B-203792, DEC 23, 1981

B-203792, DEC 23, 1981

DIGEST: 1. GAO WILL NOT REVIEW AGENCY'S DETERMINATION NOT TO EXERCISE AN OPTION WHERE OPTION PROVISION IS EXERCISABLE AT THE AGENCY'S SOLE DISCRETION. 2. AGENCY IS NOT REQUIRED TO PROVIDE BIDDERS WITH PRECISE DETAILS FOR MESS ATTENDANT SERVICES REQUIREMENTS FOR FACILITY UNDER RENOVATION WHERE INFORMATION SPECIFIED IN SOLICITATION AND OPPORTUNITY FOR SITE VISIT PROVIDE REASONABLE BASIS FOR COMPUTING BIDS. 3. WHERE APPROPRIATE WAGE RATE DETERMINATION FROM DEPARTMENT OF LABOR IS NOT RECEIVED BY CONTRACTING AGENCY IN TIME FOR INCLUSION IN THE SOLICITATION, ECONOMIC TERMS OF INCUMBENT CONTRACTOR'S COLLECTIVE BARGAINING AGREEMENT APPLY TO CONTRACT AND SHOULD BE USED BY BIDDERS IN DEVELOPING BIDS.

SPACE SERVICE INTERNATIONAL CORPORATION:

SPACE SERVICE INTERNATIONAL CORPORATION PROTESTS THAT INVITATION FOR BIDS (IFB) NO. F20613-81-B-0034 ISSUED BY THE DEPARTMENT OF THE AIR FORCE, K. I. SAWYER AFB, MICHIGAN FOR MESS ATTENDANT SERVICES DID NOT CONTAIN ADEQUATE SPECIFICATIONS OR PROPERLY INCLUDE THE LATEST WAGE RATE DETERMINATION. WE BELIEVE THAT THE SOLICITATION ISSUED WAS ADEQUATE AND DENY SPACE SERVICE'S PROTEST.

ON APRIL 2, 1981, THE AIR FORCE DECIDED NOT TO EXERCISE THE THIRD YEAR OPTION UNDER ITS PRIOR CONTRACT WITH SPACE SERVICE. INSTEAD, THE AIR FORCE ISSUED THE SUBJECT IFB FOR FURNISHING MESS ATTENDANT SERVICES IN FOUR DINING FACILITIES WHICH INCLUDED A DINING FACILITY UNDER RENOVATION. SPACE SERVICE CONTENDS THAT THE SOLICITATION CONTAINED DEFECTIVE SPECIFICATIONS BECAUSE THE RENOVATION OF ONE OF THE DINING FACILITIES PRECLUDED INTELLIGENT BIDDING. FURTHER, THE PROTESTER STATES THE IFB DID NOT CONTAIN INFORMATION CONCERNING THE ESTIMATED NUMBER OF HOURS NECESSARY FOR AIR FORCE MISSION REQUIREMENTS. SPACE SERVICE ALSO ARGUES THAT SINCE IT WAS ENGAGED IN THE PROCESS OF NEGOTIATING A NEW COLLECTIVE BARGAINING AGREEMENT WITH ITS UNION, BID OPENING SHOULD HAVE BEEN DELAYED BECAUSE THE IFB CONTAINED NO APPROPRIATE WAGE RATE DETERMINATION. FINALLY, SPACE SERVICE CONTENDS THAT THE CONTRACTING OFFICER'S DECISION TO REFRAIN FROM EXERCISING THE OPTION UNDER ITS EXISTING CONTRACT FOR MESS ATTENDANT SERVICES WAS UNJUSTIFIED AND WITHOUT A RATIONAL BASIS. CONSEQUENTLY, SPACE SERVICE REQUESTS THAT THE AIR FORCE CANCEL THE SOLICITATION AND EXERCISE THAT FIRM'S OPTION OR THAT BID OPENING BE DELAYED UNTIL THE UNION NEGOTIATIONS ARE CONCLUDED AND THE MAIN DINING FACILITY COMPLETED. THE AIR FORCE HAS MADE AWARD UNDER THIS SOLICITATION NOTWITHSTANDING THIS PROTEST.

SPACE SERVICE'S ARGUMENT REGARDING THE AGENCY'S FAILURE TO EXERCISE THE OPTION UNDER ITS PRIOR CONTRACT IS DISMISSED. WE HAVE HELD THAT OUR OFFICE WILL NOT CONSIDER AN AGENCY'S FAILURE TO EXERCISE AN OPTION WHERE, AS HERE, THE OPTION PROVISION IS EXERCISABLE AT THE SOLE DISCRETION OF THE GOVERNMENT. VANGUARD INDUSTRIAL CORPORATION, B-195700, JANUARY 3, 1980, 80-1 CPD 13.

THE AIR FORCE MAINTAINS THAT THE SOLICITATION CONTAINS SUFFICIENT INFORMATION ON THE LAYOUT AND EQUIPMENT TO BE INSTALLED IN THE RENOVATED MAIN DINING HALL. FOR EXAMPLE, A DRAWING OF THE FLOOR PLAN FOR THE FACILITY SHOWS THE DIFFERENT ROOMS AND THE LOCATION OF THE SERVING LINES AND BOOTHS. THE IFB ALSO CONTAINS A LIST OF ALL THE EQUIPMENT TO BE FURNISHED BY THE GOVERNMENT. THE AGENCY NOTES THAT SPACE SERVICE DID NOT ATTEND A PRE-BID CONFERENCE PLANNED TO ENABLE BIDDERS TO REQUEST CLARIFICATION OF THE SPECIFICATIONS. FURTHER, THE AGENCY ARGUES THAT THE SOLICITATION DULY NOTIFIED BIDDERS THAT A WAGE RATE DETERMINATION HAD BEEN REQUESTED FROM THE DEPARTMENT OF LABOR AND THAT BIDDERS WERE INSTRUCTED TO OBTAIN A COPY OF THE CURRENT AGREEMENT BETWEEN THE UNION AND THE INCUMBENT CONTRACTOR FROM THE CONTRACTING OFFICER. THE SOLICITATION INDICATED THAT THE WAGE RATE WOULD BE DICTATED BY THE TERMS OF THE CURRENT AGREEMENT OR THE TERMS OF A NEW AGREEMENT NEGOTIATED TEN OR MORE DAYS PRIOR TO BID OPENING.

WE BELIEVE IT WOULD IMPOSE AN UNREASONABLE IMPAIRMENT ON THE CONDUCT OF GOVERNMENT BUSINESS IF THE AIR FORCE WERE REQUIRED TO POSTPONE THE SOLICITATION OF BIDS FOR MESS ATTENDANT SERVICES UNTIL THE DINING HALL WAS COMPLETED. THE AGENCY INDICATES THAT IT COULD NOT WAIT FOR THE RENOVATION WORK TO BE COMPLETED BECAUSE IT WANTED TO BEGIN THE CONTRACT TERM IN OCTOBER AND THE RENOVATION WORK WAS NOT SCHEDULED TO BE COMPLETED UNTIL THE END OF SEPTEMBER AT THE EARLIEST. AS STATED ABOVE, THE AIR FORCE DID PROVIDE A DRAWING FOR THE FLOOR PLAN OF THE FACILITY SHOWING THE DIFFERENT ROOMS AND LOCATION OF THE SERVING LINES AND BOOTHS AS WELL AS A LIST OF THE EQUIPMENT TO BE FURNISHED BY THE GOVERNMENT. MOREOVER, THE AIR FORCE PROVIDED BIDDERS WITH THE OPPORTUNITY FOR A SITE VISIT.

IN THIS REGARD, WE NOTE THAT IT IS NOT ALWAYS POSSIBLE FOR AN AGENCY TO DRAFT PRECISE SPECIFICATIONS. PALMER AND SICARD, INC., B-192994, JUNE 22, 1979, 79-1 CPD 449. WE REALIZE THAT THERE IS A CERTAIN DEGREE OF RISK INVOLVED IN COMPUTING BIDS FOR WORK IN AN AREA UNDERGOING RENOVATION; HOWEVER, THIS DOES NOT NECESSARILY RENDER A SOLICITATION IMPROPER AS LONG AS THE AGENCY IS ABLE TO SET FORTH ITS NEEDS IN A MANNER WHICH PERMITS BIDDERS TO INTELLIGENTLY PREPARE THEIR BIDS. SEE TELEPHONICS CORPORATION, B-194110, JANUARY 9, 1980, 80-1 CPD 25. UNDER THE CIRCUMSTANCES, WE SEE NO BASIS TO CONCLUDE THE INFORMATION IN THE SOLICITATION WAS INADEQUATE FOR INTELLIGENT BID PREPARATION.

CONCERNING THE WAGE DETERMINATION, SINCE IT IS UNDISPUTED THAT THE AIR FORCE REQUESTED THE APPROPRIATE WAGE DETERMINATION FROM THE DEPARTMENT OF LABOR, WE FIND NOTHING IMPROPER WITH THE AIR FORCE'S MANNER OF INCORPORATING THE TERMS OF THE PREDECESSOR AGREEMENT INTO THE SOLICITATION OR WITH THE ISSUANCE OF THE SOLICITATION. IN THIS REGARD, DEFENSE ACQUISITION REGULATION SEC. 12-1005.2(B)(5) (DAC 76-20, OCTOBER 17, 1979) SPECIFICALLY PROVIDES THAT WHEN A WAGE DETERMINATION IS NOT RECEIVED IN TIME FOR INCLUSION IN A SOLICITATION THAT THE ECONOMIC TERMS OF AN INCUMBENT CONTRACTOR'S COLLECTIVE BARGAINING AGREEMENT SHALL APPLY TO THE CONTRACT AND SHOULD BE USED IN DEVELOPING A BID.

FINALLY, IN RESPONSE TO SPACE SERVICE'S COMPLAINT CONCERNING THE IFB'S LACK OF INFORMATION ABOUT THE ESTIMATED NUMBER OF HOURS NEEDED FOR AIR FORCE MISSION REQUIREMENTS, THE AGENCY CONCURRED WITH THE PROTESTER AND AMENDED THE SOLICITATION ON JULY 15 TO PROVIDE THE REQUIRED INFORMATION.

THE PROTEST IS DENIED.