B-220032, NOV 21, 1985, 85-2 CPD 586

B-220032: Nov 21, 1985

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

WE WILL NOT QUESTION AN AGENCY'S ASSESSMENT OF ITS MINIMUM NEEDS WHERE A PROTESTER FAILS TO SHOW THAT THE AGENCY'S DETERMINATION IS UNREASONABLE. THERE IS NO REQUIREMENT. ALLEGATIONS OF VAGUE OR AMBIGUOUS SOLICITATION PROVISIONS ARE REJECTED WHERE REQUIREMENTS ARE STATED CLEARLY AND THOSE ALLEGATIONS ARE BASED ON AN UNREASONABLE INTERPRETATION OF THE SOLICITATION. THE SOLICITATION WAS ISSUED AUGUST 12. A SERIES OF FINE AMENDMENTS TO THE SOLICITATION WAS ISSUED AT VARIOUS TIMES BETWEEN THE PUBLICATION OF THE SOLICITATION AND SEPTEMBER 24. CARPENTER SEEMS TO SUGGEST THAT OTHER BIDDERS WILL BID TOO HIGH OR TOO LOW AS THEY ARE NOT PRIVY TO WHAT CARPENTER BELIEVES TO BE ACCURATE INFORMATION CONCERNING SOLICITATION REQUIREMENTS.

B-220032, NOV 21, 1985, 85-2 CPD 586

BIDS - INVITATION FOR BIDS - SPECIFICATIONS - MINIMUM NEEDS REQUIREMENT - ADMINISTRATIVE DETERMINATION - REASONABLENESS DIGEST: 1. CONTRACTING AGENCY HAS THE PRIMARY RESPONSIBILITY FOR DETERMINING ITS MINIMUM NEEDS AND DRAFTING REQUIREMENTS THAT REFLECT THOSE NEEDS. WE WILL NOT QUESTION AN AGENCY'S ASSESSMENT OF ITS MINIMUM NEEDS WHERE A PROTESTER FAILS TO SHOW THAT THE AGENCY'S DETERMINATION IS UNREASONABLE. BIDS - ESTIMATES OF GOVERNMENT - BASIS OF ESTIMATE 2. WHEN SOLICITING FOR A REQUIREMENTS CONTRACT, AN AGENCY MUST BASE ITS ESTIMATED QUANTITIES ON THE BEST INFORMATION AVAILABLE. THERE IS NO REQUIREMENT, HOWEVER, THAT THESE ESTIMATES BE PERFECT. BIDS - INVITATION FOR BIDS - SPECIFICATIONS - ADEQUACY 3. ALLEGATIONS OF VAGUE OR AMBIGUOUS SOLICITATION PROVISIONS ARE REJECTED WHERE REQUIREMENTS ARE STATED CLEARLY AND THOSE ALLEGATIONS ARE BASED ON AN UNREASONABLE INTERPRETATION OF THE SOLICITATION.

H.L. CARPENTER COMPANY:

H.L. CARPENTER COMPANY (CARPENTER) PROTESTS THAT SOLICITATION NO. DAKF40- 85-B-0092, ISSUED BY THE DEPARTMENT OF THE ARMY FOR THE OPERATION OF FURNITURE REPAIR FACILITIES AT FORT BRAGG, NORTH CAROLINA, INCLUDES AMBIGUOUS AND MISLEADING SOLICITATION PROVISIONS. WE DENY THE PROTEST IN PART AND DISMISS IT IN PART.

THE SOLICITATION WAS ISSUED AUGUST 12, 1985. CARPENTER, THE INCUMBENT CONTRACTOR, FILED ITS PROTEST IN OUR OFFICE ON SEPTEMBER 3. A SERIES OF FINE AMENDMENTS TO THE SOLICITATION WAS ISSUED AT VARIOUS TIMES BETWEEN THE PUBLICATION OF THE SOLICITATION AND SEPTEMBER 24. AMENDMENT 3, ISSUED ON SEPTEMBER 6, EXTENDED BID OPENING INDEFINITELY.

WHILE WE ADDRESS MOST OF CARPENTER'S COMPLAINTS BELOW, WE NOTE INITIALLY THAT CARPENTER'S PROTEST APPEARS TO CENTER ON TWO UNDERLYING ISSUES. FIRST, CARPENTER SEEMS TO SUGGEST THAT OTHER BIDDERS WILL BID TOO HIGH OR TOO LOW AS THEY ARE NOT PRIVY TO WHAT CARPENTER BELIEVES TO BE ACCURATE INFORMATION CONCERNING SOLICITATION REQUIREMENTS. SECOND, CARPENTER CLAIMS THAT THE ARMY, IN ADMINISTERING THE CONTRACT, WILL REQUIRE MORE OR LESS PERFORMANCE FROM THE CONTRACTOR THAN STATE IN THE SOLICITATION AND THE RESULTANT CONTRACT.

WE FAIL TO SEE HOW CARPENTER WILL BE PREJUDICED IF BIDDERS BID TOO HIGH FOR THE SOLICITATION, HOWEVER, AS THAT INCREASES CARPENTER'S CHANCES FOR CONTRACT AWARD. IN ANY EVENT, WITH REGARD TO THIS CLAIM AND CARPENTER'S FEAR THAT BIDDERS WILL BID TOO LOW, WE BELIEVE, AS DISCUSSED BELOW, THE SOLICITATION CONTAINS ADEQUATE INFORMATION ON WHICH BIDDERS MAY BASE THEIR BIDS. FURTHER, CONTRACTING OFFICIALS ARE PRESUMED TO ACT IN GOOD FAITH, AND WE THEREFORE WILL NOT ANTICIPATE THAT THE ARMY WILL VIOLATE CONTRACT PROVISIONS AFTER AWARD.

AMONG ITS NUMEROUS ALLEGATIONS, CARPENTER COMPLAINS THAT THE SOLICITATION BREAKS THE REQUIRED WORK DOWN INTO TOO MANY ITEMS, AND THAT DELIVERY ORDER PROVISIONS, PERFORMANCE WORK STATEMENT (PWS) PAINT STOCK REQUIREMENTS FOR MORE THAN ONE COLOR, AND CONTRACTOR RECORD KEEPING REQUIREMENTS IN THE SOLICITATION ARE BURDENSOME AND CONFUSING TO POTENTIAL CONTRACTORS AND/OR AGENCY PERSONNEL. ADDITIONALLY, CARPENTER, THE INCUMBENT CONTRACTOR, COMPLAINS THAT SITE VISITS PROVIDED FOR IN THE SOLICITATION WILL INTERFERE WITH ITS OPERATIONS. WE FIND NO LEGAL MERIT IN CARPENTER'S COMPLAINTS.

A CONTRACTING AGENCY HAS THE PRIMARY RESPONSIBILITY FOR DETERMINING ITS MINIMUM NEEDS AND DRAFTING REQUIREMENTS THAT REFLECT THOSE NEEDS. ANALYTICS INC., B-215092, DEC. 31, 1984, 85-1 CPD PARA. 3. EVEN BURDENSOME REQUIREMENTS ARE NOT OBJECTIONABLE PROVIDED THEY REFLECT THE GOVERNMENT'S MINIMUM NEEDS. ID. THIS OFFICE WILL NOT QUESTION AN AGENCY'S ASSESSMENT OF ITS NEEDS UNLESS A PROTESTER SHOWS THAT THE AGENCY'S DETERMINATION IS UNREASONABLE. GULF COAST DEFENSE CONTRACTORS, INC., B-212641, FEB. 28, 1984, 84-1 CPD PARA. 243.

UPON REVIEW OF THE RECORD, WE FIND NO LEGAL BASIS TO OBJECT TO THE SOLICITATION REQUIREMENTS. CARPENTER HAS NOT PROVEN THAT THE DETAILED WORK ITEM LIST DOES NOT REFLECT THE ARMY'S NEEDS. FURTHER, THE ARMY STATES THAT THE DELIVERY ORDER PROVISIONS ARE PRESCRIBED BY THE FEDERAL ACQUISITION REGULATION (FAR), 48 C.F.R. SEC. 52.216-19 (1984), AND, WHILE GRAY IS THE PRIMARY COLOR TO BE USED UNDER THE PWS, THE ARMY NEEDS THE CONTRACTOR TO MAINTAIN AT LEAST A LIMITED STOCK OF OTHER COLORS AS WELL. MOREOVER, THE ARMY STATES THAT SITE VISITS WILL NOT TAKE PLACE IN THE CONTRACTOR'S IMMEDIATE WORK AREA. BECAUSE CARPENTER FAILS TO PROVIDE US WITH ANY EVIDENCE, ASIDE FROM ITS DISAGREEMENT WITH THE AGENCY, THAT THESE PROVISIONS, OR THE REPORT AND RECORD REQUIREMENTS IMPOSED ON THE CONTRACTOR, ARE UNREASONABLY BURDENSOME, THESE PROTEST GROUNDS ARE DENIED. SEE STABBERT AND ASSOCIATES, INC., B-218427, JUNE 17, 1985, 85-1 CPD PARA. 692.

CARPENTER ALSO PROTESTS THAT SEVERAL SOLICITATION AND PWS CLAUSES ARE AMBIGUOUS AND VIOLATE THE FAR. THE PROVISION DEFINING UNBALANCED BIDS, CARPENTER ARGUES, FAILS TO EXPLAIN THE METHODOLOGY TO BE USED IN DETERMINING A BID TO BE UNBALANCED. CARPENTER ASSERTS THAT PWS SECTION 5.3.1, WHICH STATES THAT THE ANNUAL WORKLOAD IS VARIABLE WITH HISTORICAL SEASONAL TRENDS, IS AN INADEQUATE SUBSTITUTE FOR SETTING WORKLOAD REQUIREMENTS BASED SPECIFICALLY ON THE MOST CURRENT INFORMATION AVAILABLE; SECTION 5.3.2 FAILS TO PROVIDE PARAMETERS FOR MAINTENANCE PERFORMED ON ORDERS FROM THE CONTRACTING OFFICER OR HIS REPRESENTATIVE; AND SECTION 5.3.3 IMPROPERLY GIVES THE CONTRACTING OFFICER THE RIGHT TO ORDER THE CONTRACTOR TO PERFORM WORK "OUTSIDE OF THE SCOPE OF THIS CONTRACT." ADDITIONALLY, CARPENTER COMPLAINS THAT THE SOLICITATION CLAUSE MOBILIZATION AND OTHER CONTINGENCY PLANNING, WHICH AUTHORIZES THE CONTRACTING OFFICER TO ISSUE CHANGE ORDERS IF RESERVE FORCES ARE MOBILIZED OR IN ANOTHER EMERGENCY, DOES NOT SET FORTH SUFFICIENT PARAMETERS FOR THE PERFORMANCE THAT MIGHT BE REQUIRED.

OUR OFFICE WILL REJECT ALLEGATIONS CONCERNING VAGUE OR AMBIGUOUS SOLICITATION PROVISIONS WHERE THOSE ALLEGATIONS ARE BASED ON AN UNREASONABLE INTERPRETATION OF THE SOLICITATION AND THE REQUIREMENTS ARE STATED CLEARLY. INTERNATIONAL BUSINESS INVESTMENTS, INC., B-215081, FEB. 25, 1985, 85-1 CPD PARA. 228.

WE HAVE READ THE SOLICITATION PROVISIONS IN QUESTION, AND WE FIND NO IMPROPER REQUIREMENTS OR AMBIGUITY. THE SOLICITATION'S DEFINITION OF AN UNBALANCED BID AS ONE "BASED ON PRICES SIGNIFICANTLY LESS THAN COST FOR SOME ITEMS AND ... SIGNIFICANTLY OVERSTATED FOR OTHER ITEMS" IS REASONABLY DESCRIPTIVE AND, INDEED, SIMILAR TO OUR OWN. /1/ FURTHER, THE ARMY INFORMS US THAT THE SPECIFIC WORKLOAD REQUIREMENTS STATED IN THE SOLICITATION ARE BASED ON CARPENTER'S PAST HISTORY, AND WE SEE NOTHING WRONG IN THE CAUTION IN PWS SECTION 5.3.1 THAT THE WORKLOAD HAS VARIED WITH SEASONAL TRENDS. IN THIS RESPECT, ESTIMATED QUANTITIES NEED REFLECT ONLY THE REASONABLY ACCURATE REPRESENTATIONS OF THE AGENCY'S ANTICIPATED ACTUAL NEEDS. D.D.S. PAC, B-216286, APR. 12, 1985, 85-1 CPD PARA. 418.

FURTHER, WE SEE NO BASIS TO OBJECT TO PWS SECTION 5.3.2, WHICH SIMPLY STATES THAT THE CONTRACTING OFFICER OR HIS REPRESENTATIVE MAY DIRECT THE CONTRACTOR TO MAINTAIN FURNITURE SCHEDULED TO BE ISSUED TO THE ACTIVITIES AT FORT BRAGG, AND WE SEE NOTHING ILLEGAL OR PREJUDICIAL TO CARPENTER IN PWS SECTION 5.3.3. THAT SECTION, THOUGH USING THE LANGUAGE "OUTSIDE OF THE SCOPE OF THIS CONTRACT," SIMPLY INTENDS THAT WORK PERFORMED OUTSIDE A CERTAIN GEOGRAPHIC AREA (ANNEX A-5), TO BE ORDERED ONLY INFREQUENTLY, WILL BE COMPENSATED UNDER A SEPARATE PAYMENT SCHEDULE. ADDITIONALLY, THE MOBILIZATION AND CONTINGENCY CLAUSE (SECTION H 6) APPEARS CLEAR ENOUGH TO INFORM BIDDERS THAT SUPERNORMAL EFFORTS WILL BE REQUIRED BY THEM DURING EVENTS WHICH, BY DEFINITION, ARE UNCERTAIN, UNCOMMON AND UNPLANNED. SHORT, WE VIEW THESE PROVISIONS AS REASONABLE; CARPENTER HAS FAILED TO SHOW THE CONTRARY AND, THEREFORE, WE DENY THESE PROTEST GROUNDS.

CARPENTER NEXT COMPLAINS THAT PWS SECTION 5.3.4 AND ABNEX A-6 VIOLATE FAR, 48 C.F.R. SEC. 16.506 (ORDERING BY ACTIVITIES). SPECIFICALLY, CARPENTER OBJECTS TO THE REQUIREMENT IN SECTION 5.3.4 THAT THE CONTRACTOR CROSS-REFERENCE AND COMPLETE THREE IDENTIFICATION BLOCKS ON DA FORM 2407. CARPENTER ALSO ARGUES THAT ANNEX A-6 DOES NOT INCLUDE THE NAMES OF ALL ACTIVITIES AUTHORIZED TO ORDER WORK UNDER THE CONTRACT. WE ALSO DENY THESE PROTEST GROUNDS.

CARPENTER HAS NOT SHOWN HOW THESE PROVISIONS HAVE AN IMPACT ON THE PREPARATION OF BID COSTS FOR THE SOLICITATION, OR HOW THEY WILL PREJUDICE CARPENTER. FURTHER, WITH REGARD TO ANNEX A-6, THE ARMY STATES THAT A LIST OF ACTIVITIES WILL BE PROVIDED ON CONTRACT AWARD; SUCH A LIST WAS NOT PROVIDED IN THE SOLICITATION BECAUSE NAMES OF ACTIVITIES CHANGE FREQUENTLY AND, IN ANY EVENT, ALL ACTIVITIES AT FORT BRAGG ARE INCLUDED UNDER THE SOLICITATION. UNDER THESE CIRCUMSTANCES, CARPENTER'S OBJECTIONS ARE WITHOUT MERIT.

CARPENTER ALSO PROTESTS THAT ONE BUILDING SET ASIDE FOR REFINISHING FURNITURE HAS BEEN PROHIBITED FROM SUCH USE BY BASE FIRE SAFETY PERSONNEL AND, THEREFORE, ALL BIDDERS SHOULD BE INFORMED OF A THIRD BUILDING TO BE PROVIDED. THE ARMY STATES THAT ANOTHER BUILDING HAS BEEN PROVIDED AND THAT THE CORRECTION OF SAFETY CONCERNS WILL BE COMPLETED BY JANUARY 1986. WE FAIL TO SEE, AND CARPENTER DOES NOT ESTABLISH, WHAT IMPACT A DIFFERENT BUILDING FOR FURNITURE REFINISHING WILL HAVE ON THE PREPARATION OF BIDS HERE. THERE HAS BEEN NO CHANGE IN INVENTORY OR WORKLOAD OR ANY OTHER ASPECT OF COST AS A RESULT.

CARPENTER NEXT COMPLAINS THAT THE CLASSIFICATION OF EMPLOYEES IN THE DEPARTMENT OF LABOR WAGE DETERMINATION BEARS LITTLE RESEMBLANCE TO THE JOB DESCRIPTIONS IN THE SOLICITATION AND THAT THE CONTRACTING OFFICER SHOULD NOT HAVE RELIED ON THIS ALLEGEDLY MISLEADING DATA IN FORMULATING THE SOLICITATION.

THE ARMY REPORTS THAT THE WAGE RATES AND JOB DESCRIPTIONS CONTAINED IN THE SOLICITATION WERE FURNISHED BY THE DEPARTMENT OF LABOR. THIS OFFICE DOES NOT REVIEW WAGE RATE DETERMINATIONS, WHICH ARE ESTABLISHED BY THE SECRETARY OF LABOR PURSUANT TO THE SERVICE CONTRACT ACT OF 1965, AS AMENDED, 41 U.S.C. SEC. 351, ET SEQ. (1982); CRIMSON ENTERPRISES, INC., B-214193, FEB. 10, 1984, 84-1 CPD PARA. 172. RATHER, THE DEPARTMENT OF LABOR IS THE APPROPRIATE FORUM IN WHICH TO COMPLAIN ABOUT A DETERMINATION. CRIMSON ENTERPRISES, INC., B-214193, SUPRA. MOREOVER, WE NOTE THAT THE WAGE DETERMINATION STATES CLEARLY THAT EMPLOYEES "NOT LISTED HEREIN SHALL BE CLASSIFIED BY THE CONTRACTOR SO AS TO PROVIDE A REASONABLE RELATIONSHIP BETWEEN SUCH CLASSES AND THOSE LISTED HEREIN." THUS, THIS PROTEST GROUND IS DISMISSED.

THE PROTEST IS DENIED IN PART AND DISMISSED IN PART.

/1/ SEE, E.G., TED L. BIDDY AND ASSOCIATES, INC., B-209297; B-209297.2, APR. 22, 1983, 83-1 CPD PARA. 441 (MATHEMATICALLY UNBALANCED BID OCCURS WHERE THE OFFER IS BASED ON NOMINAL PRICES FOR SOME WORK AND ENHANCED PRICES FOR OTHER WORK).