B-216406, MAR 1, 1985, 85-1 CPD 255

B-216406: Mar 1, 1985

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WHICH THE AGENCY STATES IS NECESSARY TO ENSURE A SATISFACTORY LEVEL OF CLEANING IN THE CRITICAL AREAS OF A HOSPITAL. IS UNREASONABLE. IS ACADEMIC. SINCE THE PROTESTER WOULD NOT HAVE SATISFIED THE REQUIREMENT EVEN BY THE LATER DATE. AGENCY'S DECISION TO EXCLUDE AN OFFEROR FROM THE COMPETITIVE RANGE IS PROPER WHERE THE OFFEROR'S TECHNICAL PROPOSAL IS SO DEFICIENT THAT IT WOULD REQUIRE MAJOR REVISIONS BEFORE IT COULD BE MADE ACCEPTABLE. GAO WILL NOT DISTURB AN AGENCY'S DECISION TO EXCLUDE A PROTESTER FROM THE COMPETITIVE RANGE ON GROUNDS THAT IT HAS NO REASONABLE CHANCE OF BEING SELECTED FOR AWARD WHEN. THIS DETERMINATION WAS REASONABLE. GAO DENIES A PROTEST ALLEGING THAT AN AGENCY SHOULD HAVE SET ASIDE A PROCUREMENT FOR SMALL BUSINESS IN ACCORD WITH FAR SEC. 19.501(G) WHERE THE PROCUREMENT IS NOT REPETITIVE.

B-216406, MAR 1, 1985, 85-1 CPD 255

CONTRACTS - NEGOTIATION - REQUESTS FOR PROPOSALS - SPECIFICATIONS - MINIMUM NEEDS - NOT OVERSTATED DIGEST: 1. GAO DENIES A PROTEST ALLEGING THAT A 2-YEAR EXPERIENCE REQUIREMENT IN A SOLICITATION FOR HOSPITAL ASEPTIC MANAGEMENT SERVICES UNDULY RESTRICTS COMPETITION AND EXCEEDS THE GOVERNMENT'S ACTUAL NEEDS WHERE THE PROTESTER HAS NOT DEMONSTRATED THAT THE REQUIREMENT, WHICH THE AGENCY STATES IS NECESSARY TO ENSURE A SATISFACTORY LEVEL OF CLEANING IN THE CRITICAL AREAS OF A HOSPITAL, IS UNREASONABLE. CONTRACTS - PROTESTS - MOOT, ACADEMIC, ETC. QUESTIONS - PROTESTER NOT IN LINE FOR AWARD 2. PROTEST ALLEGING THAT A SOLICITATION IMPROPERLY REQUIRED OFFERORS TO DEMONSTRATE COMPLIANCE WITH A 2-YEAR EXPERIENCE REQUIREMENT BEFORE OR AS OF DATE FOR RECEIPT OF TECHNICAL PROPOSALS, RATHER THAN AT THE BEGINNING OF CONTRACT PERFORMANCE, IS ACADEMIC, SINCE THE PROTESTER WOULD NOT HAVE SATISFIED THE REQUIREMENT EVEN BY THE LATER DATE. CONTRACTS - NEGOTIATION - OFFERS OR PROPOSALS - EVALUATION - COMPETITIVE RANGE EXCLUSION - REASONABLENESS 3. AGENCY'S DECISION TO EXCLUDE AN OFFEROR FROM THE COMPETITIVE RANGE IS PROPER WHERE THE OFFEROR'S TECHNICAL PROPOSAL IS SO DEFICIENT THAT IT WOULD REQUIRE MAJOR REVISIONS BEFORE IT COULD BE MADE ACCEPTABLE. CONTRACTS - NEGOTIATION - OFFERS OR PROPOSALS - EVALUATION - COMPETITIVE RANGE EXCLUSION - REASONABLENESS 4. GAO WILL NOT DISTURB AN AGENCY'S DECISION TO EXCLUDE A PROTESTER FROM THE COMPETITIVE RANGE ON GROUNDS THAT IT HAS NO REASONABLE CHANCE OF BEING SELECTED FOR AWARD WHEN, CONSIDERING THE RELATIVE SUPERIORITY OF OTHER PROPOSALS, THIS DETERMINATION WAS REASONABLE. CONTRACTS - SMALL BUSINESS CONCERNS - SET-ASIDES - ADMINISTRATIVE DETERMINATION 5. GAO DENIES A PROTEST ALLEGING THAT AN AGENCY SHOULD HAVE SET ASIDE A PROCUREMENT FOR SMALL BUSINESS IN ACCORD WITH FAR SEC. 19.501(G) WHERE THE PROCUREMENT IS NOT REPETITIVE, BUT RATHER ENTAILS DIFFERENT SERVICES THAN WERE PREVIOUSLY ACQUIRED. OFFICE OF MANAGEMENT AND BUDGET - NO. A-76 - CIRCULARS - POLICY MATTERS - NOT FOR GAO REVIEW 6. GAO WILL NOT CONSIDER A PROTEST ALLEGING THAT AN AGENCY FAILED TO CONDUCT A COST COMPARISON AS REQUIRED BY OMB CIRCULAR NO. A-76, BECAUSE THIS IS A MATTER OF EXECUTIVE BRANCH POLICY.

AMERIKO MAINTENANCE CO., INC:

AMERIKO MAINTENANCE COMPANY PROTESTS THE PROPOSED AWARD OF A CONTRACT UNDER REQUEST FOR PROPOSALS (RFP) NO. F33600-84-R-0098, ISSUED BY WRIGHT- PATTERSON AIR FORCE BASE (AFB), FOR HOSPITAL ASEPTIC MANAGEMENT SERVICES (HAMS) AT THREE FACILITIES. WE DENY THE PROTEST IN PART AND DISMISS IT IN PART.

AMERIKO ALLEGES, FIRST, THAT A 2-YEAR EXPERIENCE REQUIREMENT UNDULY RESTRICTS COMPETITION AND DISCRIMINATES AGAINST SMALL BUSINESS CONCERNS, PARTICULARLY MINORITY OWNED AND SOCIALLY DISADVANTAGED SMALL BUSINESSES AND, SECOND, THAT AMERIKO WAS IMPROPERLY EXCLUDED FROM THE COMPETITIVE RANGE. THE FIRM ALSO ALLEGES THAT THE AIR FORCE SHOULD NOT HAVE INCLUDED KEESLER AIR FORCE BASE, WHERE AMERIKO CURRENTLY IS PERFORMING CLEANING SERVICES, UNDER A SMALL BUSINESS SET-ASIDE, SINCE APPLICABLE REGULATIONS REQUIRE REPETITIVE SMALL BUSINESS SET-ASIDES ONCE SERVICES HAVE BEEN SUCCESSFULLY ACQUIRED IN THIS MANNER. FINALLY, AMERIKO CONTENDS THAT THE AIR FORCE FAILED TO PERFORM A COST COMPARISON MANDATED BY OFFICE OF MANAGEMENT AND BUDGET (OMB) CIRCULAR NO. A-76.

BACKGROUND

THE SUBJECT SOLICITATION IS FOR A HAMS PROGRAM AT LACKLAND, TINKER, AND KEESLER AIR FORCE BASES. UNDER THIS TYPE OF PROGRAM, THE CONTRACTOR PERFORMS ALL CLEANING SERVICES IN THE MEDICAL FACILITY, INCLUDING CRITICALLY DEFINED AREAS OF SURGERY, LABOR AND DELIVERY, RECOVERY, AND NEWBORN NURSERIES. LACKLAND IS THE ONLY FACILITY CURRENTLY COVERED BY A HAMS CONTRACT; THE OTHER TWO BASES ARE SERVICED BY A COMBINATION OF MILITARY AND CONTRACTOR PERSONNEL, WITH THE MILITARY CLEANING CRITICAL AREAS AND THE CONTRACTOR'S EMPLOYEES CLEANING ALL OTHER AREAS.

THE FIXED-PRICE CONTRACT TO BE AWARDED COVERS A BASE PERIOD ENDING SEPTEMBER 30, 1985, PLUS 3 OPTION YEARS; ITS TOTAL ESTIMATED VALUE IS $19.6 MILLION. THE AMENDED CLOSING DATE FOR RECEIPT OF INITIAL PROPOSALS WAS AUGUST L3, 1984; HOWEVER, INFORMATION CONCERNING OFFERORS' EXPERIENCE WAS REQUIRED TO BE SUBMITTED BY AUGUST 6, SO THAT, ACCORDING TO THE SOLICITATION, THIS EXPERIENCE COULD BE VALIDATED BEFORE THE TECHNICAL REVIEW BOARD MET.

THE RFP SET FORTH, IN DESCENDING ORDER OF IMPORTANCE, THE FOLLOWING EVALUATION CRITERIA:

1. EXPERIENCE;

2. QUALITY ASSURANCE PROGRAM;

3. WORK DISTRIBUTION AND STAFFING;

4. MANAGEMENT SUPPORT PROGRAM;

5. TRAINING PROGRAM;

6. EQUIPMENT; AND

7. SUPPLIES.

ALTHOUGH NOT STATED IN THE SOLICITATION, THE MAXIMUM POINT SCORED RESPECTIVELY ASSIGNED TO THESE CRITERIA WERE 300, 275, 175, 150, 50, 25, AND 25.

THE SOLICITATION ALSO SET FORTH THE MINIMUM REQUIREMENTS FOR THESE SEVEN CRITERIA. WITH REGARD TO EXPERIENCE, THE SOLICITATION PROVIDED THAT:

"B. OFFERORS MUST HAVE OBTAINED EXPERIENCE IN MANAGING AND PERFORMING A HOSPITAL ASEPTIC MANAGEMENT SYSTEM (HAMS) PROGRAM AS DESCRIBED IN THE PERFORMANCE WORK STATEMENT ENTITLED 'HOSPITAL ASEPTIC MANAGEMENT SYSTEM' ... OFFERORS MUST HAVE BEEN REGULARLY ENGAGED IN THE BUSINESS OF PROVIDING ASEPTIC SERVICES IN THE CRITICAL AREAS OF SURGERY (PRE-SCHEDULE, POST- CASE, AND END-OF-DAY CLEANING), LABOR AND DELIVERY, NEWBORN NURSERY, AND RECOVERY. THE MINIMUM ACCEPTABLE EXPERIENCE IS PERFORMANCE OF HOSPITAL ASEPTIC MANAGEMENT SYSTEM SERVICES FOR 24 MONTHS WITHIN THE PREVIOUS 36 MONTHS FROM THE DATE ESTABLISHED FOR RECEIPT OF INITIAL PROPOSALS. THE 24 MONTHS MAY BE AT A MAXIMUM OF TWO (2) SITES AND SHALL NOT BE CONCURRENT."

IN ITS TECHNICAL PROPOSAL, AMERIKO SUBMITTED DOCUMENTATION DEMONSTRATING ITS EXPERIENCE AT FOUR DIFFERENT MILITARY HOSPITALS. THE AIR FORCE FOUND, HOWEVER, THAT AMERIKO HAD NOT PROVIDED CLEANING SERVICES IN CERTAIN CRITICAL AREAS, I.E., SURGERY, AT EACH OF THESE FACILITIES FOR THE MINIMUM REQUIRED PERIOD OF TIME. CONSEQUENTLY, AMERIKO DID NOT RECEIVE ANY POINTS FOR EXPERIENCE.

ADDITIONALLY, THE AIR FORCE FOUND AMERIKO'S TECHNICAL PROPOSAL TO BE DEFICIENT IN NUMEROUS OTHER AREAS, INCLUDING INFECTION AND QUALITY CONTROL AND EMERGENCY RESPONSE. AS A RESULT, AMERIKO RECEIVED ONLY 218 OUT OF 1,000 AVAILABLE POINTS FOR ITS TECHNICAL PROPOSAL.

THE SOLICITATION FURTHER PROVIDED THAT AWARD WOULD BE MADE TO THE OFFEROR THAT, AS A RESULT OF EVALUATION OF TECHNICAL AND COST PROPOSALS, OBTAINED THE HIGHEST WEIGHTED SCORE. AMERIKO'S WEIGHTED SCORE WAS 365 OF A POSSIBLE 1,000; THE SCORES EARNED BY THE OTHER FOUR OFFERORS WERE 970, 928, 787 AND 698. AS A RESULT OF THIS EVALUATION, THE AIR FORCE EXCLUDED AMERIKO FROM THE COMPETITIVE RANGE.

DISCUSSION

A. PROPRIETY OF EXPERIENCE REQUIREMENT

AMERIKO'S FIRST CONTENTION IS THAT THE EXPERIENCE REQUIREMENT WAS UNDULY RESTRICTIVE AND THEREBY DISCRIMINATORY AGAINST SMALL AND MINORITY-OWNED BUSINESSES. AMERIKO ARGUES THAT THE REQUIREMENT FOR OFFERORS TO DEMONSTRATE PERFORMANCE OF HAMS SERVICES FOR 24 MONTHS WITHIN THE PREVIOUS 36 MONTHS, AT A MAXIMUM OF TWO SITES, AND EXCLUDING SERVICES PERFORMED CONCURRENTLY, FAR EXCEEDS THE AIR FORCE'S MINIMUM NEEDS. IN SUPPORT OF THIS POSITION, AMERIKO ARGUES THAT SIMILAR SOLICITATIONS ISSUED BY BOTH THE NAVY AND ARMY DO NOT CONTAIN SUCH STRINGENT EXPERIENCE REQUIREMENTS.

THE AIR FORCE RESPONDS THAT THE 2-YEAR EXPERIENCE REQUIREMENT WAS ESTABLISHED BY ITS SURGEON GENERAL'S OFFICE TO ENSURE THAT "CONTRACTORS PERFORMING CLEANING SERVICES IN CRITICAL AREAS HAD PREVIOUSLY DEMONSTRATED THEIR ABILITY TO MAINTAIN ASEPTIC CONDITIONS." GIVEN THE CRITICAL NATURE OF THIS WORK, THE AIR FORCE BELIEVES THAT ONLY CONTRACTORS WITH 2 YEARS OF EXPERIENCE POSSESS SUFFICIENT KNOWLEDGE AND STABILITY TO PERFORM HAMS SERVICES.

IN SCIENTIFIC INDUSTRIES, INC., B-208307, APR. 5, L983, 83-1 CPD PARA. 361, OUR OFFICE AGGRESSED A PROTEST ALLEGING THAT AN IDENTICAL EXPERIENCE REQUIREMENT IN A SOLICITATION FOR A HAMS PROGRAM, ALSO ISSUED BY THE AIR FORCE, WAS UNDULY RESTRICTIVE. WE CITED A LONG LINE OF CASES SETTING FORTH OUR STANDARD OF REVIEW, WHICH IS GENERALLY THAT WE WILL NOT QUESTION AN AGENCY'S DETERMINATION OF ITS MINIMUM NEEDS UNLESS THERE IS A CLEAR SHOWING THAT THE DETERMINATION HAS NO REASONABLE BASIS. WE FURTHER STATED THAT ONCE AN AGENCY HAS ESTABLISHED PRIMA FACIE SUPPORT FOR ITS CONTENTION THAT A CHALLENGED REQUIREMENT IS REASONABLY RELATED TO ITS NEEDS, THE BURDEN OF PROOF LIES WITH THE PROTESTER TO SHOW THAT THE GOVERNMENT'S INSISTENCE UPON IT IS CLEARLY UNREASONABLE. IN SCIENTIFIC INDUSTRIES, WE CONCLUDED THAT THE AIR FORCE HAD INDEED ESTABLISHED PRIMA FACIE SUPPORT FOR ITS CONTENTION THAT THE 2-YEAR EXPERIENCE REQUIREMENT WAS WARRANTED, NOTING THE IMPORTANCE OF MAINTAINING THE HIGHEST POSSIBLE ASEPTIC ENVIRONMENT IN CRITICAL AREAS SUCH AS SURGERY, LABOR AND DELIVERY, RECOVERY, AND NEWBORN NURSERIES. WE THEREFORE DETERMINED THAT IT WAS NOT UNREASONABLE FOR THE AIR FORCE TO INSIST UPON OBTAINING CONTRACTORS WITH AT LEAST 2 YEARS OF EXPERIENCE.

AMERIKO CONTENDS THAT THE PRESENT SITUATION IS DISTINGUISHABLE BECAUSE, WHILE THE PROTESTER IN THE SCIENTIFIC INDUSTRIES CASE FAILED TO DEMONSTRATE ANY EXPERIENCE, AMERIKO HAS DEMONSTRATED EXPERIENCE IN PROVIDING HAMS SERVICES AND HAS SATISFIED THE INTENDED PURPOSE OF THE 2 YEAR REQUIREMENT.

WHILE AMERIKO CORRECTLY ASSERTS THAT IT HAS GREATER EXPERIENCE THAN THE EARLIER PROTESTER, THIS FACTOR ALONE DOES NOT WARRANT A DIFFERENT RESULT. THESE CIRCUMSTANCES NECESSITATING THE INCLUSION OF THIS REQUIREMENT IN THE PRIOR SOLICITATION HAVE NOT CHANGED: THE AIR FORCE STILL NEEDS TO MAINTAIN THE HIGHEST POSSIBLE ASEPTIC ENVIRONMENT IN ITS HOSPITALS, AND SUCH AN ENVIRONMENT STILL CAN BE ENSURED THROUGH THE HIRING OF ONLY EXPERIENCED CONTRACTORS. ACCORDINGLY, SINCE THE AIR FORCE AGAIN HAS MADE A PRIMA FACIE CASE FOR THE INCLUSION OF THE EXPERIENCE REQUIREMENT IN THE SUBJECT SOLICITATION, THE BURDEN OF PROOF SHIFTS TO AMERIKO TO SHOW THAT THE AIR FORCE'S CONTINUED INSISTENCE ON THIS REQUIREMENT IS UNREASONABLE.

AMERIKO HAS SHOWN THAT IT HAS SATISFACTORILY PERFORMED CLEANING CONTRACTS IN MILITARY HOSPITALS. HOWEVER, WITH THE EXCEPTION OF ONE CONTRACT, WHICH BY THE END OF 1984 WOULD HAVE BEEN PERFORMED FOR 10 MONTHS, THESE CONTRACTS HAVE NOT INVOLVED THE ENTIRE PANOPOLY OF SERVICES IN CRITICAL AREAS WHICH ARE REQUIRED UNDER THE RFP. THIS EXPERIENCE, IN OUR OPINION, NEITHER DEMONSTRATES CONCLUSIVELY THAT AMERIKO CAN MAINTAIN THE HIGHEST POSSIBLE ASEPTIC ENVIRONMENT NOR ESTABLISHES THAT THE REQUIREMENT FOR 2 YEARS OF EXPERIENCE EXCEEDS THE AIR FORCE'S MINIMUM NEEDS. WE THEREFORE DENY AMERIKO'S PROTEST ON THIS BASIS.

AMERIKO FURTHER CONTENDS THAT THERE IS NO REASONABLE BASIS FOR THE REQUIREMENT THAT OFFERORS HAVE THE REQUISITE EXPERIENCE BEFORE RECEIPT OF TECHNICAL PROPOSALS. AMERIKO ARGUES THAT THE RELEVANT DATE FOR DETERMINING COMPLIANCE WITH THIS REQUIREMENT SHOULD HAVE BEEN THE DATE FOR BEGINNING CONTRACT PERFORMANCE, I.E., JANUARY 1, 1985.

WE FIND IT UNNECESSARY TO RESOLVE THIS ISSUE. THE RECORD INDICATES THAT AMERIKO WOULD HAVE HAD ONLY L0 MONTHS OF EXPERIENCE IN PERFORMING ALL OF THE SERVICES REQUIRED BY A HAMS CONTRACT AS OF DECEMBER 31, 1984. CONSEQUENTLY, EVEN IF WE AGREED THAT THE RELEVANT DATE SHOULD BE THE BEGINNING OF PERFORMANCE, AMERIKO WOULD NOT SATISFY THE 2-YEAR REQUIREMENT. THUS, THIS BASIS OF PROTEST IS ACADEMIC. CF. GULF & WESTERN HEALTH CARE, INC., B-209684 ET AL., AUG. 25, 1983, 83-2 CPD PARA. 248 (PROTEST CHALLENGING A SPECIFICATION REQUIREMENT IS ACADEMIC WHERE THE PROTESTER WOULD NOT BE ENTITLED TO AWARD EVEN IF THE PROTEST WERE SUSTAINED).

WITH RESPECT TO AMERIKO'S CONTENTION THAT THE 2-YEAR EXPERIENCE REQUIREMENT DISCRIMINATES AGAINST SMALL BUSINESSES, WE FIND THAT THIS ALLEGATION IS NOT SUPPORTED BY THE RECORD. THERE IS NO EVIDENCE SUGGESTING THAT THE AIR FORCE IN ANY WAY RESTRICTED SMALL, MINORITY OWNED, OR DISADVANTAGED BUSINESSES FROM COMPETING, AND AMERIKO ITSELF ACKNOWLEDGES THAT THREE SMALL BUSINESSES CAN MEET THE 2-YEAR MINIMUM. ACCORDINGLY, WE FIND THIS BASIS OF PROTEST WITHOUT MERIT. CF. RAILWAY SYSTEMS ENGINEERING CORP., B-208687.2, SEPT. 17, 1984, 84-2 CPD PARA. 294 (ALLEGATION OF DISCRIMINATION AGAINST SMALL BUSINESSES IS NOT SUPPORTED BY RECORD WHERE NO EVIDENCE ESTABLISHES THAT SUCH FIRMS WERE RESTRICTED FROM COMPETING AND TWO OF THE FOUR CONTRACTS AT ISSUE WERE AWARDED TO SMALL BUSINESSES).

B. EXCLUSION FROM COMPETITIVE RANGE

AMERIKO'S SECOND CONTENTION IS THAT IT WAS IMPROPERLY EXCLUDED FROM THE COMPETITIVE RANGE. CITING FEDERAL ACQUISITION REGULATION (FAR), 48 C.F.R. SEC. 15.609(A) (1984), AND SEVERAL OF OUR DECISIONS, AMERIKO STATES THAT PROPOSALS SHOULD BE INCLUDED IN THE COMPETITIVE RANGE UNLESS (1) THE DEFICIENCIES ARE SUCH THAT MAJOR REVISIONS AND ADDITIONS WOULD BE REQUIRED TO MAKE THE PROPOSAL ACCEPTABLE; OR (2) THE PROPOSAL IS SO TECHNICALLY INFERIOR THAT MEANINGFUL DISCUSSIONS WOULD BE PRECLUDED; OR (3) THE PROPOSAL WOULD NOT HAVE A REASONABLE CHANCE OF BEING SELECTED FOR AWARD. AMERIKO ARGUES THAT NONE OF THESE CIRCUMSTANCES WAS PRESENT IN THIS CASE AND CONCLUDES THAT IT WAS EXCLUDED PRIMARILY BECAUSE OF NONCOMPLIANCE WITH THE 2-YEAR REQUIREMENT.

THE AIR FORCE RESPONDS THAT AMERIKO'S PROPOSAL COULD NOT HAVE BEEN MADE ACCEPTABLE WITHOUT COMPLETE REVISION AND THAT IT HAD NO REASONABLE CHANCE OF BEING SELECTED FOR AWARD. IN ADDITION TO THE DEFICIENCIES NOTED ABOVE, THE AIR FORCE FOUND THAT AMERIKO FAILED TO ADDRESS MANY REQUIREMENTS OF THE PERFORMANCE WORK STATEMENT; THAT A MAJORITY OF ITS TECHNICAL PROPOSAL CONSISTED OF "OFF-THE SHELF," COMMERCIALLY AVAILABLE DOCUMENTS THAT DID NOT DEMONSTRATE THE INTERRELATIONSHIP BETWEEN DIFFERENT ASPECTS OF A SUCCESSFUL HAMS PROGRAM AND THAT ITS QUALITY CONTROL PROGRAM WAS NOT IN ACCORD WITH HAMS REQUIREMENTS.

GENERALLY, OFFERS THAT ARE TECHNICALLY UNACCEPTABLE AS SUBMITTED AND WOULD REQUIRE MAJOR REVISIONS TO BECOME ACCEPTABLE ARE NOT FOR INCLUSION IN THE COMPETITIVE RANGE. POTOMAC SCHEDULING CO. ET AL., B-213927.2, AUG. 13, 1984, 84-2 CPD PARA. 162. GIVEN THE DEFICIENCIES OUTLINED ABOVE, WE CONCLUDE THAT THE AIR FORCE ACTED REASONABLY IN EXCLUDING AMERIKO FROM THE COMPETITIVE RANGE.

IT IS TRUE THAT THE PRIMARY FACTOR IN THE DETERMINATION TO EXCLUDE AMERIKO FROM THE COMPETITIVE RANGE WAS THE FIRM'S FAILURE TO MEET THE MINIMUM ACCEPTABLE EXPERIENCE REQUIREMENT. HOWEVER, AMERIKO NEVER CONTENDS THAT IT MET THE 2-YEAR REQUIREMENT. SINCE WE HAVE FOUND IT REASONABLE, WE ALSO FIND THE AIR FORCE'S DETERMINATION TO NOT AWARD AMERIKO ANY POINTS FOR EXPERIENCE REASONABLE. OBVIOUSLY, AMERIKO COULD NOT HAVE IMPROVED ITS POINT SCORE FOR THIS CRITERION THROUGH DISCUSSIONS, SINCE THE NECESSARY EXPERIENCE HAD TO HAVE BEEN ACQUIRED BEFORE THE DUE DATE FOR TECHNICAL PROPOSALS. SEE COTTON & CO., B-210849, OCT. 12, 1983, 83-2 CPD PARA. 451.

THE AIR FORCE ALSO JUSTIFIES EXCLUDING AMERIKO FROM THE COMPETITIVE RANGE ON GROUNDS THAT ITS PROPOSAL HAD NO REASONABLE CHANCE OF BEING SELECTED FOR AWARD. WE HAVE APPROVED THIS "RELATIVE" APPROACH TO DETERMINING THE COMPETITIVE RANGE BASED UPON THE ARRAY OF SCORES ACTUALLY OBTAINED BY THE OTHER OFFERORS. SEE, E.G., LEO KANNER ASSOCIATES, B-213520, MAR. 13, 1984, 84-1 CPD PARA. 299. CONSEQUENTLY, EVEN IF IT IS TECHNICALLY ACCEPTABLE OR CAPABLE OF BEING MADE SO, A PROPOSAL NEED NOT BE INCLUDED IN THE COMPETITIVE RANGE WHEN THE AGENCY DETERMINES THAT IT HAS NO REASONABLE CHANCE OF BEING SELECTED FOR AWARD. JDR SYSTEMS CORP., B-214639, SEPT. 19, 1984, 84-2 CPD 325. HERE, AMERIKO'S PROPOSAL RECEIVED A SIGNIFICANTLY LOWER WEIGHTED SCORE, 365, THAN ANY OF THE OTHER FOUR OFFERORS, WHOSE SCORES RANGED FROM 898 TO 970. GIVEN THIS DISPARITY, WE SEE NO BASIS FOR QUESTIONING THE AIR FORCE'S DETERMINATION TO ELIMINATE AMERIKO'S PROPOSAL, WHICH HAD TO OVERCOME BOTH A TECHNICAL AND A COST DISADVANTAGE, FROM FURTHER CONSIDERATION. C. INCLUSION OF KEESLER AFB IN SOLICITATION

AMERIKO'S THIRD CONTENTION IS THAT THE AIR FORCE IMPROPERLY INCLUDED KEESLER AIR FORCE BASE IN THE SOLICITATION, VIOLATING FAR SEC. 19.501(G), WHICH REQUIRES REPETITIVE SMALL BUSINESS SET-ASIDES FOR A PROCUREMENT ONCE THE GOODS OR SERVICES HAVE BEEN SUCCESSFULLY ACQUIRED UNDER A SMALL BUSINESS SET-ASIDE. AT KEESLER, AMERIKO STATES, THE AIR FORCE HAS PREVIOUSLY CONTRACTED FOR "MEDICAL TREATMENT FACILITIES/HOUSEKEEPING SERVICES" UNDER A SMALL BUSINESS SET-ASIDE. AMERIKO CONCLUDES THAT THE HOUSEKEEPING SERVICES FOR KEESLER COVERED BY THE CURRENT SOLICITATION SHOULD HAVE BEEN PROCURED SEPARATELY AS A SMALL BUSINESS SET-ASIDE.

THE AIR FORCE, ON THE OTHER HAND, MAINTAINS THAT THE CITED REGULATION ONLY APPLIES TO THE REPETITIVE ACQUISITION OF IDENTICAL GOODS OR SERVICES. THE EXISTING CONTRACT AT KEESLER DOES NOT INCLUDE THE SERVICING OF CERTAIN CRITICAL AREAS, SUCH AS SURGERY. SINCE THE SCOPE OF WORK HAS BEEN EXPANDED TO INCLUDE THESE AREAS, THE AIR FORCE ARGUES THAT THE REGULATION IS INAPPLICABLE.

IN NORFOLK DREDGING CO.-- SECOND REQUEST FOR RECONSIDERATION, B-212514.3, NOV. 16, 1983, 83-2 CPD PARA. 575, WE HELD THAT THE PHRASE "ALL FUTURE REQUIREMENTS ... FOR THAT PARTICULAR PRODUCT OR SERVICE" IN THE THEN- APPLICABLE DEFENSE ACQUISITION REGULATION SEC. 1-706.1(F), REPRINTED IN 32 C.F.R. PTS. 1-39 (1983), DID NOT MEAN THAT AN IDENTICAL PRODUCT OR SERVICE MUST BE PROCURED IN ORDER FOR REPETITIVE SET-ASIDES TO BE REQUIRED, SO LONG AS THE CONTRACTING OFFICER EXPECTS COMPETITION FROM TWO OR MORE SMALL BUSINESSES. THAT DECISION INVOLVED DREDGING SERVICES, WHICH THE ARMY CORPS OF ENGINEERS HAD PREVIOUSLY PROCURED UNDER A SMALL BUSINESS SET-ASIDE FOR "MAINTENANCE DREDGING." WE FOUND THAT A SECOND PROCUREMENT, FOR "MAINTENANCE DREDGING" AND "NEW WORK," SHOULD BE CONDUCTED AS A SET- ASIDE BECAUSE THERE WAS NO MEANINGFUL DISTINCTION BETWEEN MAINTENANCE AND NEW WORK.

THE PRESENT SITUATION IS DIFFERENT. THERE IS A MEANINGFUL DISTINCTION BETWEEN THE PERFORMANCE OF HOUSEKEEPING SERVICES AND THE CLEANING OF CRITICAL AREAS OF A HOSPITAL; DIFFERENT SKILLS AND DIFFERENT METHODOLOGIES ARE REQUIRED. FURTHER, THE DECISION TO PROCURE ALL SERVICES UNDER A SINGLE HAMS CONTRACT, RATHER THAN CONTRACT SEPARATELY FOR HOUSEKEEPING, IS, IN OUR OPINION, WITHIN THE AIR FORCE'S DISCRETION. WE THEREFORE CONCLUDE THAT FAR SEC. 19.501(G) IS INAPPLICABLE TO THE PERFORMANCE OF NEW WORK AT KEESLER, AND WE DENY THE PROTEST ON THIS BASIS.

D. FAILURE TO CONDUCT COST COMPARISON

AMERIKO'S FINAL CONTENTION IS THAT THE AIR FORCE IMPROPERLY FAILED TO PERFORM A COST COMPARISON AS REQUIRED BY OMB CIRCULAR NO. A-76 BEFORE EXPANDING THE SCOPE OF WORK AT KEESLER TO A HAMS SYSTEM. SINCE SOME OF THE WORK TO BE PERFORMED UNDER THE HAMS CONTRACT IS CURRENTLY BEING PERFORMED BY MILITARY PERSONNEL, AMERIKO MAINTAINS THAT THE AIR FORCE WAS REQUIRED TO DETERMINE WHETHER THE HIRING OF OUTSIDE CONTRACTORS IS JUSTIFIED.

THE DECISION WHETHER TO PERFORM IN-HOUSE OR CONTRACT OUT IS A MATTER OF EXECUTIVE BRANCH POLICY THAT WE DO NOT REVIEW. DWS, INC., B-211950.2, FEB. 10, 1984, 84-1 CPD PARA. 164. WE CONSIDER PROTESTS CONCERNING OMB CIRCULAR NO. A-76 ONLY WHEN IT IS ALLEGED THAT AN AGENCY DID NOT ADHERE TO THE RULES ANNOUNCED IN A SOLICITATION ISSUED FOR THE PURPOSE OF COMPARING THE COST OF CONTRACTING OUT TO THE COST OF PERFORMING IN-HOUSE. ID. NO SUCH ALLEGATIONS HAVE BEEN MADE HERE.

CONCLUSION

FOR THE FOREGOING REASONS, THE PROTEST IS DENIED IN PART AND DISMISSED IN PART.