B-176830(1), NOV 10, 1972

B-176830(1), NOV 10, 1972

BID PROTEST - IMPROPER INSTRUCTIONS TO BIDDERS - MINIMUM GOVERNMENT NEEDS DECISION DENYING THE PROTEST OF HOUSE OF HOPE FOUNDATION AGAINST AWARD OF A CONTRACT UNDER AN RFP ISSUED BY THE U.S. ARMY PROCUREMENT AGENCY, VIETNAM, FOR OPERATION OF MESS FACILITIES AND PROVISION OF FOOD HANDLING SERVICES AT TAN SON NHUT AND DA NANG AIR BASES, VIETNAM. PROTESTANT WAS NOT IMPROPERLY TOLD TO INCREASE ITS PRICES AS IT APPEARS THAT THE OTHER BIDDERS TOOK THE FACTOR WHICH WOULD CAUSE SUCH AN INCREASE INTO CONSIDERATION IN THEIR BIDS. AWARD WAS PROPERLY MADE TO THE OFFEROR WHO COULD SATISFY THE MINIMUM NEEDS OF THE GOVERNMENT AT THE LOWEST PRICE, AND THE AWARD IS NOT IMPROPER EVEN IF ANOTHER BIDDER'S PROPOSAL WAS TECHNICALLY SUPERIOR. SEE 51 COMP. GEN. 153 (1971).

TO HOUSE OF HOPE FOUNDATION:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 17, 1972, AND SUBSEQUENT CORRESPONDENCE, PROTESTING AGAINST AWARD OF A CONTRACT UNDER REQUEST FOR PROPOSALS NO. DAJB 11-73-R-0010, ISSUED JULY 12, 1972, BY THE UNITED STATES ARMY PROCUREMENT AGENCY, VIETNAM.

THE SOLICITATION WAS FOR OPERATING MESS FACILITIES AND PROVIDING FOOD HANDLING SERVICES AT TAN SON NHUT AND DA NANG AIR BASES, VIETNAM. SECTION D OF THE REQUEST FOR PROPOSALS PROVIDED THAT PROPOSALS WOULD BE TECHNICALLY EVALUATED IN THE AREAS OF MOBILIZATION PLAN, PERSONNEL QUALIFICATIONS, AND CORPORATE EXPERIENCE, AND THAT OFFERORS WHOSE PROPOSALS WERE FOUND TO BE ACCEPTABLE "WILL BE CONSIDERED FOR AWARD ON THE BASIS OF THEIR PRICE QUOTATION." AFTER NEGOTIATIONS WERE HELD WITH FIVE OFFERORS, INCLUDING YOU, IT WAS DETERMINED THAT ONLY YOU AND ONE OTHER OFFEROR WERE TECHNICALLY ACCEPTABLE FOR PERFORMANCE OF THE REQUIRED WORK AT BOTH LOCATIONS. AWARD WAS THEN MADE TO THE OTHER OFFEROR ON THE BASIS OF ITS LOWER PRICE.

YOU ASSERT THAT YOU WERE BOTH THE LOWEST AND THE ONLY "RESPONSIBLE, RESPONSIVE BIDDER." YOU CLAIM THAT THE SUCCESSFUL OFFEROR DID NOT MEET THE REQUIREMENTS FOR CORPORATE EXPERIENCE OR EXPERIENCE OF PERSONNEL AND THAT DURING NEGOTIATION YOU WERE REQUIRED TO INCREASE YOUR PROPOSED PRICE.

THE RECORD INDICATES THAT YOUR ORIGINAL PRICE PROPOSAL WAS $20,549 PER MONTH FOR TAN SON NHUT AND $17,242 PER MONTH FOR DA NANG, WHILE THE SUCCESSFUL OFFEROR PROPOSED $17,907.05 PER MONTH FOR EACH LOCATION. DURING NEGOTIATIONS IT WAS POINTED OUT TO EACH OFFEROR THAT ONLY GOVERNMENT ISSUED FOOD PRODUCTS COULD BE PREPARED OR CONSUMED AT THE MESS FACILITIES AND THAT THE COST OF GOVERNMENT MEALS FOR CONTRACTOR EMPLOYEES SHOULD BE CONSIDERED IN THE PROPOSALS. YOU THEN INCREASED YOUR PRICE PROPOSAL FOR EACH LOCATION BY $2,000, SO THAT YOUR FINAL EVALUATED PROPOSAL WAS $22,549 MONTHLY FOR TAN SON NHUT AND $19,242 MONTHLY FOR DA NANG. YOU NOW ASSERT THAT THIS FEEDING ARRANGEMENT WAS CONTRARY TO THE REQUEST FOR PROPOSALS AND THAT YOU INCREASED YOUR OFFER BY $4,000 ONLY BECAUSE YOU "ADDED WHAT WE WERE TOLD TO ADD."

THE SOLICITATION PROVISIONS YOU CITE NEITHER REQUIRE NOR PRECLUDE THIS ARRANGEMENT. PAGE J-2, PARAGRAPH J-5 MERELY PROVIDED "CONTRACTOR PERSONNEL" AND "OTHER AUTHORIZED PERSONNEL TO WHOM MEALS ARE SERVED" WILL BE COUNTED AND CHARGED. THE RECORD REFLECTS HOWEVER, THAT DURING THE COURSE OF NEGOTIATIONS OFFERORS WERE FURTHER ADVISED THAT AIR FORCE REGULATIONS PROHIBIT THE PREPARATION OR CONSUMPTION OF NON-GOVERNMENT ISSUED FOOD AT THE MESS FACILITIES AND THAT EITHER THE CONTRACTOR OR ITS INDIVIDUAL EMPLOYEES WOULD HAVE TO PAY THE ESTABLISHED RATES FOR MEALS EATEN THERE BY CONTRACTOR EMPLOYEES. WITH RESPECT TO WHAT YOU WERE TOLD ABOUT REVISING YOUR PROPOSAL IN LIGHT OF THIS INFORMATION, THE ARMY REPORT STATES:

"THE FIGURE $4,000 PER MONTH WAS THE GOVERNMENT'S ESTIMATE BASED UPON THE GOVERNMENT'S ESTIMATED MANNING LEVELS. THE OFFERORS WERE INFORMED WHAT THE ESTABLISHED MEAL RATES WERE AND IT WAS FOR THEM TO DECIDE WHAT THE IMPACT OF THE EMPLOYEES MEAL COST WOULD HAVE ON THEIR PRICE. NONE WERE TOLD TO ADD OR SUBTRACT ANY AMOUNTS FROM THEIR PROPOSAL. OF THE FIVE (5) OFFERORS INVITED TO NEGOTIATE, THREE (3) INCLUDING HOUSE OF HOPE, REVISED THEIR PRICES BASED UPON THE DISCUSSIONS ***."

THE RECORD ALSO INDICATES THAT THE SUCCESSFUL OFFEROR TOOK THE COST OF FEEDING ITS EMPLOYEES INTO CONSIDERATION BUT DID NOT REVISE ITS TOTAL PRICE BECAUSE IT WAS ABLE TO DELETE AN UNNECESSARY COST ITEM THAT HAD BEEN FIGURED INTO ITS ORIGINAL PROPOSAL. ACCORDINGLY, WE CANNOT CONCLUDE THAT YOU WERE IMPROPERLY TOLD TO INCREASE YOUR PRICES.

YOU CLAIM THAT THE SUCCESSFUL OFFEROR DID NOT MEET THE SPECIFICATION REQUIREMENTS DEALING WITH PERSONNEL AND CORPORATE EXPERIENCE. THE REQUEST FOR PROPOSALS STATED THAT THE CORPORATE EXPERIENCE EVALUATION FACTOR WOULD INCLUDE, BUT NOT BE LIMITED TO, PRIOR GOVERNMENT CONTRACTS AND PAST EXPERIENCE, AND THAT IN THE AREA OF PERSONNEL QUALIFICATIONS FAMILIARITY WITH AIR FORCE FOOD SERVICE OPERATIONS AND FLUENCY IN THE ENGLISH LANGUAGE ON THE PART OF CERTAIN EMPLOYEES WAS DESIRED.

YOU ASSERT THAT THE SUCCESSFUL CONTRACTOR HAD NO PRIOR FEEDING EXPERIENCE AND THAT ITS EMPLOYEES, ALL BEING LOCAL NATIONALS, COULD NOT HAVE THE DESIRED LEVEL OF COMPETENCE. YOU STATE THAT YOU HAVE HAD PRIOR FOOD SERVICE EXPERIENCE AS A GOVERNMENT CONTRACTOR AND THAT YOUR PROPOSAL INDICATED THAT YOU WOULD EMPLOY SEVERAL AMERICAN PERSONNEL WITH APPROPRIATE EXPERIENCE. YOU FURTHER STATE THAT HAD YOU OFFERED A PROPOSAL USING ONLY LOCAL NATIONAL PERSONNEL, YOUR PRICE WOULD HAVE BEEN ONLY $13,023 FOR TAN SON NHUT AND $10,662 FOR DA NANG. THE RECORD SHOWS THAT THE EVALUATION TEAM RATED YOUR TECHNICAL PROPOSAL THE HIGHEST BECAUSE THEY THOUGHT IT WAS SUPERIOR OVERALL TO THE OTHERS RECEIVED. HOWEVER, ALTHOUGH THE SUCCESSFUL OFFEROR RECEIVED A LOWER RATING, ITS PROPOSAL WAS ALSO RATED SUFFICIENTLY HIGH TO BE ACCEPTABLE, AND AWARD WAS MADE TO IT ON THE BASIS OF ITS LOWER TOTAL PRICE.

AS NOTED PREVIOUSLY, SECTION D OF THE REQUEST FOR PROPOSALS PROVIDED THAT ACCEPTABLE OFFERORS WOULD BE CONSIDERED FOR AWARD ON THE BASIS OF THEIR PRICE QUOTATIONS.

BASED ON THE RECORD, IT APPEARS THAT AWARD WAS MADE TO THE OFFEROR THAT COULD SATISFY THE MINIMUM NEEDS OF THE GOVERNMENT AT THE LOWEST PRICE. SEE 51 COMP. GEN. 153 (1971).

FINALLY, THE RECORD INDICATES THAT NOTICE OF THE AWARD WAS POSTED ON THE PROCUREMENT OFFICE BULLETIN BOARD. WE THINK THAT IT WOULD HAVE BEEN MORE APPROPRIATE FOR THE CONTRACTING OFFICER TO HAVE NOTIFIED YOU DIRECTLY OF THE AWARD TO THE OTHER FIRM. OTHERWISE, WE CAN FIND NO OBJECTION TO THE AWARD PROCEDURE.

FOR THE FOREGOING REASONS, YOUR PROTEST AGAINST THE AWARD MUST BE DENIED.