B-164588, AUG. 30, 1968

B-164588, AUG. 30, 1968

TO SHIPSHAPE DISPOSAL, INCORPORATED:

WE HAVE RECEIVED YOUR LETTER OF AUGUST 16, 1968, REQUESTING RECONSIDERATION OF OUR DECISION B-164588 DATED AUGUST 5, 1968, WHEREIN YOUR PROTEST AGAINST EXERCISE OF AN OPTION FOR REFUSE COLLECTION BY THE NAVAL FACILITIES ENGINEERING COMMAND WAS DENIED.

YOU STATE THAT IN THE PAST THE CONTRACT HAS BEEN AWARDED AT A HIGHER PRICE BECAUSE THE WEAPONS STATION HAS BEEN ISOLATED AS FAR AS CONCERNS REFUSE COLLECTION BUT THE ADDITIONAL BUSINESS NOW AVAILABLE FROM THE CITY OF WILLIAMSBURG AND THE CHEATAM ANNEX SHOULD ENCOURAGE A LOWER PRICE. FURTHER, THE CONTRACTING OFFICER HAD TO BE AWARE OF THESE OTHER POSSIBLE SOURCES OF BUSINESS INASMUCH AS HE TOOK "PRICE SAMPLINGS" FROM THE WILLIAMSBURG ADVERTISEMENT AND HE WAS PREPARING THE SPECIFICATIONS FOR THE CHEATAM ANNEX. YOU ALSO STATE THAT THE "PRICE SAMPLINGS" TAKEN FROM WILLIAMSBURG WERE MEANINGLESS FOR DETERMINING UNDER ASPR 1-1505 (D) (2) WHETHER A BETTER PRICE COULD BE OBTAINED BY REBIDDING BECAUSE OF THE DIVERSE NATURE OF THE WORK AND THE FACT THAT AT THE TIME THE PRICE SAMPLINGS WERE TAKEN THE INCUMBENT CONTRACTOR AT THE WEAPONS STATION HAD SUBMITTED THE ONLY BID RECEIVED BY THE CITY OF WILLIAMSBURG. YOUR CONCLUSION THAT THE PRICE AT THE WEAPONS STATION WAS TOO HIGH IS SAID TO BE SUPPORTED BY THE INCUMBENT'S BID AT CHEATAM ANNEX WHERE THERE WAS COMPETITION.

ASPR 1-1505 (C) (III) PROVIDES THAT CONTRACT OPTIONS SHOULD BE EXERCISED ONLY UPON A DETERMINATION THAT SUCH ACTION IS MOST ADVANTAGEOUS TO THE GOVERNMENT, PRICE AND OTHER FACTORS CONSIDERED. THE REGULATION PROVIDES THAT THIS DETERMINATION MAY BE BASED ON ONE OF SEVERAL PROCEDURES. THIS CASE, THE CONTRACTING OFFICER, IN COMPLIANCE WITH ASPR 1-1505 (D) (2), BASED HIS DETERMINATION ON AN INFORMAL INVESTIGATION OF PRICES OR OTHER EXAMINATION OF THE MARKET WHICH HE FOUND TO INDICATE CLEARLY THAT A PRICE BETTER THAN THAT OFFERED BY THE OPTION COULD NOT BE OBTAINED. THINK THAT THE RESULTS OF THE CITY OF WILLIAMSBURG SOLICITATION AND THE PRIOR HISTORY SET OUT IN YOUR EARLIER DECISION PROVIDE AMPLE BASIS TO SUPPORT THE CONTRACTING OFFICER'S DETERMINATION. THIS DETERMINATION REQUIRES THE CONTRACTING OFFICER TO ANTICIPATE THE PROBABLE RESULTS OF A SOLICITATION BASED ON EXISTING INFORMATION. AS IN THE CASE OF ANY PROJECTION, IT ENTAILS A DEGREE OF UNCERTAINTY SO THAT ANOTHER PERSON USING THE SAME INFORMATION AVAILABLE TO THE CONTRACTING OFFICER MAY BE ABLE TO JUSTIFY A CONTRARY RESULT. WE DO NOT BELIEVE THAT THE CONTRACTING OFFICER'S DETERMINATION MUST BE BASED ON SUCH OVERWHELMING EVIDENCE AS TO RENDER A CONTRARY DETERMINATION INSUPPORTABLE, WE THINK IT IS SUFFICIENT IF HIS DETERMINATION IS MADE IN GOOD FAITH AND IS SUPPORTED BY SUBSTANTIAL EVIDENCE. WE FIND THESE CRITERIA HAVE BEEN SATISFIED IN THIS CASE.

YOU CONTEND THAT, CONTRARY TO A STATEMENT IN OUR DECISION, SHIPSHAPE DID BID AND SCHNEIDER WAS NOT THE ONLY BIDDER. OUR STATEMENT WAS IN ESSENCE THAT THE CONTRACTING OFFICER "WAS ADVISED (BY WILLIAMSBURG) THAT ONLY SCHNEIDER SUBMITTED A BID.' THIS STATEMENT IS CORRECT AND IS ENTIRELY CONSISTENT WITH YOUR STATEMENT THAT AT THE TIME "PRICE SAMPLINGS" WERE TAKEN WILLIAMSBURG HAD ONLY ONE BID. THE FACT THAT SHIPSHAPE MAY HAVE IN FACT SUBMITTED A BID AT A LATER DATE DOES NOT ALTER THE FACTS UPON WHICH THE CONTRACTING OFFICER MADE HIS DECISION NOR DOES IT AFFECT THE REASONABLENESS OF THAT DECISION.