B-150507, MAR. 29, 1963

B-150507: Mar 29, 1963

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THE REQUIREMENTS FOR THE AT-29C AIRCRAFT WERE THEREAFTER DELETED. A TIME AND MATERIAL TYPE CONTRACT WAS SELECTED FOR THIS PROCUREMENT ON THE BASIS THAT THE AMOUNT OF WORK TO BE PERFORMED IS NOT DETERMINABLE IN ADVANCE OF A DETAILED INSPECTION OF THE AIRCRAFT AFTER THE AIRCRAFT IS INPUT UNDER THE IRAN PROGRAM. PROSPECTIVE BIDDERS WERE INFORMED BY THE RFP THAT: "A SURVEY TEAM MAY CONTACT YOUR FACILITY FOR THE PURPOSE OF DETERMINING YOUR FINANCIAL AND TECHNICAL ABILITY TO PERFORM.'. INFORMATION IN SUPPORT OF PROPOSALS WAS REQUESTED PERTAINING TO (1) MANAGEMENT AND PERSONNEL CAPABILITIES. IT WAS STATED THAT THE EVALUATION PANEL WOULD USE ESTABLISHED CRITERIA IN ARRIVING AT THE PARTIES FOR NEGOTIATIONS.

B-150507, MAR. 29, 1963

TO THE INTER-CONTINENTAL ENGINE SERVICE, INC.:

THIS REFERS TO YOUR TELEFAX OF DECEMBER 19, 1962, AND OTHER CORRESPONDENCE RECEIVED, PROTESTING AGAINST THE AWARD MADE BY THE SAN ANTONIO AIR MATERIAL AREA, KELLY AIR FORCE BASE, TEXAS, FOR THE PROCUREMENT OF IRAN (INSPECT AND REPAIR AS NECESSARY) MAINTENANCE OF C 131 AIRCRAFT.

THE SAN ANTONIO AIR MATERIEL AREA, KELLY AIR FORCE BASE, TEXAS, UNDER THE AUTHORITY OF 10 U.S.C. 2304 (A) (17) AND SECTION 15 OF THE SMALL BUSINESS ACT, REQUESTED PROPOSALS ON SEPTEMBER 10, 1962, UNDER A 100 PERCENT SMALL BUSINESS SET-ASIDE, FOR THE SERVICES AND SUPPLIES NECESSARY TO PERFORM IRAN, TECHNICAL ORDER COMPLIANCE, MODIFICATION, OVERHAUL OF COMPONENTS, AND FLIGHT TEST OF 1 EACH VC-131A, 6 EACH C 131D, 4 EACH C-131A/E, 4 EACH AF-29C AIRCRAFT, AND EMERGENCY ORGANIZATIONAL AND FIELD MAINTENANCE AND SERVICES FOR AN ESTIMATED 4 EACH C-131 AIRCRAFT. THE REQUIREMENTS FOR THE AT-29C AIRCRAFT WERE THEREAFTER DELETED.

A TIME AND MATERIAL TYPE CONTRACT WAS SELECTED FOR THIS PROCUREMENT ON THE BASIS THAT THE AMOUNT OF WORK TO BE PERFORMED IS NOT DETERMINABLE IN ADVANCE OF A DETAILED INSPECTION OF THE AIRCRAFT AFTER THE AIRCRAFT IS INPUT UNDER THE IRAN PROGRAM. PROSPECTIVE BIDDERS WERE INFORMED BY THE RFP THAT: "A SURVEY TEAM MAY CONTACT YOUR FACILITY FOR THE PURPOSE OF DETERMINING YOUR FINANCIAL AND TECHNICAL ABILITY TO PERFORM.' ATTACHMENT I TO THE RFP REQUESTED PROPOSERS TO SUBMIT THEIR DIRECT LABOR RATES, AND INFORMATION IN SUPPORT OF PROPOSALS WAS REQUESTED PERTAINING TO (1) MANAGEMENT AND PERSONNEL CAPABILITIES, (2) PROPOSED TECHNICAL APPROACH, (3) ORGANIZATIONAL CAPABILITY AND EXPERIENCE AND (4) FINANCIAL STATUS.

AS TO THE PROPOSED EVALUATION, ATTACHMENT I ADVISED THAT ALL PROPOSALS RECEIVED WOULD BE SUBJECT TO AN EVALUATION BY A PANEL OF AIR FORCE PERSONNEL FOR THE PURPOSE OF SELECTING THE PARTY OR PARTIES WITH WHOM NEGOTIATIONS MIGHT BE CONDUCTED. IT WAS STATED THAT THE EVALUATION PANEL WOULD USE ESTABLISHED CRITERIA IN ARRIVING AT THE PARTIES FOR NEGOTIATIONS, AND THAT THESE CRITERIA WOULD PROVIDE A PREDETERMINED MAXIMUM POINT VALUE FOR EACH AREA OF CONSIDERATION. THE POINT VALUE DECIDED UPON WOULD BE RECORDED AND THE NET AGGREGATE OF THE AREAS UNDER NEGOTIATIONS. PROSPECTIVE BIDDERS WERE NOT INFORMED AS TO THE WEIGHTS ASSIGNED FOR EACH OF THE 5 AREAS. THE WEIGHTS THAT WERE ASSIGNED ARE AS FOLLOWS:

TABLE

POINTS

1. PROPOSED LABOR HOUR RATE 20

2. MANAGEMENT PERSONNEL AND MANPOWER AVAILABLE 25

3. PRIOR COMPARABLE EXPERIENCE 25

4. TECHNICAL APPROACH AND EQUIPMENT 20

5. FINANCIAL STATUS AND CAPABILITY 10

EVALUATORS WERE INSTRUCTED THAT PROPOSALS WERE TO BE EVALUATED BY EACH OF THE MEMBERS OF THE EVALUATION COMMITTEE INDEPENDENTLY AND APART FROM OTHER MEMBERS OF THE COMMITTEE.

OCTOBER 1, 1962, WAS SPECIFIED AS THE CLOSING DATE FOR RECEIPT OF PROPOSALS. IT IS REPORTED THAT 26 FIRMS WERE SOLICITED, AND 7 PROPOSALS WERE RECEIVED. THESE 7 PROPOSALS WERE THEN EVALUATED BY A 5 MAN PANEL WHICH INCLUDED A PRICE ANALYST, A PRODUCTION ENGINEER, TWO AIRCRAFT MAINTENANCE TECHNICIANS AND THE BUYER. THE EVALUATION WAS COMPLETED BY OCTOBER 5, 1962, WITH THE RESULT THAT NAVION AIRCRAFT COMPANY SCORED HIGHEST AT 92 POINTS, AND YOUR COMPANY WAS SCORED FOURTH WITH 76.93 POINTS. AS A RESULT OF ITS HIGH SCORE, NEGOTIATIONS WERE CONDUCTED WITH NAVION. ON OCTOBER 26, 1962, WHILE AWARD WAS STILL PENDING, THE BUYER RECEIVED AN UNSOLICITED SECOND PROPOSAL FROM YOUR FIRM. AT THIS POINT AN ADMINISTRATIVE DETERMINATION WAS MADE PURSUANT TO ASPR 3-805.1 (A) THAT NEGOTIATIONS WOULD ALSO BE CONDUCTED WITH OTHER INTERESTED FIRMS PRIOR TO THE MAKING OF AN AWARD ON THIS PROCUREMENT. IT WAS FELT THAT THE AWARD SHOULD NOT BE EVALUATED AND PLACED SOLELY ON THE BASIS OF THE WRITTEN PROPOSALS. (ASPR 3-805.1 (A) PROVIDES, GENERALLY, THAT WRITTEN OR ORAL DISCUSSIONS SHOULD BE CONDUCTED WITH ALL RESPONSIBLE OFFERORS SUBMITTING COMPETITIVE PROPOSALS.)

ON NOVEMBER 1, 1962, THE FOUR HIGHEST SCORERS ON THE BIDDING WERE NOTIFIED THAT NEGOTIATIONS WOULD BE CONDUCTED WITH THEM, AND ON NOVEMBER 2, 1962, NEGOTIATIONS WERE CONDUCTED WITH YOUR FIRM. ON NOVEMBER 7, 1962, AFTER NEGOTIATIONS WERE COMPLETED, THE FOUR FIRMS WERE NOTIFIED THAT REVISED PROPOSALS CONFIRMING THE NEGOTIATIONS SHOULD BE SUBMITTED NOT LATER THAN NOVEMBER 9, 1962.

THE REVISED PROPOSALS WERE RECEIVED AND EVALUATED ON NOVEMBER 9, 1962, AS FOLLOWS: ALL AMERICAN MAINTENANCE--- FIRST; AIR INTERNATIONAL--- SECOND; INTER-CONTINENTAL--- THIRD; NAVION--- FOURTH. IT IS INDICATED THAT NAVION DROPPED FROM FIRST TO FOURTH PLACE BECAUSE IT WAS DETERMINED AT THE NEGOTIATIONS THAT NAVION LACKED EXPERIENCE IN REPAIR OF HEAVY AIRCRAFT SUCH AS THE C-131. ON DECEMBER 13, 1962, ALL AMERICAN RECEIVED AWARD OF CONTRACT NO. AF 41/608/-20138.

YOU ASK WHY THE AIR FORCE AWARDED THIS CONTRACT TO ANOTHER FIRM WITHOUT FIRST CONDUCTING AN INSPECTION OF YOUR PLANT AND FACILITIES. IT IS YOUR VIEW THAT HAD THE AIR FORCE CONDUCTED SUCH AN INSPECTION IT WOULD HAVE FOUND YOUR FIRM TO BE SUPERIOR TO THE PRESENT CONTRACTOR. YOU QUESTION THE FAIRNESS AND ADEQUACY OF THE POINT EVALUATION APPLIED IN THIS CASE.

THE ARMED SERVICES PROCUREMENT REGULATION, ASPR 1-905.4 (B), STATES THAT A PRE-AWARD SURVEY GENERALLY SHOULD BE PERFORMED WHEN THE AVAILABLE INFORMATION IS INSUFFICIENT TO MAKE A DETERMINATION REGARDING THE RESPONSIBILITY OF A PROSPECTIVE CONTRACTOR. THE AIR FORCE PROCUREMENT INSTRUCTION, AFPI 1-902.1 (F), PROVIDES THAT A COMPLETE FACILITY CAPABILITY REPORT (FCR) IS MADE ONLY WHEN AN AWARD IS CONTEMPLATED TO A FIRM FROM WHICH A PROPOSAL HAS BEEN RECEIVED; AND THAT CONCURRENT FCR'S ON THE SAME PROCUREMENT ARE NOT TO BE MADE. ON THIS POINT THE REQUEST FOR PROPOSALS STATED THAT A SURVEY TEAM MAY CONTACT BIDDERS FACILITIES. IT IS EXPLAINED BY THE AIR FORCE THAT A PHYSICAL INSPECTION OF THE VARIOUS OFFERORS FACILITIES IS CONSIDERED ECONOMICALLY IMPRACTICAL IN TERMS OF TIME AND MONEY, ALTHOUGH ADMITTEDLY IT IS THE BEST METHOD OF FACILITIES EVALUATION.

THE REGULATIONS DO NOT CONTEMPLATE THE GENERAL USE OF A PHYSICAL PRE- AWARD SURVEY IN THE CASE OF ALL BIDDERS. BECAUSE OF THE PRACTICALITIES INVOLVED IT SIMPLY IS NOT CONSIDERED FEASIBLE TO CONDUCT A COMPLETE PRE- AWARD SURVEY OF ALL POTENTIAL SOURCES ON A GIVEN PROCUREMENT. HOWEVER, THE CONTRACTING OFFICER IS REQUIRED, AS A GENERAL RULE, TO CONDUCT WRITTEN OR ORAL DISCUSSIONS WITH ALL POTENTIAL SOURCES, AS DETERMINED FROM THE INITIAL PROPOSALS (ASPR 3-805.1).

IN THIS CASE, THE REQUEST FOR PROPOSALS REQUIRED BIDDERS TO QUOTE A LABOR HOUR RATE, AND BIDDERS WERE INSTRUCTED IN DETAIL AS TO THE INFORMATION WHICH WAS TO BE FURNISHED FOR PURPOSES OF AWARD EVALUATION. WHILE THE RESPECTIVE POINT VALUES FOR EACH AREA WERE NOT ANNOUNCED, THE 5 ELEMENTS TO BE EVALUATED ( (1) LABOR RATE, (2) MANAGEMENT AND MANPOWER, (3) TECHNICAL APPROACH, (4) EXPERIENCE, AND (5) FINANCIAL RESOURCES) WERE SPECIFICALLY SET FORTH IN THE RFP.

BASED ON YOUR INITIAL PROPOSAL YOU WERE SELECTED AS ONE OF THE FOUR POTENTIAL SOURCES. YOU WERE THEN GIVEN THE OPPORTUNITY TO SUBMIT ANOTHER PROPOSAL, WHICH YOU DID. YOU ALSO PARTICIPATED IN ORAL DISCUSSIONS WITH THE AIR FORCE CONCERNING YOUR PROPOSAL. AFTER THIS, A SECOND POINT EVALUATION WAS MADE OF THE FOUR FIRMS. FOR PURPOSES OF THIS FINAL EVALUATION IT WAS NOTED THAT ALL AMERICAN QUOTED THE LOWEST LABOR RATE. (NAVION HAD QUOTED THE LOWEST RATE ON THE ORIGINAL QUOTATIONS.) ACCORDINGLY, ALL AMERICAN RECEIVED THE MOST POINTS (20 POINTS TOTAL) FORTHIS AREA. IT WAS ALSO NOTED THAT ALL AMERICAN WAS SATISFACTORILY PERFORMING AT THE TIME UNDER A C-131 PARC (PROGRESSIVE AIR CRAFT RECONDITIONING CYCLE) TYPE CONTRACT FOR THE AIR FORCE, AND IT WAS CONSIDERED THAT THE EXPERIENCE GAINED BY ALL AMERICAN ON THAT CONTRACT WAS VERY GOOD FOR PURPOSES OF THE SUBJECT PROCUREMENT. THE RECORD SHOWS THAT EACH OF THE 5 EVALUATORS INDIVIDUALLY AWARDED A TOTAL OF MORE POINTS TO ALL AMERICAN THAN TO ANY OF THE OTHER 3 FIRMS EVALUATED.

IT IS NOT OUR FUNCTION TO TECHNICALLY EVALUATE BIDS AND PROPOSALS, OR TO MAKE AN INDEPENDENT DETERMINATION IN THIS CASE WHETHER ALL AMERICAN SHOULD HAVE BEEN RATED FIRST IN THE POINT EVALUATION. SEE GENERALLY, 17 COMP. GEN. 554. INDEED, WE ARE NOT EQUIPPED TO DO SO. IT DOES APPEAR HOWEVER, THAT YOUR PROPOSAL WAS EVALUATED IN ACCORDANCE WITH THE ESTABLISHED EVALUATION PROCEDURE, AND THAT ANOTHER FIRM WAS DULY SELECTED FOR AWARD UNDER THIS PROCEDURE. WE DO NOT FIND THAT THE AWARD MADE WAS CONTRARY TO EXISTING LAW OR REGULATION, OR THAT IT CAN BE CONSIDERED TO BE ARBITRARY OR CAPRICIOUS.