TITLE: TN-KY Contractors, B-291997.2, May 5, 2003
BNUMBER: B-291997.2
DATE: May 5, 2003
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TN-KY Contractors, B-291997.2, May 5, 2003
Decision
Matter of: TN-KY Contractors
File: B-291997.2
Date: May 5, 2003
Sam Zalman Gdanski, Esq., for the protester.
Maj. Robert Neill, Esq., Department of the Army, for the agency.
Sharon L. Larkin, Esq., and James A. Spangenberg, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Solicitation for fixed-price grass cutting contract does not impose an
unreasonable cost risk upon offerors, where the solicitation, which does
not have an unlimited scope of work, provides sufficient information upon
which offerors can base their prices.
DECISION
TN-KY Contractors protests the terms of requests for proposal (RFP) No.
DABK09-03-R-0004, issued by the Department of the Army for ground
maintenance services at Fort Campbell, Kentucky. TN-KY contends that the
requested monthly fixed-price for grass cutting services unreasonably
shifts cost risk to the offerors, and that grass cutting should be priced
on a "per cut" basis.
We deny the protest.
The RFP seeks the performance of grounds maintenance services, including
*mowing, edging, trimming, removing debris, and repairing Contractor
damaged areas.* In this regard, the selected contractor *shall provide
all personnel, equipment, tools, supervision, and other items and services
necessary to ensure that grounds maintenance is performed at Fort
Campbell, [Kentucky], in a manner that will maintain healthy grass, and
present a clean, neat, and professional appearance.* As indicated in the
solicitation, *[grass] height is a guideline for a neat and professional
appearance.* RFP at 39. Grass height tolerances for designated areas are
set forth in the following five contract line items (CLIN): CLIN 0001
(Child Care Area)--maintain grass to 1 1/2- to 3-inch height cut (311
acres); CLIN 0002 (Inside Fort Campbell Cantonment Area)--maintain grass
to 2- to 5-inch height cut (1457 acres); CLIN 0003 (Airfield
Areas)--maintain grass to 2- to 5-inch height cut (2344 acres); CLIN 0004
(Housing Areas)--maintain grass to 1 1/2- to 3-inch height cut (584
acres); and CLIN 0005 (Back Area Road/Road Shoulders)--maintain grass to
5- to 7-inch cut (829 acres). RFP at 3-4, 39. Offerors were advised that
it is the *responsibility of the contractor to maintain [the] grass at the
heights indicated in the bid schedule [i.e., CLINS],* and that the
*maximum height listed for each level shall not be exceeded at any time.*
A *Grass Mowing Contract Performance Areas Map,* and other area maps, were
included with the RFP, and offerors were informed that performance would
*typically occur during a seven-month mowing period, (April through
October); however, for the purpose of this requirement, an eight month
mowing season has been established,* and the *[c]ost for the mowing season
shall be spread over 8 months.* RFP at 39. The RFP does not specify the
number of cuts that are required during the performance period, leaving to
the offerors how best to meet the performance requirements.[1]
As contemplated by the RFP, the Army conducted a pre-proposal conference
on January 14, 2003. Prospective offerors could submit questions
concerning the solicitation in writing at any time up until the
pre-proposal conference. The Army responded to the questions in
subsequent amendments to the RFP. The pre-proposal conference included a
site visit during which prospective offerors could inspect the Fort
Campbell vegetation, or offerors could make separate arrangements by
telephone for a site visit. AR at 2-3; RFP at 82. TN‑KY did not
attend the pre‑proposal conference, participate in the site visit,
or submit any questions at that time.
The closing date for receipt of proposals was February 18. On or about
February 13, TN-KY submitted a list of handwritten questions to the Army,
to which the contracting officer responded in part on February 13,
referred the remaining questions to the technical team for answers, and
attempted to relay those answers to the protester on February 18. TN-KY
was informed that the proposal closing date would not be extended.
On February 18, TN-KY submitted an agency-level protest, contending that
the pricing requirements of the RFP should be changed for grass cutting
from a monthly to a *per cut by delivery order* basis. The Army denied
the protest that same day, and this protest followed.
TN-KY contends that the pricing structure of the RFP unreasonably shifts
the cost risk to the contractor. According to protester, *TN-KY cannot
determine what price to put in nor can any other offeror, because . . .
[t]here is no limitation on the amount of work that can be ordered . . . ,
since depending on the rain there could be hundred fold or two thousand
fold increase as compared with past historical data.* Protester's
Comments at 2. To minimize this risk, TN-KY argues, pricing should be
sought on a *per cut,* as opposed to a per-month, basis.[2]
The mere presence of risk in a solicitation does not make the solicitation
inappropriate or improper. It is within the ambit of administrative
discretion for an agency to offer for competition a proposed contract that
imposes maximum risks upon the contractor and minimum burdens on the
agency, and an offeror should account for this in formulating its
proposal. Instrument Control Serv., Inc.; Science & Mgmt. Res., Inc.,
B-289660, B-289660.2, Apr. 15, 2002, 2002 CPD P: 66 at 7; Clifford La
Tourelle, B-271505, June 5, 1996, 96-1 CPD P: 270 at 3. Here, the
protester has not demonstrated that the allocation of risk is
unreasonable.
Contrary to the protester's contentions, the work here is not unlimited,
but is restricted to grass cutting and grounds maintenance of specified
areas and acreage for specified durations within specified height
requirements. [3] The RFP also includes maps of the cutting areas, and
provided contractors with the opportunity to visit the site to inspect the
type of grass and vegetation growing. In our view, the RFP provides
sufficient information for offerors to intelligently formulate their
prices.
The protester's assertion that rain could cause a *hundred fold or two
thousand fold increase* in required services is not supported by the
record. Moreover, the fact that rain may affect the rate of grass growth,
in our view, is a factor that offerors can reasonably take into account in
formulating their proposals.[4] A solicitation is not defective merely
because it may place the contractor at risk in terms of, for example, the
possibility that payments under the contract will not cover the cost of
performance. Risk is inherent in most types of contracts, especially
fixed-price contracts, and offerors must use their professional expertise
and business judgment
in anticipating a variety of influences affecting performance costs.
Sea-Land Serv., Inc., B‑278404.2, Feb. 9, 1998, 98-1 CPD P: 47 at
11, 14; Steel Circle Bldg. Co., B‑245749, Feb. 3, 1992, 92-1 CPD P:
134 at 3.
The protest is denied.
Anthony H. Gamboa
General Counsel
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[1] Other CLINs, not at issue here, for cemeteries, parade grounds, and
special events, specified the number of cuts required during a specific
period of performance.
[2] The protester also contended, in its protest, that its knowledge as
the incumbent of Fort Campbell's grass cutting needs created an unfair
competitive advantage that could cause other offerors to underbid it; that
the Army failed to answer its questions posed on or about February 13; and
that an RFP provision concerning the award term was unduly restrictive.
The agency addressed each of these arguments in its report and the
protester failed to respond in its comments; thus, we consider TN-KY to
have abandoned these arguments and will not consider them further. Analex
Space Sys., Inc.; PAI Corp., B-259024, B-259024.2, Feb. 21, 1995, 95-1 CPD
P: 106 at 8.
[3] These limitations distinguish this solicitation from the pricing
schemes in BMAR & Assocs., Inc., B-281664, Mar. 18, 1999, 99-1 CPD P: 62,
and Four Star Maint. Corp., B‑240413, Nov. 2, 1990, 91-1 CPD P: 70
(cited by the protester), where we found the solicitations' use of lump
sum pricing for maintenance services imposed an unreasonable risk on the
contractor because they placed no limit on the scope of work the
contractor could be required to perform for major, potentially expensive
service items under the lump sum portion of the contract. That is not the
case here, where the RFP sets parameters around the grass cutting services
required, and the only variable appears to be rainfall, which the
protester has not shown will result in an unlimited scope of work.
[4] The protester acknowledges that it is *very knowledgeable on the
growing conditions and how they effect the grass and weed types* because
it has had a mowing contract with Fort Campbell for 15 years. Protest at
1.