B-182294, APR 8, 1975

B-182294: Apr 8, 1975

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AMENDMENT TO SOLICITATION FOR MESS ATTENDANT SERVICES WARNING OFFERORS THAT SUBMISSION OF UNBALANCED PRICE ADJUSTMENT FACTORS FOR MONTHLY VOLUME VARIATION MAY BE CAUSE FOR REJECTION OF PROPOSALS IS DEFICIENT. SINCE IT IS A CLAUSE WITHOUT GUIDELINES OR STANDARDS AS TO WHAT CONSTITUTES AN UNBALANCED PROPOSAL. WHICH WAS CONTAINED IN AN AMENDMENT TO THIS RFP FOR MESS ATTENDANT SERVICES. STATED THAT: "OFFERORS ARE WARNED IN SUBMITTING PRICE ADJUSTMENT FACTORS FOR MONTHLY VOLUME VARIATION IN THE SPACE SET FORTH IN SECTION E OF THE SOLICITATION NOT TO SUBMIT UNBALANCED PROPOSALS. THE PROTESTER CONTENDS THAT THE LANGUAGE OF THE AMENDMENT IS AMBIGUOUS AND THAT THIS LANGUAGE HAS BEEN MISCONSTRUED BY THE SAME CONTRACTING OFFICER TO PERMIT LACK OF BALANCE UP TO 7300 PERCENT IN RFP N00204-74-R- 0068 AT NAVAL SUPPORT ACTIVITY.

B-182294, APR 8, 1975

AMENDMENT TO SOLICITATION FOR MESS ATTENDANT SERVICES WARNING OFFERORS THAT SUBMISSION OF UNBALANCED PRICE ADJUSTMENT FACTORS FOR MONTHLY VOLUME VARIATION MAY BE CAUSE FOR REJECTION OF PROPOSALS IS DEFICIENT, SINCE IT IS A CLAUSE WITHOUT GUIDELINES OR STANDARDS AS TO WHAT CONSTITUTES AN UNBALANCED PROPOSAL.

STANDARD SERVICES, INCORPORATED:

STANDARD SERVICES, INCORPORATED, TIMELY PROTESTED AS AMBIGUOUS A CLAUSE INCORPORATED INTO SOLICITATION NO. N00612-74-R-0166, ISSUED BY THE NAVAL SUPPLY CENTER (NSC), CHARLESTON, SOUTH CAROLINA.

THE CLAUSE, WHICH WAS CONTAINED IN AN AMENDMENT TO THIS RFP FOR MESS ATTENDANT SERVICES, STATED THAT:

"OFFERORS ARE WARNED IN SUBMITTING PRICE ADJUSTMENT FACTORS FOR MONTHLY VOLUME VARIATION IN THE SPACE SET FORTH IN SECTION E OF THE SOLICITATION NOT TO SUBMIT UNBALANCED PROPOSALS, AS SUCH PROPOSALS MAY BE CAUSE FOR REJECTION OF THE OFFER."

THE PROTESTER CONTENDS THAT THE LANGUAGE OF THE AMENDMENT IS AMBIGUOUS AND THAT THIS LANGUAGE HAS BEEN MISCONSTRUED BY THE SAME CONTRACTING OFFICER TO PERMIT LACK OF BALANCE UP TO 7300 PERCENT IN RFP N00204-74-R- 0068 AT NAVAL SUPPORT ACTIVITY, NEW ORLEANS, AND 7200 PERCENT ON RFP N00204-74-R-0069 AT PENSACOLA NAVAL AIR STATION. THEREFORE, THE PROTESTER STATES THAT THE CLAUSE SHOULD BE "STRICKEN FROM THE BID OR DEFINED SO THAT REASONABLE BIDDERS CAN UNDERSTAND ITS MEANING ACCORDING TO THE REGULATIONS."

IN REGARD TO THE SECOND CONTENTION, THE CONTRACTING OFFICER ADVISES THAT RFP N00204-74-R-0069 AND RFP N00204-74-R-0068 WERE NOT SOLICITATIONS ISSUED BY HIS OFFICE AND THAT THESE SOLICITATIONS, THEREFORE, COULD NOT HAVE BEEN MISCONSTRUED BY THE CONTRACTING OFFICER IN QUESTION.

SECTION E OF THE RFP INSTRUCTS OFFERORS HOW TO PROPOSE A PER MEAL ADJUSTMENT FACTOR TO BE APPLIED AUTOMATICALLY IN MAKING PRICE ADJUSTMENTS. SINCE THESE FACTORS ARE USED FOR THE PURPOSE OF DETERMINING THE LOW OFFER, AND SINCE THE AMENDMENT STATES THAT UNBALANCED PROPOSALS IN SECTION E MAY BE CAUSE FOR REJECTION OF THE OFFER, A COMPLETE UNDERSTANDING OF WHAT WOULD CONSTITUTE AN UNBALANCED PROPOSAL IS NECESSARY. AN "OFFERED PER MEAL INCREASE" IS AN AMOUNT PROPOSED BY THE OFFEROR WHICH WHEN COMPUTED ACCORDING TO THE FORMULA SET FORTH IN SECTION E IS ADDED TO THE BASE OFFER. ON THE OTHER HAND, AN "OFFERED PER MEAL DECREASE" IS AN AMOUNT PROPOSED BY THE OFFEROR WHICH WHEN COMPUTED ACCORDING TO THE SAME FORMULA IS SUBTRACTED FROM THE BASE OFFER. THUS, AN OFFEROR MAY WISH TO PROPOSE A SMALL AMOUNT FOR THE "INCREASE" FACTOR AND A LARGE AMOUNT FOR THE "DECREASE" FACTOR SO THAT THE EVALUATION FACTORS WOULD RESULT IN A NET OFFER WHICH WOULD BE LOWER THAN THE BASE OFFER BEFORE THE ADJUSTMENT. AN UNBALANCED PROPOSAL, THEREFORE, WOULD BE ONE WHEREBY THE DECREASE FACTOR IS SO INFLATED THAT A BID WHICH WAS EVALUATED AS LOW MIGHT NOT RESULT IN THE LOWEST ULTIMATE COST TO THE GOVERNMENT.

THE PROCURING ACTIVITY STATES THAT AN EXAMPLE OF AN UNBALANCED PROPOSAL WOULD BE ONE WHEREBY THE OFFEROR MAY PROPOSE $.10 PER MEAL FOR INCREASE AND $2.00 PER MEAL FOR DECREASE IN VOLUME OF MEALS BEYOND PLUS OR MINUS 15 PERCENT OF THE GOVERNMENT'S ESTIMATED TOTAL MEALS. HOWEVER, THIS CLARIFICATION WAS PROVIDED BY THE AGENCY IN RESPONSE TO THE PROTEST BY STANDARD SERVICES, AND WAS NOT AVAILABLE TO OFFERORS PRIOR TO THE SUBMISSION OF THEIR PROPOSALS.

WE AGREE WITH THE PROTESTER THAT THE AMENDMENT IS IMPRECISE, AND SHOULD HAVE CONTAINED SOME REASONABLY DEFINITE GUIDELINES AS TO WHAT WOULD CONSTITUTE A DEFECTIVE PROPOSAL. IN THIS REGARD, NO CRITERIA WERE EXPRESSED IN THE AMENDMENT TO AID IN THE DETERMINATION OF AN "UNBALANCED PROPOSAL." ANY DETERMINATION BY AN OFFEROR UNDER THIS AMENDMENT WOULD NECESSARILY BE SUBJECTIVE IN NATURE WITHOUT REFERENCE TO STANDARDS OR COMMON GUIDELINES. SEE MATTER OF MOBILEASE CORP., B 181050, SEPTEMBER 27, 1974, 54 COMP. GEN. .

IN THIS CONNECTION, WE HAVE BEEN ADVISED BY THE ASSISTANT SECRETARY OF DEFENSE (INSTALLATIONS AND LOGISTICS) THAT OUR RECOMMENDATION, MADE IN CONJUNCTION WITH OUR MOBILEASE DECISION, SUPRA, THAT SOLICITATIONS INCLUDE CRITERIA FOR DETERMINING WHETHER OR NOT BIDS ARE UNBALANCED, HAS BEEN REFERRED TO THE ARMED SERVICES PROCUREMENT REGULATION COMMITTEE FOR CONSIDERATION.

THE PROCURING ACTIVITY HAS CONCLUDED PURSUANT TO ITS EVALUATION OF OFFERS SUBMITTED UNDER THE SOLICITATION THAT NO OFFERORS HAD SUBMITTED UNBALANCED OFFERS, AND THAT AN EVALUATION OF THE PROTESTER'S OFFER APPLYING EITHER ITS INITIAL VOLUME VARIATION OR ITS FINAL VOLUME VARIATION WOULD RESULT IN ITS REMAINING AS FOURTH LOW OFFEROR.

ALTHOUGH WE AGREE WITH THE PROTESTER THAT THE CLAUSE IS DEFICIENT, THE PROTESTER HAS NOT DEMONSTRATED THAT IT WAS PREJUDICED BY THE UNCLEAR PROVISION, AND WE DO NOT, THEREFORE, BELIEVE WE WOULD BE WARRANTED IN DISTURBING THE AWARD.