B-173628, SEP 9, 1971

B-173628, SEP 9, 1971

BID PROTEST - PRIOR DEVIATION FROM SOLICITATION - ESTABLISHMENT OF COMPETITIVE RANGES DENIAL OF PROTEST BY KLEEN-RITE JANITORIAL SERVICE INC., AGAINST THE AWARD OF A CONTRACT FOR MESS ATTENDANT SERVICES AT THE NAVAL AIR STATION, LAKEHURST, N.J., UNDER AN RFP ISSUED BY THE NAVAL REGIONAL PROCUREMENT OFFICE, PHILADELPHIA, PA. PROTESTANT'S BID WAS REJECTED AS NONCOMPETITIVE BECAUSE IT WAS 30 PERCENT BELOW THE MINIMUM NUMBER OF MANNING HOURS REQUIRED UNDER THE SOLICITATION. THE FACTS OF THE PHILADELPHIA PROCUREMENT ARE QUITE DIFFERENT FROM THOSE OF THE NORFOLK PROCUREMENT CITED BY PROTESTANT. THE CONTRACTING OFFICER AT PHILADELPHIA, UNLIKE THE ONE AT NORFOLK, IS OF THE OPINION THAT THE MANNING HOUR FIGURES OF THE SOLICITATION ARE CORRECT. A PROCURING AGENCY HAS THE AUTHORITY TO ESTABLISH COMPETITIVE RANGES IN NEGOTIATED PROCUREMENTS. IT IS THE OPINION OF THE COMP. GEN. THAT THE PROCEDURE APPLIED HERE WAS PROPER, AND WAS WITHIN THE DISCRETIONARY POWER OF THE CONTRACTING AGENCY.

TO KLEEN-RITE JANITORIAL SERVICE, INC.:

FURTHER REFERENCE IS MADE TO YOUR PROTEST AGAINST THE AWARD OF A CONTRACT TO MILITARY BASE MANAGEMENT OF NEW JERSEY, INC. (MBM) UNDER RFP NO. N00140 -71-R-1556, ISSUED ON MAY 11, 1971, BY THE NAVAL REGIONAL PROCUREMENT OFFICE, PHILADELPHIA, PENNSYLVANIA.

THE INSTANT SOLICITATION REQUESTED OFFERS FOR MESS ATTENDANT SERVICES AT THE NAVAL AIR STATION, LAKEHURST, NEW JERSEY, FOR THE PERIOD JULY 1, 1971, TO JUNE 30, 1972. OF THE 9 RESPONSES RECEIVED ON JUNE 17, 1971, YOUR FIRM OFFERED THE LOWEST NET TOTAL PRICE OF $155,958. HOWEVER, SINCE YOUR OFFER OF 133 MANNING HOURS PER WEEKDAY WAS SOME 30 PERCENT LESS THAN THE MINIMUM NUMBER OF MANNING HOURS (190) ESTIMATED BY THE ACTIVITY TO BE REQUIRED FOR WEEKDAY PERFORMANCE, THE CONTRACTING OFFICER DETERMINED THAT YOUR OFFER WAS NOT WITHIN THE COMPETITIVE RANGE FOR FURTHER DISCUSSION AND AWARDED THE CONTRACT TO MBM THE NEXT LOWEST OFFEROR, WHOSE OFFER WAS DETERMINED TO BE IN THE BEST INTERESTS OF THE GOVERNMENT PRICE AND OTHER FACTORS CONSIDERED.

SECTION 5.0(A) OF THE SOLICITATION, AS AMENDED, READS IN PERTINENT PART:

" *** THE GOVERNMENT ESTIMATES THAT UNDER PRESENT CONDITIONS SATISFACTORY PERFORMANCE WILL REQUIRE TOTAL MANNING HOURS OF BETWEEN 190 AND 210 ON A REPRESENTATIVE WEEKDAY AND BETWEEN 115 AND 130 ON A REPRESENTATIVE WEEKEND DAY. MANNING CHARTS WHOSE HOURS DO NOT APPROXIMATE THESE RANGES MAY RESULT IN REJECTION OF THE OFFER WITHOUT DISCUSSION. *** ."

WHILE YOU ADMIT THAT UNDER THIS PROCUREMENT YOUR OFFER OF 133 MANNING HOURS EACH WEEKDAY WAS LESS THAN THOSE HOURS ESTIMATED BY THE GOVERNMENT, YOU ASSERT THAT YOUR FIRM WAS AWARDED A CONTRACT FOR SIMILAR SERVICES BY THE NAVAL SUPPLY CENTER, NORFOLK, VIRGINIA, WHERE YOUR MANNING CHARTS OFFERED UNDER THAT PROCUREMENT CONTAINED LESS HOURS THAN THOSE ESTIMATED BY THAT COMMAND, AND YOU THEREFORE WISH TO KNOW HOW THE DEPARTMENT OF THE NAVY CAN SUBSTANTIATE DIFFERENT INTERPRETATIONS OF IDENTICAL WORDING IN THE RESPECTIVE SOLICITATIONS.

CONCERNING THE NORFOLK PROCUREMENT, WE HAVE BEEN INFORMALLY ADVISED THAT ALL BUT ONE OF THE 13 OFFERORS (INCLUDING KLEEN-RITE) SUBMITTED OFFERS PROPOSING LESS MAN-HOURS THAN THOSE ESTIMATED BY THE GOVERNMENT. THIS FACT, IT IS REPORTED, CONFIRMED THE CONTRACTING OFFICER'S EARLIER BELIEF THAT THE GOVERNMENT'S ORIGINAL ESTIMATE OF REQUIRED MAN-HOURS WAS TOO HIGH, AND CONSEQUENTLY ALL OFFERORS WERE CONSIDERED TO BE IN THE COMPETITIVE RANGE AND NEGOTIATIONS WERE CONDUCTED WITH THEM REGARDLESS OF THE NUMBER OF HOURS ORIGINALLY OFFERED. UNDER SUCH CIRCUMSTANCES, IT IS OUR OPINION THAT NEGOTIATIONS BASED UPON MANNING CHARTS OFFERING LESS THAN THE ESTIMATED NUMBER OF MAN-HOURS SET OUT IN THE SOLICITATION WAS PROPER.

THE FACTS OF THE PHILADELPHIA PROCUREMENT, HOWEVER, ARE QUITE DIFFERENT IN THAT THE NAVY CONSIDERED ITS ESTIMATED NUMBER OF HOURS TO BE ACCURATE AND VALID, AND THE COGNIZANT OFFICIALS WERE OF THE OPINION THAT THE REQUIRED SERVICES COULD NOT BE SATISFACTORILY PERFORMED ON THE BASIS OF THE MANNING HOURS OFFERED BY YOUR FIRM.

THE DECISIONS OF THIS OFFICE HAVE CONSISTENTLY RECOGNIZED THE AUTHORITY OF A PROCURING AGENCY IN NEGOTIATED PROCUREMENTS TO ESTABLISH A COMPETITIVE RANGE FOR THE PURPOSE OF DETERMINING THOSE BIDDERS WITH WHOM WRITTEN OR ORAL NEGOTIATIONS WOULD BE UNDERTAKEN. IN THE INSTANT CASE, IT IS OUR OPINION THAT USE OF AN ESTIMATED NUMBER OF MANNING HOURS WAS A PROPER METHOD OF ESTABLISHING SUCH A RANGE AND, IN THE ABSENCE OF ANY COMPELLING REASON FOR QUESTIONING THE VALIDITY OF SUCH ESTIMATE, IT WAS WITHIN THE DISCRETIONARY AUTHORITY OF THE CONTRACTING AGENCY TO REFUSE TO NEGOTIATE WITH ANY OFFEROR WHO FAILED TO SUBMIT MANNING CHARTS REFLECTING MAN-HOURS WITHIN THE ESTIMATED RANGE SET OUT IN THE SOLICITATION. IN VIEW THEREOF, AND SINCE WE ARE ADVISED THAT THE CONTRACT AWARDED UNDER RFP NO. NOO140-71-R-1556 WAS BASED UPON MANNING CHARTS WHICH WERE WITHIN THE ESTIMATED MAN-HOUR RANGES SET OUT IN THE SOLICITATION, WE SEE NO VALID BASIS UPON WHICH WE COULD INTERPOSE ANY OBJECTION TO THE PROCEDURE FOLLOWED IN THAT PROCUREMENT.

ACCORDINGLY, YOUR PROTEST MUST BE DENIED.