B-167374, OCT. 6, 1969

B-167374, OCT. 6, 1969

NEGOTIATION--EVALUATION FACTORS--MANNING REQUIREMENTS UNDER REQUEST FOR PROPOSALS FOR MESS ATTENDANT SERVICES, LOW OFFEROR WITH PAST RECORD OF SUBSTANDARD PERFORMANCE WHO SUBMITTED MANNING DOCUMENT THAT DID NOT MEET PROCURING ACTIVITY STANDARDS AND INDICATED THAT SUPERVISION WOULD BE INADEQUATE TO INSURE PROPER CONTROL OF PERSONNEL, WAS PROPERLY NOT CONSIDERED FOR AWARD, SINCE FACTORS OTHER THAN PRICE MAY BE RELIED ON BY CONTRACTING OFFICERS ACTING PRUDENTLY AND IN GOOD FAITH TO MAKE AWARDS UNDER NEGOTIATED PROCUREMENTS.

TO DYNAMIC ENTERPRISES, INCORPORATED:

REFERENCE IS MADE TO YOUR LETTERS DATED JUNE 27, 1969, AND AUGUST 19, 1969, PROTESTING AWARD TO ABC FOOD SERVICE, INCORPORATED, UNDER REQUEST FOR PROPOSALS NO. N00228-69-R-2949 FOR MESS ATTENDANT SERVICES AT THE NAVAL AUXILIARY LANDING FIELD, MONTEREY, CALIFORNIA, ISSUED BY THE PURCHASE DEPARTMENT, NAVAL SUPPLY CENTER, OAKLAND, CALIFORNIA.

THIS NEGOTIATED SOLICITATION WAS A 100-PERCENT SET-ASIDE FOR SMALL BUSINESS. ALL OFFERORS WERE REQUIRED TO SUBMIT WITH THEIR PROPOSALS A MANNING CHART,"SHOWING THE ESTIMATED NUMBER OF PERSONNEL REQUIRED IN EACH SPACE EACH HALF HOUR OF A REPRESENTATIVE WEEKDAY TO SATISFACTORILY PERFORM THE CONTRACT SERVICES.'

PROPOSALS WERE SOLICITED FROM 12 SOURCES. SIX PROPOSALS WERE RECEIVED. DYNAMIC ENTERPRISES, INCORPORATED, WAS LOW OFFEROR. NEGOTIATIONS WERE CONDUCTED WITH THE THREE LOW OFFERORS. ALL OFFERORS WERE ALSO REQUIRED TO SUBMIT WITH THEIR PROPOSALS EVIDENCE INDICATING:

1. FINANCIAL CAPABILITY.

2. EXPERIENCE AND COMPETENCE IN THE PERFORMANCE OF MESS ATTENDANT SERVICES.

3. FAMILARITY WITH ALL APPLICABLE LAWS, REGULATIONS AND ORDINANCES, AND ALL GENERAL AND LOCAL CONDITIONS GOVERNING MESS ATTENDANT SERVICES.

4. NAMES, ADDRESSES AND RESUMES OF WORK EXPERIENCE OF SUPERVISORY PERSONNEL.

5. PROVIDE INFORMATION ON ALL CONTRACTS WITHIN 5 YEARS DEFAULTED OR TERMINATED BY THE GOVERNMENT.

THE RECORD SHOWS THAT DUE TO THE QUALITY OF PERFORMANCE REQUIRED FOR MESS ATTENDANT SERVICES, THE THREE LOW OFFERORS WERE QUERIED IN REGARD TO THREE AREAS, WITH THE FOLLOWING CONSIDERATIONS AND CRITERIA IN MIND.

1. ADEQUACY OF STAFFING. COGNIZANT TECHNICAL PERSONNEL AT THE ACTIVITY DETERMINED THAT A MINIMUM OF 75 MAN-HOURS OF WORK PER DAY (50 ON WEEKENDS) WERE NECESSARY TO INSURE A DEGREE OF SERVICE COMMENSURATE WITH ACCEPTED NAVY STANDARDS. WITH MILITARY PERSONNEL, THE ACTIVITY USES 82 MAN-HOURS PER DAY.

2. ADEQUACY OF SUPERVISION. COMMENSURATE WITH PAST AND CURRENT EXPERIENCE WITH NAVY MESS FACILITIES AND SOUND MANAGEMENT PRACTICES, FULL- TIME SUPERVISION IS CONSIDERED NECESSARY TO INSURE ADEQUATE CONTROL OF PERSONNEL.

3. OTHER FACTORS. OTHER FACTORS TAKEN INTO CONSIDERATION INCLUDED THE ABILITY OF A BIDDER TO MEET COSTS BASED ON HIS MANNING CHART SUBMITTED, DISCUSSIONS WITH OTHER CONTRACTING OFFICERS RELATIVE TO PAST AND PRESENT RECORDS, AND THE ADEQUACY OR LACK OF SITE VISITS BY OFFERORS.

IN THE BUSINESS CLEARANCE MEMORANDUM PREPARED BY THE GOVERNMENT NEGOTIATORS, IT IS STATED:

"E. THE LOW OFFEROR, DYNAMIC ENTERPRISES, INC., SUBMITTED AN INCOMPLETE MANNING CHART WITH AN INDICATED 62 MAN HOUR PER DAY STAFFING LEVEL. DISCUSSIONS WITH OFFEROR ON 11 JUNE, THEIR REPLY TO THE QUESTIONED STAFFING LEVEL WAS (1) MANNING CHARTS HAVE LITTLE RELEVANCE TO CONTRACT PERFORMANCE, (2) THEY PLANNED TO REDUCE THEIR MAN HOUR LEVEL AFTER STARTING WORK ON THE CONTRACT, AND (3) THE WORK FORCE WOULD BE REDUCED APPROXIMATELY .40 PERCENT ON WEEKENDS. THE THIRD FACTOR ALONE WOULD RESULT IN A 37 MAN HOUR DAY ON WEEKENDS. WHEN ASKED SPECIFIC QUESTIONS RELATIVE TO MANNING LEVELS, OFFEROR WOULD ONLY REPLY, -WE WILL DO THE JOB FOR YOU.- "OFFEROR STATED THAT SUPERVISION WOULD BE HANDLED BY A LINE WORKER; WHO WOULD DEVOTE 1/3 OF HIS TIME TO SUPERVISION, 2/3 TO OTHER DUTIES. OFFEROR ALSO STATED THAT PART-TIME SUPERVISION COULD BE UTILIZED.

* * * * * * * "RELATIVE TO THIS PROPOSAL, THERE IS NO RECORD OF ANY REPRESENTATIVE OF THE OFFEROR HAVING MADE A SITE INSPECTION PRIOR TO THE OPENING OF THE SOLICITATION.'OFFEROR'S MANNING LEVEL IS INSUFFICIENT TO MEET THE NEEDS OF THE ACTIVITY, HIS SUPERVISION IS INADEQUATE, AND PERFORMANCE AT OTHER ACTIVITIES INDICATES THAT WHILE PERFORMANCE IS NOT BAD ENOUGH TO MERIT TERMINATION FOR DEFAULT, IT IS NOT UP TO NAVY STANDARDS. IT IS THEREFORE CONCLUDED THAT THE OFFER OF DYNAMIC ENTERPRISES, INC. IS UNACCEPTABLE; CONSIDERATION OF AWARD THERETO WOULD RESULT IN INADEQUATE PERFORMANCE AND COMPROMISE THE HIGH STANDARDS OF FOOD SERVICE.'

THE SUBJECT PROCUREMENT WAS A NEGOTIATED PROCUREMENT UNDER THE AUTHORITY OF 10 U.S.C. 2304 (A) (10), AND NOT A FORMALLY ADVERTISED PROCUREMENT. THE LAW PERTAINING TO FORMALLY ADVERTISED COMPETITIVE BIDDING REQUIRING THAT A CONTRACT BE AWARDED TO THE LOWEST RESPONSIBLE BIDDER IS NOT REQUIRED TO BE APPLIED TO NEGOTIATED PROCUREMENTS. IN THE LATTER SITUATION, THE CONTRACTING AGENCY IN ITS DISCRETION HAS AUTHORITY TO RELY UPON FACTORS OTHER THAN PRICE AND TO MAKE AN AWARD TO OTHER THAN THE LOWEST RESPONSIBLE BIDDER. B-155983, MARCH 31, 1965. IF EVALUATION IS NOT MADE ON THE BASIS OF PRICE ALONE, IT IS NOT IMPROPER. 40 COMP. GEN. 508. OUR OFFICE HAS UPHELD THE AWARD OF A NEGOTIATED CONTRACT TO A PROPOSER, OTHER THAN THE PROPONENT WHO SUBMITTED THE BEST PRICE, ON THE BASIS OF OTHER FACTORS. B-147394, SEPTEMBER 4, 1962.

IT WAS ON THE BASIS OF "OTHER FACTORS" THAT THE PRESENT AWARD WAS MADE. THIS ACTION WAS WITHIN THE DISCRETION OF THE CONTRACTING OFFICER AND A MATTER OF JUDGMENT.

WE CANNOT CONCLUDE, ON THE BASIS OF THE RECORD, THAT THE CONTRACTING OFFICER USED SUCH POOR JUDGMENT AS TO IMPLY NEGLIGENCE OR BAD FAITH. ACCORDINGLY, WE WILL NOT SUBSTITUTE OUR JUDGMENT FOR HIS, AND YOUR PROTEST MUST BE DENIED.