B-162418, NOV. 1, 1967

B-162418, NOV. 1, 1967

BIDDERS - RESPONSIBILITY - INFORMATION AFTER OPENING DECISION TO MANPOWER, INC., CONCERNING PROTEST AGAINST AWARD OF A CONTRACT FOR SHIPPING AND WAREHOUSING SERVICES TO KAHOE SERVICE COMPANY BY NASA. INFORMATION CONCERNING A MANNING SCHEDULE AND DESCRIPTION OF EQUIPMENT WHICH A LOW BIDDER WAS PERMITTED TO FURNISH AFTER OPENING OF BIDS FOR A SHIPPING AND WAREHOUSING SERVICE CONTRACT IS INFORMATION CONCERNING THE RESPONSIBILITY AND CAPABILITY OF THE BIDDER RATHER THAN INFORMATION NECESSARY TO DETERMINE THE RESPONSIVENESS OF THE BID SINCE THE ONLY PURPOSE OF THE MANNING TABLE IS TO PROVIDE A BASIS FOR ADJUSTING THE OPTION PRICE IF THE OPTION IS EXERCISED AND UNDER THE TERMS OF THE CONTRACT THE BIDDER WOULD BE OBLIGATED TO PROVIDE ALL SERVICES REQUIRED AT THE FIXED PRICE AS WELL AS FURNISH THE EQUIPMENT LISTED NOTWITHSTANDING FAILURE TO FURNISH THE REQUIRED INFORMATION WITH THE BID. IN A LETTER TO NASA IT WAS SUGGESTED THAT IN FUTURE PROCUREMENTS A PROVISION SIMILAR TO THAT IN NAVY SUPPLY SYSTEM CONTRACTS FOR MESS ATTENDANT SERVICES, BE INCLUDED TO THE EFFECT THAT THE RESPONSIVE BIDDERS BEING CONSIDERED FOR AWARD BE REQUIRED TO SUBMIT MANNING SCHEDULES AFTER OPENING FOR USE IN DETERMINING THE BIDDERS RESPONSIBILITY AND THAT SUCH SCHEDULE WILL BECOME A PART OF THE RESULTING CONTRACT. B-160537, OCTOBER 17, 1967.

TO MANPOWER INC.:

REFERENCE IS MADE TO YOUR TELEGRAM OF SEPTEMBER 6, 1967, AND LETTER DATED SEPTEMBER 12, 1967, PROTESTING THE AWARD OF A CONTRACT TO ANY OTHER CONCERN UNDER SOLICITATION NO. L-8035, ISSUED BY THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, LANGLEY STATION, HAMPTON, VIRGINIA.

THE SOLICITATION CALLED FOR SEALED OFFERS FOR SERVICES FOR OPERATING A SHIPPING, RECEIVING, WAREHOUSING AND STORES ISSUE OPERATION. THE METHOD OF EVALUATION AND AWARD IS PRESCRIBED ON PAGE 10 OF THE SOLICITATION, AS FOLLOWS: "BIDS WILL BE EVALUATED AND AWARD OF A SINGLE CONTRACT WILL BE MADE TO THE LOW RESPONSIVE BIDDER FOR ITEM NO. 1 (-PHASE I-). ALL OTHER ITEMS (POSSIBLE ADDITIONAL SERVICES (-PHASE II-) AND OPTIONS FOR SERVICES IN SUBSEQUENT YEARS) WILL NOT BE INCLUDED IN THE EVALUATION, AND THE GOVERNMENT RESERVES THE RIGHT TO ACCEPT, REJECT, OR SUBSTITUTE FOR THEM PRICES NEGOTIATED WITH THE BIDDER PRIOR TO AWARD. AWARD WILL BE MADE NOT LESS THAN THIRTY (30) DAYS PRIOR TO THE CONTRACT COMMENCEMENT DATE.'

THREE BIDS WERE RECEIVED AND WERE OPENED ON SEPTEMBER 1, 1967. KAHOE SERVICE COMPANY OF VIRGINIA, INC. (KAHOE) SUBMITTED THE LOW BID ON ITEM NO. 1 IN THE AMOUNT OF $6,200 PER MONTH. THE NEXT LOW BID WAS FOR ITEM NO. 1 SUBMITTED BY YOUR FIRM IN THE AMOUNT OF $6,304 PER MONTH.

HOWEVER, KAHOE FAILED TO FURNISH WITH ITS BID COMPLETE DATA REQUIRED BY THE "INFORMATION TO BE FURNISHED WITH BIDS" CLAUSE ON PAGE 6 OF THE SOLICITATION, WHICH STATES: "/A)A STATEMENT IN QUADRUPLICATE AS TO THE BIDDER'S PREVIOUS EXPERIENCE, QUALIFICATION, LENGTH OF TIME IN THIS TYPE OF BUSINESS, AND REFERENCES AS TO FIRMS FOR WHOM SIMILAR SERVICES HAVE BEEN SATISFACTORILY PERFORMED, PARTICULARLY FEDERAL GOVERNMENT REFERENCES, IF ANY. "/B) DOCUMENTED QUALIFICATIONS OF PROPOSED PERSONNEL CERTIFIED BY THE BIDDER. "/C) A DESCRIPTION (NAME OF MANUFACTURER, MODEL NUMBER, AND OTHER IDENTIFYING DATA AND INFORMATION RESPECTING THE PERFORMANCE, CAPACITY, NATURE AND RATING) OF THE EQUIPMENT THE BIDDER PROPOSES TO USE IN PERFORMANCE OF WORK. INFORMATION AND DATA ARE TO DETERMINE CONFORMANCE WITH REQUIREMENTS AS TO USE, MECHANICAL CONDITION, APPEARANCE AND SAFETY.' ALSO, KAHOE FAILED TO SUPPLY THE MANNING TABLES AND LABOR HOURS REQUIRED BY THE ,SERVICES EMPLOYEES LABOR HOURS" PROVISION, WHICH PROVIDES THAT: "EACH OFFEROR SHALL SUBMIT WITH HIS OFFER SEPARATE LISTINGS, FOR PHASE I AND PHASE II SERVICES, OF THE CLASSES OF SERVICE EMPLOYEES SUBJECT TO THE SERVICE CONTRACT ACT, AND THE NUMBER OF LABOR HOURS TO BE SUPPLIED BY EACH SUCH CLASS APPLICABLE BOTH TO THE ORIGINAL CONTRACT PERIOD AND THE ONE-YEAR OPTION PERIOD. SEPARATE LISTINGS, FOR PHASE I AND PHASE II SERVICES, SHALL ALSO BE SUBMITTED OF THE CLASSES AND THE NUMBER OF LABOR HOURS TO BE SUPPLIED BY EACH CLASS APPLICABLE TO THE EIGHT (8) MONTH OPTION PERIOD.'

NOTING THE OMISSIONS, THE CONTRACTING OFFICER CALLED KAHOE AND REQUESTED THE FOLLOWING INFORMATION:

"A. ADDITIONAL INFORMATION ON QUALIFICATIONS OF PROPOSED PERSONNEL.

"B. DETAILED DESCRIPTION OF EQUIPMENT THE BIDDER PROPOSED TO USE IN PERFORMANCE OF WORK.

"C. SEPARATE LISTING FOR PHASE I AND PHASE II OF THE CLASSES OF SERVICE EMPLOYEES SUBJECT TO THE SERVICE CONTRACT ACT, AND THE NUMBER OF LABOR HOURS TO BE SUPPLIED BY EACH CLASS APPLICABLE BOTH TO THE ORIGINAL CONTRACT PERIOD AND THE OPTION PERIODS. (THE REFERENCE TO A REQUEST FOR A TABLE APPLICABLE TO -THE ONE-YEAR OPTION PERIOD,- APPEARING ON THE FIRST PAGE OF THE CONTRACTING OFFICER'S STATEMENT, IS IN ERROR.)"

KAHOE COMPLIED WITH THE CONTRACTING OFFICER'S REQUEST BY LETTERS OF SEPTEMBER 8 AND 13, 1967.

IT IS YOUR CONTENTION THAT KAHOE'S FAILURE TO SUPPLY WITH ITS BID THE MANNING TABLES AND DESCRIPTION OF THE EQUIPMENT IT PLANS TO USE, COUPLED WITH ITS FAILURE TO TAKE ANY EXCEPTIONS CONCERNING THEIR OMISSIONS, AS REQUIRED BY THE "BID EXCEPTION" CLAUSE, RENDERS KAHOE'S BID NONRESPONSIVE TO THE MATERIAL REQUIREMENTS OF THE SOLICITATION. YOU FURTHER CONTEND THAT TO PERMIT KAHOE TO SUPPLY THE INFORMATION AFTER BID OPENING AFFORDS KAHOE THE OPPORTUNITY OF RENEGING ON ITS BID. YOU STATE THAT THE FAILURE BY A BIDDER TO SUPPLY A MANNING TABLE WITH ITS BID ON THE ASSUMPTION THAT IT CAN BE SUPPLIED SUBSEQUENT TO BID OPENING AFFORDS THE BIDDER AN OPTION TO REAPPRAISE ITS BID AFTER OPENING. THUS, A MANNING TABLE CALLING FOR THE USE OF LESS THAN FULL TIME HELP IN WAREHOUSE POSITIONS COULD BE SUBMITTED, AND STILL FULFILL THE REQUIREMENT OF THE SPECIFICATIONS WHICH CALLS FOR SIX STOREKEEPER/WAREHOUSEMEN, BUT DOES NOT SPECIFY THAT THEY HAVE TO WORK EIGHT HOURS PER DAY. IT IS YOUR FURTHER VIEW THAT KAHOE'S FAILURE TO SUPPLY DESCRIPTIVE INFORMATION ON THE EQUIPMENT IT PLANS TO USE ALLOWS AN OPTION AFTER BID OPENING TO EITHER SUPPLY SUBSTANDARD EQUIPMENT, IF IT SO DESIRES, THUS DISQUALIFYING ITSELF, OR TO FURNISH THE REQUIRED EQUIPMENT. YOU ALSO QUESTION WHETHER KAHOE HAS SUFFICIENT EXPERIENCE TO PERFORM THIS CONTRACT.

THIS OFFICE HAS HELD THAT IF THE INFORMATION TO BE FURNISHED WITH A BID IS TO BE USED FOR EVALUATION PURPOSES IT GOES TO THE RESPONSIVENESS OF THE BID AND MUST BE INCLUDED IN THE BID AS ORIGINALLY SUBMITTED. 41 COMP. GEN. 755. HOWEVER, WE HAVE ALSO HELD THAT A BIDDER IS ENTITLED AT ANY TIME AFTER BID OPENING AND BEFORE AWARD TO SUBMIT INFORMATION THAT BEARS ON HIS ABILITY TO PERFORM THE CONTRACT, OR ON OTHER MATTERS WHICH RELATE TO WHETHER HE IS A RESPONSIBLE BIDDER. 43 COMP. GEN. 285, 287; 41 COMP. GEN. 555, 557; ID. 755, 757; B-157831, FEBRUARY 16, 1966; B-154734, AUGUST 26, 1964.

CONCERNING KAHOE'S FAILURE TO SUBMIT A MANNING TABLE WITH ITS BID, WHILE IT IS UNDOUBTEDLY TRUE THAT KAHOE COULD HAVE SUBMITTED A MANNING TABLE CALLING FOR THE USE OF LESS THAN FULL TIME WORKERS, THE FACT REMAINS THAT IT WOULD STILL BE OBLIGATED TO PROVIDE ALL SERVICES UNDER ITEM 1 OF THE SPECIFICATIONS AT A FIXED PRICE OF$6,200 PER MONTH. WHETHER OR NOT KAHOE WOULD BE ABLE TO PERFORM THE WORK SATISFACTORILY, WITH PART TIME WORKERS, IS A QUESTION OF RESPONSIBILITY, AND WE HAVE NO REASON TO DISBELIEVE THE ADMINISTRATIVE AGENCY'S ADVICE THAT THE ONLY PURPOSE OF THE MANNING TABLE IS TO PROVIDE A BASIS FOR ADJUSTING THE OPTION PRICE WHEN AND IF THE OPTION IS EVER EXERCISED, AND IF IT IS NECESSARY TO DO SO BECAUSE A NEW WAGE DETERMINATION IS ISSUED UNDER THE SERVICE CONTRACT ACT OF 1965, P.L. 89-286, 79 STAT. 1034. IN THIS CONNECTION, ATTENTION IS INVITED TO OUR DECISION OF OCTOBER 17, 1967, WHEREIN, IN UPHOLDING AN AWARD TO MANPOWER, INC., WE CONCLUDED THAT FAILURE TO SUBMIT MANNING TABLES DID NOT AFFECT THE RESPONSIVENESS OF THE BID.

IN REGARD TO KAHOE'S FAILURE TO SUBMIT INFORMATION ON THE TYPE OF EQUIPMENT IT PLANS TO USE, THIS OFFICE HAS ALSO HELD THAT THE FAILURE BY A BIDDER TO SUBMIT A LIST OF EQUIPMENT IS A FAILURE TO SUBMIT DATA NECESSARY TO DETERMINE THE CAPABILITY OF THE BIDDER, RATHER THAN TO THE RESPONSIVENESS OF THE BID. 42 COMP. GEN. 728. SINCE KAHOE MUST STILL SUPPLY THE EQUIPMENT LISTED IN PARAGRAPH 1-04 OF THE SPECIFICATIONS, WE CAN ONLY CONCLUDE THAT THE PURPOSE OF THE INFORMATION ON EQUIPMENT TO BE USED IS TO DETERMINE IF KAHOE IS CAPABLE OF SUPPLYING THE REQUIRED EQUIPMENT, WHICH IS A MATTER OF RESPONSIBILITY. CONCERNING THE QUESTION OF KAHOE'S EXPERIENCE, THIS IS A MATTER OF CONTRACTOR RESPONSIBILITY TO BE DECIDED BY THE CONTRACTING OFFICER, WHICH HAS BEEN DECIDED SATISFACTORILY IN FAVOR OF KAHOE.

AS TO THE THREE DECISIONS OF THIS OFFICE, B-151838, AUGUST 19, 1963, B- 146211, JUNE 28, 1961 AND B-150079, NOVEMBER 26, 1962, WHICH YOU CITE IN SUPPORT OF YOUR PROTEST, WE ARE OF THE OPINION THAT THEY CAN BE DISTINGUISHED FROM THE PRESENT CASE. IN ALL THREE OF THOSE CASES THE INFORMATION CALLED FOR WAS NECESSARY TO EVALUATE THE ITEM BEING PROCURED, AND WITHOUT THE INFORMATION IT COULD NOT BE DETERMINED WHETHER THE ITEM OFFERED CONFORMED TO THE SPECIFICATIONS. THE OMISSIONS AND DEVIATIONS WERE THEREFORE MATERIAL, AND WENT TO THE RESPONSIVENESS OF THE BIDS.

IN VIEW OF THE FOREGOING, WE ARE UNABLE TO CONCLUDE THAT ANY COMPETITIVE ADVANTAGE TO KAHOE WOULD RESULT FROM ITS FAILURE TO SUBMIT THE INFORMATION IN QUESTION WITH ITS BID, OR FROM PERMITTING SUBMISSION OF SUCH INFORMATION AFTER BID OPENING BUT BEFORE AWARD.