B-219680, ET AL., DEC 24, 1985, 85-2 CPD 706

B-219680: Dec 24, 1985

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DEDUCTION FOR ENTIRE UNIT OF SERVICE FOR A SINGLE DEFICIENCY IS JUSTIFIED. THE PRS PROVIDES THAT ANY DEFECT IN A UNIT OF SERVICE WILL RESULT IN NO PAYMENT FOR THAT SERVICE. THAT IS. NO (ZERO PERCENT) DEVIATION FROM PERFECT PERFORMANCE OF CLEANING SERVICE IS ALLOWED. THE UNITS OF SERVICE FOR QUALITY ASSURANCE PURPOSES ARE INDIVIDUAL ROOMS/AREAS (AREAS). THE AREAS COVERED BY THE SOLICITATIONS ARE CLASSIFIED AS FOLLOWS: (1) SPECIAL PATIENT USE-VISIT AREAS (FOR EXAMPLE. " IS FOR PROJECT/CYCLE CLEANING. THE UNIT OF SERVICE FOR CATEGORY "C" CLEANING PROJECTS IS THE NUMBER OF PROJECT ITEMS SCHEDULED FOR CLEANING EACH DAY. IT THEREFORE CONTENDS THAT THE TOTAL CLEAN (ZERO PERCENT DEVIATION) REQUIREMENT IS NOT A UNIFORM REQUIREMENT AS THE AGENCY SUGGESTS.

B-219680, ET AL., DEC 24, 1985, 85-2 CPD 706

CONTRACTS - DAMAGES - LIQUIDATED - ACTUAL DAMAGES V. PENALTY - PRICE DEDUCTIONS - REASONABLENESS DIGEST: 1. SOLICITATIONS WHICH AUTHORIZE A DEDUCTION FOR ALL CUSTODIAL SERVICES PERFORMED IN A ROOM WHERE CONTRACTOR FAILS TO PERFORM ANY OF REQUIRED TASKS WITHIN THAT ROOM IMPOSE REASONABLE MEASURE OF DAMAGES. CONTRACTS - DAMAGES - LIQUIDATED - ACTUAL DAMAGES V. PENALTY - PRICE DEDUCTIONS - REASONABLENESS 2. DEDUCTION FOR ENTIRE UNIT OF SERVICE FOR A SINGLE DEFICIENCY IS JUSTIFIED, SINCE AGENCY HAS SHOWN HOW UNSATISFACTORY CLEANING OF ONE PART OF A ROOM WOULD RENDER THAT ENTIRE ROOM UNSUITABLE FOR THE GOVERNMENT'S PURPOSE. CONTRACTS - DAMAGES - LIQUIDATED - FAILURE TO PERFORM OBLIGATED SERVICE 3. WHERE SOLICITATIONS STATE THAT THE CLEANING REQUIREMENTS MUST BE MET AT THE COMPLETION OF SCHEDULED CLEANING, ANY PROBLEMS AT TIMES OTHER THAN THE COMPLETION OF SCHEDULED CLEANING DO NOT CONSTITUTE A DEFECTIVE SERVICE.

ENVIRONMENTAL ASEPTIC SERVICES ADMINISTRATION:

ENVIRONMENTAL ASEPTIC SERVICES ADMINISTRATION (EASA) PROTESTS THAT SEVEN INVITATIONS FOR BIDS (IFB'S) ISSUED BY THE UNITED STATES AIR FORCE FOR HOSPITAL CLEANING SERVICES CONTAIN PROVISIONS IMPOSING ALLEGEDLY UNFAIR MONETARY DEDUCTIONS FOR DEFECTIVE PERFORMANCE. /1/

WE DENY THE PROTESTS.

THE INVITATIONS INCORPORATE BY REFERENCE THE STANDARD INSPECTION OF SERVICES CLAUSE CONTAINED IN THE FEDERAL ACQUISITION REGULATION (FAR), 48 C.F.R. SEC. 52.246-4 (1984). THE CLAUSE GENERALLY MUST BE INCLUDED IN ALL FIXED-PRICE SERVICE CONTRACTS. FAR, 48 C.F.R. SEC. 46.304 (1984). RESERVES THE GOVERNMENT'S RIGHT TO INSPECT ALL SERVICES, TO THE EXTENT PRACTICABLE, AT ALL TIMES DURING THE TERM OF THE CONTRACT. THE CLAUSE ALSO PROVIDES THAT WHEN DEFECTS CANNOT BE CORRECTED BY REPERFORMANCE, THE GOVERNMENT MAY REDUCE THE CONTRACT PRICE TO REFLECT THE REDUCED VALUE OF THE SERVICES PERFORMED.

THE INVITATIONS CONTAIN ADDITIONAL QUALITY ASSURANCE PROVISIONS UNDER THE HEADING ENTITLED PERFORMANCE REQUIREMENTS SUMMARY (PRS) THAT PERMIT THE GOVERNMENT TO MONITOR THE CONTRACTOR'S PERFORMANCE BY SPECIFIED MEANS OF SURVEILLANCE (TYPICALLY BY CUSTOMER COMPLAINTS) AND TO DEDUCT PAYMENTS FOR DEFECTIVE SERVICE. THE PRS PROVIDES THAT ANY DEFECT IN A UNIT OF SERVICE WILL RESULT IN NO PAYMENT FOR THAT SERVICE, THAT IS, NO (ZERO PERCENT) DEVIATION FROM PERFECT PERFORMANCE OF CLEANING SERVICE IS ALLOWED. THIS INSPECTION/DEDUCTION SCHEME IMPLEMENTS THE SOLICITATIONS' REQUIREMENT THAT THE CONTRACTOR PROVIDE A "TOTAL CLEAN ENVIRONMENT."

THE UNITS OF SERVICE FOR QUALITY ASSURANCE PURPOSES ARE INDIVIDUAL ROOMS/AREAS (AREAS). THE "TOTAL CLEAN" DEFINITION REQUIRES THAT ALL AREAS MUST BE "PROPERLY CLEANED, PROTECTED AND BEAUTIFIED." THE IFB REQUIRES THE CONTRACTOR TO ESTABLISH PROCEDURES FOR SATISFYING THE TOTAL CLEAN REQUIREMENT WITHIN UNITS OF SERVICE. THE FAILURE TO COMPLY WITH ANY OF THE CONTRACTOR'S OWN WRITTEN INSTRUCTIONS AND PROCEDURES FOR CLEANING AN AREA RENDERS THE ENTIRE AREA UNACCEPTABLE.

THE AREAS COVERED BY THE SOLICITATIONS ARE CLASSIFIED AS FOLLOWS: (1) SPECIAL PATIENT USE-VISIT AREAS (FOR EXAMPLE, THE EMERGENCY ROOM, CARDIAC CARE UNITS); (2) GENERAL PATIENT USE-VISIT AREAS (FOR EXAMPLE, PATIENTS ROOMS, DOCTORS' OFFICES); AND (3) ALL OTHER NONPATIENT USE VISIT AREAS (FOR EXAMPLE, ADMINISTRATIVE ROOMS, SUPPLY OFFICES). THE SOLICITATIONS FURTHER CLASSIFY THE REQUIRED CLEANING SERVICES BY CATEGORIES. CATEGORY "A" COVERS 7-DAY-PER-WEEK HOUSEKEEPING SERVICES, AND CATEGORY "B" COVERS WEEKDAY HOUSEKEEPING SERVICES.

A THIRD CATEGORY, CATEGORY "C," IS FOR PROJECT/CYCLE CLEANING, WHICH COVERS ITEMS SUCH AS EXTERIOR WINDOW CLEANING AND REMOVING AND REHANGING BLINDS, THAT REQUIRE LESS FREQUENT CLEANING. THE UNIT OF SERVICE FOR CATEGORY "C" CLEANING PROJECTS IS THE NUMBER OF PROJECT ITEMS SCHEDULED FOR CLEANING EACH DAY. A SINGLE DEFICIENCY IN ANY PART OF A DAY'S CATEGORY "C" CLEANING PROJECT PERMITS REJECTION OF THE ENTIRE SERVICE OUTPUT FOR THAT PROJECT.

WE NOTE INITIALLY THAT THE AIR FORCE INTENDS TO TAKE CORRECTIVE ACTION WITH REGARD TO TWO OF EASA'S COMPLAINTS CONCERNING THESE QUALITY ASSURANCE PROVISIONS. EASA STATES THAT TWO OF THE INVITATIONS IN QUESTION ALLOWED DEVIATION LEVELS GREATER THAN ZERO PERCENT. IT THEREFORE CONTENDS THAT THE TOTAL CLEAN (ZERO PERCENT DEVIATION) REQUIREMENT IS NOT A UNIFORM REQUIREMENT AS THE AGENCY SUGGESTS. WE HAVE BEEN ADVISED BY THE AIR FORCE, HOWEVER, THAT THE PERFORMANCE WORK STATEMENT FOR HOSPITAL CUSTODIAL SERVICES WAS DEVELOPED FOR AIR FORCE WIDE IMPLEMENTATION, AND THAT ANY SOLICITATIONS FOR THESE SERVICES WHICH CONTAINED DEVIATION PERCENTAGES OTHER THAN ZERO WERE ERRORS AND WILL BE REVISED. THE AIR FORCE ALSO AGREES WITH EASA'S CONTENTION THAT SEVERAL OF THE INVITATIONS FAIL TO STATE CLEARLY WHETHER DEFECTIVE SERVICE ON CATEGORY "C" PROJECTS MAY BE REPERFORMED AND STATES THAT IT CORRECTED THIS AMBIGUITY BY AMENDING THE INVITATIONS TO PERMIT REPERFORMANCE. WE THUS WILL NOT CONSIDER THESE TWO ALLEGATIONS.

EASA HAS THREE BASIC COMPLAINTS REGARDING THE DEDUCTION SCHEME INCLUDED IN THE QUALITY ASSURANCE PROVISIONS. IT FIRST CONTENDS THAT THE PROVISIONS ARE UNREASONABLE BECAUSE, REGARDLESS OF THE NATURE OF THE DEFICIENCY, DEDUCTION IS REQUIRED FOR THE ENTIRE CATEGORIES "A" AND "B" AREAS OR AN ENTIRE DAY'S WORK UNDER CATEGORY "C" PROJECTS. FOR EXAMPLE, AS TO CATEGORIES "A" AND "B" AREAS, THE CONTRACTOR IS REQUIRED TO TOTALLY CLEAN A PATIENT'S ROOM AND, IF ANY PART OF THAT ROOM IS NOT CLEAN, THE WHOLE ROOM IS DEFECTIVE. IN OTHER WORDS, IF THE CONTRACTOR UNSATISFACTORILY CLEANS THE SINK IN THE ROOM AND THE REST OF THE ROOM IS TOTALLY CLEAN, THE CONTRACTOR WILL BE ASSESSED AS THOUGH IT FAILED TO CLEAN THE ENTIRE ROOM. EASA CONCLUDES THAT ANY DEDUCTIONS WILL BE BASED ON THE VALUE OF THE WHOLE ROOM AND WILL GREATLY EXCEED THE VALUE OF THE ACTUAL DEFECT. EASA SIMILARLY CONTENDS THAT THE PENALTY FOR WORK ON CATEGORY "C" CLEANING PROJECTS IS UNFAIR, SINCE, IF ANY PART OF A PROJECT IS DEFECTIVE, WORK FOR THAT WHOLE DAY IS REJECTED. FOR EXAMPLE, IF ONE EXTERIOR WINDOW IS NOT CLEANED, THEN NO PAYMENT IS MADE FOR ANY OF THE WINDOWS CLEANED THAT DAY. EASA ARGUES THAT THERE IS VALUE IN A SERVICE PARTIALLY PERFORMED AND, SINCE THERE IS NO VARIATION BETWEEN THE AMOUNTS DEDUCTIBLE FOR A MARGINAL FAILURE AND A COMPLETE FAILURE IN ANY REQUIRED SERVICE, THE DEDUCTION PROCEDURE DEPRIVES THE CONTRACTOR OF CREDIT FOR PARTIAL OR SUBSTANTIAL PERFORMANCE.

SECOND, EASA COMPLAINS THAT THE DEDUCTION RATES ARE UNREASONABLE BECAUSE THE TOTAL CLEAN REQUIREMENT DOES NOT CONSIDER THE IMPORTANCE OF THE AREA BEING CLEANED. EASA CHALLENGES THE AIR FORCE'S ASSERTION THAT EVERY AREA IS OF EQUAL IMPORTANCE AND, THUS, NO CREDIT SHOULD BE GIVEN FOR PARTIAL PERFORMANCE. EASA AGREES THAT SOME AREAS ARE VITAL AND NO CREDIT SHOULD BE GIVEN FOR PARTIAL PERFORMANCE, BUT IT ASSERTS THAT SOME AREAS ARE IN FACT NONVITAL AND PARTIAL PAYMENT SHOULD BE MADE FOR PARTIAL PERFORMANCE IN THOSE AREAS.

EASA'S THIRD CONTENTION IS THAT THE SOLICITATION DOES NOT ESTABLISH A SPECIFIC TIME AT WHICH THE CONTRACTOR'S PERFORMANCE IN MEETING THE TOTAL CLEAN REQUIREMENT WILL BE EVALUATED. EASA REPORTS THAT, ALTHOUGH AT THE GAO BID PROTEST CONFERENCE AN AIR FORCE REPRESENTATIVE STATED THAT THE TOTAL CLEAN REQUIREMENT WAS AS OF "THE COMPLETION OF SCHEDULED CLEANING," PREVIOUSLY A CONTRACTING OFFICER ALLEGEDLY INTERPRETED THE SOLICITATIONS AS PROVIDING THAT ANY COMPLAINT BETWEEN SCHEDULED CLEANINGS CONSTITUTES A DEFECT. UNDER THE CONTRACTING OFFICER'S INTERPRETATION, IF A TRASH RECEPTACLE IS FOUND TO CONTAIN TRASH BETWEEN SCHEDULED SERVICING, THE WHOLE ROOM WOULD BE DEFECTIVE, AND EASA ASSERTS THAT THIS IS AN UNREASONABLE REQUIREMENT.

THE AIR FORCE DISPUTES THE PROTESTER'S CONTENTION THAT THE IFB'S PERMIT UNREASONABLE DEDUCTIONS. IT EXPLAINS THAT THE IFB'S ARE CONSISTENT WITH THE AIR FORCE'S CONCERN FOR THE WELFARE OF PATIENTS IN AIR FORCE HOSPITALS AND IT IS NECESSARY TO MAINTAIN ASEPTIC CONDITIONS FOR PATIENTS. THE AIR FORCE REPORTS THAT THE HOSPITAL MUST MINIMIZE THE RISK TO PATIENTS OF HOSPITAL-ACQUIRED INFECTIONS. IN THIS REGARD, THE AIR FORCE STATES THAT HOUSEKEEPING IS A FEATURE OF THE HOSPITAL'S INFECTION CONTROL PROGRAM. ACCORDING TO THE AIR FORCE, THE UNDERLYING PRINCIPLE IN HOUSEKEEPING PRACTICES IS THE REMOVAL OR SUBSTANTIAL REDUCTION OF THE NUMBER OF INFECTION-CAUSING MICROORGANISMS PRESENT ON OBJECTS, THUS REDUCING THE NUMBER OF MICROORGANISMS WHICH CAN BE TRANSMITTED TO THE PATIENT. THE AIR FORCE CONCLUDES THAT A POORLY CLEANED AREA INCREASES THE RISK OF MICROORGANISM TRANSFER FROM UNCLEAN AREAS AND MAY POSE A RISK TO PATIENTS.

THE AIR FORCE FURTHER EXPLAINS THAT THE SERVICES PROVIDED IN A MILITARY HOSPITAL JUSTIFY ITS DECISION TO CONSIDER ALL AREAS VITAL UNDER THESE CONTRACTS. THE AIR FORCE STATES THAT IN A CIVILIAN HOSPITAL, THE PATIENT DOES NOT LEAVE THE IMMEDIATE AREA OF HIS ASSIGNED ROOM AND ONLY THAT AREA IS CRITICAL TO PATIENT CARE. HOWEVER, THE AIR FORCE POINTS OUT THAT IN A MILITARY HOSPITAL, THE PATIENT IS NOT RESTRICTED TO HIS ROOM AND IS, FOR EXAMPLE, REQUIRED TO GO TO THE DINING ROOM WHEN AMBULATORY OR MAY GO TO THE BARBER OR BEAUTY SHOP. MOREOVER, ADMINISTRATIVE OFFICES ARE ALSO USED TO SEE PATIENTS, CONDUCT EXAMINATIONS AND TO PERFORM OTHER MEDICAL PROCEDURES. THE AIR FORCE ASSERTS THAT, SINCE FEW AREAS ARE RESTRICTED FROM PATIENT ACCESS, THE ENTIRE FACILITY MUST BE KEPT TOTALLY CLEAN.

THE AIR FORCE ACKNOWLEDGES THAT THESE QUALITY ASSURANCE PROVISIONS MAY INCREASE ITS COSTS BUT IT IS WILLING TO ACCEPT INCREASED COSTS IN ORDER TO MINIMIZE THE RISK OF INFECTION TO ITS PATIENTS. IT ADDS THAT IT DOES NOT BELIEVE THESE PROVISIONS HAVE ANY ADVERSE IMPACT ON COMPETITION, POINTING TO THE SOLICITATION AT CANNON AIR FORCE BASE WHERE FIVE BIDS, INCLUDING ONE FROM EASA, WERE RECEIVED.

THE IFB QUALITY ASSURANCE PROVISIONS ESTABLISH A SYSTEM OF LIQUIDATED DAMAGES. LIQUIDATED DAMAGES ARE FIXED AMOUNTS WHICH THE GOVERNMENT CAN RECOVER FROM THE CONTRACTOR UPON PROOF OF VIOLATION OF THE CONTRACT AND WITHOUT PROOF OF THE DAMAGES ACTUALLY SUSTAINED. ENVIRONMENTAL ASEPTIC SERVICES ADMINISTRATION, 64 COMP.GEN. 54 (1984), 84-2 CPD PARA. 510. RATE FOR LIQUIDATED DAMAGES MUST BE REASONABLE IN LIGHT OF THE SOLICITATION'S REQUIREMENTS SINCE LIQUIDATED DAMAGES FIXED WITHOUT ANY REFERENCE TO PROBABLE ACTUAL DAMAGES MAY BE HELD TO BE A PENALTY AND, THEREFORE, UNENFORCEABLE. FAR, 48 C.F.R. SEC. 12.202(B) (1984).

WE WILL REVIEW A PROTEST THAT A SOLICITATION'S LIQUIDATED DAMAGES PROVISION IMPOSES A PENALTY BECAUSE ANY SOLICITATION PROVIDING PENALTIES FOR INADEQUATE PERFORMANCE, IN ADDITION TO VIOLATING APPLICABLE PROCUREMENT REGULATIONS, CAN ADVERSELY AFFECT COMPETITION AND UNNECESSARILY RAISE THE GOVERNMENT'S COSTS. ENVIRONMENTAL ASEPTIC SERVICES ADMINISTRATION AND LARSON BUILDING CARE, INC., 62 COMP.GEN. 219 (1983), 83-1 CPD PARA. 194. THE POSSIBILITY OF INCURRING SUBSTANTIAL PENALTIES MIGHT DISCOURAGE POTENTIAL BIDDERS FROM COMPETING OR CAUSE OTHERS NOT TO OFFER AS LOW A PRICE AS THEY MIGHT OTHERWISE BE WILLING TO OFFER.

BEFORE WE WILL RULE THAT A LIQUIDATED DAMAGES PROVISION IMPOSES A PENALTY, HOWEVER, THE PROTESTER MUST SHOW THERE IS NO POSSIBLE RELATION BETWEEN THE AMOUNTS STIPULATED FOR LIQUIDATED DAMAGES AND LOSSES WHICH ARE CONTEMPLATED BY THE PARTIES. SEE MASSMAN CONSTRUCTION CO., B-204196, JUNE 25, 1982, 82-1 CPD PARA. 624. HERE, WE BELIEVE THE PROTESTER INITIALLY MET THIS BURDEN BY SHOWING THAT THE SOLICITATION PROVISIONS PERMIT DEDUCTIONS FOR A UNIT OF SERVICE EVEN THOUGH THE UNSATISFACTORY PERFORMANCE MIGHT RELATE TO LESS THAN THE ENTIRE UNIT. IN THE EXAMPLE OF A PATIENT'S ROOM, THE INVITATIONS AUTHORIZE DEDUCTION FOR THE ENTIRE ROOM CLEANING SERVICE IF THE CONTRACTOR FAILS TO CLEAN ANY ONE PART OF THE ROOM.

IT THEREFORE IS INCUMBENT ON THE AIR FORCE TO SHOW, IN RESPONSE TO THE PROTESTER'S SHOWING, THAT THERE INDEED IS A REASONABLE BASIS FOR ITS MEASURE OF DAMAGES. IN CONTRAST TO ENVIRONMENTAL ASEPTIC SERVICES ADMINISTRATION AND LARSON BUILDING CARE, INC., 62 COMP.GEN. 219 (1983), SUPRA, WHERE THE AIR FORCE FAILED TO OFFER ANY JUSTIFICATION FOR WHY ANY DEFECTIVE SERVICE WARRANTED DEDUCTION FOR THE ENTIRE UNIT OF SERVICE AND WE CONSEQUENTLY FOUND QUALITY ASSURANCE PROVISIONS SIMILAR TO THOSE IN QUESTION HERE UNREASONABLE, WE BELIEVE THAT IN THIS CASE THE AIR FORCE HAS SUCCESSFULLY SHOWN THAT THERE IS A REASONABLE BASIS FOR ITS MEASURE OF DAMAGES.

THE AIR FORCE BELIEVES THAT DEFECTIVE PERFORMANCE OF ANY PART OF A SERVICE, WITHOUT REGARD TO THE NATURE OR SERIOUSNESS OF THE AREA, WARRANTS DEDUCTION FOR THE ENTIRE AREA BECAUSE PATIENTS HAVE ACCESS TO ALL AREAS OF THE HOSPITAL AND, CONSEQUENTLY, EACH AREA IS OF EQUAL IMPORTANCE. AGREE. THE AGENCY HAS DEMONSTRATED, AND THE PROTESTER HAS NOT DISPUTED, THAT PATIENTS IN FACT HAVE ACCESS TO ALMOST ALL PARTS OF THE HOSPITAL, INCLUDING ADMINISTRATIVE AREAS. AS A CONSEQUENCE OF THIS FREE ACCESS, HYGIENE IN ALL AREAS IS AS CRITICAL AS IN AN EMERGENCY ROOM BECAUSE PATIENTS MAY BE EXPOSED TO INFECTIONS AS THEY MOVE AROUND THE HOSPITAL. FOR EXAMPLE, A PATIENT SUSCEPTIBLE TO INFECTION MAY BE SAFE FROM THE THREAT OF INFECTION WHILE IN HIS TOTALLY CLEAN ROOM, BUT HE WOULD BE EXPOSED TO POSSIBLE INFECTION IF HE LEFT HIS ROOM TO GO TO THE HOSPITAL DINING ROOM IF THE DINING ROOM AND THE HALLWAYS AND ELEVATORS LEADING TO THE DINING ROOM WERE NOT ALL REQUIRED TO BE TOTALLY CLEAN ALSO. THE TOTAL CLEAN REQUIREMENT ALSO ELIMINATES THE RISK OF HOSPITAL PERSONNEL OR VISITORS CARRYING INFECTIONS FROM ONE AREA TO ANOTHER AND ENDANGERING PATIENTS. FOR EXAMPLE, MAINTAINING A TOTALLY CLEAN EMERGENCY ROOM WOULD BE A FUTILE EXERCISE IF A DOCTOR COMING FROM HIS OFFICE WHICH IS NOT TOTALLY CLEAN VISITS A PATIENT IN THE EMERGENCY ROOM. THUS, ALL AREAS OF A MILITARY HOSPITAL ARE VITAL AREAS AND ANY PARTIALLY CLEAN AREA REPRESENTS A RISK TO PATIENTS.

THE AIR FORCE HAS SHOWN HOW THE UNSATISFACTORY CLEANING OF ONE CATEGORY "A" OR "B" AREA WOULD LIMIT THE EFFECTIVENESS OF TOTAL HOSPITAL INFECTION CONTROL PROGRAMS WHICH ARE NECESSARY TO ASSURE OPTIMAL PATIENT SAFETY AND THUS WOULD RENDER THE AFFECTED AREA UNSUITABLE FOR THE GOVERNMENT'S PURPOSE. THEREFORE, THE LIQUIDATED DAMAGES PROVISIONS WOULD IMPOSE DAMAGES WITH REGARD TO THE PROPORTION OF SATISFACTORY PERFORMANCE. THUS, WE CONCLUDE THAT THE IFB PROVISIONS IN ISSUE DO NOT IMPOSE A PENALTY. ALTHOUGH WE DENY THE PROTEST ON THIS ISSUE WITH RESPECT TO CLEANING SERVICES UNDER ALL THREE CATEGORIES, WE HAVE SOME CONCERN WITH REGARD TO THE APPLICATION OF THE TOTAL CLEAN REQUIREMENT TO THE PERFORMANCE OF CATEGORY "C" PROJECTS BECAUSE SOME OF THE CLEANING PROJECTS FALLING UNDER CATEGORY "C" ARE IN AREAS TO WHICH PATIENTS DO NOT HAVE ACCESS, SUCH AS CLEANING EXTERIOR WINDOWS AND REMOVING SNOW AND ICE OUTSIDE THE BUILDING. THE AIR FORCE DOES NOT EXPLAIN WHY, FOR EXAMPLE, TOTALLY CLEAN EXTERIOR WINDOWS ARE NECESSARY TO THE AIR FORCE'S TOTAL HOSPITAL INFECTION CONTROL PROGRAM WHICH IS CONCERNED WITH THE HOSPITAL'S INTERIOR ENVIRONMENT. UNDER THESE CIRCUMSTANCES, SINCE THE AIR FORCE, AS NOTED PREVIOUSLY, HAS ADVISED US THAT THE INVITATIONS WILL PERMIT REPERFORMANCE OF CATEGORY "C" PROJECTS, WE RECOMMEND THAT THE AIR FORCE, IN ADMINISTERING THE CONTRACT, SHOULD AVOID TAKING UNREASONABLE DEDUCTIONS UNDER CATEGORY "C" AND PERMIT REPERFORMANCE OF DEFECTIVE SERVICES WHENEVER POSSIBLE. ALSO, WE RECOMMEND THAT THE AIR FORCE CONSIDER IN THE FUTURE WHETHER IT IS NECESSARY FOR SUCCESSFUL IMPLEMENTATION OF ITS TOTAL HOSPITAL INFECTION CONTROL PROGRAM THAT AN ENTIRE DAY'S WORK ON A CATEGORY "C" PROJECT BE DEDUCTED IF ANY PART OF THAT PROJECT IS DEFECTIVE.

AS TO EASA'S ALLEGATION THAT THE IFB'S FAIL TO ESTABLISH SCHEDULES FOR THE INSPECTION OF THE SERVICES, THE SOLICITATION STATES THAT THE ROOM OR AREA MUST MEET THE TOTAL CLEAN REQUIREMENT "AT THE COMPLETION OF SCHEDULED CLEANING." THIS CLEARLY MEANS THAT COMPLAINTS CAN BE MADE ONLY AT THE TIME SPECIFIED IN WORK SCHEDULES FOR THE COMPLETION OF CLEANING AND ANY PROBLEMS BETWEEN CLEANINGS DO NOT CONSTITUTE A BASIS FOR PENALTY. ALSO, THE CONTRACTOR SUBMITS ITS WORK SCHEDULE TO THE AIR FORCE FOR APPROVAL. THUS, THE AIR FORCE, NOT THE CONTRACTOR, HAS FINAL APPROVAL OF THE WORK SCHEDULES AND, IN EFFECT, ESTABLISHES THE PRECISE TIME WHEN THE ROOMS MUST BE CLEAN AND CAN BE "INSPECTED." WE FIND THAT THE IFB'S CLEARLY ADVISE BIDDERS WHEN THE TOTAL CLEAN REQUIREMENT MUST BE MET. TO THE EXTENT EASA IS ALLEGING THE IFB'S ARE AMBIGUOUS, WE DENY THIS PROTEST ALLEGATION.

THE PROTESTS ARE DENIED.

/1/ THE SOLICITATION NUMBERS AND OUR RESPECTIVE DOCKET NUMBERS ARE LISTED BELOW:

AIR FORCE SOLICITATION NO. GAO DOCKET NO.

F20613-85-B-0052 B-219680

F29605-85-B-0037 B-219986

F22608-85-B-0035 B-220595

F17600-85-B-0051 B-220596

F04607-85-B-0059 B-220597

F41685-85-B-0014 B-220598

F38606-85-B-0053 B-220617