B-179041, FEB 26, 1974

B-179041, FEB 26, 1974

PREVIOUS DECISION HOLDING THAT CONTRACTING OFFICER PROPERLY DETERMINED ACCEPTABILITY OF OFFER TO PROVIDE MESS ATTENDANT SERVICES AT NAVAL TRAINING CENTER, BAINBRIDGE, MARYLAND, WHICH OFFER INCLUDED MANNING CHARTS REFLECTING MANNING LEVELS 35 PERCENT LOWER THAN GOVERNMENT ESTIMATE, IS AFFIRMED, SINCE RFP PERMITTED OFFERORS TO PROPOSE MANNING LEVELS MORE THAN 5 PERCENT LOWER THAN GOVERNMENT ESTIMATE PROVIDED JUSTIFICATION WAS SUBMITTED THEREFOR, AND CONTRACTING OFFICER DID NOT ABUSE HIS DISCRETION IN DETERMINING THAT ADEQUATE JUSTIFICATION HAD BEEN SUBMITTED AND THAT OFFEROR COULD SATISFACTORILY PERFORM CONTRACT. ASSERTION BY ANOTHER OFFEROR THAT IT WAS MISLED BY GOVERNMENT ESTIMATE IS UNTIMELY UNDER GAO BID PROTEST PROCEDURES AND STANDARDS.

TO SOUTHEASTERN SERVICES, INC. - JETS SERVICES, INC. (RECONSIDERATION):

SOUTHEASTERN SERVICES, INC. AND JETS SERVICES, INC. EACH HAVE REQUESTED THAT WE RECONSIDER OUR DECISION B-179041, OCTOBER 26, 1973, IN WHICH WE HELD THAT THE NAVY DID NOT IMPROPERLY AWARD A CONTRACT TO PROVIDE MESS ATTENDANT SERVICES AT THE NAVAL TRAINING CENTER, BAINBRIDGE, MARYLAND, TO MILITARY BASE MANAGEMENT OF NEW JERSEY, INC. (MBM).

THE SOLICITATION REQUIRED OFFERORS TO SUBMIT MANNING CHARTS WITH THEIR PROPOSALS, AND PROVIDED THAT PROPOSED MANNING LEVELS WHICH FELL MORE THAN 5 PERCENT BELOW THE STATED GOVERNMENT ESTIMATES "MAY RESULT IN REJECTION OF THE OFFER WITHOUT FURTHER NEGOTIATIONS" UNLESS SPECIFIC DOCUMENTATION JUSTIFYING THE USE OF FEWER HOURS WAS SUBMITTED. THE SOLICITATION FURTHER PROVIDED THAT THE PROPOSED PRICE MUST SUPPORT THE PROPOSED NUMBER OF HOURS.

THE GOVERNMENT ESTIMATED THAT SATISFACTORY PERFORMANCE WOULD REQUIRE 135,390 MANNING HOURS ANNUALLY. HOWEVER, MBM PROPOSED TO USE 88,224 MANNING HOURS, A DEVIATION FROM THE NAVY'S ESTIMATE OF APPROXIMATELY 35 PERCENT. MBM JUSTIFIED THIS DEVIATION ON THE GROUNDS THAT AS A FORMER INCUMBENT CONTRACTOR PROVIDING THE SERVICES CALLED FOR BY THE SOLICITATION, IT PROVIDED SATISFACTORY PERFORMANCE USING THAT NUMBER OF MANNING HOURS. WE FOUND THAT THE CONTRACTING OFFICER DID NOT ABUSE HIS DISCRETION IN DETERMINING THAT MBM HAD JUSTIFIED THE DEVIATION AND UPHELD HIS DECISION TO ACCEPT MBM'S OFFER.

SOUTHEASTERN, THE CONTRACTOR AT THE TIME THE SOLICITATION WAS ISSUED (IT DID NOT SUBMIT A PROPOSAL), ASSERTS THAT THE GOVERNMENT HAD SPECIFIED "MINIMUM ACCEPTABLE MANNING HOURS OF 135,390," THAT ITS ACCEPTANCE OF MBM'S PROPOSAL INDICATES THAT IT MADE A 35 PERCENT ERROR IN ITS ESTIMATES, AND THAT THE SOLICITATION SHOULD HAVE BEEN AMENDED TO REFLECT CORRECT ESTIMATES SO AS TO GIVE ALL OFFERORS AN OPPORTUNITY TO SUBMIT OFFERS BASED ON THE LOWER MANNING LEVELS. JETS ALSO ASSERTS THAT OFFERORS SHOULD HAVE BEEN INFORMED THAT THEY COULD PROPOSE MANNING LEVELS SIGNIFICANTLY BELOW THE GOVERNMENT ESTIMATES, AND CLAIMS THAT IT WAS MISLED BY THE ESTIMATES STATED IN THE SOLICITATION. IN ADDITION, SOUTHEASTERN CLAIMS THAT MBM'S STATEMENT JUSTIFYING ITS PROPOSAL HOURS WAS "COMPLETELY FALSE."

WE DO NOT AGREE THAT THE GOVERNMENT SPECIFIED A MINIMUM ACCEPTABLE LEVEL OF MANNING HOURS. THE REQUEST FOR PROPOSALS CLEARLY INDICATED THAT THE GOVERNMENT FIGURES WERE ESTIMATES ONLY, AND SPECIFICALLY ALLOWED FOR THE SUBMISSION OF LOWER MANNING LEVELS WITHIN 5 PERCENT OF THE ESTIMATES AND EVEN LOWER MANNING LEVELS PROVIDED ADEQUATE JUSTIFICATION FOR THOSE LEVELS WAS ALSO SUBMITTED. WE ALSO DO NOT AGREE THAT THE GOVERNMENT MADE A 35 PERCENT ERROR IN ITS ESTIMATE. THE ESTIMATE WAS SIMILAR TO THE ONE CONTAINED IN THE REQUEST FOR PROPOSALS FOR THE PRIOR CONTRACT AND APPARENTLY SOUTHEASTERN, AS THE INCUMBENT CONTRACTOR UNDER THAT CONTRACT, GAVE THE GOVERNMENT NO REASON TO BELIEVE THAT THE ESTIMATE WAS NOT ACCURATE. AS WE STATED IN OUR EARLIER DECISION IN THIS MATTER "OFFERORS WERE FREE TO CONCLUDE *** THAT THEY COULD PERFORM THE NECESSARY SERVICES WITH 35 PERCENT FEWER MAN-HOURS." THE FACT THAT ONE OF THEM DID SO DID NOT NEGATE THE VALIDITY OF THE GOVERNMENT'S ESTIMATE.

WITH RESPECT TO JETS' ASSERTION, NOW MADE FOR THE FIRST TIME BEFORE OUR OFFICE, THAT IT WAS "DEFINITELY MISLED," WE NOTE THAT JETS DOES NOT EXPLAIN HOW OR WHY IT WAS MISLED, BUT POINTS ONLY TO OTHER SITUATIONS IN WHICH ITS OFFERS WERE REJECTED BY THE NAVY BECAUSE THEY DEVIATED FROM THE GOVERNMENT ESTIMATES BY MORE THAN 5 PERCENT. WE DO NOT BELIEVE THAT THIS ALONE SHOULD HAVE CAUSED JETS OR ANY OTHER OFFEROR TO BE MISLED. THE REQUEST FOR PROPOSALS PERMITTED, BUT DID NOT REQUIRE, REJECTION OF OFFERS DEVIATING BY MORE THAN 5 PERCENT FROM THE STATED ESTIMATES, AND WE HAVE RECOGNIZED IN THESE MESS ATTENDANT CASES THAT CONTRACTING OFFICERS MAY, IN THE PROPER EXERCISE OF THEIR DISCRETION, INCLUDE WITHIN THE COMPETITIVE RANGE OFFERS PROPOSING MANNING LEVELS LESS THAN 5 PERCENT BELOW THE GOVERNMENT'S ESTIMATES. SEE 53 COMP. GEN. (B-179171, NOVEMBER 30, 1973) AND B-179174, JANUARY 15, 1974. IN ANY EVENT, JETS' ASSERTION THAT IT WAS MISLED IS UNTIMELY UNDER OUR INTERIM BID PROTEST PROCEDURES AND STANDARDS, WHICH REQUIRE PROTESTS TO BE FILED WITHIN 5 DAYS AFTER THE BASIS FOR PROTESTING IS KNOWN, 4 CFR 20.2, AND THEREFORE PROVIDES NO BASIS FOR OUR RECONSIDERING OUR EARLIER DECISION.

WITH RESPECT TO THE ASSERTION THAT MBM'S JUSTIFICATION TO SUPPORT ITS PROPOSED MANNING LEVELS WAS FALSE, SOUTHEASTERN HAS PROVIDED NO DOCUMENTATION OR OTHER INFORMATION TO SUBSTANTIATE ITS CLAIM. IT DOES STATE THAT MBM'S PRIOR CONTRACT WAS TOTALLY DISSIMILAR FROM ITS CURRENT CONTRACT IN THAT THE FORMER CONTRACT REQUIRED 3 TIMES THE MAN-HOURS AND WAS AT A PRICE EXCEEDING 3 TIMES THE PRICE OF THE NEW CONTRACT. MBM'S JUSTIFICATION STATEMENT, HOWEVER, SAID ONLY THAT IT HAD PREVIOUSLY "OPERATED THAT PORTION OF THE MESS HALL COVERED BY THIS RFP WITHIN THE MAN -HOURS CONTAINED ON OUR ENCLOSED MANNING CHARTS." THE CONTRACTING OFFICER DETERMINED THAT MBM HAD PROVIDED SATISFACTORY SERVICE UNDER ITS PRIOR CONTRACT AND THAT IT COULD DO SO UNDER THE CONTRACT TO BE AWARDED. WE SEE NO REASON TO REVERSE OUR PREVIOUSLY STATED CONCLUSION THAT THE CONTRACTING OFFICER DID NOT ABUSE HIS DISCRETION IN DETERMINING MBM'S OFFER TO BE ACCEPTABLE.

ACCORDINGLY, OUR PRIOR DECISION IS AFFIRMED.