B-164951, NOV. 21, 1968

B-164951, NOV. 21, 1968

TO MANPOWER OF NEW HAVEN, INC.:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 31, 1968, SUBMITTING ADDITIONAL INFORMATION IN SUPPORT OF YOUR PROTEST AGAINST THE AWARD OF A NEGOTIATED CONTRACT TO DYNAMIC ENTERPRISES, INC., UNDER DEPARTMENT OF THE NAVY REQUEST FOR PROPOSALS NO. N00140-68-R-0659, COVERING THE FURNISHING OF MESS ATTENDANT SERVICES AT THE NAVAL SUBMARINE BASE, NEW LONDON, CONNECTICUT. YOUR PROTEST WAS DENIED BY OUR DECISION TO YOU DATED SEPTEMBER 30, 1968, B-164951.

YOU STATE THAT THE CONTRACT PROVIDES FOR THE COMMENCEMENT OF MESS ATTENDANT SERVICES ON NOVEMBER 1, 1968, IN NEW FOOD SERVICE BUILDING NO. 446, WHICH BUILDING IS TO REPLACE FOOD SERVICE BUILDING NO. 151; THAT YOU NOW HAVE LEARNED THAT BUILDING NO. 446 WILL NOT BE COMPLETED AND READY FOR USE UNTIL APRIL 1969; AND THAT THE DEPARTMENT OF THE NAVY WAS AWARE BEFORE THE CONTRACT AWARD TO DYNAMIC ENTERPRISES, INC., THAT IT WAS UNLIKELY THAT CONSTRUCTION OF BUILDING NO. 446 WOULD BE COMPLETED BY THE NOVEMBER 1 DEADLINE. YOU ALSO STATE THAT YOU ADVISED THE NAVY PURCHASING OFFICE OF THE LIKELIHOOD THAT BUILDING NO. 446 WOULD NOT BE COMPLETED BY NOVEMBER 1, 1968, AND SUGGESTED TO THEM THAT SEPARATE MONTHLY PRICES BE NEGOTIATED FOR SERVICES RENDERED IN THE OLD MESSHALL (BUILDING NO. 151) AND THE NEW MESSHALL (BUILDING NO. 446) AS A MEANS TO ELIMINATE RENEGOTIATION OF THE CONTRACT DUE TO POSSIBLE CHANGE IN THE TIME PERIODS FOR SERVICE IN EACH BUILDING.

INITIALLY, YOU ALLEGED THAT DYNAMIC ENTERPRISES, INC., HAS KNOWINGLY OFFERED A PRICE LESS THAN ITS ANTICIPATED COSTS WITH THE EXPECTATIONS OF RECOVERING ITS LOSSES DURING THE PERIOD OF CONTRACT PERFORMANCE THROUGH A MODIFICATION. YOU NOW STATE THAT SINCE IT APPEARS THAT BUILDING NO. 446 WILL NOT BE READY FOR USE UNTIL APRIL 1969, THERE DEFINITELY WILL BE A NEED FOR A CONTRACT MODIFICATION TO TAKE CARE OF THE CHANGE IN THE TIME PERIODS FOR SERVICE IN EACH BUILDING.

WE HAVE INFORMED THE DEPARTMENT OF THE NAVY OF THE ALLEGATIONS MADE BY YOU IN YOUR LETTER OF OCTOBER 31, 1968, AND THAT DEPARTMENT HAS INFORMALLY ADVISED OUR OFFICE THAT IT IS THEIR OPINION THAT THE DELAYED OPENING OF FOOD SERVICE BUILDING NO. 446 WOULD NOT CONSTITUTE A CHANGE FOR WHICH THE CONTRACTOR WOULD BE ENTITLED TO AN EQUITABLE ADJUSTMENT UNDER THE CONTRACT CHANGES CLAUSE. WE AGREE WITH THE DEPARTMENT THAT THE DELAYED OPENING OF BUILDING NO. 446 WOULD NOT WARRANT A MODIFICATION OF THE CONTRACT PRICE, SINCE THE CONTRACT DOES NOT PROVIDE FOR AN ADJUSTMENT IN THE CONTRACT PRICE IN THE EVENT ANY OF THE PERIODS OF SERVICE IN EACH OF THE BUILDINGS ARE CHANGED TO PERIOD OTHER THAN THAT SPECIFIED IN THE REQUEST FOR PROPOSALS, AS AMENDED. IN THIS CONNECTION, IT IS NOTED THAT PARAGRAPH 2.6 -HOURS OF OPERATION, PAGE 11 OF THE REQUEST FOR PROPOSALS, PROVIDES THAT THE CONTRACTING OFFICER MAY CHANGE THE MEAL HOURS, BUT NOT THE TOTAL NUMBER OF HOURS, WITHOUT ADDITIONAL COST TO THE GOVERNMENT BY GIVING THE CONTRACTOR NOTICE 24 HOURS IN ADVANCE OF SUCH CHANGE. ALSO, THE REQUEST FOR PROPOSALS CONTAINS A PROVISION ON PAGE 37 THEREOF FOR PRICE ADJUSTMENTS IN THE EVENT THAT THERE IS AN INCREASE OR DECREASE IN THE TOTAL NUMBER OF MEALS SERVED PER MONTH THAT VARIES FROM THE ESTIMATED MONTHLY TOTAL SPECIFIED IN SCHEDULE A, DATED MARCH 29, 1968, BY MORE THAN 15 PERCENT.

IT SHOULD BE NOTED THAT THE CONTRACT PROVIDES FOR ONE MONTHLY CHARGE FOR SERVICES IN ALL BUILDINGS AND THAT SERVICES IN OLD FOOD SERVICE BUILDING NO. 151 ARE TO BE DISCONTINUED UPON COMMENCEMENT OF SERVICES IN NEW FOOD SERVICE BUILDING NO. 446. IT IS NOT APPARENT HOW THE CHANGE IN BUILDINGS IN WHICH THE SERVICES ARE TO BE PERFORMED WOULD CAUSE SUCH AN INCREASE IN COSTS AS TO WARRANT AN ADJUSTMENT IN THE CONTRACT PRICE. AS WE PREVIOUSLY STATED IN OUR DECISION OF SEPTEMBER 30, 1968, EVEN ASSUMING THAT DYNAMIC ENTERPRISES IS ATTEMPTING TO "BUY IN," WE ARE NOT AWARE OF ANY SPECIFIC LEGAL PROHIBITION AGAINST ACCEPTANCE OF A BID ON THAT GROUND. MOREOVER, THE DEPARTMENT OF THE NAVY HAS ASSURED OUR OFFICE THAT IF DYNAMIC ENTERPRISES HAS ATTEMPTED A ,BUYING-IN," IT WILL NOT BE PERMITTED TO RECOUP ANY LOSSES RESULTING FROM SUCH ACTION THROUGH CHANGE ORDERS.

ACCORDINGLY, SINCE THERE APPEARS NO LEGAL BASIS FOR CHANGING THE CONCLUSION REACHED IN OUR DECISION OF SEPTEMBER 30, 1968, IT IS AFFIRMED.