BNUMBER:  B-280805 
DATE:  November 23, 1998
TITLE: Vereinigte Gebï¿½udereinigungsgesellschaft, B-280805, November
23, 1998
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Matter of:Vereinigte Gebï¿½udereinigungsgesellschaft

File:     B-280805

Date:November 23, 1998

Reed L. von Maur, Esq., Parker, Poe, Adams & Bernstein, for the 
protester.
Maj. Susan D. Tigner, Department of the Army, for the agency.
Jennifer Westfall-McGrail, Esq., and Christine Melody, Esq., Office of 
the General Counsel, GAO, participated in the preparation of the 
decision.

DIGEST

1.  Protest that agency treated bidders unequally in reprocuring 
contract for custodial services is denied where record does not 
support protester's allegation that agency demanded that it produce 
bilingual management personnel immediately, but gave awardee 2 weeks 
to produce such personnel.

2.  Repurchase need not be conducted in accordance with the terms of 
the original solicitation; thus, agency was not precluded from 
requiring a preaward demonstration of the linguistic abilities of a 
bidder's management personnel by the fact that such a demonstration 
had not been required under the original solicitation.

DECISION

Vereinigte Gebï¿½udereinigungsgesellschaft (VGR) protests the Department 
of the Army's award of contract No. DAJA89-98-D-0016, for custodial 
services at the Department of Defense (DOD) elementary and high 
schools in Wï¿½rzburg, Germany, to Perfekt Service GmbH (PSG).  The 
contract was awarded to PSG as a result of a reprocurement action 
after the Army terminated the original contractor, Z & H Sauberkeit, 
Hygiene, Gesundheit GmbH, for default.  VGR contends that it should 
have received the award because it was qualified to perform and had 
offered a price lower than PSG's in response to the original 
invitation for bids (IFB).

We deny the protest.

BACKGROUND

IFB No. DAJA89-98-B-0017, issued on April 17, 1998, sought bids to 
furnish custodial services for the DOD schools in Wï¿½rzburg for a base 
and 2 option years, beginning on July 1, 1998.  The solicitation 
required the assignment of a Project Supervisor to manage the contract 
and a Project Leader (or Leaders) to supervise the work at each of the 
two schools.[1]  To qualify as a Project Supervisor, an employee had 
to possess a certification known as a "Meisterbrief" and to qualify as 
a Project Leader, possession of a "Gesellenbrief" was required.[2]  
IFB  sec.  C-1.03.1.  Each Project Supervisor and Project Leader also had 
to be able to write and speak both English and German fluently and to 
communicate with all of their foreign country employees.  Id.  The IFB 
required bidders to furnish proof of their Project Supervisor's 
Meisterbrief and Project Leaders' Gesellenbriefs to the contracting 
officer within 5 days of his request and warned that a failure to 
comply could result in a determination of nonresponsibility.  IFB  sec.  
B.2(2).

The agency explains that it included the requirements for Meister- and 
Gesellenbriefs in the IFB because it has been experiencing significant 
performance problems under its custodial services contracts in 
Germany.  According to the Army, the contractors generally employ 
unskilled foreign workers at low wages, which results in a large 
turnover in contractor personnel and poor contract performance.  To 
alleviate this problem, the Army has sought to contract with firms 
employing skilled project supervisors and leaders to train and 
supervise workers.

Eight bids were opened on the May 18 opening date; VGR's price was 
fourth, and PSG's fifth, low.  The low bidder, Hasenwinkel, was 
permitted to withdraw its bid after it informed the contracting 
officer that it could not furnish an employee with a Gesellenbrief to 
serve as a Project Leader and had failed to include the cost of such 
an employee in its bid price.  The second low bidder, Schwaben 
Gebï¿½udereinigungs GmbH, was rejected as nonresponsible after failing 
to furnish proof that it could provide an employee with a 
Gesellenbrief.

The third low bidder, Z & H Sauberkeit, Hygiene, Gesundheit GmbH, 
furnished Meisterbrief and Gesellenbrief documents in response to the 
contracting officer's request and was determined to be responsible.  
On June 22, the Army awarded Z & H a contract with a start date of 
July 1.  At a pre-performance conference held on June 29, the 
contracting officer discovered that Z & H's proposed project 
supervisor did not speak English.  At a second meeting, held on July 
7, Z & H conceded that neither the supervisor nor its proposed project 
leaders could communicate in English and proposed to hire interpreters 
for them.  The contracting officer advised Z & H that this was not 
acceptable and issued a cure notice.  At a third meeting, held on July 
27, the contracting officer reiterated that use of interpreters for 
the project supervisor and leaders was not acceptable.  The Army 
terminated Z & H's contract for default on August 3.

Because the services were urgently required and little time had 
elapsed since the original competition, the contracting officer 
decided to reprocure without resolicitation, pursuant to the 
discretion afforded him by the contract's default clause, Federal 
Acquisition Regulation (FAR)  sec.  52.249-8(b), and FAR  sec.  49.402-6(b).[3]  
The contracting officer, through his representative, the contract 
specialist, first contacted VGR since it had been next in line for 
award under the IFB.  The parties offer differing accounts of that 
conversation, which took place on July 24.  VGR insists that the 
contract specialist informed its branch manager, Herr Mï¿½ller, that if 
the firm were still interested in award, he would need to appear in 
Wï¿½rzburg immediately with the Meister and Gesellen that his company 
intended to employ so that the government could confirm their fluency 
in English.  According to VGR, Herr Mï¿½ller explained that VGR did not 
have any English-speaking Gesellen available to begin work immediately 
and would need a few days to hire qualified personnel.  As an 
alternative, VGR proposed to employ two German-speaking Gesellen 
together with a bilingual employee capable of translating for them, an 
arrangement that the contract specialist declared unacceptable because 
the Army was in the midst of terminating Z & H, which had proposed the 
same arrangement, for default.  According to VGR, the contract 
specialist concluded the telephone call by asking it to confirm the 
conversation in writing and to indicate the extent to which it would 
be capable of meeting the solicitation's requirements as of that date.

The contract specialist disputes several aspects of VGR's account.  He 
denies both that he demanded that VGR produce its English-speaking 
Meister and Gesellen immediately, and that VGR told him that it would 
need a few more days to hire qualified personnel.  The contract 
specialist also maintains that at the conclusion of the call, he 
simply asked VGR to confirm in writing whether or not it could comply 
with the solicitation's requirements.

VGR responded to the contract specialist's request for written 
confirmation of the conversation later that day.  In its letter, VGR 
proposed to appoint "Frau Bara" (the bilingual employee mentioned 
above) as a project leader and Mr. Harald Karl, who possesses a 
Meisterbrief and speaks English, as the supervisor.  Upon receipt of 
VGR's letter, the contracting officer, who was familiar with Frau Bara 
due to her work on a predecessor contract and knew that she spoke 
German and English, but possessed neither a Meisterbrief nor a 
Gesellenbrief, determined that VGR was non-responsible because its 
proposed project leader did not possess the required credentials.

After determining that VGR's bid was unacceptable, the contracting 
officer directed the contract specialist to contact PSG, which had 
submitted the next low bid under the original IFB.  By letter dated 
August 3, PSG confirmed that its bid price was still good and that it 
would furnish two "certificated housekeepers."  On August 7, Army 
representatives met with PSG's proposed Meister and Gesellen and 
confirmed that each possessed the requisite certification and was 
fluent in English.  On August 8, the Army awarded contract No. 
DAJA89-98-D-0016 to PSG.  VGR protested to our Office on August 14.[4]

ANALYSIS

The protester contends that the Army did not treat the parties equally 
in conducting the reprocurement in that it required VGR to present its 
English-speaking supervisory personnel immediately, but gave PSG 2 
weeks to produce qualified personnel.  VGR also objects to the 
imposition during the reprocurement of a requirement not imposed 
during the original procurement, i.e., that bidders demonstrate the 
English-speaking capabilities of their project supervisor and 
leader(s) prior to award.

It is, as the protester argues, a fundamental principle of federal 
procurement that a contracting agency must treat offerors equally.  
DynaLantic Corp., B-234035, May 3, 1989, 89-1 CPD  para.  421 at 2.  Here, 
we find no evidence of unequal treatment, however.  The record simply 
does not support the protester's allegation that the contract 
specialist required it to produce English-speaking personnel 
immediately and denied its request for an extension to comply.  Herr 
Mï¿½ller recalls that such a demand was made, but the Army's contract 
specialist denies that it was[5]--and the only document memorializing 
the conversation prepared at the time, i.e., VGR's own letter of July 
24, supports the contract specialist's version of events.  In this 
regard, there is no mention in the letter that the protester had been 
asked to produce qualified personnel immediately, that it had 
requested an extension to comply, or that it was offering Frau Bara's 
services due to its inability to furnish personnel with the required 
qualifications on such short notice. 

Regarding the protester's second complaint, we see no reason that the 
agency could not have required bidders under the reprocurement to 
demonstrate the language proficiency of their supervisory personnel 
prior to award, even if such a demonstration was not required during 
the original procurement.  There is no requirement that a repurchase 
be conducted using precisely the same terms as in the original 
procurement, see, e.g., Bud Mahas Constr., Inc., B-235261, Aug. 21, 
1989, 89-2 CPD  para.  160 at 4 (reprocurement of small business set-aside 
contract need not be restricted to small businesses); FAR  sec.  
49.402-6(b) authorizes the contracting officer to use "any terms and 
acquisition method deemed appropriate for the repurchase," provided 
that a reasonable price and competition to the maximum extent 
practicable are obtained.  Marvin Land Sys., Inc., B-276434, 
B-276434.2, June 12, 1997, 97-2 CPD  para.  4 at 3.  We review the 
contracting officer's decisions in this regard for reasonableness 
only.  Barrett and Blandford Assocs., Inc., B-250926, Feb. 2, 1993, 
93-1 CPD  para.  95 at 3.  Here, it seems to us quite reasonable that the 
Army would seek to confirm compliance with the language requirements 
prior to award given that it had just terminated a contractor for 
failing to comply with them. 
The protester argues next that the agency violated the FAR by 
permitting the contract specialist to conduct the reprocurement and to 
make a determination regarding its responsibility.  VGR argues that 
the contracting officer is the only one authorized to perform these 
functions.

The contract specialist did not "conduct" the reprocurement; he merely 
contacted VGR and PSG, at the direction of the contracting officer, to 
inquire whether they continued to be interested in, and capable of, 
performing.  We are aware of no regulations that would preclude a 
contracting officer from delegating this sort of a task to a 
subordinate.  Moreover, the contract specialist did not make a 
determination regarding VGR's responsibility; the contracting officer 
made that determination after reviewing VGR's affidavit of July 24.[6]  
Contracting officer's affidavit, Sept. 30, 1998,  para.  4; contracting 
specialist's affidavit, Oct. 26, 1998,  para.  5.

Finally, VGR argues that the Army waived the requirement for a 
preaward demonstration of English proficiency for PSG.  According to 
VGR, one of PSG's Gesellen, Mr. Volker Grzeszek, does not speak 
English at all and has, since performance began, relied on an 
interpreter to communicate in English.  The protester also argues that 
PSG's other project leader does not possess a Gesellenbrief.

We held a telephone hearing to investigate the protester's allegation 
that Mr. Grzeszek was unable to communicate in English.  It is our 
conclusion, based on that hearing, that Mr. Grzeszek's English is 
excellent.  Our conclusion is supported by a sworn affidavit from Mr. 
Kenneth Payne, Assistant Principal at Wï¿½rzburg American High School, 
who states that he speaks with Mr. Grzeszek approximately three to 
four times a day regarding cleaning and custodial issues; that he has 
no difficulty communicating with Mr. Grzeszek in English; and that, in 
his opinion, Mr. Grzeszek has an excellent working knowledge of 
English.  Affidavit of Kenneth L Payne, Oct. 22, 1998.  

Regarding the protester's second allegation, the Army has furnished us 
with a copy of a Gesellenbrief for Mr. Timothy Davis, PSG's other 
project leader.

The protest is denied.

Comptroller General
of the United States

1. In addition to performing oversight responsibilities, the Project 
Supervisor could serve as Project Leader at one of the sites, in which 
event only one additional Project Leader would be required.

2. The skill levels required of the supervisors and leaders are 
established by reference to certificates issued by the German 
government.  An individual with 3 years of educational training who 
passes qualifying tests may be designated as a "Geselle" in that 
trade, and is issued a document known as a Gesellenbrief.  After a 
designated period of work in the trade (generally 2 or more years), 
additional educational training, and successful completion of further 
testing, a Geselle may be certified at the higher skill level of 
Meister and issued a "Meisterbrief."

3. FAR  sec.  52.249-8(b) provides, in relevant part, that "[i]f the 
Government terminates [a] contract in whole or in part, it may 
acquire, under the terms and in the manner the Contracting Officer 
considers appropriate, supplies or services similar to those 
terminated, and the Contractor will be liable to the Government for 
any excess costs for those supplies or services."  FAR  sec.  49.402-6(b) 
adds the requirement that the contracting officer obtain competition 
to the maximum extent practicable for the repurchase.

The protester has not challenged the agency decision to reprocure 
without resolicitation, and we have previously found it reasonable to 
award a reprocurement contract to the next-low, qualified offeror on 
the original solicitation at its original price, provided that there 
is a relatively short time span between the original competition and 
the default, and there is a continuing need for the services.  
International Tech. Corp., B-250377.5, Aug. 18, 1993, 93-2 CPD  para.  102 
at 3.  Under such circumstances, we have noted, an agency can 
reasonably view the offers received under the original solicitation as 
an acceptable measure of what the competition would bring, sufficient 
to satisfy the FAR  sec.  49.402-6(b) competition requirement for the 
reprocurement.  Id.

4. The contracting officer issued a stop work order to PSG on August 
20.  On September 28, the head of the procuring activity authorized 
continued performance of the contract, finding that urgent and 
compelling circumstances would not permit waiting for the decision of 
our Office. 

5. We find the evidence proffered by the protester to demonstrate the 
contracting specialist's lack of trustworthiness to be unpersuasive.  
The protester has not supported its allegation that one of PSG's 
project leaders, Mr. Volker Grzeszek, does not speak English and thus 
that the contract specialist must have been lying when he represented 
in his affidavit that the government had confirmed Mr. Grzeszek's 
fluency prior to award.  As discussed below, we have confirmed that 
Mr. Grzeszek speaks English quite well.

Nor has the protester demonstrated that the contract specialist lied 
in stating that he did not discover until the pre-performance 
conference on June 29 that Z & H's proposed project supervisor did not 
speak English.  The protester offers evidence that another Army 
official, who had performed a preaward survey of Z & H in connection 
with another solicitation, was aware that Z & H's proposed project 
supervisor did not speak English--but the fact that another Army 
official may have known that this individual did not speak English 
does not mean that the contract specialist here knew.

Finally, PSG has not demonstrated that the contract specialist 
misrepresented the content of discussions between Z & H and Army 
personnel regarding the use of interpreters.  In response to the 
protester's allegation that the contracting officer told Z & H on June 
29 that it would be acceptable for it to hire interpreters to aid its 
non-English speaking project supervisor and leaders, the contracting 
officer has explained that he told Z & H not that it could hire 
interpreters for its project supervisor and leaders, but rather that 
it would need to hire its own interpreter for future meetings with 
government contracting personnel.  

6. VGR argues that it is clear from the contract specialist's 
statement that "[a]fter receipt of the letter [of July 24] from VGR 
and determining they did not meet the definite responsibility 
criteria, I contacted Perfekt Service GmbH . . .", Contracting 
Specialist's affidavit, Aug. 28, 1998,  para.  10, that the contract 
specialist was the one who made the responsibility determination.  We 
disagree.  The construction of the sentence is awkward, but we do not 
think that it necessarily implies that it was the contract specialist 
who received the letter and made the responsibility determination.