B-180404, MAY 17, 1974

B-180404, MAY 17, 1974

1. OFFEROR'S PROPOSAL ON RFP FOR MESS ATTENDANT SERVICES WAS NOT IMPROPERLY ACCEPTED INTO COMPETITIVE RANGE, SINCE, CONTRARY TO PROTESTER'S ALLEGATION, OFFEROR SUBMITTED ONLY A SINGLE OFFER WHICH COMPLIED WITH RFP CRITERIA FOR EVALUATION. 2. WHERE RFP FOR MESS ATTENDANTS CLEARLY IMPLIES THAT CONTRACT PERIOD WILL CONTAIN 125 WEEKDAYS AND 55 WEEKEND/HOLIDAYS, AND SUCCESSFUL OFFEROR'S PROPOSAL WAS BASED ON ITS FURTHER BREAKDOWN OF THESE CATEGORIES INTO SEVEN SUBCATEGORIES, AWARD IS NOT IMPROPER SINCE, AS STATED IN 53 COMP. GEN. (B-178955, MARCH 11, 1974), UTILIZATION OF SUBCATEGORIES WAS AN ACCEPTABLE MEANS FOR ANY OFFEROR TO JUSTIFY AS REQUIRED BY RFP ITS USE OF LESS THAN 95 PERCENT OF GOVERNMENT'S TOTAL ANNUAL ESTIMATE. 3. ALLEGATION THAT SUCCESSFUL OFFEROR'S BEST AND FINAL OFFER WAS LATE IS IRRELEVANT SINCE OFFEROR'S PRIOR OFFER WOULD HAVE BEEN SUCCESSFUL AND, THEREFORE, "LATE" MODIFICATION IMPROVING THE OFFER TO GOVERNMENT COULD HAVE BEEN ACCEPTED IN ANY EVENT. 4. DESPITE ALLEGATIONS REGARDING STATEMENTS MADE BY CONTRACTING OFFICIALS, SINCE LANGUAGE OF RFP FOR MESS ATTENDANT SERVICES CLEARLY PERMITTED, AND EVEN ENCOURAGED, OFFERS OF LESS THAN 95 PERCENT OF GOVERNMENT ESTIMATES (IF THEY COULD BE JUSTIFIED), ALL OFFERORS SHOULD HAVE RECOGNIZED THAT SUB-95-PERCENT OFFERS WHICH COULD BE JUSTIFIED WOULD BE ACCEPTABLE.

TO ABC FOOD SERVICE, INC.:

ON NOVEMBER 8, 1973, THE NAVAL REGIONAL PROCUREMENT OFFICE (NRPO), OAKLAND, CALIFORNIA, ISSUED REQUEST FOR PROPOSALS (RFP) N66314-74-R 2253 TO PROVIDE MESS ATTENDANT SERVICES AT THE UNITED STATES NAVAL AIR STATION, MOFFETT FIELD, CALIFORNIA, FOR THE PERIOD OF JANUARY 2 THROUGH JUNE 30, 1974.

UPON INITIAL RECEIPT OF PROPOSALS, 10 FIRMS, INCLUDING ABC FOOD SERVICE, INC. (ABC), AND INTEGRITY MANAGEMENT INTERNATIONAL, INC. (INTEGRITY), WERE CONSIDERED TO BE WITHIN THE COMPETITIVE RANGE. INTEGRITY INITIALLY PROPOSED ON OFFER "A" 18,068 MAN-HOURS FOR THE TOTAL CONTRACT PERIOD AND A PRICE OF $71,107.80.

SECTION D1 (AS IT RELATES TO OFFER "A") PROVIDES:

"(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 (130) ON A REPRESENTATIVE WEEKDAY AND APPROXIMATELY (106) 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."

INTEGRITY SUBMITTED MANNING CHARTS WHICH INDICATED 123.5 AND 101 MAN HOURS FOR A REPRESENTATIVE WEEKDAY AND WEEKEND, RESPECTIVELY. THESE FIGURES WERE 95.06 PERCENT AND 95.28 PERCENT OF THE GOVERNMENT'S RESPECTIVE ESTIMATES. HOWEVER, AS IT HAD DONE ON PREVIOUS SOLICITATIONS, SEE 53 COMP. GEN. 198 (B-178707, OCTOBER 2, 1973); ID. (B-178955, MARCH 11, 1974), INTEGRITY ALSO SUBMITTED A BREAKDOWN OF THE VARIOUS DAYS IN THE CONTRACT PERIOD INTO SEVEN CATEGORIES. INTEGRITY DEMONSTRATED AS WELL THAT ON CERTAIN DAYS FEWER MAN-HOURS THAN THE GOVERNMENT'S REPRESENTATIVE DAY TOTAL WOULD BE REQUIRED. FURTHER, INTEGRITY IN ITS BEST AND FINAL OFFER PROPOSED 19,325 MAN-HOURS FOR THE CONTRACT PERIOD. THE GOVERNMENT ESTIMATE FOR THE CONTRACT PERIOD (JANUARY 2 THROUGH JUNE 30) WAS 22,080 MAN-HOURS BASED ON 125 WEEKDAYS OF 132 MAN-HOURS EACH AND 55 WEEKEND DAYS/HOLIDAYS OF 106 MAN-HOURS EACH. INTEGRITY'S BEST AND FINAL OFFER WAS THUS 87.52 PERCENT OF THE GOVERNMENT'S TOTAL ESTIMATE: (19,325 87.52%).

(22,080

FURTHERMORE, INTEGRITY'S BREAKDOWN OF THE DAYS IN THE CONTRACT PERIOD ON THE BASIS OF MESS HALL UTILIZATION WAS ACCEPTED BY THE CONTRACTING OFFICER AS THE JUSTIFICATION REQUIRED BY THE RFP TO DEMONSTRATE THAT SATISFACTORY SERVICE COULD BE ACCOMPLISHED WITH LESS THAN 95 PERCENT OF THE GOVERNMENT'S ESTIMATE. (OUR OFFICE HAS PREVIOUSLY CONCURRED IN ACCEPTING SUCH JUSTIFICATION. SEE B-178707, SUPRA; B-178955, SUPRA.)

COUNSEL FOR ABC CONTENDS THAT: (1) INTEGRITY'S INITIAL PROPOSAL, WHICH HE ASSERTS DID NOT MEET THE SECTION "D" CRITERIA, SHOULD NOT HAVE BEEN ALLOWED INTO THE COMPETITIVE RANGE; (2) THE CONTRACTING OFFICER ACTED IMPROPERLY IN ACCEPTING AN OFFER SUCH AS INTEGRITY'S IN SOME OTHER FORMAT WHICH DOES NOT CONTAIN THE CHECKS AND SAFEGUARDS OF SECTION "D" OF THE RFP; (3) THE CONTRACTING OFFICER ALLOWED INTEGRITY TO PROPOSE TWO SETS OF HOURS, ONE BASED SOLELY ON THE MANNING CHARTS (WHEREBY INTEGRITY'S OFFER FAILED THE DOLLAR/HOUR RATIO TEST OF SECTION "D") AND ANOTHER APPROXIMATELY 18 PERCENT BELOW THE GOVERNMENT ESTIMATE, ALLEGEDLY LACKING THE DETAILED JUSTIFICATION REQUIRED BY THE RFP; (4) THE RFP LISTED ONLY TWO CATEGORIES OF DAYS (REPRESENTATIVE WEEKDAYS AND REPRESENTATIVE WEEKEND DAYS), YET THE GOVERNMENT ACCEPTED INTEGRITY'S PROPOSAL ON THE BASIS OF INTEGRITY'S BREAKDOWN OF THESE TWO CATEGORIES INTO SEVEN SUBCATEGORIES; (5) IF THE SUBCATEGORIES WERE ACCEPTABLE, THE RFP SHOULD HAVE BEEN AMENDED TO INCLUDE THE NEW CATEGORIES SO THAT ALL OFFERORS MIGHT HAVE AN EQUAL FOOTING; (6) INTEGRITY'S FINAL PROPOSAL MAY HAVE BEEN LATE; (7) THE NAVY'S AUTHORIZED REPRESENTATIVE ADVISED ONE OR MORE OF THE OFFERORS THAT OFFERS PROPOSING FEWER THAN 95 PERCENT OF THE GOVERNMENT'S TOTAL ESTIMATE WOULD NOT BE ACCEPTED.

WITH REGARD TO THE INITIAL DETERMINATION TO PLACE INTEGRITY IN THE COMPETITIVE RANGE, WE DO NOT AGREE THAT INTEGRITY SHOULD NECESSARILY HAVE BEEN EXCLUDED FROM THE COMPETITIVE RANGE SINCE ITS INITIAL PROPOSAL OF DECEMBER 5 CONTAINED BOTH THE REQUISITE MANNING CHARTS AND A LETTER DETAILING HOW PERFORMANCE COULD BE ACCOMPLISHED SATISFACTORILY AT 18,068 HOURS. COUNSEL ESSENTIALLY CONTENDS THAT INTEGRITY MUST BE HELD TO HAVE INITIALLY SUBMITTED A DUAL OFFER AS FOLLOWS: (1) OF 20,992.5 HOURS -

123.5 HOURS FROM MANNING CHART FOR WEEKDAYS X 125 WEEKDAYS 15,437.5

101.0 HOURS FROM MANNING CHART FOR WEEKEND DAYS/HOLIDAYS X 55 WEEKEND DAYS/HOLIDAYS 5,555

20,992.5

AND (2) A "REAL" OFFER OF 18,068 HOURS (SUBSEQUENTLY AMENDED TO 19,325). COUNSEL STATES FURTHER THAT BASED ON THE 20,992.5 FIGURE, INTEGRITY'S OFFER DOES NOT MEET ITS BASIC LABOR EXPENSE.

IN B-178955, SUPRA, IN A SIMILAR CIRCUMSTANCE, OUR OFFICE CATEGORICALLY REJECTED THE NOTION THAT DUAL OFFERS WERE BEING MADE BY INTEGRITY. SPECIFICALLY, WE BELIEVE THAT INTEGRITY NEVER CONTEMPLATED THAT ITS MANNING CHART FIGURES WOULD BE MULTIPLIED OUT TO CREATE A SUPPOSED OFFER AT THE RESULTANT FIGURE. IN THE CITED DECISION, WE CRITICIZED MULTIPLYING BOTH THE GOVERNMENT'S DAILY ESTIMATES AND EACH OFFEROR'S MANNING CHARTS BY THE CORRESPONDING NUMBER OF REPRESENTATIVE DAYS IN THE CONTRACT PERIOD TO OBTAIN A TOTAL GOVERNMENT ESTIMATE AND THE TOTAL NUMBER OF HOURS OFFERED BY EACH OFFEROR. WE BELIEVED THEN, AND STILL DO NOW, THAT SUCH A MULTIPLICATION METHOD LEADS TO GROSSLY INACCURATE REFLECTION BOTH OF THE TOTAL AGENCY NEED AND OFFERORS' PROPOSALS. AS SUCH, AND IN VIEW OF INTEGRITY'S DESIRE TO BE EVALUATED ON ASPECTS OF THE SECTION "D" CRITERIA WITH REGARD TO ITS TOTAL OFFER FIGURE, WE SEE NO BASIS FOR THE CONTENTION THAT DUAL OFFERS WERE ACCEPTED BY THE CONTRACTING OFFICER.

THE QUESTION RAISED IS, THEREFORE, NOT WHETHER INTEGRITY'S MULTIPLIED OUT "OFFER" MET THE SECTION "D" CRITERIA, BUT WHETHER ITS ACTUAL OFFER DID SO. IN THIS RESPECT, INTEGRITY'S BASIC LABOR EXPENSE IS AS FOLLOWS:

BASIC WAGE $3.37

HEALTH & WELFARE .12

FICA (5.85%) .197145

WORKMEN'S COMPENSATION (2.03%) .068411

UNEMPLOYMENT (3.6%) .13428

VACATION & HOLIDAY (1.2%)* .04044

$3.930276

*1.2% REPRESENTS A FACTOR ONLY FOR HOLIDAYS DURING THE CONTRACT PERIOD. WE HAVE BEEN INFORMALLY ADVISED THAT THE CONTRACTING OFFICER DID NOT INSERT ANY FIGURE FOR VACATION BECAUSE OF THE 6-MONTH TERM OF THE CONTRACT AND BECAUSE THE APPLICABLE WAGE DETERMINATION REQUIRED 2 WEEKS OF PAID VACATION AFTER 1 YEAR OF SERVICE.

THAT IT INITIALLY OFFERED 18,068 HOURS AT A PRICE OF $71,107.80 INDICATES A DOLLAR/HOUR RATIO OF $3.9356. WE THEREFORE CONCLUDE THAT INTEGRITY'S INITIAL MANNING OFFER IS SUPPORTED BY THE INITIAL PRICE AND, AS SUCH, WOULD PROVIDE NO BASIS FOR EXCLUDING INTEGRITY FROM THE COMPETITIVE RANGE. MOREOVER, INTEGRITY'S DECEMBER 18 OFFER INDICATED A PRICE OF $79,749.72 FOR 20,025 HOURS OR A DOLLAR/HOUR RATIO OF $3.98250, WHICH ALSO EXCEEDS THE BASIC LABOR EXPENSE. INTEGRITY'S FINAL OFFER, THE TIMELINESS OF WHICH IS DISPUTED, INDICATES 19,325 HOURS AT A PRICE OF $78,018.18. THIS REPRESENTS A DOLLAR/HOUR RATIO OF $4.037 WHICH ALSO EXCEEDS THE BASIC LABOR EXPENSE AS REQUIRED BY SECTION "D."

WITH REGARD TO ABC'S DUAL CONTENTION THAT INTEGRITY'S OFFER WAS NOT IN THE FORM CONTEMPLATED BY THE RFP AND THAT ALL OFFERORS SHOULD HAVE BEEN APPRISED OF THE ALLOWABILITY OF BREAKING DOWN THE TWO GIVEN CATEGORIES OF DAYS INTO SEVEN SUBCATEGORIES, WE REITERATE THE STATEMENTS MADE IN B- 178955, SUPRA, PRECISELY ON THIS POINT. IN SHORT, WE BELIEVE THAT THE UTILIZATION OF SUBCATEGORIES WAS AN ACCEPTABLE MEANS FOR ANY OFFEROR TO JUSTIFY ITS USE OF LESS THAN 95 PERCENT OF THE GOVERNMENT'S TOTAL ANNUAL ESTIMATE AND THAT THE TENOR OF THE RFP CLEARLY IMPLIED THAT METHODS OF DEMONSTRATING FEWER HOURS (HENCE, LOWER PRICE) WOULD BE ALLOWABLE.

ABC ADDITIONALLY CONTENDS THAT INTEGRITY'S BEST AND FINAL PROPOSAL WAS LATE BECAUSE (1) ITS INITIAL DATE, DECEMBER 20, 1973 (1 DAY AFTER THE CLOSING DATE FOR RECEIPT), WAS CROSSED OUT AND DECEMBER 19 INSERTED, AND (2) THE LETTER EVIDENCES NO TIME OF RECEIPT BY THE AGENCY.

ASPR 3-501, AS MODIFIED BY DEFENSE PROCUREMENT CIRCULAR NO. 110, MAY 30, 1973, SETS FORTH THE APPROPRIATE LATE MODIFICATION CLAUSE (WHICH REPLACED PARAGRAPHS 7 AND 8 OF SF 33A). ASPR 3-501 STATES:

"LATE PROPOSALS, MODIFICATIONS OF PROPOSALS AND WITHDRAWALS OF PROPOSALS (1973 JUL)

"(A) ANY PROPOSAL RECEIVED AT THE OFFICE DESIGNATED IN THE SOLICITATION AFTER THE EXACT TIME SPECIFIED FOR RECEIPT WILL NOT BE CONSIDERED UNLESS IT IS RECEIVED BEFORE AWARD IS MADE; AND

"(I) IT WAS SENT BY REGISTERED OR CERTIFIED MAIL NOT LATER THAN THE FIFTH CALENDAR DAY PRIOR TO THE DATE SPECIFIED FOR RECEIPT OF OFFERS (E.G., AN OFFER SUBMITTED IN RESPONSE TO A SOLICITATION REQUIRING RECEIPT OF OFFERS BY THE 20TH OF THE MONTH MUST HAVE BEEN MAILED BY THE 15TH OR EARLIER);

"(II) IT WAS SENT BY MAIL (OR TELEGRAM IF AUTHORIZED) AND IT IS DETERMINED BY THE GOVERNMENT THAT THE LATE RECEIPT WAS DUE SOLELY TO MISHANDLING BY THE GOVERNMENT AFTER RECEIPT AT THE GOVERNMENT INSTALLATION; OR

"(III) IT IS THE ONLY PROPOSAL RECEIVED.

"(B) ANY MODIFICATION OF A PROPOSAL, EXCEPT A MODIFICATION RESULTING FROM THE CONTRACTING OFFICER'S REQUEST FOR 'BEST AND FINAL' OFFER, IS SUBJECT TO THE SAME CONDITIONS AS IN (A)(I) AND (II) ABOVE.

"(C) A MODIFICATION RESULTING FROM THE CONTRACTING OFFICER'S REQUEST FOR 'BEST AND FINAL' OFFER RECEIVED AFTER THE TIME AND DATE SPECIFIED IN THE REQUEST WILL NOT BE CONSIDERED UNLESS RECEIVED BEFORE AWARD AND THE LATE RECEIPT IS DUE SOLELY TO MISHANDLING BY THE GOVERNMENT AFTER RECEIPT AT THE GOVERNMENT INSTALLATION.

"(D) THE ONLY ACCEPTABLE EVIDENCE TO ESTABLISH:

"(I) THE DATE OF MAILING OF A LATE PROPOSAL OR MODIFICATION SENT EITHER BY REGISTERED OR CERTIFIED MAIL IS THE U.S. POSTAL SERVICE POSTMARK ON THE WRAPPER OR ON THE ORIGINAL RECEIPT FROM THE U.S. POSTAL SERVICE. NEITHER POSTMARK SHOWS A LEGIBLE DATE, THE PROPOSAL OR MODIFICATION OF PROPOSAL SHALL BE DEEMED TO HAVE BEEN MAILED LATE. "(II) THE TIME OF RECEIPT AT THE GOVERNMENT INSTALLATION IS THE TIME/DATE STAMP OF SUCH INSTALLATION ON THE PROPOSAL WRAPPER OR OTHER DOCUMENTARY EVIDENCE OF RECEIPT MAINTAINED BY THE INSTALLATION.

"(E) NOTWITHSTANDING THE ABOVE, A LATE MODIFICATION OF AN OTHERWISE SUCCESSFUL PROPOSAL WHICH MAKES ITS TERMS MORE FAVORABLE TO THE GOVERNMENT WILL BE CONSIDERED AT ANY TIME IT IS RECEIVED AND MAY BE ACCEPTED.

"(F) PROPOSALS MAY BE WITHDRAWN BY WRITTEN OR TELEGRAPHIC NOTICE RECEIVED AT ANY TIME PRIOR TO AWARD. PROPOSALS MAY BE WITHDRAWN IN PERSON BY AN OFFEROR OR HIS AUTHORIZED REPRESENTATIVE, PROVIDED HIS IDENTITY IS MADE KNOWN AND HE SIGNS A RECEIPT FOR THE PROPOSAL PRIOR TO AWARD."

THIS PROVISION WAS NOT UTILIZED BY THE NAVY IN THIS SOLICITATION; RATHER, THE PROVISIONS OF SF 33A WERE INCLUDED. HOWEVER, ON THE FACTS PRESENTED, ITS OMISSION DOES NOT AFFECT OUR DETERMINATION AS TO THE PROPRIETY OF THE AGENCY'S ACCEPTANCE OF INTEGRITY'S "LATE" MODIFICATION.

PARAGRAPH 8(A) OF STANDARD FORM 33A PROVIDES IN PERTINENT PART:

"OFFERS AND MODIFICATION OF OFFERS *** RECEIVED AT THE OFFICE DESIGNATED IN THE SOLICITATION AFTER THE EXACT HOUR AND DATE SPECIFIED FOR RECEIPT WILL NOT BE CONSIDERED UNLESS: *** (THREE EXCEPTIONS ARE STATED NONE OF WHICH APPEAR PRESENTLY APPLICABLE). HOWEVER, A MODIFICATION OF AN OFFER WHICH MAKES THE TERMS OF AN OTHERWISE SUCCESSFUL OFFER MORE FAVORABLE TO THE GOVERNMENT WILL BE CONSIDERED AT ANY TIME IT IS RECEIVED AND MAY THEREAFTER BE ACCEPTED."

THIS LANGUAGE IS QUITE CLOSELY PARALLELED BY PARAGRAPH (E) OF THE JULY 1973 CLAUSE QUOTED ABOVE.

EVEN IF WE ASSUME, AS CONTENDED BY ABC, THAT INTEGRITY'S FINAL PROPOSAL WAS LATE, INTEGRITY'S PRIOR OUTSTANDING OFFER OF 20,025 HOURS AT A PRICE OF $79,749.72 WOULD HAVE BEEN THE SUCCESSFUL OFFER. THEREFORE, ACCEPTANCE OF ITS "LATE" MODIFICATION WAS NOT IMPROPER SINCE THE TERMS OF SUCH MODIFICATION MADE THE OFFER MORE FAVORABLE TO THE GOVERNMENT.

ABC'S LAST CONTENTION IS THAT THE NAVY TOLD ONE OR MORE OF THE OFFERORS THAT PROPOSALS INDICATING LESS THAN 95 PERCENT OF THE GOVERNMENT'S TOTAL ESTIMATE WOULD NOT BE ACCEPTED. THE NAVY STATES:

"*** DURING THESE DISCUSSIONS, ALL OFFERORS WERE ADVISED THAT THE GOVERNMENT REAFFIRMED ITS BELIEF THAT ITS ESTIMATE OF THE HOURS REQUIRED FOR SATISFACTORY PERFORMANCE WAS REALISTIC (NOTE: A SIMILAR STATEMENT WAS MADE IN CONNECTION WITH THE TREASURE ISLAND CASE, B 178955, SUPRA), BUT THAT *** AN OFFER OF LESS THAN 95% OF THE GOVERNMENT'S ESTIMATED REQUIRED MANNING HOURS WOULD BE EVALUATED AND CONSIDERED FOR AWARD, WHEN SUCH OFFER WAS SUPPORTED BY DOCUMENTATION WHICH CLEARLY ESTABLISHES THAT SATISFACTORY SERVICE WILL BE ACHIEVED WITH THE OFFERED MANNING HOURS. ***"

AS NOTED ABOVE, THE NAVY ACTED CONSISTENTLY WITH THIS STATEMENT, IN AWARDING TO A SUB-95-PERCENT OFFEROR, ALTHOUGH ABC CONTENDS THAT THE ABOVE -NOTED STATEMENT WAS INCONSISTENT WITH WHAT WAS ACTUALLY TOLD TO OFFERORS. HOWEVER, IN VIEW OF THE LANGUAGE IN THE RFP WHICH CLEARLY PERMITTED AND EVEN ENCOURAGED SUB-95-PERCENT OFFERS (WITH ASSUMEDLY LOWER PRICES) AND WHICH REMAINED UNAMENDED AND PARAGRAPH 3 OF STANDARD FORM 33A WHICH PROVIDES THAT "ORAL EXPLANATIONS OR INSTRUCTIONS GIVEN BEFORE THE AWARD OF THE CONTRACT WILL NOT BE BINDING," ALL OFFERORS SHOULD HAVE RECOGNIZED THAT SUB-95-PERCENT OFFERS WHICH COULD BE JUSTIFIED WOULD BE ACCEPTABLE. SEE B-178707, SUPRA.

ACCORDINGLY, FOR THE REASONS NOTED ABOVE, ABC'S PROTEST IS DENIED.