B-155993, APR. 28, 1965

B-155993, APR. 28, 1965

TO SIDEWINDER AVIATION SERVICES, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JANUARY 25, 1965, WITH ENCLOSURES, AND SUBSEQUENT CORRESPONDENCE, PROTESTING THE AWARD OF A CONTRACT TO THE LOW BIDDER UNDER INVITATION FOR BIDS NO. 41-641-65-18, ISSUED BY BASE PROCUREMENT OFFICE, LAREDO AIR FORCE BASE, TEXAS. YOUR PROTEST IS BASED UPON YOUR STATEMENTS, IN EFFECT, THAT THE LOW BIDDER HAS A MISUNDERSTANDING OF THE REQUIREMENTS OF THE INVITATION, THAT THERE WAS NO COST ESTIMATE BY THE GOVERNMENT AND THAT YOU KNOW THAT THE CONTRACT CANNOT BE FULFILLED AT THE PRICE SUBMITTED BY THE LOW BIDDER. YOUR FURTHER GROUNDS ARE THAT THERE WERE NO BONA FIDE BIDDERS RESPONSIVE TO THE INVITATION SINCE A BIDDER UNDER THIS INVITATION MUST HAVE AN AIRPORT, OPERATE FROM THE NECESSARY FACILITIES, OPERATE A FLIGHT SCHOOL AND, IN OTHER WORDS, SHOW A "BEFORE-THE-FACT CAPABILITY.' YOU FURTHER PROTEST THE ABSENCE OF REQUIREMENT FOR A PERFORMANCE BOND AND THE FACT THAT AWARD OF THE CONTRACT WAS MADE WHILE YOUR PROTEST WAS PENDING.

THE INVITATION INVOLVED SOLICITED BIDS FOR THE INITIAL FLIGHT TRAINING OF PILOTS IN THE UNDERGRADUATE PILOT TRAINING PROGRAM IN THE T-41 (CESSNA 172) AIRCRAFT, THE PURPOSE OF WHICH IS TO IDENTIFY WEAK STUDENTS PRIOR TO COMMENCING THEIR FLIGHT TRAINING IN JET AIRCRAFT. EACH CLASS WILL BE COMPOSED OF APPROXIMATELY SIXTY-TWO (62 STUDENTS, SAID FLIGHT TRAINING TO BE ACCOMPLISHED BY THE SUCCESSFUL BIDDER, USING FEDERAL AVIATION AGENCY (FAA) CERTIFIED INSTRUCTOR PILOTS. QUALITY CONTROL AND STANDARDIZATION WILL BE THE RESPONSIBILITY OF AN ASSIGNED AIR FORCE DETACHMENT. THE INVITATION WAS ISSUED ON DECEMBER 1, 1964, AND THE BID OPENING DATE WAS JANUARY 14, 1965. THERE WERE EIGHTY-EIGHT SOURCES SOLICITED AND NINETEEN BIDS RECEIVED. THE TARGET DATE OF THE AWARD WAS TO BE AS SOON AS POSSIBLE. THE BID ACCEPTANCE PERIOD WAS NINETY (90) CALENDAR DAYS.

THE ALLEGATION THAT THE LOW BIDDER, HALLMARK ACADEMY, INC., INDICATED A MISUNDERSTANDING OF THE REQUIREMENTS AND THAT IT ACTED ON SUCH MISUNDERSTANDING HAS BEEN INVESTIGATED BY THE AIR FORCE AND DETERMINED TO BE WITHOUT FOUNDATION IN FACT. THE LOW BIDDER ATTENDED THE BID OPENING AND WAS AWARE OF ALL NINETEEN BID PRICES, AND UPON REQUEST, VERIFIED HIS BID IN WRITING. A FACILITY CAPABILITY REPORT WAS PERFORMED BY THE DALLAS CONTRACT MANAGEMENT DISTRICT, AND A DETERMINATION OF CONTRACTOR RESPONSIBILITY WAS MADE ON JANUARY 22, 1965. RESPECTING A COST ESTIMATE, A PURCHASE REQUEST WAS INITIATED PURSUANT TO AIR FORCE PROCEDURES WHICH INDICATED A GOVERNMENT ESTIMATE OF $23.81 PER UNIT. THE BIDS RANGED FROM $13.87 TO $54.04. THE LOW BID WAS $9.94 PER UNIT UNDER THE GOVERNMENT ESTIMATE, YOUR BID WAS $13.94 OVER THE ESTIMATE. THE FIVE LOWEST BIDS WERE $13.87, $17.05, $18.15, $19 AND $22.97. A WIDE VARIANCE IN BIDS, AS IN THIS CASE, IS NOT UNUSUAL IN ADVERTISED PROCUREMENTS. WITH REGARD TO YOUR CONCLUSION THAT THE CONTRACT WILL NOT BE FULFILLED AT THE PRICE SUBMITTED BY THE LOW BIDDER, WE FIND NOTHING TO INDICATE THAT THE GOVERNMENT WILL NOT ACT ACCORDING TO THE PERTINENT PROCUREMENT REGULATIONS APPLICABLE TO FIRM, FIXED UNIT PRICE, ESTIMATED REQUIREMENTS TYPE CONTRACT OF WHICH THE INSTANT PROCUREMENT IS AN EXAMPLE.

PART V, PARAGRAPH 1 (A), AND PART XII, PARAGRAPH 6 (A), ITEM 22 OF THE INVITATION PROVIDE, RESPECTIVELY, AS FOLLOWS:

"A.THE CONTRACTOR, OR ITS SUBCONTRACTOR, IF FLIGHT INSTRUCTIONS ARE FURNISHED THROUGH A SUBCONTRACTOR, SHALL BE AN FAA CERTIFIED AIRMAN AGENCY AND SHALL POSSESS AND KEEP CURRENTLY IN EFFECT AT ALL TIMES DURING THE PERFORMANCE OF SERVICES UNDER THE CONTRACT, A MINIMUM RATING AS PRIMARY FLYING SCHOOL FOR AIRPLANES ISSUED UNDER PROVISIONS OF PART 141 OF THE FAA REGULATIONS.

"22. EVIDENCE OF CERTIFICATION AS A FAA CERTIFIED AIRMAN AGENCY WITH MINIMUM RATING AS PRIMARY FLYING SCHOOL FOR AIRPLANES OR EVIDENCE OF CAPABILITY TO ACHIEVE THIS CERTIFICATION AS A FAA CERTIFIED AIRMAN AGENCY WITH MINIMUM RATING AS PRIMARY FLYING SCHOOL FOR AIRPLANES NO LATER THAN 1 MAY 65"

THE ABOVE PROVISIONS SET FORTH THE REQUIREMENTS REGARDING BIDDERS' QUALIFICATIONS. AN ON-SITE SURVEY OF THE LOW BIDDER'S PROPOSED FACILITY DISCLOSED IT IS NOT ADEQUATE TO THE NEEDS OF THE PROCUREMENT. HOWEVER, THE LOW BIDDER HAS COMMITTED HIMSELF TO REHABILITATE THE FACILITIES AND MAKE CERTAIN REQUIRED IMPROVEMENTS, AND IT HAS BEEN DETERMINED THAT THE FACILITIES IMPROVED IN ACCORDANCE WITH COMMITMENTS WILL BE ADEQUATE. THEREFORE, YOUR REFERENCE TO A LACK OF BONA FIDE BIDDERS APPEARS TO BE WITHOUT MERIT. FURTHER, THERE IS NOTHING IN ANY GOVERNMENT CONTRACT ORIN THIS INVITATION THAT INVITES FALSIFICATION OF BIDDER CERTIFICATIONS AS YOU ALLEGE IN YOUR CORRESPONDENCE. ON THE FACE OF THE INVITATION FOR BIDS, STANDARD FORM 33, THE REGULAR DEALER ITEM TO WHICH YOU REFER APPLIES TO SUPPLY TYPE CONTRACTS AND, AS SPECIFIED, SHOULD BE CHECKED IF APPROPRIATE.

WITH RESPECT TO THE ABSENCE OF A REQUIREMENT FOR FURNISHING A PERFORMANCE BOND UNDER ARMED SERVICES PROCUREMENT REGULATION (ASPR) 10 104, NONE IS REQUIRED IN A PROCUREMENT OF THIS TYPE.

DUE TO THE EXTREME URGENCY OF THE REQUIREMENT FOR THE SERVICES COVERED BY THE INVITATION THE CONTRACTING OFFICER WAS AUTHORIZED TO MAKE AWARD PRIOR TO THE DISPOSITION OF YOUR PROTEST AND AWARD WAS MADE TO HALLMARK ACADEMY, INC., IN ACCORDANCE WITH THE PROVISIONS OF ASPR 2 407.9 (B) (3) (I) AND (II), WHICH PERMIT THE MAKING OF AN AWARD BEFORE A PROTEST IS RESOLVED WHERE THE ITEMS ARE URGENTLY REQUIRED OR DELIVERY WILL BE UNDULY DELAYED BY FAILURE TO MAKE AWARD PROMPTLY.

IT MAY BE STATED THAT THE SELECTION OF CONTRACTORS AND THE DETERMINATION OF THEIR QUALIFICATIONS IS PRIMARILY THE RESPONSIBILITY OF THE ADMINISTRATIVE OFFICERS CONCERNED AND, IN THE ABSENCE OF A SHOWING OF BAD FAITH OR LACK OF A REASONABLE BASIS FOR THE ACTION TAKEN--- AND NONE IS SHOWN HERE--- WE ARE NOT REQUIRED TO OBJECT THERETO.