B-162932, JUN. 14, 1968

B-162932: Jun 14, 1968

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THE DENIAL OF YOUR PROTEST IN THE FIRST INSTANCE WAS PREDICATED UPON A DETERMINATION THAT THE CHALLENGED METHOD OF PROCUREMENT AND ADMINISTRATIVE ACTIONS TAKEN IN THE DESCRIBED CIRCUMSTANCES WERE NOT SUBJECT TO QUESTION BY OUR OFFICE. THAT THE JANUARY 31 DECISION WAS REACHED THROUGH THE CONSIDERATION. THE GSI BID IS FAR SUPERIOR FROM A MONETARY POINT OF VIEW THAN THE ASI PROPOSAL AND/OR CONTRACT. WHICHEVER IS GREATER PER ANNUM. WE HAVE RECEIVED A COMPREHENSIVE ANALYSIS OF YOUR COMPLAINTS FROM THE ASSISTANT SECRETARY FOR ADMINISTRATION. WHICH POINTS OUT IN PART THAT THE DIFFERENCES NOTED BY YOU BETWEEN THE TENANT BUSINESS PORTION OF THE ASI CONTRACT AND ASI'S PROPOSAL WERE THE RESULT OF NEGOTIATIONS CONDUCTED WITH THAT FIRM IN ACCORDANCE WITH THE CITED STATUTORY PROVISIONS AND PARAGRAPH VII OF THE INVITATION FOR PROPOSALS.

B-162932, JUN. 14, 1968

TO BEAN, DEANGELIS, TREDINNICK AND GIANGIULIO:

BY LETTER SUBMITTED TO OUR OFFICE ON FEBRUARY 9, 1968, AND SUBSEQUENT CORRESPONDENCE, YOU REQUESTED RECONSIDERATION OF OUR DECISIONB-162932, JANUARY 31, 1968, WHEREIN WE DENIED THE PROTEST OF GROUND SERVICES, INC. (GSI), AGAINST THE AWARD OF CONTRACT NO. FA-DA 4573 TO AIRCRAFT SERVICE INTERNATIONAL, INC. (ASI), UNDER INVITATION FOR PROPOSALS NO. BNCA 66-5, ISSUED BY THE BUREAU OF NATIONAL CAPITAL AIRPORTS, FEDERAL AVIATION ADMINISTRATION, DEPARTMENT OF TRANSPORTATION.

THE DENIAL OF YOUR PROTEST IN THE FIRST INSTANCE WAS PREDICATED UPON A DETERMINATION THAT THE CHALLENGED METHOD OF PROCUREMENT AND ADMINISTRATIVE ACTIONS TAKEN IN THE DESCRIBED CIRCUMSTANCES WERE NOT SUBJECT TO QUESTION BY OUR OFFICE, IN VIEW OF THE WIDE DISCRETIONARY POWERS VESTED IN THE PROCURING ACTIVITY BY THE SECOND WASHINGTON AIRPORT ACT, 64 STAT. 770, 771, AMENDED BY SECTION 1402 (G) OF THE FEDERAL AVIATION ACT OF 1958, 72 STAT. 731, 807.

YOU ALLEGE, AS A BASIS FOR RECONSIDERATION, THAT THE JANUARY 31 DECISION WAS REACHED THROUGH THE CONSIDERATION, IN PART, OF ERRONEOUS INFORMATION REPORTED HERE BY THE PROCURING ACTVITY. SPECIFICALLY, YOU POINT OUT THAT THE PORTION OF THE ASI PROPOSAL AS DISCUSSED ON PAGES 2 AND 3 OF THE REFERENCED DECISION OFFERS A MINIMUM GUARANTEE UNDER THE TENANT BUSINESS PROVISIONS OF THE INVITATION FOR PROPOSALS, WHEREAS, THE INVITATION MADE NO SUCH MENTION OF A MINIMUM GUARANTEE, BUT STATED THAT PROPOSALS WOULD BE EVALUATED SOLELY ON THE BASIS OF PERCENTAGE OF TENANT BUSINESS OFFERED. YOU THEN STATE, AND ASCRIBE SOME IMPORTANCE TO THE FACT, THAT THE CONTRACT AWARDED TO ASI CONFORMED TO THE DESCRIBED PROVISIONS OF THE INVITATION FOR PROPOSALS, AND, THEREFORE, DIFFERED IN A SIGNIFICANT RESPECT FROM THE ASI PROPOSAL. WITH REFERENCE TO THE NONTENANT BUSINESS PORTION OF THE INVITATION YOU STATE THAT "OBVIOUSLY, THE GSI BID IS FAR SUPERIOR FROM A MONETARY POINT OF VIEW THAN THE ASI PROPOSAL AND/OR CONTRACT," SINCE ASI ONLY GUARANTEED $3,700, OR 5 PERCENT OF THE GROSS BUSINESS, WHICHEVER IS GREATER PER ANNUM, AS OPPOSED TO GSI'S GUARANTEE OF $8,000 PLUS BASIC RENTAL, 10 PERCENT OF THE FIRST $5,000 GROSS PER MONTH AND 20 PERCENT OVER $5,000.

PURSUANT TO OUR REQUEST FOR A COMPLETE DOCUMENTED REPORT RESPONSIVE TO THE ISSUES AND ALLEGATIONS RAISED IN YOUR LETTER OF FEBRUARY 9, AND SUBSEQUENT CORRESPONDENCE, WE HAVE RECEIVED A COMPREHENSIVE ANALYSIS OF YOUR COMPLAINTS FROM THE ASSISTANT SECRETARY FOR ADMINISTRATION, DEPARTMENT OF TRANSPORTATION, DATED MAY 18, 1968, WHICH POINTS OUT IN PART THAT THE DIFFERENCES NOTED BY YOU BETWEEN THE TENANT BUSINESS PORTION OF THE ASI CONTRACT AND ASI'S PROPOSAL WERE THE RESULT OF NEGOTIATIONS CONDUCTED WITH THAT FIRM IN ACCORDANCE WITH THE CITED STATUTORY PROVISIONS AND PARAGRAPH VII OF THE INVITATION FOR PROPOSALS, AS QUOTED ON PAGE 2 OF THE DECISION OF JANUARY 31. THE REPORT STATES, FURTHER, THAT THE SUMMARY OF YOUR CLIENT'S OFFER AND CONCLUSION THAT IT IS "OBVIOUSLY" MONETARILY SUPERIOR TO THE ASI OFFER ARE ERRONEOUS FOR THE FOLLOWING REASONS: "1. FIRST OF ALL, GSI'S OFFER TO THE GOVERNMENT FOR NONTENANT CARRIERS WAS TO PAY ALL RENTALS ON TICKET COUNTER SPACE AND 10 PERCENT OF THE FIRST $5,000 PER MONTH GROSS, AND 20 PERCENT OF GROSS IN EXCESS OF $5,000 PER MONTH. THERE WAS NOTHING IN ITS OFFER TO SUGGEST THAT IT HAD OFFERED, AS THE PETITION INDICATES, TO PAY A SPECIFIED AMOUNT FOR RENTAL OF TICKET COUNTER SPACE. IN ITS ORIGINAL PROTEST, GSI HAD MAINTAINED THAT THE ANNUAL RENTAL OF TICKET COUNTER SPACE SHOULD HAVE BEEN CONSIDERED AS PART OF ITS MINIMUM GUARANTEE. AS SHOWN IN PARAGRAPH 3 (PAGE 4) OF THE CG DECISION, GSI'S POSITION ON THIS MATTER WAS REJECTED ON THE BASIS THAT: (A) A SPACE RENTAL FACTOR WAS NOT CONTEMPLATED BY OUR INVITATION FOR PROPOSALS; (B) GSI'S PROPOSAL DID NOT CONTAIN A SPECIFIC AMOUNT, BUT MADE A GENERAL STATEMENT THAT IT WOULD PAY ALL RENTALS ON TICKET COUNTER SPACE; AND (C) IT WAS NOT OUR NORMAL PRACTICE TO ASSESS DIRECT RENTALS FOR CONCESSIONAIRE SPACE SINCE WE FELT THAT COMPENSATION FOR THE USE OF SUCH SPACE IS OBTAINED IN THE FORM OF PAYMENTS BASED UPON GROSS RECEIPTS. "2. SECONDLY, THE QUESTION OF WHICH PROPOSAL WOULD OFFER THE MOST REVENUES TO THE GOVERNMENT IS DEPENDENT PRIMARILY UPON WHICH PROPONENT OFFERED THE BEST RETURN TO THE GOVERNMENT FOR TENANT BUSINESS, WHICH WAS ACCEPTED BY ALL PARTIES AS REPRESENTING 90 PERCENT OF THE TOTAL BUSINESS. OUR COMPARISON OF THE GSI AND ASI OFFERS AS CONTAINED IN THE ENCLOSURE TO THIS LETTER SHOWS THAT WHILE GSI'S PROPOSAL WOULD RESULT IN THE GREATEST REVENUES TO THE GOVERNMENT FOR NON-TENANT BUSINESS, ASI'S PROPOSAL WOULD RESULT IN THE GREATEST OVERALL REVENUES TO THE GOVERNMENT. IN COMPARING THE TWO OFFERS, WE HAVE TAKEN GSI'S PROJECTED TENANT ANNUAL GROSS BUSINESS FIGURES USED AS EXAMPLES IN ITS ORIGINAL PROTEST. ALSO, FOR THE SAKE OF ARGUMENT, WE HAVE ACCEPTED THE PETITIONER'S OWN INTERPOLATION OF HIS INDEFINITE OFFER -TO PAY ALL RENTALS ON TICKET COUNTER SPACE ...- INTO THE SPECIFIC SUM OF $8,000 AND HAVE USED IT IN OUR COMPARISON.'

THE SUM AND SUBSTANCE OF THE REMAINING CONTENTIONS SET FORTH IN YOUR REQUEST FOR RECONSIDERATION QUESTION THE ACCURACY OF PORTIONS OF THE DECEMBER 29, 1967, ADMINISTRATIVE REPORT, AS QUOTED IN PART ON PAGES 3 AND 4 OF THE JANUARY 31 DECISION. BASED UPON A THOROUGH REVIEW OF THE ANALYSIS OF YOUR POSITION CONTAINED IN THE MAY 18 LETTER FROM THE PROCURING AGENCY, WE MUST CONCLUDE THAT YOUR COMMENTS LEND NO SUBSTANCE OR LEGALITY TO SUPPORT YOUR POSITION; NEITHER ARE YOUR CONTENTIONS SUPPORTED BY THE OFFICIAL RECORD. IN THE LATTER REGARD, WHEN QUESTIONS OF FACT ARE DISPUTED, WE WILL APPLY THE GENERAL RULE THAT THE ADMINISTRATIVE VERSION OF THE FACTS WILL BE ACCEPTED AS CORRECT IN THE ABSENCE OF BAD FAITH OR A CLEAR SHOWING OF MISTAKE. 37 COMP. GEN. 568. NO BASIS EXISTS ON THE RECORD TO OVERCOME THAT PRESUMPTION OF CORRECTNESS.

IN VIEW OF THE FOREGOING, OUR DECISION OF JANUARY 31, 1968, IS SUSTAINED.

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