANNING LEVEL, THE GOVERNMENT ESTIMATE IS THEREFORE RENDERED DEFECTIVE BECAUSE IT DOES NOT ACCURATELY REFLECT THE SERVICES REQUIRED. CONSEQUENTLY, THE GOVERNMENT, IT IS ASSERTED, HAS THE OBLIGATION TO NOTIFY ALL OFFERORS THAT ITS REQUIREMENTS HAVE BEEN SUBSTANTIALLY CHANGED. THIS NOTIFICATION CAN BE ACCOMPLISHED BY MERELY REVISING THE GOVERNMENT ESTIMATE DOWNWARD. IF NO LESSENING OF THE REQUIREMENTS IS ACCOMPLISHED, THE CONTENTION IS MADE THAT THE GOVERNMENT HAS THEN NOT ALLOWED ALL OFFERORS THE SAME OPPORTUNITY TO COMPETE.

IN REGARD TO A SIMILAR SITUATION, WE STATED IN 53 COMP. GEN. 198, SUPRA, THAT:

IT IS CLEAR FROM THE LANGUAGE OF THE SOLICITATION THAT ANY PROPOSAL WHICH COULD LESSEN THE NUMBER OF MAN-HOURS REQUIRED AND THUS REDUCE THE TOTAL COST WAS DESIRABLE. HOWEVER, SHOULD ANY SUCH PROPOSAL HAVE EXHIBITED LOW MANNING LEVELS (THAT IS BELOW 5 PERCENT OF THE GOVERNMENT'S ESTIMATE), THE GOVERNMENT THEN REQUIRED THAT THE OFFEROR SUBSTANTIATE ITS CLAIM THAT THE JOB COULD BE ACCOMPLISHED AT THE NUMBER OF HOURS IT HAD OFFERED. THIS UNAMBIGUOUS PROVISION OF THE SOLICITATION ALLOWED ALL PARTICIPANTS THE SAME OPPORTUNITY TO SUBMIT OFFERS DEVIATING FROM THE GOVERNMENT ESTIMATE OF MAN-HOURS. ***.

THE CASES CITED BY COUNSEL FOR ABC IN SUPPORT OF ABC'S POSITION DEAL WITH SITUATIONS WHEREIN THE SAME EVALUATION FACTORS WERE EITHER NOT USED IN EVALUATING ALL OFFERS OR AN ESSENTIAL BASIS FOR EVALUATION OF PROPOSALS WAS NOT MADE KNOWN TO ALL OFFERORS. IN THE PRESENT CASE, WE ITERATE OUR POSITION OF 53 COMP. GEN. 198, WHEREIN WE SAID THAT NO OFFEROR WAS BOUND IRREVOCABLY TO THE GOVERNMENT ESTIMATE AND COULD INDEED HAVE OFFERED A LESS THAN 95-PERCENT MANNING LEVEL. WHERE THE GOVERNMENT'S ESTIMATE IS MADE IN GOOD FAITH, BUT CERTAIN OFFERORS INDICATE THAT THEY CAN PERFORM WITH SUBSTANTIALLY FEWER HOURS THAN THE GOVERNMENT HAS ESTIMATED, WE DO NOT BELIEVE THAT OTHER OFFERORS HAVE BEEN COMPETITIVELY DISADVANTAGED WHERE ALL OFFERORS HAD THE SAME OPPORTUNITY TO SUBMIT LOWER HOUR PROPOSALS, WITH THE KNOWLEDGE THAT THE FEWER HOURS PROPOSED COULD TRANSLATE INTO LOWER COSTS. UNLIKE THE SITUATION IN B-170324, APRIL 19, 1971, CITED BY COUNSEL FOR ABC, WE FEEL THAT THIS RFP CLEARLY IMPLIED THE "EVALUATION" FACTOR PRESENTLY COMPLAINED OF - THAT IT WAS DESIRABLE FOR OFFERORS TO PROPOSE FEWER HOURS IF THOSE HOURS COULD BE JUSTIFIED. THEREFORE, ALL OFFERORS WERE OR SHOULD HAVE BEEN AWARE OF ALL ELEMENTS UPON WHICH THEIR PROPOSALS WOULD BE EVALUATED.

AS NOTED ABOVE, HOWEVER, THE RFP CONTEMPLATED THAT AN OFFER WOULD BE PROPOSED IN THE FOLLOWING FORMAT: DEMONSTRATION OF THE HOURS TO BE UTILIZED ON 252 REPRESENTATIVE WEEKDAYS AND A FURTHER DEMONSTRATION OF THE NUMBER OF HOURS TO BE USED ON 113 REPRESENTATIVE WEEKEND/HOLIDAY DAYS. INTEGRITY PARTIALLY COMPLIED WITH THIS FORMAT IN NOTING THAT THE REPRESENTATIVE DAYS MANNING FIGURES WOULD BE USED A PORTION OF THE TIME, BUT THAT SPECIFIED LESSER FIGURES WOULD BE USED ON OTHER DAYS.

PARAGRAPH 3-805.1(A)(5) OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) STATES THAT:

*** WHEN THE PROPOSAL MOST ADVANTAGEOUS TO THE GOVERNMENT INVOLVES A MATERIAL DEPARTURE FROM THE STATED REQUIREMENTS, CONSIDERATION SHALL BE GIVEN TO OFFERING THE OTHER FIRMS WHICH SUBMITTED PROPOSALS AN OPPORTUNITY TO SUBMIT NEW PROPOSALS ON A TECHNICAL BASIS WHICH IS COMPARABLE TO THAT OF THE MOST ADVANTAGEOUS PROPOSAL ***.

THE OFFERING OF A LOW MANNING LEVEL (BELOW 95 PERCENT OF THE GOVERNMENT ESTIMATE) IS NOT A DEPARTURE FROM THE RFP REQUIREMENTS SINCE IT IS REASONABLY CONTEMPLATED BY THE RFP. SEE 53 COMP. GEN., SUPRA. HOWEVER, WHETHER OR NOT AN OFFER SUBMITTED IN A DIFFERENT FORMAT (HERE, A FURTHER BREAKDOWN OF VARIOUS DAYS OF THE WEEK FROM THAT WHICH THE GOVERNMENT HAD REASONABLY CONTEMPLATED) CONSTITUTES A DEPARTURE FROM THE RFP REQUIREMENTS IS A MORE DIFFICULT QUESTION.

AS WE CONSTRUE SECTION D1(2) OF THE RFP, IT SETS FORTH THE REQUIREMENT THAT THE OFFEROR'S PRICE SUPPORT ITS OFFERED HOURS FOR THE CONTRACT PERIOD; THAT IS, BASED ON A CONTRACT YEAR CONTAINING 252 WEEKDAYS AND 113 WEEKEND DAYS/HOLIDAYS. WE BELIEVE, AS SHOWN ABOVE, THAT INTEGRITY'S OFFERED PRICE DOES SUPPORT ITS 84-PERCENT MANNING FIGURE. HOWEVER, WE TAKE NOTE OF THE CONTENTION THAT IN REACHING THIS POSITION, INTEGRITY SHOULD BE HELD TO HAVE REDEFINED THE CONTRACT YEAR AND, FOR THAT REASON, DEVIATED FROM THE STATED REQUIREMENTS OF THE RFP.

THE REQUIRED CONTRACT YEAR AS STATED IN THE RFP IS AS FOLLOWS:

WEEKDAYS WEEKENDS/HOLIDAYS

252 113 (9 HOLIDAYS)

INTEGRITY'S CONTRACT YEAR IS:

WEEKDAYS WEEKENDS/HOLIDAYS

137 MONDAYS, TUESDAY, WEDNESDAYS, 52 SATURDAYS

THURSDAYS (REPRESENTATIVE WEEKDAY) 52 SUNDAYS (REPRESENTATIVE

WEEKEND/HOLIDAYS)

52 FRIDAYS 9 HOLIDAYS

26 PAYDAYS

37 DAYS RELATED TO PAYDAYS,

HOLIDAYS, AND DECEMBER

LEAVE PERIOD

252 113

SECTION B3(A) REQUIRED THE SUBMISSIONS OF ONE MANNING CHART FOR A REPRESENTATIVE WEEKDAY AND ONE FOR A REPRESENTATIVE WEEKEND/HOLIDAY, AS INTEGRITY DID. HOWEVER, WE DO NOT BELIEVE THAT THE RFP SHOULD BE CONSTRUED TO REQUIRE THAT THE CONTRACT YEAR CONSIST OF 252 REPRESENTATIVE WEEKDAYS AND 113 REPRESENTATIVE WEEKEND/HOLIDAYS EVEN THOUGH THE RFP CONTEMPLATED THAT THE MANNING CHARTS WOULD TOTALLY REFLECT THE NUMBER OF OFFERED HOURS. SUCH A RIGID CONSTRUCTION OF THE CONTRACT YEAR WOULD NOT HOWEVER ALLOW THE NAVY TO CONSIDER THE FACT THAT ON CERTAIN DAYS DURING THE YEAR MANPOWER LEVELS SIGNIFICANTLY VARIANT FROM THOSE NEEDED ON REPRESENTATIVE DAYS WOULD BE REQUIRED. THE RFP, WE BELIEVE, REQUIRES THAT THE OFFERORS FASHION THEIR PROPOSALS AROUND A YEAR CONSISTING OF NINE HOLIDAYS, 104 WEEKEND DAYS AND 252 WEEKDAYS.

THE FACT THAT THE GOVERNMENT HAS HAPPENED TO ESTABLISH ITS TOTAL MAN HOUR NEED, RELATIVE TO SECTION D1(A), AND CONSEQUENTLY THE 95-PERCENT MANNING LEVEL CUTOFF POINT, BY MULTIPLYING ITS ESTIMATED MAN-HOUR FIGURE FOR A REPRESENTATIVE WEEKDAY BY 252 AND ITS ESTIMATED HOUR FIGURE FOR A REPRESENTATIVE WEEKEND/HOLIDAY TIMES 113, DOES NOT MAKE THE USE OF A RIGIDLY DEFINED CONTRACT YEAR AN ABSOLUTE REQUIREMENT. INDEED, THE RFP DOES NOT REQUIRE SUCH A RIGID DEFINITION AND THE "MULTIPLICATION" METHOD ADOPTED BY THE GOVERNMENT TO ESTABLISH TOTAL NEED PROVIDES ONLY AN INITIAL "GUIDE" TO THE AGENCY'S OVERALL MAN-HOUR REQUIREMENT. MOREOVER, EACH OFFEROR HAS THE OPPORTUNITY TO DEMONSTRATE IN ITS JUSTIFICATION OF ITS SUB -95-PERCENT OFFER ANY DISCREPANCY IN THIS "GUIDE" OVER AND ABOVE THE 5- PERCENT DISCREPANCY FACTOR ALREADY PROVIDED. THIS IS PRECISELY WHAT INTEGRITY DID BOTH IN THIS PROCUREMENT AND IN 53 COMP. GEN., SUPRA.

INTEGRITY WAS ABLE TO SHOW THAT THE AGENCY'S INDIVIDUAL REPRESENTATIVE DAY ESTIMATES WERE CREDIBLE BUT THAT ADEQUATE PERFORMANCE COULD BE ASSURED WITHIN THE TESTS SET OUT IN THE RFP AT A TOTAL LEVEL MORE THAN 5 PERCENT BELOW THAT LEVEL USED BY THE AGENCY AS A GUIDE. IN THIS SENSE, INTEGRITY HAS PROVEN THE REASONABLENESS OF THE AGENCY'S REPRESENTATIVE DAILY ESTIMATE BUT THE GROSSNESS OF CONVERTING THIS DAILY ESTIMATE INTO AN ANNUAL ESTIMATE BY USING THE RIGID DEFINITION OF CONTRACT YEAR (252 REPRESENTATIVE WEEKDAYS - 113 REPRESENTATIVE WEEKEND/HOLIDAYS). THE USE OF SUCH A RIGID DEFINITION AS AN RFP REQUIREMENT IN EVALUATING OFFERS WOULD LEAD TO EQUALLY GROSS RESULTS AND, FOR THIS REASON AS WELL, READING THE RFP AS A WHOLE WE CANNOT CONSTRUE THE RFP SO AS TO MANDATE SUCH A DEFINITION.

ACCORDINGLY, THE PROTESTS ARE DENIED.

WE HAVE BEEN INFORMALLY ADVISED BY THE NAVY THAT IT IS IN THE PROCESS OF REVISING ITS STANDARD SOLICITATIONS FOR MESS ATTENDANT SERVICES SO AS TO POSSIBLY REDUCE THE GREAT NUMBER OF PROTESTS THAT THESE SOLICITATIONS HAVE ENCOUNTERED. WE SUGGEST THAT THE NAVY SERIOUSLY CONSIDER FORMALLY ADVERTISING ALL FUTURE PROCUREMENTS FOR MESS ATTENDANT SERVICES.

IN MAKING THIS SUGGESTION, WE NOTE THE NAVY'S ARGUMENTS RELATIVE TO THE PROBLEM OF ADEQUATELY DEFINING THE QUANTITY OF SERVICES REQUIRED. HOWEVER, THE PROBLEM OF TASK DEFINITIONS IS NOT UNIQUE TO THE NAVY AND MUST SURELY EXIST WITH RESPECT TO SIMILAR ARMY AND AIR FORCE PROCUREMENTS; YET, BOTH OF THESE SERVICES PRESENTLY FORMALLY ADVERTISE FOR MESS ATTENDANT SERVICES ESSENTIALLY ON AN ESTIMATED NUMBER OF MEALS BASIS. WITH ADEQUATE INVESTIGATION AND PLANNING, WE SEE NO REASON WHY THE NAVY CANNOT DO SO AS WELL.