B-213109, FEB 27, 1984

B-213109: Feb 27, 1984

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A PERFORMANCE REQUIREMENTS SUMMARY IN A REQUEST FOR PROPOSALS (RFP) FOR SERVICES WHICH PERMITS THE GOVERNMENT TO DEDUCT AMOUNTS FOR UNSATISFACTORY SERVICES DOES NOT IMPOSE A PENALTY AND IS CAPABLE OF BEING OBJECTIVELY ENFORCED WHERE: (1) THE PROTESTER HAS FAILED TO SHOW STANDARDIZED TESTING IS INVALID TO MEASURE CONTRACTOR PERFORMANCE. (2) THE RFP IS NOT AMBIGUOUS AS TO WHEN THE GOVERNMENT MAY DEDUCT IF STUDENTS DO NOT ACHIEVE A PARTICULAR GRADE LEVEL UPON COMPLETION OF A COURSE. PROTEST ALLEGATION THAT THE CONTRACTOR SHOULD NOT HAVE TO GUARANTEE ITS EMPLOYEES PAYMENT REGARDLESS OF THE QUALITY OF THE EMPLOYEE'S PERFORMANCE WHILE THE CONTRACTOR MAY BE DENIED PAYMENT FOR INADEQUATE PERFORMANCE IS WITHOUT MERIT WHERE MINIMUM WAGE LAW PROVISIONS WERE INCLUDED IN THE RFP. 3.

B-213109, FEB 27, 1984

DIGEST: 1. A PERFORMANCE REQUIREMENTS SUMMARY IN A REQUEST FOR PROPOSALS (RFP) FOR SERVICES WHICH PERMITS THE GOVERNMENT TO DEDUCT AMOUNTS FOR UNSATISFACTORY SERVICES DOES NOT IMPOSE A PENALTY AND IS CAPABLE OF BEING OBJECTIVELY ENFORCED WHERE: (1) THE PROTESTER HAS FAILED TO SHOW STANDARDIZED TESTING IS INVALID TO MEASURE CONTRACTOR PERFORMANCE, (2) THE RFP IS NOT AMBIGUOUS AS TO WHEN THE GOVERNMENT MAY DEDUCT IF STUDENTS DO NOT ACHIEVE A PARTICULAR GRADE LEVEL UPON COMPLETION OF A COURSE, AND (3) THE GOVERNMENT DRAFTED SPECIFIC PERFORMANCE STANDARDS TO MEASURE CONTRACTOR PERFORMANCE FOR THIS PROCUREMENT. 2. PROTEST ALLEGATION THAT THE CONTRACTOR SHOULD NOT HAVE TO GUARANTEE ITS EMPLOYEES PAYMENT REGARDLESS OF THE QUALITY OF THE EMPLOYEE'S PERFORMANCE WHILE THE CONTRACTOR MAY BE DENIED PAYMENT FOR INADEQUATE PERFORMANCE IS WITHOUT MERIT WHERE MINIMUM WAGE LAW PROVISIONS WERE INCLUDED IN THE RFP. 3. PROTEST ALLEGATION THAT THE RFP ALLOWS THE AGENCY TO RETAIN COMPLETE CONTROL OVER THE CURRICULUM AND MATERIALS IN A PROCUREMENT FOR PROFESSIONAL EDUCATIONAL SERVICES IS WITHOUT MERIT WHERE THE TERMS OF THE RFP DO NOT PREVENT THE CONTRACTOR FROM AUGMENTING THE GOVERNMENT-FURNISHED MATERIALS OR ESTABLISHING THE METHOD IN WHICH THE MATERIALS MUST BE UTILIZED AND DO NOT REQUIRE THE AGENCY TO APPROVE THE CONTRACTOR'S CURRICULUM.

ELDORADO COLLEGE:

ELDORADO COLLEGE (ELDORADO) PROTESTS THE AWARD OF A CONTRACT TO CENTRAL TEXAS COLLEGE UNDER REQUEST FOR PROPOSALS (RFP) NO. DABT23-83-R 0041, ISSUED BY THE DEPARTMENT OF THE ARMY FOR PROFESSIONAL EDUCATIONAL SERVICES.

THE DEDUCTIONS FOR NONCOMPLIANCE WITH THE PERFORMANCE REQUIREMENTS RELATE TO LIQUIDATED DAMAGES. LIQUIDATED DAMAGES ARE FIXED AMOUNTS WHICH ONE PARTY TO A CONTRACT CAN RECOVER FROM THE OTHER UPON PROOF OF VIOLATION OF THE CONTRACT AND WITHOUT PROOF OF THE DAMAGES ACTUALLY SUSTAINED. SEE KOTHE V. R.C. TAYLOR TRUST, 280 U.S. 224 (1930).

RECENTLY, WE DID OBJECT TO A SIMILAR LIQUIDATED DAMAGES PROVISION AS IMPOSING A PENALTY BECAUSE THE PROTESTER SHOWED THAT THERE WAS NO POSSIBLE RELATION BETWEEN THE AMOUNTS STIPULATED FOR LIQUIDATED DAMAGES AND THE LOSSES WHICH WERE CONTEMPLATED BY THE PARTIES. ENVIRONMENTAL ASEPTIC SERVICES ADMINISTRATION AND LARSON BUILDING CARE INC., 62 COMG.GEN. 219 (1983), 83-1 CPD 194. HOWEVER, A PROTESTER WHO OBJECTS TO THE REQUIREMENTS HAS A HEAVY BURDEN. FOUR-PHASE SYSTEMS, INC., B-201642, JULY 22, 1981, 81-2 CPD 56. THE CONTRACTING AGENCY HAS THE PRIMARY RESPONSIBILITY FOR DETERMINING ITS MINIMUM NEEDS AND FOR DRAFTING REQUIREMENTS WHICH REFLECT THOSE NEEDS. TORRINGTON COMPANY, A DIVISION OF INGERSOLL-RAND COMPANY, B-210877, B-210877.2, SEPTEMBER 2, 1983, 83-2 CPD 298. IT IS THE CONTRACTING AGENCY WHICH IS MOST FAMILIAR WITH THE CONDITIONS UNDER WHICH THE SERVICES AND SUPPLIES HAVE BEEN AND WILL BE USED, AND OUR STANDARD FOR REVIEWING PROTESTS CHALLENGING AGENCY REQUIREMENTS HAS BEEN FASHIONED TO TAKE THIS FACT INTO ACCOUNT. SPECIFICALLY, OUR OFFICE WILL NOT QUESTION AGENCY DECISIONS CONCERNING THE BEST METHODS OF ACCOMMODATING THEIR NEEDS ABSENT CLEAR EVIDENCE THAT THOSE DECISIONS ARE ARBITRARY OR OTHERWISE UNREASONABLE. ROMAR CONSULTANTS, INC., B-206489, OCTOBER 15, 1982, 82-2 CPD 339.

WE CONCLUDE THAT THE ARMY HAS ADEQUATELY ESTABLISHED THE REASONABLENESS OF THE REQUIREMENTS CHALLENGED HERE AND HAS SHOWN ACCORDINGLY THAT THE DEDUCTIONS FOR NONCOMPLIANCE DO NOT IMPOSE A PENALTY AND ARE CAPABLE OF BEING OBJECTIVELY ENFORCED.

INITIALLY, WE NOTE THAT ELDORADO HAS MERELY ALLEGED, BUT NOT SHOWN, THAT THE VALIDITY OF STANDARDIZED TESTING TO MEASURE CONTRACTOR PERFORMANCE CANNOT BE PROVEN.

AS TO THE ALLEGED AMBIGUITY CONCERNING A STUDENT'S FAILURE TO REACH A PARTICULAR GRADE LEVEL AFTER COMPLETION OF A COURSE, THE RFP CLEARLY PROVIDES FOR A DEDUCTION IF THE GOVERNMENT, NOT THAT THE GOVERNMENT MUST APPROVE THE CURRICULUM.

AS STATED ABOVE, OUR OFFICE WILL NOT QUESTION AGENCY DECISIONS CONCERNING THE BEST METHODS OF ACCOMMODATING ITS NEEDS ABSENT CLEAR EVIDENCE THAT THOSE DECISIONS ARE ARBITRARY OR OTHERWISE UNREASONABLE. ROMAR CONSULTANTS, INC., SUPRA. IN THIS CASE, WE AGREE WITH THE ARMY THAT THE TERMS OF THE RFP DO NOT PREVENT THE CONTRACTOR FROM AUGMENTING THE GOVERNMENT-FURNISHED MATERIALS OR ESTABLISHING THE METHOD IN WHICH THE MATERIALS MUST BE UTILIZED. WE ALSO AGREE WITH THE ARMY THAT THE TERMS OF THE RFP DO NOT REQUIRE THE GOVERNMENT TO APPROVE THE CONTRACTOR'S CURRICULUM. WE THUS CANNOT CONCLUDE THAT THE GOVERNMENT HAS UNREASONABLY RETAINED COMPLETE CONTROL OVER THE CURRICULUM AND MATERIALS.

WE DENY THE PROTEST.