B-167259, SEP 11, 1969

B-167259, SEP 11, 1969

BID PROTEST - EVALUATION - SCORING PATTERN DECISION DENYING PROTEST OF AVIATION SPECIALTIES, INC., AGAINST EVALUATION OF OFFER FOR AIR TANKER SERVICES FOR FORECT SERVICE. AWARD OF CONTRACT AFTER EVALUATION OF PROPOSALS ON A TECHNICAL POINT SCORING BASIS WILL NOT BE QUESTIONED. ON THE BASIS OF THE SCORING PROTESTANT'S PROPOSAL DID NOT COME WITHIN THE RANGE FOR FURTHER CONSIDERATION. THE DEPARTMENT IS REVIEWING AND REVISING ITS NEGOTIATED PROCEDURES AND IN FUTURE REQUESTS FOR PROPOSALS WILL INCLUDE EVALUATION FACTORS AND RELATIVE WEIGHTS.

LEWIS, ROCA, BEAUCHAMP & LINTON:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 13, 1969, PROTESTING ON BEHALF OF AVIATION SPECIALTIES, INC., AGAINST THE REFUSAL OF THE FOREST SERVICE REGION 1, MISSOULA, MONTANA, TO PERMIT THE CORPORATION TO BID ON AN AIR TANKER SERVICE CONTRACT TO BE AWARDED FOR THE WEST YELLOWSTONE, MONTANA, BASE.

THE RECORD DISCLOSES THAT BY LETTER DATED APRIL 3, 1969, THE FOREST SERVICE INVITED AVIATION SPECIALTIES, INC., TO SUBMIT A TECHNICAL PROPOSAL FOR INITIAL ATTACK AIR TANKER SERVICES AT VARIOUS LOCATIONS, INCLUDING WEST YELLOWSTONE AIRPORT, WEST YELLOWSTONE, MONTANA, IN FOREST SERVICE REGION 1. THE LETTER ATTACHED ENCLOSURES, CONSISTING OF TWO COPIES OF A QUESTIONNAIRE TO BE COMPLETED BY THE OFFEROR AND A SAMPLE CONTRACT TO BE EXECUTED WITH THE SELECTED CONTRACTOR, WHICH EXPLAINED THE DETAILS OF THE CONDITIONS AND SPECIFICATIONS OF THE SERVICES REQUIRED. IN ADDITION, THE LETTER CONTAINED THE FOLLOWING STATEMENT:

"SELECTION OF A PROSPECTIVE CONTRACTOR WILL BE BASED ON A NUMBER OF FACTORS TO PROVIDE SERVICES CONSIDERED TO BE OF THE GREATEST VALUE TO THE GOVERNMENT. THE FACTORS TO BE GIVEN PARAMOUNT CONSIDERATION ARE LISTED AS FOLLOWS BUT ARE NOT NECESSARILY LIMITED THERETO:

"1. PILOT'S KNOWLEDGE OF AREA AND EXTENT OF FLYING EXPERIENCE IN USE OF EACH AIR TANKER TYPE TO BE FLOWN IN SUPPRESSION OF FOREST AND RANGE FIRES IN (1) PRINCIPAL AREA DESIGNATED TO BE SERVED BY DESIGNATED BASE, AND (2) OTHER AREAS TO BE LISTED BY OFFEROR.

"2. SAFETY RECORD OF PILOTS AND OF ORGANIZATION OF OFFEROR.

"3. PLANT, MECHANICS, AND MAINTENANCE FACILITIES, FOR AIRCRAFT INVOLVED, AND QUALIFICATIONS TO MAKE REPAIRS BY ESTIMATED TIME LIMITS. ON-BASE LOCATIONS WILL BE GIVEN PREFERENCE TO OFF-BASE LOCATIONS AND THEN, IN ORDER, ON A MILEAGE BASIS.

"4. AVAILABILITY OF SUITABLE PILOTS AND AIR-CRAFT, AND QUALIFICATIONS AND CALIBER OF PILOTS FOR REPLACEMENT PURPOSES.

"5. AIRCRAFT AND ACCESSORIES, AGE, CONDITION, LOAD CAPACITY, CRUISING SPEED RECORDS OF MAINTENANCE, TIME AVAILABLE BEFORE MAJOR OVERHAUL, SUITABILITY FOR TERRAIN OF AREA IN RELATION TO AVAILABLE AIRCRAFT OF OTHER OFFERORS.

"6. AVAILABILITY OF LICENSES AND PERMITS TO OPERATE IN THE STATES INVOLVED AND FROM DESIGNATED AIRPORTS.

"7. KIND, AMOUNT, AND EXTENT OF INSURANCE FOR, OR COVERAGE OF, OPERATOR'S PERSONNEL, AND LIABILITY AND PROPERTY DAMAGE COVERAGE FOR LOSS OF LIFE OR DAMAGE OF PROPERTY OF OTHERS DUE TO OPERATOR'S OR OFFEROR'S AIRCRAFT.

"8. THE BUSINESS REPUTATION, CAPACITY, COMPARISON OF AND RESPONSIBILITY OF EACH OFFEROR. RESPONSIBILITY REQUIREMENTS ARE OUTLINED IN FEDERAL PROCUREMENT REGULATIONS 1-1.310, WHICH MAY BE EXAMINED AT THE REGIONAL OFFICE, FEDERAL BUILDING, MISSOULA, MONTANA, OR AT ANY FOREST SUPERVISOR'S OFFICE."

ALSO, AVIATION SPECIALTIES, INC., WAS ADVISED THAT AUTHORITY FOR NEGOTIATION AND POLICY ON EVALUATION AND SELECTION OF A PROSPECTIVE CONTRACTOR WAS ESTABLISHED IN A STUDY OF FOREST SERVICE PROCEDURE FOR CONTRACTING AIR TANKER SERVICES AND A NEW POLICY FOR SUCH CONTRACTING, APPROVED BY THE CHIEF OF THE FOREST SERVICE ON OCTOBER 7, 1964. BY LETTER DATED APRIL 11, 1969, AVIATION SPECIALTIES, INC., SUBMITTED A TECHNICAL PROPOSAL FOR THE WEST YELLOWSTONE, MONTANA, BASE. OTHER PROPOSALS WERE RECEIVED FROM AERO-FLITE, INC., AND AVERY AVIATION, INC. THE FOREST SERVICE BOARD OF CONTRACT AWARDS EVALUATED BY POINT RATING THE TECHNICAL PROPOSALS SUBMITTED, UTILIZING THE FACTORS SET FORTH IN THE INITIAL APRIL 3, 1969, REQUEST FOR PROPOSALS, AS FOLLOWS, BASED ON 140 MAXIMUM POSSIBLE POINTS:

OFFEROR POINTS

AERO-FLITE, INC. 139

AVERY AVIATION 130

AVIATION SPECIALTIES, INC. 128

ON MAY 9, 1969, AVIATION SPECIALTIES, INC., WAS ADVISED OF THE ABOVE POINT EVALUATION BY THE CONTRACTING OFFICER AND THAT IT WOULD NOT BE PERMITTED TO BID ON THE WEST YELLOWSTONE CONTRACT. AWARD OF THE CONTRACT WAS THEN MADE TO AERO-FLITE, INC., ON MAY 12, 1969, AVIATION SPECIALTIES, INC., PROTESTED ORALLY TO THE CONTRACTING OFFICER, SUBSEQUENTLY FORMALLY CONFIRMED IN A MAY 20, 1969 LETTER. BY LETTER DATED JUNE 6, 1969, THE CONTRACTING OFFICER ANSWERED THE PROTEST IN DETAIL, ADVISING IN CONCLUSION THAT THE AWARD TO AERO-FLITE, INC., WOULD NOT BE DISTURBED.

AVIATION SPECIALTIES, INC., AND YOU, AS ITS ATTORNEYS, RAISE TWO PRINCIPAL CONTENTIONS. FIRST, YOU STATE THAT IN REFUSING TO GRANT THE CORPORATION PERMISSION TO BID ON THE CONTRACT, THE CONTRACTING OFFICER AND BOARD OF CONTRACT AWARDS DID NOT COMPLY WITH PARAGRAPH 4G-3.7111 OF THE FOREST SERVICE PROCUREMENT REGULATIONS. IN THIS REGARD, YOU CITE B 157954, DECEMBER 15, 1965; AND B-167003, JUNE 9, 1969, WHEREIN WE APPROVED THE PROPOSED FOREST SERVICE NEGOTIATION PROCEDURES, AND DISCUSSED THE PREBID QUALIFICATION BASES OF THE PROCEDURES. YOU ALLEGE THAT UNDER THE PROCEDURES AND THE CITED OFFICE DECISIONS THE NEGOTIATION OF A CONTRACT ON A SOLE-SOURCE BASIS IS UNWARRANTED. SECONDLY, YOU ALLEGE THAT, EVEN ASSUMING THAT AN OPERATOR MAY BE EXCLUDED FROM BIDDING SIMPLY BECAUSE IT SCORES FEWER POINTS THAN ANOTHER, THE SCORING OF THE VARIOUS EVALUATION FACTORS INVOLVED IN THE DETERMINATION THAT AVIATION SPECIALTIES WAS NOT AS QUALIFIED AS AERO FLITE, INC., WAS ARBITRARY, CAPRICIOUS AND UNREASONABLE. AFTER REVIEW OF THE ADMINISTRATIVE REPORT, YOUR LETTER OF AUGUST 6, 1969, ITERATED YOUR ARGUMENTS AND EXPRESSED THE BELIEF THAT FURTHER CLARIFICATION OF THE PROCUREMENT PRACTICES INVOLVED IS REQUIRED FOR THE GUIDANCE OF CONTRACTING OFFICERS IN OBTAINING AIR TANKER SERVICES THROUGHOUT THE COUNTRY.

WITH RESPECT TO YOUR SECOND CONTENTION, THE JUNE 6, 1969, LETTER FROM THE CONTRACTING OFFICER, TO YOU, REPLIED TO YOUR QUESTIONING OF THE TECHNICAL POINT SCORING EVALUATION AT LENGTH, AND THE ADMINISTRATIVE REPORT DATED JULY 23, 1969, SUPPLEMENTED BY THE REPORT OF AUGUST 15, 1969, CONCURRED IN THE ACTIONS TAKEN BY THE BOARD OF CONTRACT AWARDS IN THIS CASE.

IT SHOULD BE MADE CLEAR THAT IT IS NOT THE FUNCTION OF OUR OFFICE TO EVALUATE PROPOSALS OR TO SUBSTITUTE OUR JUDGMENT FOR THAT OF CONTRACTING OFFICIALS AND ADMINISTRATIVE BOARDS BY MAKING AN INDEPENDENT FACTUAL DETERMINATION AS TO EACH PROPOSER'S NUMERICAL RATING. B-164552(2), FEBRUARY 24, 1969; B-158686, SEPTEMBER 2, 1966; B 150507, MARCH 29, 1963. AS WE HELD IN B-164552(2), FEBRUARY 24, 1969:

"TO DECIDE THAT MORE OR LESS POINTS SHOULD HAVE BEEN AWARDED IN VARIOUS AREAS OF PROPOSAL EVALUATION WOULD REQUIRE A COMPLETE RE EVALUATION OF ALL PROPOSALS SUBMITTED - A TASK WHICH OUR OFFICE NOT ONLY IS NOT EQUIPPED TO PERFORM, BUT WHICH, AS INDICATED ABOVE, IS NOT WITHIN OUR JURISDICTION. IN THIS REGARD, OUR PRIOR DECISION AT 47 COMP. GEN. 336 HELD: 'IT IS AXIOMATIC THAT THE CONTRACTING OFFICER ENJOYS THE WIDEST POSSIBLE RANGE OF DISCRETION IN THE EVALUATION OF NEGOTIATED PROPOSALS AND IN DETERMINING WHICH OFFER OR PROPOSAL IS ENTITLED TO BE ACCEPTED AS IN THE GOVERNMENT'S BEST INTEREST."

IN THE ABSENCE OF A CLEAR SHOWING OF UNREASONABLENESS, FAVORITISM, OR A VIOLATION OF THE PROCUREMENT STATUES OR REGULATIONS, SUCH DETERMINATIONS AS TO WHICH PROPOSAL IS TECHNICALLY SUPERIOR WILL NOT BE QUESTIONED BY OUR OFFICE. B-161480, JULY 5, 1967; B-164552(2), SUPRA; B-158686, SUPRA; B- 150507, SUPRA; B-166052, JULY 11, 1969.

IN THIS CONNECTION, WE HAVE HELD THAT THE PROPER USE OF A POINT RATING SYSTEM IN EVALUATING PERTINENT FACTORS IS A RECOGNIZED TECHNIQUE IN THE CONSIDERATION OF PROPOSALS UNDER CONTRACT NEGOTIATION PROCEDURES. 161480, SUPRA.

WE HAVE REVIEWED THE FILE BEFORE US AND FIND THAT THE PROPOSALS WERE CAREFULLY AND THOROUGHLY EVALUATED BY BOTH THE CONTRACTING OFFICER AND THE BOARD OF CONTRACT AWARDS, AND THAT NO BASIS EXISTS FOR QUESTIONING THE DECISION TO DENY AVIATION SPECIALTIES THE OPPORTUNITY TO BID FOR THE SERVICES AT THE WEST YELLOWSTONE BASE.

YOU STATE IN YOUR LETTER OF JUNE 13, 1969, THAT THE DENIAL OF PERMISSION BY THE CONTRACTING OFFICER, TO ALLOW AVIATION SPECIALTIES, INC., TO BID FOLLOWED FROM A FAULTY PREMISE THAT "PRICES ARE ONLY TO BE SOLICITED WHEN TWO OR MORE OPERATORS ARE EVALUATED TO BE EQUALLY QUALIFIED TO PROVIDE SERVICES AT THE PARTICULAR BASE." REFERRING TO B 157954, SUPRA, WHICH SETS FORTH THE GUIDELINES FOR THE AWARD OF CONTRACTS FOR AIR TANKER SERVICES, YOU STATE, AS FOLLOWS:

" *** THESE GUIDELINES SPECIFICALLY STATE THAT 'WHERE TWO OR MORE (OPERATORS) QUALIFY UNDER THE BOARD'S EVALUATION, PRICES WILL BE SECURED FROM EACH QUALIFIED OFFEROR AND AWARD MADE TO LOWEST RESPONSIBLE OFFEROR.' THIS STATEMENT IS AGAIN MADE IN FOREST SERVICES PROCUREMENT REGULATION 4-G-3.7111, QUOTED IN DECISION NO. B-167003 REFERRED TO ABOVE:

'WHERE TWO OR MORE RESIDENT OPERATORS QUALIFY UNDER THE BOARD'S EVALUATION, UNIT PRICES SHALL BE SECURED FROM EACH QUALIFIED OFFEROR AND AWARD MADE TO THE RESPONSIBLE OFFEROR QUOTING THE LOWEST PRICES. FOR BASES DESIGNATED AS NOT HAVING OR REQUIRING A RESIDENT OPERATOR (S), THE BOARD WILL SELECT THE OPERATOR BEST QUALIFIED UNDER THE FACTORS USED FOR EVALUATION. WHERE TWO OR MORE QUALIFY UNDER THE BOARD'S EVALUATION, UNIT PRICES SHALL BE SECURED FROM EACH QUALIFIED OFFEROR AND AWARD MADE TO THE RESPONSIBLE OFFEROR QUOTING THE LOWEST PRICES.'

YOU CONCLUDE BY STATING THAT FOREST SERVICE GUIDELINES CLEARLY INTEND THAT INITIAL EVALUATION BY THE BOARD IS ONLY A PRELIMINARY STEP TO SCREEN OUT UNQUALIFIED OPERATORS, AND THAT THE PRELIMINARY SCREENING WAS NOT INTENDED TO PROVIDE A MEANS FOR FULLY ESCAPING THE NORMAL REQUIREMENTS OF PERMITTING COMPETITIVE BIDS BY RESPONSIBLE OFFERORS.

THE ADMINISTRATIVE REPORT STATES THAT "IT WAS THE UNDERSTANDING OF OUR OFFICE THAT WHERE TWO OR MORE PROSPECTIVE CONTRACTORS HAVE BEEN DETERMINED TO BE EQUALLY QUALIFIED WITH RESPECT TO ANY ONE AIR TANKER BASE, PRICE QUOTATIONS MUST BE SECURED FROM EACH OFFEROR AND AWARD MADE TO THE LOW RESPONSIBLE OFFEROR." THEY CONTINUED DISCUSSING YOUR LATTER CONTENTION AS FOLLOWS:

"AVIATION SPECIALTIES CONTESTS THIS PROCEDURE BY STATING THAT THE ISSUE IN THIS PROTEST IS WHETHER OUR BOARD OF CONTRACT AWARDS IS EMPOWERED TO DETERMINE WHO IS THE BEST QUALIFIED PROSPECTIVE CONTRACTOR AND AUTHORIZE NEGOTIATION ONLY WITH THAT FIRM (FIRMS, IF TWO OR MORE ARE FOUND TO BE EQUALLY QUALIFIED), OR WHETHER THE FUNCTION OF THE BOARD IS ONLY TO ELIMINATE UNQUALIFIED FIRMS PRIOR TO PRICE COMPETITION FOR THE CONTRACT. YOUR DECISION B-157954 WAS RENDERED IN RESPONSE TO A FOREST SERVICE REQUEST OF NOVEMBER 2, 1965, WHICH INDICATED THAT IT WAS THE FOREST SERVICE'S PURPOSE TO ASSURE SELECTION OF THE BEST QUALIFIED CONTRACTOR. FOREST SERVICE REQUIREMENTS AT THE INITIAL ATTACK AIR BASES COVERED BY CONTRACTS OF THIS TYPE ARE NOT SATISFIED WITH AN AIRPLANE WHICH CAN CARRY A GIVEN NUMBER OF GALLONS OF RETARDANT SLURRY AND A PILOT WHO CAN FLY IT TO A GIVEN SPOT, DUMP THE LOAD, AND RETURN. UNLESS THE RETARDANT IS ACCURATELY DUMPED ON THE AREA OF THE FIRE WHERE IT IS MOST EFFECTIVE IN STOPPING THE FIRE, THE ENTIRE TRIP IS OF NO VALUE TO THE GOVERNMENT. EITHER THE ORIGINAL PERFORMANCE IS EFFECTIVE OR IT IS USELESS. CONSEQUENTLY, ONLY THE BEST QUALIFIED FIRM (OR FIRMS IF TWO OR MORE ARE EQUALLY QUALIFIED) CAN BE CONSIDERED TO MEET THE MINIMUM QUALIFICATIONS FOR THIS WORK."

IN OUR DECISION, CITED BY BOTH THE ADMINISTRATIVE AGENCY AND YOU, B 157954, DECEMBER 15, 1965, WE CONSIDERED THE PROPRIETY OF THE METHOD OF NEGOTIATING CONTRACTS FOR AIR TANKER SERVICES. SUBJECT TO CERTAIN CRITERIA, NOT HEREIN APPLICABLE, WE APPROVED THE PROPOSED PLAN. DISCUSSING THE EVALUATION OF PROPOSALS BY THE CONTRACT AWARD BOARD, WE APPROVED THE PROCEDURE REQUESTED AS FOLLOWS:

"FOR BASES DESIGNATED AS NOT HAVING OR REQUIRING A RESIDENT OPERATORS THE SUBMITTED PLAN PROPOSES THAT THE BOARD WILL SELECT THE OPERATOR BEST QUALIFIED UNDER THE FACTORS USED FOR EVALUATION. WHERE TWO OR MORE QUALIFY UNDER THE BOARD'S EVALUATION PRICES WILL BE SECURED FROM EACH QUALIFIED OFFEROR AND AWARD MADE TO THE LOWEST RESPONSIBLE OFFEROR."

IN THIS CASE, THERE WAS NO RESIDENT OPERATOR REQUIRED AT THE BASE, FOR WHICH THE SERVICES WERE TO BE PERFORMED. B-167003, JUNE 9, 1969, APPROVED THIS PROCEDURE, WHEREIN IT STATED:

"UNDER THE ESTABLISHED PROCEDURE, PRICE PROPOSALS ARE REQUESTED ONLY FROM INDIVIDUALS OR FIRMS THAT HAVE BEEN DETERMINED TO BE QUALIFIED TO PERFORM THE SERVICES REQUIRED. WE APPROVED THIS PROCEDURE IN B-157954, DECEMBER 15, 1965. IN DOING SO, IT WAS THE UNDERSTANDING OF OUR OFFICE THAT WHERE TWO OR MORE PROSPECTIVE CONTRACTORS HAVE BEEN DETERMINED TO BE EQUALLY QUALIFIED WITH RESPECT TO ANY ONE AIR TANKER BASE, PRICE QUOTATIONS MUST BE SECURED FROM EACH OFFEROR AND AWARD MADE TO THE LOW RESPONSIBLE OFFEROR. ***"

WE HAVE BEEN ADVISED BY THE ADMINISTRATIVE AGENCY THAT, ALTHOUGH THE EVALUATION FACTORS WERE SET FORTH IN THE LETTER REQUESTING TECHNICAL PROPOSALS TO THE VARIOUS OFFERORS, NO MENTION WAS MADE OF THE RELATIVE WEIGHTS TO BE GIVEN EACH FACTOR AND THE POINT SYSTEM TO BE USED. THE AGENCY DISCLOSES THAT AN EVALUATION SYSTEM WAS ESTABLISHED GIVING MAXIMUM POINTS FOR SPECIFIED TECHNICAL AREAS AND PROVISION WAS MADE AS FOLLOWS: " *** SINCE MUCH OF THE SELECTION CRITERIA IS SUBJECT TO PERSONAL INTERPRETATION, A 5% MARGIN FOR HUMAN ERROR WILL BE ALLOWED IN SELECTING THE BEST QUALIFIED OFFEROR. ACCORDINGLY, ANY OFFEROR WHO IS RATED WITHIN 5% OF THE TOP OFFEROR WILL BE CONSIDERED EQUAL TO THE BEST QUALIFIED. THAT EVENT, UNIT PRICES SHALL BE SECURED FROM EACH QUALIFIED OFFEROR AND AWARD MADE TO THE RESPONSIBLE OFFEROR QUOTING THE LOWEST PRICE, IN ACCORDANCE WITH FSPR 4G3.7111."

WE FEEL THAT THE USE OF A 5-PERCENT FACTOR TO CORRECT POSSIBLE INJUSTICES IN THE EVALUATION SYSTEM WAS REASONABLE, PRACTICABLE AND COMPLIED WITH THE EXISTING REGULATIONS AND PROCEDURES APPROVED BY OUR OFFICE. IN THIS REGARD, IT IS NOTED THAT THE SCORE OF AVIATION SPECIALTIES OF 128 POINTS WAS NOT RATED WITHIN 5 PERCENT OF THE SCORE OF AERO-FLITE, INC., AND THEREFORE WAS NOT QUALIFIED FOR CONSIDERATION AT THE WEST YELLOWSTONE BASE.

WE HAVE HELD THAT SOUND PROCUREMENT POLICY DICTATES THAT OFFERORS BE INFORMED OF ALL EVALUATION FACTORS AND OF THE RELATIVE WEIGHTS TO BE ATTACHED TO EACH FACTOR, SO THAT THE BASIS FOR EVALUATION CAN BE MADE AS CLEAR AS POSSIBLE TO ENABLE EACH OFFEROR TO PROCEED ON AN EQUAL FOOTING. SEE B-165871, MARCH 13, 1969; 44 COMP. GEN. 439; 47 COMP. GEN. 252; B- 166213(1), JULY 18, 1969.

WE HAVE BEEN ADVISED BY THE DEPARTMENT OF AGRICULTURE THAT THE FOREST SERVICE IS IN THE PROCESS OF REVIEWING AND REVISING ITS CONTRACT NEGOTIATION PROCEDURES FOR NEW SERVICE-WIDE REGULATION APPLICATION. ADDITION, FUTURE REQUESTS FOR PROPOSALS WILL INCLUDE EVALUATION FACTORS AND RELATIVE WEIGHTS. HOWEVER, WE DO NOT REGARD THE AWARD AS SUBJECT TO LEGAL OBJECTION BY OUR OFFICE. ACCORDINGLY, YOUR PROTEST IS DENIED.