B-179126, FEB 12, 1974

B-179126: Feb 12, 1974

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OFFEROR UNDER RFP FOR MESS ATTENDANT SERVICES WHO HAD BEEN INITIALLY DETERMINED TO BE IN COMPETITIVE RANGE AND SUBSEQUENTLY SUBMITTED BEST AND FINAL OFFER THAT FELL BELOW EVALUATION CRITERIA BASED ON "MINIMUM POSSIBLE" PER HOUR COSTS MAY BE EXCLUDED FROM FURTHER CONSIDERATION AS PROPOSAL IS NO LONGER WITHIN ACCEPTABLE RANGE. FURTHER DISCUSSIONS WITH OFFEROR WERE NOT REQUIRED. WHILE TELEPHONIC DISCUSSIONS WITH OFFEROR MAY HAVE BEEN BRIEF AND GENERAL IN NATURE. THIS DID NOT ABUSE ADMINISTRATIVE DISCRETION AS TO NATURE AND CONTENT OF DISCUSSIONS SINCE WRITTEN COMMUNICATION WITH OFFEROR WAS SUFFICIENT TO CONSTITUTE "DISCUSSIONS" UNDER 10 U.S.C. 2304(G). SINCE AWARD WAS URGENT TO PERMIT CONTRACTOR TO TAKE OVER OPERATIONS OF EXPIRING CONTRACT.

B-179126, FEB 12, 1974

1. OFFEROR UNDER RFP FOR MESS ATTENDANT SERVICES WHO HAD BEEN INITIALLY DETERMINED TO BE IN COMPETITIVE RANGE AND SUBSEQUENTLY SUBMITTED BEST AND FINAL OFFER THAT FELL BELOW EVALUATION CRITERIA BASED ON "MINIMUM POSSIBLE" PER HOUR COSTS MAY BE EXCLUDED FROM FURTHER CONSIDERATION AS PROPOSAL IS NO LONGER WITHIN ACCEPTABLE RANGE. THEREFORE, FURTHER DISCUSSIONS WITH OFFEROR WERE NOT REQUIRED. SEE COMP. GEN. DECISIONS CITED. 2. WHILE TELEPHONIC DISCUSSIONS WITH OFFEROR MAY HAVE BEEN BRIEF AND GENERAL IN NATURE, THIS DID NOT ABUSE ADMINISTRATIVE DISCRETION AS TO NATURE AND CONTENT OF DISCUSSIONS SINCE WRITTEN COMMUNICATION WITH OFFEROR WAS SUFFICIENT TO CONSTITUTE "DISCUSSIONS" UNDER 10 U.S.C. 2304(G). COMP. GEN. 161 (1972). 3. SINCE AWARD WAS URGENT TO PERMIT CONTRACTOR TO TAKE OVER OPERATIONS OF EXPIRING CONTRACT, PROCURING ACTIVITY WAS NOT REQUIRED TO FOLLOW 5-DAY NOTIFICATION RULE TO ENABLE UNSUCCESSFUL OFFERORS TO FILE SIZE PROTESTS CONCERNING SMALL BUSINESS STATUS AS PROVIDED IN ASPR 1 703(B)(1), IN VIEW OF EXCEPTION IN ASPR 3-508.2(B).

TO AMERICAN MAINTENANCE AND MANAGEMENT SERVICES, INC.:

BY LETTER OF OCTOBER 1, 1973, AND PRIOR CORRESPONDENCE, AMERICAN MAINTENANCE AND MANAGEMENT SERVICES, INCORPORATED (AMERICAN MAINTENANCE), PROTESTED THE AWARD OF A CONTRACT TO ANOTHER FIRM UNDER REQUEST FOR PROPOSALS (RFP) NO. N00123-73-R-1865, ISSUED ON APRIL 13, 1973, BY THE NAVAL REGIONAL PROCUREMENT OFFICE, LOS ANGELES, CALIFORNIA (NRPOLA), FOR FURNISHING NECESSARY LABOR AND MATERIALS TO PERFORM MESS ATTENDANT SERVICES IN BUILDING 436 AT THE NAVAL AIR FACILITY, EL CENTRO, CALIFORNIA. FOR THE REASONS STATED BELOW AMERICAN MAINTENANCE'S PROTEST IS DENIED.

THE SPECIFICATIONS ADVISED OFFERORS THAT IT WAS ESTIMATED THAT 6,500 MEALS PER MONTH WOULD BE SERVED. THE SPECIFICATIONS ALSO PROVIDED INFORMATION AS TO THE HOURS DURING WHICH MEALS WOULD BE SERVED; THE DIFFERENT SPACES THAT WERE INCLUDED; THE TYPES OF EQUIPMENT TO BE USED AND CLEANED; AND A CLEANING PROGRAM FOR THE VARIOUS SPACES. OFFERORS WERE ADVISED THAT THE SPECIFICATIONS REQUIRED EVERYTHING THAT WAS NECESSARY TO CARRY OUT THE INTENT OF THE CONTRACT.

SECTION E OF THE SOLICITATION REQUESTED A FIXED MONTHLY PRICE FOR THE MESSING SERVICES. THE SOLICITATION ALSO PROVIDED THAT THERE WAS A REQUIREMENT FOR THE SUBMISSION OF MANNING CHARTS SHOWING THE NUMBER OF PERSONNEL PROPOSED FOR BOTH WEEKDAYS AND WEEKEND DAYS. OFFERORS WERE ADVISED THAT THE MANNING CHARTS WERE REQUIRED TO FOSTER EVALUATION OF THE OFFEROR'S UNDERSTANDING OF THE NAVY'S FOOD SERVICE OPERATIONS IN GENERAL, OF THE SPECIFIC SERVICES REQUIRED, AND THE SOUNDNESS AND ACCEPTABILITY OF THE OFFERORS' APPROACH. OFFERORS WERE FURTHER ADVISED THAT THE MANNING CHARTS WOULD BE EVALUATED IN ACCORDANCE WITH THE CRITERIA SET FORTH IN SECTION D, ENTITLED "EVALUATION OF OFFERORS' MANNING CHARTS AND PRICES", WHICH PROVIDED AS FOLLOWS:

"(A) THE MANNING LEVELS REFLECTED IN THE OFFEROR'S MANNING CHARTS MUST BE SUFFICIENT TO PERFORM THE REQUIRED SERVICES. FOR THE PURPOSE OF EVALUATING PROPOSALS AND ESTABLISHING A COMPETITIVE RANGE FOR THE CONDUCT OF NEGOTIATIONS, THE GOVERNMENT ESTIMATES THAT SATISFACTORY PERFORMANCE WILL REQUIRE TOTAL MANNING HOURS (INCLUDING MANAGEMENT/SUPERVISION) OF APPROXIMATELY 77 ON A REPRESENTATIVE WEEKDAY AND APPROXIMATELY 61 ON A REPRESENTATIVE WEEKEND DAY/HOLIDAY. SUBMISSION OF MANNING CHARTS WHOSE TOTAL HOURS FALL MORE THAN 5% 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.

"(B) FURTHER EVALUATION OF THE OFFERORS' MANNING CHARTS WILL BE BASED ON THE FOLLOWING CRITERIA:

"(1) THE MANNING DISTRIBUTION IN SPACE/JOB CATEGORIES PRIOR TO, DURING, AND AFTER MEAL HOURS AND AT PEAK PERIODS MUST REPRESENT AN EFFECTIVE, WELL PLANNED MANAGEMENT APPROACH TO THE EFFICIENT UTILIZATION OF MANPOWER RESOURCES IN PERFORMING THE SERVICES REQUIRED; AND

"(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 5.85%

"(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."

THE CLOSING DATE FOR RECEIPT OF PROPOSALS WAS MAY 7, 1973, AND 12 PROPOSALS WERE RECEIVED ON THAT DATE. ON MAY 29, 1973, NRPOLA WAS ADVISED BY THE DEPARTMENT OF LABOR OF THE WAGE DETERMINATION APPLICABLE TO THE PROCUREMENT AND OFFERORS WERE NOTIFIED AND REQUESTED TO REVISE THEIR OFFERS BY JUNE 1, 1973. UPON RECEIPT OF THESE REVISED OFFERS, THE MANNING CHARTS WERE FORWARDED TO THE REQUIRING ACTIVITY FOR TECHNICAL EVALUATION AND TO DETERMINE WHETHER THE CHARTS WERE IN AN ACCEPTABLE, UNACCEPTABLE OR MARGINAL CATEGORY. ON THE BASIS OF THIS TECHNICAL EVALUATION IT WAS DETERMINED THAT THE MANNING CHART OF ONE OF THE OFFERORS WAS UNACCEPTABLE SINCE THE CHART WAS MORE THAN 5 PERCENT BELOW THE GOVERNMENT'S ESTIMATE OF THE "MINIMUM NUMBER OF MANHOURS REQUIRED" AND DID NOT THEREFORE MEET THE CRITERIA OF SECTION DA). ONE OTHER PROPOSAL WAS REJECTED AS UNTIMELY.

THE REMAINING PROPOSALS WERE THEN EVALUATED IN ACCORDANCE WITH THE CRITERIA IN SUBPARAGRAPH (B) OF SECTION D TO DETERMINE WHETHER THE HOURS SHOWN IN THE MANNING CHARTS WERE SUPPORTED BY THE PRICES OFFERED. FOR THE PURPOSE OF MAKING THIS DETERMINATION THE NAVY COMPUTED THE "MINIMUM POSSIBLE" HOURLY COSTS FOR EACH OFFEROR BASED ON THE BASIC HOURLY WAGE ($2.73), PLUS THE HEALTH AND WELFARE BENEFITS ($0.12), DERIVED FROM THE DEPARTMENT OF LABOR'S WAGE DETERMINATION THAT WAS A PART OF THE SOLICITATION; THE FICA RATE AS STATED IN THE SOLICITATION; AND THE UNEMPLOYMENT INSURANCE COMPENSATION RATE AND THE WORKMEN'S COMPENSATION INSURANCE RATE SUBMITTED BY EACH OFFEROR AS REQUESTED BY THE RFP. THE CONTRACTING OFFICER REPORTS THAT VACATION AND HOLIDAY EXPENSE WAS NOT INCLUDED IN THE OFFERORS'"MINIMUM POSSIBLE" HOURLY COSTS BECAUSE OF THE DIFFICULTY INVOLVED IN ACCURATELY ESTIMATING SUCH EXPENSE. THE NAVY ALSO COMPUTED THE AVERAGE DOLLAR PER HOUR PRICE FOR EACH OFFEROR BY DIVIDING THE TOTAL HOURS INTO THE TOTAL PRICE, WHICH WAS COMPARED TO THE OFFERORS' "MINIMUM POSSIBLE" AVERAGE COST. ON THE BASIS OF THIS COMPARISON ONE PROPOSAL WAS REJECTED AS OUTSIDE THE COMPETITIVE RANGE SINCE THE AVERAGE PER HOUR PRICE WAS FOUND TO BE LESS THAN THE "MINIMUM POSSIBLE" AVERAGE PRICE. AMERICAN MAINTENANCE'S PROPOSAL OFFERED 26,014.5 HOURS AT A TOTAL PRICE OF $91,574.97, OR AN AVERAGE DOLLAR PER HOUR PRICE OF $3.520. THIS WAS COMPARED TO AMERICAN MAINTENANCE'S "MINIMUM POSSIBLE" DOLLAR PER HOUR COST OF $3.221, AND ITS PROPOSAL WAS DETERMINED TO BE WITHIN THE COMPETITIVE RANGE. FOUR OTHER PROPOSALS WERE ALSO DETERMINED TO BE WITHIN THE COMPETITIVE RANGE.

THE CONTRACTING OFFICER REPORTS THAT ON JUNE 15, 1973, DISCUSSIONS WERE CONDUCTED BY TELEPHONE WITH AMERICAN MAINTENANCE AND THE OTHER OFFERORS IN THE COMPETITIVE RANGE. ON THE SAME DATE A LETTER WAS SENT TO THE OFFERORS REQUESTING BEST AND FINAL OFFERS BY JUNE 22, 1973. THE FINAL PARAGRAPH OF THAT LETTER STATED AS FOLLOWS:

"AS EMPHASIZED DURING NEGOTIATION, THE GOVERNMENT INVITES YOUR ATTENTION TO THE EVALUATION FACTORS SET FORTH IN SECTION D OF THE RFP. THESE FACTORS PERTAIN TO MINIMUM HOUR REQUIREMENTS AS WELL AS PRICE SUPPORT OF THE OFFEROR'S MANNING CHART. FAILURE TO MEET THE CRITERIA SET FORTH IN SECTION D OF THE RFP MAY RESULT IN REJECTION OF THE OFFEROR'S PROPOSAL."

BEFORE EVALUATING THE REVISED PROPOSALS, A 5 PERCENT FACTOR REPRESENTING VACATION AND HOLIDAY PAY WAS USED IN COMPUTING A NEW "MINIMUM POSSIBLE" AVERAGE HOURLY COST FOR EACH OFFEROR. THE PROPOSAL SUBMITTED BY AMERICAN MAINTENANCE AS ITS BEST AND FINAL OFFER WAS BASED ON 26,644.5 TOTAL HOURS AT A TOTAL NET PRICE OF $83,741.19. THE AVERAGE DOLLAR PER HOUR PRICE OF AMERICAN MAINTENANCE'S PROPOSAL WAS $3.1429, WHICH WAS COMPARED TO THE NAVY'S COMPUTATION OF THE NEW "MINIMUM POSSIBLE" AVERAGE HOURLY COST FOR THAT FIRM AT $3.364. SINCE AMERICAN MAINTENANCE'S AVERAGE DOLLAR PER HOUR PRICE WAS LESS THAN THE "MINIMUM POSSIBLE" AVERAGE COST, IT WAS DETERMINED THAT AMERICAN MAINTENANCE'S PROPOSAL DID NOT MEET THE AWARD CRITERIA IN SECTION D OF THE SOLICITATION AND ITS PROPOSAL WAS REJECTED. ALTHOUGH A 5 PERCENT FACTOR FOR VACATION AND HOLIDAY PAY WAS INCLUDED IN COMPUTING THE NEW "MINIMUM POSSIBLE" HOURLY COST FOR AMERICAN MAINTENANCE AS WELL AS THE OTHER OFFERORS, THE REJECTION OF THAT PROPOSAL DID NOT TURN ON THE INCLUSION OF THESE EXPENSES IN THE EVALUATION SINCE THAT FIRM'S REVISED PROPOSAL WAS STILL BELOW THE INITIAL "MINIMUM POSSIBLE" AVERAGE DOLLAR PER HOUR COST OF $3.221 FOR THAT FIRM. WHILE THE APPLICATION OF THE FACTOR FOR VACATION AND HOLIDAY PAY WAS NOT MANDATORY UNDER THE RFP IN COMPUTING THE BASIC LABOR EXPENSES, WE THINK SOME REALISTIC FIGURE REPRESENTING THESE EXPENSES SHOULD HAVE BEEN APPLIED AND SHOULD ALSO HAVE BEEN STATED IN THE RFP TO ADVISE OFFERORS THEREOF. HOWEVER, WE DO NOT CONSIDER THIS TO AFFECT THE VALIDITY OF THE AWARD MADE. TWO OTHER PROPOSALS WITH PRICES LOWER THAN AMERICAN MAINTENANCE WERE ALSO REJECTED FOR FAILING TO MEET THE CRITERIA IN SECTION DB)(2). THE PROPOSAL FROM JETS SERVICES, INCORPORATED, WHICH OFFERED A NET PRICE OF $84,024 WITH 25,076 TOTAL HOURS WAS DETERMINED TO BE THE LOWEST OFFER WHICH MET THE CRITERIA OF SECTION D. JET SERVICES WAS NOTIFIED OF THE AWARD ON JUNE 26, 1973, AND ON JUNE 29, 1973, AMERICAN MAINTENANCE AND THE OTHER UNSUCCESSFUL OFFERORS WERE ADVISED OF THE AWARD.

BY TELEGRAM OF JULY 5, 1973, TO THE NAVY, AMERICAN MAINTENANCE PROTESTED THE AWARD TO JET SERVICES. BY LETTER OF JULY 6, 1973, AMERICAN MAINTENANCE ASSERTED THAT IT HAD OFFERED THE LOWEST OVERALL PRICE AND FURNISHED THE DATA ON WHICH IT COMPUTED ITS PRICE AND TOTAL HOURS. TELEGRAM OF JULY 9, 1973, AMERICAN MAINTENANCE PROTESTED TO OUR OFFICE, CONTENDING THAT IT WAS NEVER ADVISED THAT IT WAS NOT IN A "NEGOTIATING RANGE"; THAT NEGOTIATIONS WERE NEVER CONDUCTED WITH THAT FIRM; AND THAT THE AWARD TO JET SERVICES ON JUNE 29, 1973, WITH PERFORMANCE TO COMMENCE ON JULY 1, 1973, DID NOT ALLOW ANY TIME FOR SMALL BUSINESS SIZE STANDARD PROTESTS.

IN THE LETTER OF OCTOBER 1, 1973, COMMENTING ON THE ADMINISTRATIVE REPORT, AMERICAN MAINTENANCE POINTS OUT THAT THE SUBSTANCE OF THE NEGOTIATIONS ON JUNE 15, 1973, WAS ADVICE FROM THE NAVY NEGOTIATOR TO "TAKE A LOOK AT YOUR MAN-HOUR DISTRIBUTION; CHECK YOUR TOTALS; AND GIVE US YOUR BEST AND FINAL OFFER BY FRIDAY NEXT WEEK." AMERICAN MAINTENANCE URGES THAT THIS IS NOT SUFFICIENT TO CONSTITUTE NEGOTIATIONS. IT POINTS OUT THAT IF IT HAD BEEN "BRIEFED" ABOUT THE "PRICE TO HOUR IMBALANCE" IN ITS PROPOSAL, IT COULD HAVE REVISED ITS PROPOSAL.

IN 52 COMP. GEN. 161, 164-165 (1972), WE STATED THAT NO INFLEXIBLE RULE COULD BE USED TO DETERMINE COMPLIANCE WITH THE REQUIREMENT OF 10 U.S.C. 2304(G) FOR WRITTEN OR ORAL DISCUSSIONS IN NEGOTIATED PROCUREMENTS. POINTED OUT THAT THE CONTENT AND EXTENT OF DISCUSSIONS NEEDED TO SATISFY THE REQUIREMENT OF 10 U.S.C. 2304(G) IS A MATTER OF JUDGMENT FOR DETERMINATION BY THE PROCURING AGENCY ON THE BASIS OF THE PARTICULAR FACTS OF EACH CASE AND NOT SUBJECT TO QUESTION BY OUR OFFICE UNLESS CLEARLY ARBITRARY, PROVIDED THAT THE DISCUSSIONS HELD DO NOT OPERATE TO THE BIAS OR PREJUDICE OF ANY COMPETITOR.

THE "NEGOTIATIONS" IN THE INSTANT CASE CONSISTED OF THE TELEPHONE CONVERSATION REFERRED TO ABOVE AND THE CONFIRMING LETTER OF THE SAME DATE. AS AMERICAN MAINTENANCE POINTS OUT, THE TELEPHONE CONVERSATION INCLUDED REFERENCE TO ITS MAN-HOUR DISTRIBUTION. MORE IMPORTANTLY, THE LETTER SPECIFICALLY CALLED ATTENTION TO THE SECTION D FACTORS RELATIVE TO MINIMUM HOUR REQUIREMENTS AND PRICE SUPPORT OF THE MANNING CHART AND, FURTHER, ADMONISHED THAT FAILURE TO MEET SUCH CRITERIA "MAY RESULT IN REJECTION OF THE OFFEROR'S PROPOSAL." SINCE AMERICAN MAINTENANCE WAS ALREADY ON NOTICE AS TO THE EFFECT OF A DEFICIENCY IN THE MAN-HOURS TO PRICE RATIO AND SINCE THE CONTRACTING OFFICER COULD NOT BE EXPECTED TO ANTICIPATE THE REVISIONS THAT AMERICAN MAINTENANCE MIGHT MAKE TO ITS BEST AND FINAL OFFER, WE DO NOT BELIEVE THE CONTRACTING OFFICER WAS REQUIRED TO POINT OUT DURING THE JUNE 15 DISCUSSIONS WITH AMERICAN MAINTENANCE THAT ITS BEST AND FINAL OFFER MUST ALSO MEET THE PRICE TO MAN-HOURS CRITERIA. MOREOVER, THE CONTRACTING OFFICER WAS UNDER NO DUTY TO REOPEN THE NEGOTIATIONS FOR THE PURPOSE OF DISCUSSING THE MAN HOURS TO PRICE RATIO IN AMERICAN MAINTENANCE'S BEST AND FINAL OFFER. IN THIS CONNECTION, WE HAVE HELD THAT THE MERE FACT THAT AN OFFEROR IS INITIALLY DETERMINED TO BE WITHIN THE COMPETITIVE RANGE FOR THE PURPOSE OF NEGOTIATIONS DOES NOT PREVENT THE CONTRACTING OFFICER FROM SUBSEQUENTLY EXCLUDING THAT OFFEROR FROM FURTHER CONSIDERATION WHERE ITS REVISED PROPOSAL IS DETERMINED TO BE OUTSIDE THE COMPETITIVE RANGE. 52 COMP. GEN. 198, 208 (1972); B-179089, DECEMBER 28, 1973. THEREFORE WE FIND THAT AMERICAN MAINTENANCE'S REVISED PROPOSAL WAS PROPERLY REJECTED FOR FAILING TO COMPLY WITH THE CRITERIA IN SECTION DB)(2). AMERICAN MAINTENANCE'S CONTENTION THAT IT DID NOT HAVE THE OPPORTUNITY TO PROTEST THE SIZE STATUS OF JETS SERVICES IS APPARENTLY BASED ON ARMED SERVICES PROCUREMENT REGULATION (ASPR) 1-703(B)(1), WHICH PROVIDES IN PERTINENT PART AS FOLLOWS:

"***IN PROCUREMENTS REQUIRING THE SUBMISSION OF PROPOSALS, THE CONTRACTING OFFICER SHALL, EXCEPT UNDER THE CIRCUMSTANCES SPECIFIED IN 3- 508.2(B), NOTIFY THE APPARENTLY UNSUCCESSFUL OFFERORS IN WRITING OF THE NAME AND LOCATION OF THE APPARENTLY SUCCESSFUL OFFERORS) AND ESTABLISH A DEADLINE DATE (AT LEAST FIVE WORKING DAYS PLUS A REASONABLE TIME FOR THE NOTICE TO REACH THE UNSUCCESSFUL OFFERORS) BY WHICH ANY SIZE PROTEST ON THE INSTANT PROCUREMENT MUST BE RECEIVED."

HOWEVER, ASPR 3-508.2(B) PROVIDES THAT THE NOTIFICATION PROCEDURE SHALL NOT APPLY TO ANY URGENT PROCUREMENT ACTION.

THE CONTRACTING OFFICER NOTES THAT BEST AND FINAL OFFERS WERE NOT SUBMITTED UNTIL JUNE 22, 1973; THAT THE DETERMINATION OF THE SUCCESSFUL OFFEROR WAS NOT MADE UNTIL JUNE 25, 1973; AND THAT AN AWARD HAD TO BE MADE IMMEDIATELY IN ORDER THAT THE SUCCESSFUL CONTRACTOR COULD MAKE THE ARRANGEMENTS TO TAKE OVER THE OPERATION OF THE THEN CURRENT CONTRACT ON JULY 1, 1973. THIS PROCUREMENT, THEREFORE, WOULD, IN OUR OPINION FALL WITHIN THE EXCEPTION IN ASPR 3-508.2(B). IN ANY EVENT, WE NOTE THAT THE FILE INDICATES THAT THE SMALL BUSINESS ADMINISTRATION'S (SBA'S) DISTRICT OFFICE, JACKSONVILLE, FLORIDA, DETERMINED ON JUNE 5, 1973, APPARENTLY IN CONNECTION WITH ANOTHER PROCUREMENT HAVING THE SAME SIZE STANDARDS, THAT JET SERVICES WAS SMALL BUSINESS AND THIS DETERMINATION WAS UPHELD ON APPEAL.

ACCORDINGLY, THERE IS NO BASIS FOR OUR OFFICE TO DISTURB THE AWARD.