B-159244, B-159318, JUL. 27, 1966

B-159244,B-159318: Jul 27, 1966

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INC.: FURTHER REFERENCE IS MADE TO YOUR PROTESTS AGAINST AWARD OF CONTRACTS TO BELL FLYING SERVICE. ALTHOUGH YOUR PROTESTS WERE STATED INSEPARATE LETTERS. THE BASIS THEREOF IS THE SAME IN EACH CASE. OUR DECISION ON BOTH PROTESTS IS THEREFORE CONTAINED HEREIN. WHICH WERE TOTAL SET-ASIDES FOR SMALL BUSINESS. BELL WAS THE LOWEST BIDDER UNDER BOTH INVITATIONS. YOU WERE SECOND LOWEST UNDER ONE AND THIRD LOWEST UNDER THE OTHER. BELL WAS ALSO THE LOWEST BIDDER FOR THE SAME SERVICES AT FIVE OTHER AIR FORCE BASES. CONTRACTS UNDER THE SUBJECT INVITATIONS WERE AWARDED TO BELL ON APRIL 28. BELL WAS ALSO AWARDED CONTRACTS AT THE OTHER FIVE AIR FORCE BASES. IN THE PERFORMANCE OF WHICH YOU ALLEGE THAT YOU SUSTAINED A LOSS EVEN THOUGH YOUR COSTS WERE NOT AS GREAT AS BELL'S WILL BE.

B-159244, B-159318, JUL. 27, 1966

TO HALLMARK ACADEMY, INC.:

FURTHER REFERENCE IS MADE TO YOUR PROTESTS AGAINST AWARD OF CONTRACTS TO BELL FLYING SERVICE, INC., BY THE AIR FORCE FOR PRIMARY FLIGHT TRAINING AT CRAIG AIR FORCE BASE, ALABAMA, AND AT LAUGHLIN AIR FORCE BASE, TEXAS, UNDER INVITATION FOR BIDS (IFB) NOS. 01-602-66-25 AND 41-685-66-19, RESPECTIVELY. ALTHOUGH YOUR PROTESTS WERE STATED INSEPARATE LETTERS, DATED MAY 20 AND 28, 1966, THE BASIS THEREOF IS THE SAME IN EACH CASE, AND OUR DECISION ON BOTH PROTESTS IS THEREFORE CONTAINED HEREIN.

THE SUBJECT INVITATIONS, WHICH WERE TOTAL SET-ASIDES FOR SMALL BUSINESS, CALLED FOR BIDS ON FURNISHING SERVICES AND MATERIALS REQUIRED FOR THE FLIGHT TRAINING OF UNDERGRADUATE PILOTS FOR THE PERIODS JUNE 1, 1966, THROUGH SEPTEMBER 13, 1967, UNDER ONE IFB, AND THROUGH FEBRUARY 5, 1968, UNDER THE OTHER IFB. BELL WAS THE LOWEST BIDDER UNDER BOTH INVITATIONS, AND YOU WERE SECOND LOWEST UNDER ONE AND THIRD LOWEST UNDER THE OTHER. ADDITION TO THE SUBJECT IFBS, BELL WAS ALSO THE LOWEST BIDDER FOR THE SAME SERVICES AT FIVE OTHER AIR FORCE BASES. CONTRACTS UNDER THE SUBJECT INVITATIONS WERE AWARDED TO BELL ON APRIL 28, 1966, AND ON MAY 5, 1966. BELL WAS ALSO AWARDED CONTRACTS AT THE OTHER FIVE AIR FORCE BASES.

YOU PROTEST THE AWARDS AT CRAIG AND LAUGHLIN AIR FORCE BASES BECAUSE "THE BID SUBMITTED AND ACCEPTED WOULD RESULT IN A SIZEABLE LOSS TO THE CONTRACTOR AND A DEFINITE IMPAIRMENT TO THE AIR FORCE PILOT TRAINING PROGRAM.' YOU BASE THIS CONTENTION ON YOUR EXPERIENCE IN FURNISHING THE SAME SERVICES UNDER PRIOR CONTRACTS, IN THE PERFORMANCE OF WHICH YOU ALLEGE THAT YOU SUSTAINED A LOSS EVEN THOUGH YOUR COSTS WERE NOT AS GREAT AS BELL'S WILL BE. BECAUSE THE CONTRACTOR WILL BE OPERATING AT A LOSS, YOU CONTEND THAT IT WILL DEFAULT THE CONTRACTS AND THE ENTIRE AIR FORCE PILOT TRAINING PROGRAM WILL BE IMPAIRED.

PRIOR TO MAKING THE SEVEN AWARDS TO BELL, A PRE-AWARD SURVEY PURSUANT TO ARMED SERVICES PROCUREMENT REGULATION (ASPR) 1-905.4 WAS CONDUCTED TO DETERMINE WHETHER BELL WAS A RESPONSIBLE PROSPECTIVE CONTRACTOR WITHIN THE MEANING OF ASPR 1-903. IN CONNECTION WITH THE SURVEY, HEADQUARTERS, AIR TRAINING COMMAND (ATC), REPORTS AS FOLLOWS:

"1. THIS HEADQUARTERS WAS FULLY COGNIZANT FOLLOWING BID OPENINGS OF THE POSSIBLE ADVERSE AFFECTS TO THE T-41 PROGRAM OF SEVEN AWARDS TO THE SAME COMPANY. AS A RESULT, THE FOLLOWING POSITIVE ACTIONS WERE TAKEN:

"A. A TELEPHONE REQUEST WAS MADE TO THE DCASD PRE-AWARD MONITOR, MR. JAMES BAGWELL, BIRMINGHAM, ALABAMA, FOR A COMBINED PRE-AWARD SURVEY FOR THE SEVEN CONTRACTS. PARTICULAR EMPHASIS WAS REQUESTED REGARDING THE FINANCIAL STATUS AND CAPACITY OF THE LOW BIDDER TO PERFORM AT SEVEN BASES.

"B. A JOINT MEETING OF REPRESENTATIVES FROM FIVE OF THE SEVEN BASES INVOLVED WAS SCHEDULED BY THIS HEADQUARTERS AND HELD ON 19 APRIL IN THE BIRMINGHAM DCASD OFFICE. SEE PAGE 9 OF LAUGHLIN ATTACHMENT G (3) FOR A LIST OF ATTENDEES. REPRESENTATIVES FROM VANCE WERE NOT REQUIRED IN VIEW OF SATISFACTORY PERFORMANCE BY BELL FLYING SERVICE ON THE EXISTING CONTRACT. TELEPHONE COORDINATION WAS EFFECTED WITH CRAIG AFB REPRESENTATIVES.

"C. THE PROCUREMENT OFFICER AT REESE AFB, LT COL (MAJ) JOSEPH SULLIVAN WAS SPECIFICALLY DESIGNATED AS THE ATC REPRESENTATIVE IN ADDITION TO REPRESENTING REESE AFB. HE WAS NOTIFIED THAT CAPACITY AND CREDIT WERE TO BE SUBJECTS OF SPECIAL IMPORTANCE. IN THIS REGARD, REFER TO THE REMARKS SECTION OF REESE'S REQUEST FOR PRE-AWARD SURVEY (ATTACHMENT 1).'

THE REQUEST FOR THE SURVEY TO THE PRE-AWARD MONITOR INCLUDED THE FOLLOWING NOTE:

"8. REQUEST SPECIAL ATTENTION BE GIVEN TO REQUIRE THE BIDDER TO PROVE HE CAN PERFORM ALL SERVICES REQUIRED AT THE UNIT PRICES BID. THIS IS ESPECIALLY IMPORTANT IN VIEW OF RECENT IFB CANCELLATIONS FOR THIS SAME REQUIREMENT AT OTHER AIR TRAINING COMMAND BASES AND THE SERVICES CONTRACT ACT OF 1965.'

BELL WAS REQUESTED TO CONFIRM BOTH THE UNIT AND TOTAL BID PRICES ON EACH IFB, AND DID SO. IN ADDITION TO AN AFFIRMATIVE DETERMINATION OF THE VARIOUS FACTORS CONSIDERED IN THE SURVEY OF BELL'S FINANCIAL CAPABILITY, THE FINANCIAL ANALYST OF THE SURVEY TEAM MADE THE FOLLOWING DETERMINATION:

"THE CONTRACTOR'S BID PRICE CONTAINED AN ALLOWANCE FOR EACH ELEMENT OF COST ANTICIPATED UNDER SUBJECT IFB. THE ANALYST IN AN INDEPENDENT ESTIMATE HAS DETERMINED THAT THE CONTRACTOR'S BID PRICE IS SUFFICIENT TO CARRY OUT THE CONTRACT IN THE MANNER PROPOSED BY BELL FLYING SERVICE, NC., IN ACCORDANCE WITH CONTRACT PROVISIONS, AND TO PROVIDE A MARGIN OF PROFIT.'

WITH REGARD TO YOUR CONTENTION THAT A DEFAULT BY BELL UNDER THE CONTRACTS WOULD RESULT IN A DEFINITE IMPAIRMENT OF THE AIR FORCE PILOT TRAINING PROGRAM, ATC ADVISES THAT:

"2. THE T-41 LIGHT PLANE TRAINING PROGRAM IS AN INTEGRAL AND IMPORTANT PART OF THE ATC PILOT TRAINING PROGRAM. NEVERTHELESS, IT IS NOT OF SUCH VITAL NATURE THAT ANY DISRUPTION WOULD SERIOUSLY IMPAIR PILOT PRODUCTION. WERE THE CONTRACTORS TO DEFAULT ONE OR MORE OF THE FOLLOWING ACTIONS COULD AND WOULD BE TAKEN WITHOUT UNDULY DISRUPTING THE TRAINING MISSION:

"A. BY-PASS THE T-41 TRAINING FOR AN INTERIM PERIOD AND PLACE STUDENTS DIRECTLY INTO THE T-37 PROGRAM.

"B. EFFECT RE-PROCUREMENT FROM OTHER QUALIFIED SOURCES WITHIN 7 TO 21 DAYS.'

SINCE THE DETERMINATION OF A PROSPECTIVE CONTRACTOR'S OVERALL ABILITY TO PERFORM IN ACCORDANCE WITH THE TERMS OF A CONTRACT AT THE PRICE BID IS THE PRIMARY RESPONSIBILITY OF THE ADMINISTRATIVE AGENCY INVOLVED, OUR OFFICE HAS CONSISTENTLY ADHERED TO THE RULE THAT THE ADMINISTRATIVE DETERMINATION WILL NOT BE QUESTIONED UNLESS THERE IS NO SUBSTANTIAL BASIS FOR THE DETERMINATION, OR THERE IS EVIDENCE OF BAD FAITH. 38 COMP. GEN. 131; 37 ID. 430, 435. IN VIEW OF THE RECORD PRESENTED IN THIS CASE, AS RECITED ABOVE, THERE WOULD APPEAR TO BE A SUBSTANTIAL BASIS FOR THE ACTION OF THE CONTRACTING AGENCY, AND WE NEITHER FIND EVIDENCE OF, NOR UNDERSTAND YOU TO ALLEGE, BAD FAITH. ACCORDINGLY, WE WOULD NOT BE JUSTIFIED IN TAKING EXCEPTION TO THE AFFIRMATIVE DETERMINATION OF RESPONSIBILITY MADE IN THIS CASE, OR TO THE AWARD OF THE CONTRACTS TO BELL.