B-174216, DEC 27, 1971

B-174216, DEC 27, 1971

BID PROTEST - RESPONSIVENESS - IMMATERIAL DEVIATION - FAILURE TO SIGN CERTIFICATION DECISION AFFIRMING PROTEST OF KLEEN-RITE JANITORIAL SERVICES, INC., AGAINST DETERMINATION THAT ITS BID SUBMITTED UNDER IFB ISSUED BY U.S. ARMY NATICK LABORATORIES WAS NONRESPONSIVE. IT IS WELL ESTABLISHED THAT BIDS WHICH DO NOT CONFORM TO THE REQUIREMENTS OF A SOLICITATION MUST BE REJECTED AS NONRESPONSIVE; UNLESS THE DEVIATION IS IMMATERIAL. A REQUIREMENT IN THE IFB IS NOT NECESSARILY MATERIAL SIMPLY BECAUSE IT IS EXPRESSED IN POSITIVE TERMS WITH A WARNING THAT FAILURE TO COMPLY "MAY" OR "WILL" RESULT IN A FINDING OF NONRESPONSIVENESS. HERE, THE COMP. GEN. DOES NOT BELIEVE THE FAILURE TO COMPLETE THE CERTIFICATION OF COMPLIANCE WITH MANHOUR REQUIREMENTS WAS A MATERIAL DEVIATION. IT IS CLEAR FROM THE IFB AS A WHOLE THAT THE CONTRACTOR WOULD BE OBLIGATED TO MEET THE REQUIREMENTS WITH OR WITHOUT THE CERTIFICATION. IN VIEW OF THIS FACT, PROTESTANT'S BID SHOULD BE CONSIDERED RESPONSIVE EVEN THOUGH THE IFB WARNED THAT FAILURE TO SIGN THE CERTIFICATION WOULD RESULT IN REJECTION.

TO MR. SECRETARY:

REFERENCE IS MADE TO THE NOVEMBER 10, 1971 LETTER FROM THE DEPUTY GENERAL COUNSEL, HEADQUARTERS, UNITED STATES ARMY MATERIEL COMMAND, FORWARDING THE ADMINISTRATIVE REPORT RESPONSIVE TO THE PROTEST FILED BY KLEEN-RITE JANITORIAL SERVICE, INCORPORATED, AGAINST A DECISION BY THE UNITED STATES ARMY NATICK LABORATORIES, NATICK, MASSACHUSETTS, THAT ITS BID SUBMITTED IN RESPONSE TO INVITATION FOR BIDS NO. DAAG17-72-B-0006 WAS NONRESPONSIVE.

THE IFB, A 100 PERCENT SMALL BUSINESS SET-ASIDE, WAS ISSUED ON SEPTEMBER 8, 1971, FOR CUSTODIAL AND OTHER CLEANING SERVICES TO BE PERFORMED FROM OCTOBER 4, 1971 THROUGH SEPTEMBER 30, 1972, AT THE NATICK INSTALLATION. THE IFB CONTAINED A CLAUSE REQUIRING THAT BIDDERS BE LOCATED WITHIN 50 MILES OF THE NATICK LABORATORIES. IT ALSO INCLUDED THE FOLLOWING REQUIREMENTS:

"BIDDER'S CERTIFICATION OF MANHOURS: (FOR ITEM 001-CUSTODIAL ONLY

A. BIDDER WILL SPECIFY ON PAGE 21 THE MINIMUM NUMBER OF DIRECT LABOR MANHOURS PER WEEK WHICH WILL BE EXPENDED IN THE PERFORMANCE OF ALL THE WORK SPECIFIED. DIRECT LABOR IS RESTRICTED TO WORKERS OR WORKING SUPERVISORS AT THE WORK SITE. THIS MINIMUM NUMBER OF MANHOURS SHALL BE INCLUSIVE OF THE FOUR (4) MAN JANITORIAL FORCE CALLED FOR BY PAR. 1-08 (DAYTIME CUSTODIAL SERVICES) OF TECHNICAL SPECIFICATIONS OF THIS INVITATION FOR BID. THE GOVERNMENT RESERVES THE RIGHT TO REQUIRE THE SUCCESSFUL BIDDER TO MAINTAIN A WORK FORCE ADEQUATE FOR THE PERFORMANCE OF ITS CONTRACT OBLIGATIONS AND SPECIFICALLY TO REQUIRE THE SUCCESSFUL BIDDER TO PROVIDE, AS A MINIMUM, THE NUMBER OF MANHOURS SPECIFIED. THIS SHALL NOT BE CONSTRUED AS RELIEVING THE SUCCESSFUL BIDDER OF ITS OBLIGATION TO FURNISH ADDITIONAL SERVICES IF NECESSARY TO PERFORM THE WORK IN ACCORDANCE WITH THE CONTRACT REQUIREMENTS AT NO ADDITIONAL COST TO THE GOVERNMENT.

"B. (1) THE GOVERNMENT WILL REQUIRE THE CONTRACTOR IN PERFORMING THE WORK UNDER THIS CONTRACT, TO FURNISH AS A MINIMUM 1100 DIRECT LABOR MANHOURS PER WEEK, WHICH WILL INCLUDE THE FOUR (4) MAN DAYTIME JANITORIAL FORCE.

(2) FAILURE OF A BIDDER TO SPECIFY AT LEAST 1100 DIRECT LABOR MANHOURS PER WEEK WILL BE CAUSE FOR REJECTION OF THE BID. BIDDER WILL COMPLETE THE CERTIFICATION ON THIS PAGE 21 HEREOF.

"C. (1) THE GOVERNMENT WILL REQUIRE THE CONTRACTOR, IN PERFORMING THE WORK UNDER THIS CONTRACT, TO FURNISH AS A MINIMUM A FOUR (4) MAN JANITORIAL FORCE, EACH EMPLOYEE ON AN 8-HOUR DAY, FULL TIME, WEEKLY BASIS, EXCLUSIVE OF THE SUPERINTENDENT.

(2) FAILURE OF A BIDDER TO SPECIFY AT LEAST A FOUR (4) MAN JANITORIAL FORCE WILL BE CAUSE FOR REJECTION OF THE BID. BIDDER WILL COMPLETE THE CERTIFICATION ON PG. 21."

THE CERTIFICATIONS STATED:

"CERTIFICATION OF DIRECT LABOR MANHOURS

BIDDER HEREBY CERTIFIES THAT THE MINIMUM NUMBER OF DIRECT LABOR MANHOURS PER WEEK TO BE EXPENDED IN PERFORMANCE OF ALL THE WORK SPECIFIED IS (INSERT NUMBER) MANHOURS, INCLUSIVE OF THE FOUR (4) DAYTIME JANITORIAL FORCE.

(SIGNATURE OF BIDDER)

"CERTIFICATION OF DAYTIME JANITORIAL FORCE

BIDDER HEREBY CERTIFIES THAT THE MINIMUM NUMBER OF EMPLOYEES FOR THE DAYTIME JANITORIAL FORCE TO BE FURNISHED IN PERFORMING THE JANITORIAL DUTIES IS (INSERT NUMBER) EXCLUSIVE OF THE SUPERINTENDENT.

(SIGNATURE OF BIDDER)

AT BID OPENING ON SEPTEMBER 22, 1971, THE KLEEN-RITE BID, WITH DISCOUNT, WAS FOUND TO BE LOW. IN RESPONSE TO THE URGINGS OF THE NEXT LOW BIDDER, THE CONTRACTING OFFICER INVESTIGATED TO DETERMINE IF KLEEN RITE OPERATED WITHIN THE PRESCRIBED 50-MILE RADIUS. ALTHOUGH HE FOUND IN FAVOR OF KLEEN -RITE ON THIS POINT, HE THEN NOTIFIED KLEEN-RITE THAT IT HAD FAILED TO COMPLETE AND SIGN THE CERTIFICATIONS REQUIRED BY THE IFB, AND THAT THIS COULD RESULT IN ITS BEING FOUND NONRESPONSIVE. KLEEN-RITE IMMEDIATELY PROTESTED, RESULTING IN THE WITHHOLDING OF AN AWARD PENDING RESOLUTION OF THE PROTEST.

KLEEN-RITE STATES THAT THE OMISSION IS A CLERICAL ERROR ONLY AND THAT BY SIGNING THE BID, THE FIRM'S PRESIDENT CERTIFIED ITS OBLIGATION TO COMPLY WITH ALL TERMS AND CONDITIONS OF THE SPECIFICATIONS. THE PROTESTOR ALSO STATES THAT ITS BID PRICE, WHICH WAS ONLY 2 PERCENT LESS THAN THE SECOND LOW BIDDER'S, REFLECTS ITS POSITIVE INTENT TO ADHERE TO ALL CONTRACT STIPULATIONS.

IT IS WELL ESTABLISHED THAT BIDS WHICH DO NOT CONFORM TO THE REQUIREMENTS OF A SOLICITATION MUST BE REJECTED AS NONRESPONSIVE, UNLESS THE DEVIATION IS IMMATERIAL OR IS A MATTER OF FORM RATHER THAN SUBSTANCE. ANY DEVIATION WHICH AFFECTS PRICE, QUANTITY OR QUALITY IS CONSIDERED MATERIAL AND IS CAUSE FOR REJECTION. 30 COMP. GEN. 179 (1950). A REQUIREMENT IN THE IFB IS NOT NECESSARILY MATERIAL SIMPLY BECAUSE IT IS EXPRESSED IN POSITIVE TERMS WITH A WARNING THAT FAILURE TO COMPLY "MAY" OR "WILL" RESULT IN REJECTION OF THE BID AS NONRESPONSIVE. 39 COMP. GEN. 595 (1960).

IN THIS INSTANCE WE THINK THAT THE FAILURE TO COMPLETE THE CERTIFICATIONS WAS NOT A MATERIAL DEVIATION FROM THE TERMS OF THE INVITATION. ALTHOUGH THE IFB SPECIFICALLY STATED THAT FAILURE TO SPECIFY THE MINIMUM WORKFORCE AND DIRECT MANHOURS IN THE CERTIFICATIONS WOULD BE CAUSE FOR REJECTION, WE THINK IT IS CLEAR FROM THE TERMS OF THE IFB THAT THE SUCCESSFUL BIDDER WOULD BE OBLIGATED TO FURNISH NOT LESS THAN THE STATED MINIMUM MANHOURS AND WORKFORCE WITH OR WITHOUT THE CERTIFICATIONS. THEREFORE, WE MUST CONSIDER AS IMMATERIAL KLEEN-RITE'S FAILURE TO COMPLETE THEM. IN THIS RESPECT, THE ADMINISTRATIVE REPORT STATES:

"EXPERIENCE OVER THE PAST DECADE HAS CLEARLY DEMONSTRATED *** THAT IN ORDER TO INSURE THAT THE SUCCESSFUL CONTRACTOR WILL PROVIDE THE QUALITY AND QUANTITY OF SERVICES NEEDED TO SATISFY THE MINIMUM REQUIREMENTS OF THE SPECIFICATION, A CONTRACTOR MUST NOT ONLY MAINTAIN AN ADEQUATE WORK FORCE BUT MUST ALSO AGREE TO EXPEND AT LEAST THE MINIMUM NUMBER OF MAN HOURS DETERMINED BY THE GOVERNMENT TO BE REQUIRED WEEKLY AS WELL AS MAINTAIN A MINIMUM DAYTIME JANITORIAL WORK FORCE *** . THE MINIMUM REQUIREMENTS SPECIFIED ARE ESTIMATES ONLY *** . IT IS THE GOVERNMENT'S DESIRE THAT AFTER BIDDERS HAVE EVALUATED THE SPECIFICATIONS AND VIEWED THE WORK SITE, THEY WILL ARRIVE AT THEIR OWN INDEPENDENT DETERMINATION AS TO THE NUMBER OF DIRECT MAN HOURS REQUIRED WEEKLY, AS WELL AS THE DAYTIME JANITORIAL WORK FORCE NEEDED *** GIVING DUE CONSIDERATION TO THE GOVERNMENT'S SPECIFIED ESTIMATED MINIMUMS. *** THE CERTIFICATIONS ARE INCLUDED IN ORDER TO PERMIT BIDDERS TO COMMIT THEMSELVES *** . IT IS AGAINST THESE CERTIFICATIONS THAT THE GOVERNMENT MEASURES THE CONTRACTOR'S PERFORMANCE DURING THE COURSE OF THE CONTRACT. IN THIS CONNECTION, PARAGRAPH SC-18C *** PROVIDES THAT 'IN THE EVENT THAT A CONTRACTOR FAILS TO FURNISH THE MAN HOURS AS NOTED IN SC-18B, ABOVE, THE GOVERNMENT WILL DEDUCT AS FAIR COMPENSATION AN AMOUNT NOT LESS THAN FIVE DOLLARS *** PER MAN HOUR FOR THE LOSS OF THESE MAN HOURS OF SERVICE (NOT FURNISHED) AS REQUIRED UNDER THE TERMS OF THE CONTRACT.' THIS PARAGRAPH OF THE SPECIFICATION PROVIDES THE GOVERNMENT WITH AN ADMINISTRATIVE TOOL WHEREBY CONTRACT ADJUSTMENTS CAN BE DETERMINED WITH A MINIMUM OF EFFORT IN THE EVENT THE CONTRACTOR FAILS TO PROVIDE THE MINIMUM NUMBER OF DIRECT LABOR MAN HOURS THAT HE CERTIFIES, AND THEREBY OBLIGATES HIMSELF TO FURNISH IN HIS BID *** ."

HOWEVER, THERE ARE SPECIFIC CLAUSES IN THE IFB WHICH WOULD CLEARLY OBLIGATE THE CONTRACTOR WITHOUT THE CERTIFICATIONS. PARAGRAPH SC-18B STATES:

"THE CONTRACTOR SHALL MAINTAIN AN ADEQUATE WORK FORCE AT ALL TIMES TO MAINTAIN THE QUALITY AND QUANTITY OF WORK SET FORTH IN THESE SPECIFICATIONS, AND IN NO CASE SHALL THERE BE PROVIDED LESS THAN 1100 REPORTABLE MANHOURS PER WEEK FOR ONLY CUSTODIAL SERVICES. *** "

PARAGRAPH 1-08 STATES:

"THE CONTRACTOR SHALL PROVIDE AT LEAST FOUR (4) FULL-TIME EMPLOYEES ON AN 8-HOUR DAILY BASIS AVAILABLE FROM 8:00 AM TO 4:30 PM, MONDAY THROUGH FRIDAY, ON AN 'ON CALL' BASIS TO PROVIDE IN ALL BUILDINGS SUCH CUSTODIAL SERVICES AS NOTED BELOW *** ."

AND, AS NOTED IN THE ADMINISTRATIVE REPORT, PARAGRAPH SC-18C PROVIDES A REMEDY IF THE CONTRACTOR FAILS TO FURNISH THE MINIMUM NUMBER OF MANHOURS REQUIRED BY PARAGRAPH SC-18B.

IN VIEW OF THESE DISTINCT REQUIREMENTS IN THE IFB, WE FAIL TO SEE WHY THE CERTIFICATIONS WERE DEEMED NECESSARY OR HOW THEY WOULD GIVE THE GOVERNMENT ANY ADDITIONAL RIGHTS OR REMEDIES NOT ALREADY PART OF ANY RESULTING CONTRACT. ACCORDINGLY, A FAILURE TO COMPLETE THE CERTIFICATIONS CANNOT BE REGARDED AS A MATERIAL DEVIATION AND THE KLEEN RITE BID SHOULD BE CONSIDERED RESPONSIVE. SEE B-174374, NOVEMBER 17, 1971.

THE CASES CITED IN THE ADMINISTRATIVE REPORT TO SUPPORT THE DETERMINATION OF NONRESPONSIVENESS ARE DISTINGUISHABLE FROM THE INSTANT SITUATION. 46 COMP. GEN. 856 (1967), AN IFB FOR CERTAIN PRINTING WORK CONTAINED A PRODUCTION GUARANTEE CLAUSE. THE LOW BIDDER INADVERTENTLY FAILED TO COMPLETE THIS GUARANTEE CLAUSE. WE HELD THAT THE CONTRACT AWARDED TO THE LOW BIDDER SHOULD BE CANCELLED, BECAUSE THE GUARANTEE PROVISION "CONSTITUTED A SPECIFICATION REQUIREMENT WHICH DIRECTLY AND PERTINENTLY AFFECTED NOT ONLY THE QUANTITY OF THE WORK TO BE DELIVERED TO THE GOVERNMENT, BUT POSSIBLY ALSO THE PRICE." THE IFB CONTAINED NO OTHER PROVISION REQUIRING THE MINIMUM PRODUCTION FIGURE, AND IN THE ABSENCE OF A COMPLETED GUARANTEE CLAUSE THE CONTRACTOR'S OBLIGATION TO ADHERE TO THE DESIRED FIGURE WOULD HAVE BEEN HIGHLY QUESTIONABLE. WE TOOK SPECIFIC COGNIZANCE OF THIS POINT IN A SUBSEQUENT RECONSIDERATION OF OUR DECISION, NOTING THAT THE BIDDER, "BY NOT COMPLETING THE GUARANTEE PROVISION, DID NOT ASSUME THE SAME OBLIGATION AS OTHER BIDDERS *** ." B-161504, JULY 13, 1967. WE FIND 45 COMP. GEN. 177 (1965) AND 45 COMP. GEN. 611 (1966), ALSO CITED, TO BE INAPPOSITE HERE, AS THEY INVOLVED BIDS WITH SPECIFIC INSERTIONS THAT VARIED FROM THE INVITATION REQUIREMENTS.

FINALLY, WE FIND NO REASON TO QUESTION THE ADMINISTRATIVE DETERMINATION THAT THE LOW BIDDER SATISFIES THE REQUIREMENTS OF THE "PROXIMITY OF BIDDERS" PROVISION CONTAINED ON PAGE 13 OF THE SOLICITATION. IT IS REPORTED THAT THE BIDDER MAINTAINS AN OFFICE WITHIN THE PRESCRIBED 50-MILE RADIUS. THIS IS A MATTER OF RESPONSIBILITY. WHILE IT APPEARS THAT THE BIDDER MAY NOT HAVE REGISTERED WITH THE SECRETARY OF THE STATE OF MASSACHUSETTS AS A FOREIGN CORPORATION DOING BUSINESS IN THAT STATE, YOUR DEPARTMENT REPORTS THAT THE MATTER CAN BE RESOLVED BY THE LOW BIDDER WITHOUT ADVERSELY AFFECTING ITS ABILITY TO PERFORM THIS CONTRACT. SEE B 172266, MAY 10, 1971, (50 COMP. GEN. ).

WE THEREFORE CONCLUDE THAT KLEEN-RITE'S BID IS RESPONSIVE AND AWARD SHOULD BE MADE ACCORDINGLY.