B-180662, JUN 25, 1974

B-180662: Jun 25, 1974

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PROTESTER'S COMPLAINT THAT AGENCY REQUIRED MANPOWER LEVELS FOR JANITORIAL SERVICES WERE TOO LOW IS REJECTED SINCE NO EVIDENCE WAS PROVIDED TO SUPPORT SUCH CHARGE AND RESPONSIBILITY FOR DRAFTING SPECIFICATIONS WHICH REFLECT MINIMUM NEEDS OF GOVERNMENT IS PRIMARILY FOR CONTRACTING AGENCY. 2. PROTEST OF UNSUCCESSFUL BIDDER THAT SERVICES CANNOT BE PROVIDED FOR AMOUNT OF CONTRACT AWARD PROVIDES NO BASIS FOR GAO TO DISTURB AWARD TO LOW RESPONSIVE AND RESPONSIBLE BIDDER EVEN THOUGH THE BIDDER MAY HAVE SUBMITTED UNPROFITABLE PRICE AS ALLEGED. 3. UNDER INVITATION FOR BIDS TO SUPPLY JANITORIAL SERVICES FACT THAT SOLICITATION CONTAINED ESTIMATED COST RANGE WHICH WAS HIGHER THAN AWARD PRICE DID NOT MISLEAD PROSPECTIVE BIDDERS SINCE BIDDERS WERE PUT ON NOTICE IN AMENDMENT THAT SCOPE OF WORK WAS REDUCED.

B-180662, JUN 25, 1974

1. PROTESTER'S COMPLAINT THAT AGENCY REQUIRED MANPOWER LEVELS FOR JANITORIAL SERVICES WERE TOO LOW IS REJECTED SINCE NO EVIDENCE WAS PROVIDED TO SUPPORT SUCH CHARGE AND RESPONSIBILITY FOR DRAFTING SPECIFICATIONS WHICH REFLECT MINIMUM NEEDS OF GOVERNMENT IS PRIMARILY FOR CONTRACTING AGENCY. 2. PROTEST OF UNSUCCESSFUL BIDDER THAT SERVICES CANNOT BE PROVIDED FOR AMOUNT OF CONTRACT AWARD PROVIDES NO BASIS FOR GAO TO DISTURB AWARD TO LOW RESPONSIVE AND RESPONSIBLE BIDDER EVEN THOUGH THE BIDDER MAY HAVE SUBMITTED UNPROFITABLE PRICE AS ALLEGED. 3. UNDER INVITATION FOR BIDS TO SUPPLY JANITORIAL SERVICES FACT THAT SOLICITATION CONTAINED ESTIMATED COST RANGE WHICH WAS HIGHER THAN AWARD PRICE DID NOT MISLEAD PROSPECTIVE BIDDERS SINCE BIDDERS WERE PUT ON NOTICE IN AMENDMENT THAT SCOPE OF WORK WAS REDUCED.

TO LOW BID JANITORIAL SERVICE:

INVITATION FOR BIDS (IFB) NO. N62474-74-B-1664, ISSUED DECEMBER 26, 1973, BY THE DEPARTMENT OF NAVY'S WESTERN DIVISION, NAVAL FACILITIES ENGINEERING COMMAND, CALLED FOR BIDS ON TWO ITEMS. ITEM 1 OF THE SMALL BUSINESS SET- ASIDE CALLED FOR JANITORIAL SERVICES IN ACCORDANCE WITH FURNISHED SPECIFICATIONS AT HUNTERS POINT NAVAL SHIPYARD. ITEM 1A REQUESTED AN ADDITIVE BID FOR RUG SHAMPOOING AT THE NAVY FACILITY.

THIS PROTEST CONCERNS TWO ALLEGATIONS BY LOW BID JANITORIAL SERVICE (LOW BID). LOW BID ALLEGES FIRST THAT THE NAVY'S MANPOWER REQUIREMENTS FOR THE JANITORIAL SERVICES WERE TOO LOW OR, IN THE ALTERNATIVE, THAT THE REQUIRED SERVICES COULD NOT BE PERFORMED FOR THE AWARDED PRICE. THE PROTESTER SECONDLY ALLEGES THAT THE NAVY'S ESTIMATED COST RANGE OF $100,000 TO $500,000 MISLED BIDDERS.

ON FEBRUARY 12, 1974, THE FOLLOWING BIDS FOR THE SUBJECT IFB WERE OPENED:

ADDITIVE

ITEM NO. 1 ITEM 1A DISCOUNTS

DEPENDABLE JANITORIAL SERVICE $ 65,556.82 $500 1% 20 DAYS

CERVETTO BUILDING MAINTENANCE CO. 98,731.80 250 --

PACIFIC COAST UTILITIES SERVICE CO. 102,300.00 400 1 1/8% 10 DAYS

1% 20 DAYS

U.S. EAGLE, INC. 119,220.00 500 25% 15 DAYS

EXECUTIVE-SUITE SERVICES, INC. 130,632.00 250 3% 10 DAYS

2.8% 20 DAYS

LOW BID JANITORIAL SERVICE 135,951.36 250 3% 20 DAYS

DYNAMIC INTERNATIONAL, INC. 373,314.00 600 9%

FOLLOWING WITHDRAWAL OF THE LOW BID BASED ON A MISTAKE, THE CONTRACT WAS AWARDED TO THE SECOND LOW BIDDER, U.S. EAGLE, INC., AT $119,220, LESS THE 25 PERCENT DISCOUNT. LOW BID SUBMITTED THE SECOND TO HIGHEST BID AT $135,951.36, LESS A 3 PERCENT DISCOUNT.

CONCERNING LOW BID'S ALLEGATION THAT THE NAVY'S MANPOWER REQUIREMENTS WERE TOO LOW, WE NOTE THAT THE IFB CALLED FOR CERTAIN MANPOWER REQUIREMENTS AS MINIMUM MANNING LEVELS TO ASSURE NECESSARY SERVICES. THE RESPONSIBILITY FOR DRAFTING SPECIFICATIONS WHICH REFLECT THE MINIMUM NEEDS OF THE GOVERNMENT IS PRIMARILY THAT OF THE CONTRACTING AGENCY, AND WILL NOT BE QUESTIONED BY OUR OFFICE IN THE ABSENCE OF A SHOWING THAT THE SPECIFICATIONS DO NOT SO REFLECT THE AGENCY'S MINIMUM NEEDS. 17 COMP. GEN. 554 (1938); 49 COMP. GEN. 857 (1970). SINCE LOW BID HAS PRESENTED NO EVIDENCE TO SUPPORT ITS CONTENTION IN THIS REGARD, THERE IS NO BASIS FOR OUR OFFICE TO QUESTION THE SPECIFICATIONS AS DRAFTED.

CONCERNING THE CONTENTION THAT THE CONTRACT COULD NOT BE PERFORMED FOR THE AWARDED PRICE, WE NOTE THAT LOW BID'S BASIS FOR OBJECTION IN THIS AREA APPEARS TO REST ON THE REQUIRED LEVEL OF SERVICE AS INITIALLY SET FORTH IN THE IFB AND WITHOUT REGARD TO THE REDUCTION EFFECTED BY THE SECOND AND FOURTH AMENDMENTS TO THE SOLICITATION. FURTHERMORE, WE HAVE HELD THAT NO BASIS EXISTS TO QUESTION AN AWARD EVEN THOUGH THE LOW RESPONSIVE AND RESPONSIBLE BIDDER MAY HAVE SUBMITTED AN UNPROFITABLE PRICE. 49 COMP. GEN. 311, 315 (1969).

LOW BID NEXT ASSERTS THAT THE NAVY MISLED BIDDERS BECAUSE THE IFB "STATED THAT BIDS SHOULD BE BETWEEN $100,000 AND $500,000 AND THE CONTRACTING OFFICER AFTER BID OPENING STATED THAT THE GOVERNMENT ESTIMATED THE BID FOR $70,000."

THE NAVY POINTS OUT THAT AN ESTIMATED COST RANGE WAS INCLUDED IN THE ORIGINAL IFB TO PROVIDE PROSPECTIVE BIDDERS WITH AN APPROXIMATE ESTIMATED COST IN GROSS RANGES. THESE ESTIMATED COSTS WERE INTENDED TO PERMIT A JUDGMENT BY A PROSPECTIVE BIDDER WHETHER SUBMISSION OF A BID WOULD BE WARRANTED FOR THAT BIDDER, CONSIDERING INDIVIDUAL BONDING LIMITATIONS, EXISTING WORK LOAD, AND AVAILABILITY OF REQUIRED LABOR. IN THE NAVY'S REPORT TO THIS OFFICE, THE FOLLOWING WAS NOTED:

"IN THIS CASE THE ORIGINAL COST RANGE WAS CORRECTLY ESTIMATED IN CONTEMPLATION OF THE ORIGINALLY SPECIFIED SCOPE OF BUILDINGS TO BE SERVICED. AMENDMENTS NO. 2 AND NO. 4 REDUCED THE 347,090 SQUARE FEET OF INTERIOR BUILDING FLOOR AREA TO 296,970 SQUARE FEET AND PROVIDED A REVISED SCHEDULE A, LISTING THE BUILDING, SERVICE REQUIRED, THE RESPECTIVE SQUARE FEET OF EACH BUILDING, AND REQUIRING THE BIDDER TO SUBMIT A MONTHLY COST PER BUILDING WHICH, WHEN MULTIPLIED BY THE MONTHS OF SERVICE REQUIRED, PROVIDED A BREAKDOWN OF THE BID PRICE BY BUILDING. THE MONTHS OF REQUIRED SERVICE IN APPENDIX A VARY, WHICH IS TRACEABLE TO THE PROSPECTIVE CLOSING OF HUNTERS POINT NAVAL SHIPYARD, REFLECTING THE PHASED CLOSE-DOWN OF BUILDINGS WITHIN THE SHIPYARD. SINCE PROSPECTIVE BIDDERS WERE SPECIFICALLY ADVISED OF THE REDUCED TOTAL SQUARE FOOTAGE TO BE SERVICED AND OF THE RESPECTIVE SQUARE FOOT REDUCTIONS IN EACH BUILDING, IT IS SUBMITTED THAT NO BIDDER WOULD HAVE BEEN MISLED INTO THE BELIEF THAT THE ORIGINALLY ESTIMATED COST RANGE OF $100,000 - $500,000 WAS NECESSARILY STILL APPLICABLE TO THE SEVERELY REDUCED SCOPE OF WORK. MOREOVER, THE BIDS RECEIVED WERE MOSTLY IN THE ESTIMATED RANGE, SO THAT BIDDERS WERE NOT MISLED."

IN ADDITION, WE NOTE THAT THE IFB SPECIFICALLY PROVIDED FOR WORK QUANTITY CHANGES AND FOREWARNED BIDDERS THAT MAJOR DEDUCTIONS FROM THE SCOPE OF WORK WERE ANTICIPATED DUE TO THE IMMINENT CLOSING OF HUNTER'S POINT. INASMUCH AS TWO OF THE AMENDMENTS TO THE IFB DID REDUCE THE SCOPE OF THE WORK TO BE PERFORMED, WE AGREE WITH THE NAVY'S POSITION THAT NO BIDDER SHOULD HAVE BEEN MISLED INTO BELIEVING THAT THE ORIGINAL ESTIMATED COST RANGE WAS STILL APPLICABLE. FURTHERMORE, CONTRARY TO LOW BID'S ASSERTION, THE IFB DID NOT SAY THAT BIDS SHOULD BE BETWEEN $100,000 AND $500,000, BUT RATHER THE FIGURES MENTIONED WERE ESTIMATED COST RANGES INSERTED FOR THE BENEFIT OF BIDDERS. LOW BID'S ASSERTIONS NOTWITHSTANDING, IT IS OUR VIEW THAT THE TOTAL BID DOCUMENTS SHOULD NOT HAVE MISLED ANYONE AND, IN FACT, APPARENTLY FIVE LOWER BIDDERS WERE NOT MISLED.

ACCORDINGLY, THE PROTEST IS DENIED.