B-171381(1), JUN 3, 1971

B-171381(1): Jun 3, 1971

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THE CONTRACT PROVISION REQUIRING "EXTENSIVE EXPERIENCE" IS A MATTER RELATING TO RESPONSIBILITY RATHER THAN RESPONSIVENESS. THE CONTRACTING OFFICIALS WERE SATISFIED THAT THE OFFEROR WAS IN FACT RESPONSIBLE. IF A PROPER RELEASE WAS SECURED. BANNISTER: REFERENCE IS MADE TO YOUR LETTER OF APRIL 14. AS INDICATED IN THE ARMY REPORT ON THE PROTEST THAT WAS FURNISHED TO YOU. THE SUBJECT RFP WAS ISSUED IN FURTHERANCE OF THAT DECISION AND DETERMINATION. PROPOSALS WERE SOLICITED ON AN ALTERNATE BASIS. FIVE FIRMS RESPONDED WITH PROPOSALS THAT WERE EVALUATED AS FOLLOWS: NHA $1. 195.43 THE ONLY OFFEROR WHO WAS EVALUATED AS HAVING SUBMITTED A DIFFERENT PRICE FOR THE ALTERNATE WAS LOCKHEED. WHOSE ALTERNATE WAS EVALUATED AT $1.

B-171381(1), JUN 3, 1971

BID PROTEST - BID RESPONSIBILITY DECISION DENYING PROTEST BY THIRD LOW BIDDER AGAINST AWARD OF A CONTRACT TO LOW BIDDER NHA, INC., UNDER AN RFP ISSUED BY THE ARMY AVIATION SYSTEMS COMMAND FOR MAINTENANCE AND BATTLE DAMAGE REPAIR OF AIRCRAFT WITHIN THE REPUBLIC OF VIETNAM. THE CONTRACT PROVISION REQUIRING "EXTENSIVE EXPERIENCE" IS A MATTER RELATING TO RESPONSIBILITY RATHER THAN RESPONSIVENESS, AND EVEN IF SUCCESSFUL BIDDER FAILED TO MEET THE LITERAL RESPONSIBILITY REQUIREMENTS, THE CONTRACTING OFFICIALS WERE SATISFIED THAT THE OFFEROR WAS IN FACT RESPONSIBLE. ALSO, THE MILITARY ASSISTANCE COMMAND, VIETNAM DIRECTIVE DID NOT PROHIBIT SUCCESSFUL OFFEROR FROM HIRING EMPLOYEES OF INCUMBENT CONTRACTORS, IF A PROPER RELEASE WAS SECURED.

TO MR. DAN R. BANNISTER:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 14, 1971, AND PRIOR CORRESPONDENCE, PROTESTING AGAINST THE AWARD OF A CONTRACT TO NHA, INC., UNDER REQUEST FOR PROPOSALS (RFP) NO. DAAJ01-71-R-0144(P9R), ISSUED BY THE UNITED STATES ARMY AVIATION SYSTEMS COMMAND (AVSCOM), ST. LOUIS, MISSOURI.

THE SUBJECT RFP, ISSUED ON SEPTEMBER 18, 1970, SOLICITED OFFERS FOR PERFORMING WITHIN THE REPUBLIC OF VIETNAM MAINTENANCE AND BATTLE DAMAGE REPAIR OF AIRCRAFT BY CONTRACTOR FIELD TEAMS. IN THE PAST, THESE SERVICES HAD BEEN SECURED BY AVSCOM FROM DYNALECTRON, LEAR SIEGLER, INC., AND LOCKHEED AIRCRAFT SERVICES CORPORATION UNDER A SEPARATE BASIC ORDERING AGREEMENT (BOA) WITH EACH FIRM. AS INDICATED IN THE ARMY REPORT ON THE PROTEST THAT WAS FURNISHED TO YOU, THE PROCURING ACTIVITY DECIDED TO DISPENSE WITH SEPARATE AGREEMENTS AND TO MAKE AN AWARD FOR ALL THE SERVICES TO ONE CONTRACTOR BASED ON A DETERMINATION THAT IT WOULD RESULT IN BETTER MANAGEMENT AND WOULD FACILITATE CONTRACT ADMINISTRATION, INCLUDING CHANGES WHICH MIGHT RESULT FROM DEESCALATION AND VIETNAMIZATION. THE SUBJECT RFP WAS ISSUED IN FURTHERANCE OF THAT DECISION AND DETERMINATION.

PROPOSALS WERE SOLICITED ON AN ALTERNATE BASIS, AND FIVE FIRMS RESPONDED WITH PROPOSALS THAT WERE EVALUATED AS FOLLOWS:

NHA $1,833,526.80

LEAR SIEGLER, INC. 1,886,528.40

DYNALECTRON 1,947,161.64

LOCKHEED 1,957,419.48

QUALITRON 2,077,195.43 THE ONLY OFFEROR WHO WAS EVALUATED AS HAVING SUBMITTED A DIFFERENT PRICE FOR THE ALTERNATE WAS LOCKHEED, WHOSE ALTERNATE WAS EVALUATED AT $1,938,033.96.

NEGOTIATIONS WERE HELD WITH ALL FIVE OFFERORS BETWEEN NOVEMBER 3 AND 10, 1970. PRIOR TO THE CLOSE OF NEGOTIATIONS, NHA REVISED ITS PROPOSAL DOWNWARD. THE REVISED PRICE PROPOSAL WAS EVALUATED AT $1,796,069.52. NOVEMBER 27, 1970, A CONTRACT TO COMMENCE ON JANUARY 1, 1971, WAS AWARDED TO NHA.

THE CRUX OF YOUR PROTEST IS THAT NHA WAS NOT A "RESPONSIVE" OR "RESPONSIBLE" OFFEROR UNDER THE CRITERIA IN D2A OF THE RFP, WHICH PROVIDED AS FOLLOWS:

"D. 2 - PROPOSER'S QUALIFICATIONS AND EVALUATION

"A. PROPOSERS SHOULD HAVE EXTENSIVE EXPERIENCE IN MANAGEMENT AND ADMINISTRATION OF LARGE NUMBERS OF THE TYPE DIRECT EMPLOYEES REQUIRED TO PROVIDE MAINTENANCE, INSPECTION, MODIFICATION, REPAIR AND OVERHAUL OF ARMY 'MISSION ESSENTIAL' WEAPON/AIRCRAFT SYSTEMS (FIXED AND ROTARY WING), AIRCRAFT SYSTEMS COMPONENTS AND/OR SUPPORT EQUIPMENT. FIELD TEAMS SHALL WORK AT MILITARY LOCATIONS WITHIN THE REPUBLIC OF VIETNAM (RVN). SERVICES TO BE PERFORMED DEMAND SKILLED CRAFTSMEN, QUALIFIED INSPECTORS AND TEAM SUPERVISORS. TYPICAL SKILLS REQUIRED ARE AS SHOWN IN SECTION F, PARAGRAPH 5, OF THIS RFP. PROPOSERS MUST POSSESS AN ADEQUATE TECHNICAL AND FINANCIAL MANAGEMENT ORGANIZATION TO INSURE SATISFACTORY PERFORMANCE OF WORK REQUIREMENTS, AND MUST HAVE A SATISFACTORY RECORD OF PREVIOUS ACCOMPLISHMENT OF WORK OF THE TYPE DESCRIBED ABOVE. PROPOSERS MUST HAVE THE CAPABILITY TO IMMEDIATELY COMMENCE PLACEMENT OF WORKERS, AND BE CAPABLE OF HAVING ALL WORKERS IN RVN AND AT ASSIGNED WORK SITES WITHIN THIRTY (30) DAYS AFTER AWARD OF CONTRACT, AND THE FINANCIAL ABILITY TO SUPPORT THIS CONTRACT UNTIL PAYMENTS ARE RECEIVED PURSUANT TO THE PAYMENTS CLAUSE." SPECIFICALLY, YOU STATE THAT NHA, INCORPORATED IN 1968, HAD ONLY HAD A SMALL CONTRACT FOR MODIFICATION WORK ON HELICOPTERS WITH A SMALL WORK FORCE AT HUNTER FIELD, GEORGIA, AND THAT THIS EXPERIENCE COULD NOT QUALIFY NHA AS RESPONSIVE TO THE "EXTENSIVE EXPERIENCE" REQUIREMENT IN SECTION D2A.

HOWEVER, THE EXPERIENCE REQUIREMENT IN SECTION D2A IS A MATTER RELATING TO RESPONSIBILITY RATHER THAN RESPONSIVENESS. 45 COMP. GEN. 4 (1965). THIS REGARD, OUR OFFICE HAS HELD THAT THERE IS NO REQUIREMENT THAT AN OFFEROR FAILING TO MEET THE LITERAL RESPONSIBILITY REQUIREMENTS OF A SOLICITATION BE REJECTED WHEN THE CONTRACTING OFFICIALS ARE SATISFIED THAT THE OFFEROR IS IN FACT RESPONSIBLE. 49 COMP. GEN. 9 (1969). THUS, EVEN IF NHA DID NOT MEET THE "EXTENSIVE EXPERIENCE" REQUIREMENT IN SECTION D2A, SUCH FACT IS NOT PERSUASIVE SINCE NHA WAS DETERMINED TO BE RESPONSIBLE TO PERFORM THE CONTRACT.

NONETHELESS, YOU CONTEND THAT NHA WAS NOT A RESPONSIBLE PROSPECTIVE CONTRACTOR BECAUSE OF THE LACK OF SUFFICIENT KEY NHA MANAGEMENT PERSONNEL FOR THE PERFORMANCE OF THE TYPE OF CONTRACT INVOLVED. HOWEVER, IN THE CONTRACTING OFFICER'S JUDGMENT, THE EXPERIENCE OF MANAGEMENT PERSONNEL AND THE BELIEF THAT THEY WOULD BE ABLE TO OBTAIN OTHER EXPERIENCED MANAGEMENT PERSONNEL FROM THE INCUMBENT CONTRACTORS, SUPPORTED ALSO BY A PREAWARD SURVEY REPORT THAT NHA HAD AN INTIMATE KNOWLEDGE OF THE MANAGEMENT REQUIREMENTS AND THE ABILITY TO OBTAIN REQUIRED MAINTENANCE TEAMS ON SITE BY JANUARY 1, 1971, WAS SUFFICIENT TO DEMONSTRATE THE RESPONSIBILITY OF NHA. ALTHOUGH YOU HAVE STATED THAT THREE OF THE MANAGEMENT PERSONNEL MISSTATED THEIR EXPERIENCE, THE CONTRACTING OFFICER DID NOT BASE THE DETERMINATION OF RESPONSIBILITY ON THOSE MEN ALONE, WHO CONSTITUTED A SMALL PART OF A LARGE MANAGEMENT TEAM. FURTHER, IT HAS BEEN REPORTED THAT NHA IS PERFORMING THE CONTRACT SATISFACTORILY. THUS, IT APPEARS, AS A MATTER OF FACT, THAT THE CONTRACTOR IS RESPONSIBLE. MOREOVER, YOU HAVE NOT FURNISHED ANY EVIDENCE THAT WOULD HAVE ESTABLISHED BEFORE AWARD THAT NHA WAS INCAPABLE OF PERFORMING THE CONTRACT.

ALSO, SINCE THE QUESTION OF RESPONSIBILITY IS A MATTER OF JUDGMENT, IT IS AN AREA IN WHICH REASONABLE MEN MAY REACH DIFFERENT CONCLUSIONS. THUS, OUR OFFICE HAS SUSTAINED A SITUATION WHERE, FOR THE SAME TYPE OF CONTRACT, AT APPROXIMATELY THE SAME TIME AND BASED ON THE SAME INFORMATION, THE SAME BIDDER HAD BEEN ACCEPTED AS RESPONSIBLE BY ONE AGENCY AND REJECTED BY ANOTHER. 39 COMP. GEN. 468, 472 (1959).

YOU HAVE ALSO RAISED THE ISSUE OF THE ADEQUACY OF THE CONTRACTING OFFICER'S DETERMINATION OF NHA'S FINANCIAL RESPONSIBILITY. FINANCIAL CAPABILITY WAS ONE OF THE FACTORS CONSIDERED BY THE CONTRACTING OFFICER UNDER PARAGRAPH 1-903.1 OF THE ARMED SERVICES PROCUREMENT REGULATION. SINCE THE CONTRACTING OFFICER HAD BEFORE HIM A CASH FLOW STATEMENT FROM NHA AND LETTERS FROM THE NATIONAL BANK OF COMMERCE, DALLAS, TEXAS, AND THE CHASE MANHATTAN BANK, NEW YORK, OFFERING TO FURNISH FINANCING TO NHA ON THE CONTRACT, WE CANNOT CONCLUDE THAT THERE WAS NOT AN ADEQUATE FACTUAL BASIS FOR THE DETERMINATION OF FINANCIAL RESPONSIBILITY. SEE, IN THIS REGARD, LITCHFIELD MANUFACTURING CORPORATION V UNITED STATES, 338 F. 2D 94, 98-99 (1964).

YOU HAVE ALSO CONTENDED THAT NHA WOULD NOT BE ABLE TO BEGIN PERFORMANCE IN VIETNAM ON JANUARY 1, 1971. THE CONTRACTING OFFICER DETERMINED BEFORE AWARD THAT THE LABOR SITUATION WAS SUCH THAT BETWEEN INCUMBENT CONTRACTOR PERSONNEL WHO WOULD BE RELEASED AND EMPLOYEES AVAILABLE IN THE UNITED STATES, NHA WOULD BE ABLE TO HIRE THE NUMBER OF PERSONNEL REQUIRED AND HAVE THEM READY TO WORK IN VIETNAM BY THE REQUIRED DATE. THE CONTRACTING OFFICER'S DETERMINATION DOES NOT APPEAR TO HAVE BEEN UNREASONABLE SINCE THE DEPARTMENT OF THE ARMY HAS REPORTED THAT AS OF JANUARY 2, 1971, NHA HAD 1,940 PERSONNEL ON THE JOB. OF THESE, 1,186 WERE HIRED WITHIN VIETNAM AND 754 PERSONNEL WERE BROUGHT IN FROM THE UNITED STATES.

THE POINT HAS BEEN RAISED THAT NHA IN RECRUITING CIVILIAN PERSONNEL IN VIETNAM VIOLATED MILITARY ASSISTANCE COMMAND, VIETNAM (MACV) DIRECTIVE 690 -5, DATED SEPTEMBER 11, 1970. THIS DIRECTIVE, DEALING WITH THE EMPLOY OF THE GOVERNMENT OF VIETNAM OR IN THE EMPLOY OF ANOTHER UNITED STATES AGENCY OR UNITED STATES-INVITED CONTRACTOR UNLESS SUCH WORKER COULD PRESENT A WRITTEN RELEASE FROM HIS PRESENT OR FORMER EMPLOYER. IN THAT CONNECTION, IT IS NOTED THAT THE MACV DIRECTIVE DOES NOT ABSOLUTELY PRECLUDE THE USE OF ANOTHER EMPLOYER'S PERSONNEL. IT PROVIDES THAT EMPLOYERS WILL ISSUE EMPLOYMENT RELEASES TO EMPLOYEES WHO ARE BEING TERMINATED FOR THE CONVENIENCE OF THE EMPLOYER OR WHO HAVE COMPLETED THEIR CURRENT EMPLOYMENT AGREEMENT AND ARE UNDER NO FURTHER CONTRACTUAL AGREEMENT. THUS, NHA WAS NOT PRECLUDED FROM HIRING EMPLOYEES OF INCUMBENT CONTRACTORS IF THE CONDITIONS OF MACV WERE MET. IN THAT REGARD, THE DIRECTIVE PRECLUDES THE "HIRING" OF ANOTHER EMPLOYER'S PERSONNEL WITHOUT PROPER RELEASES. THERE IS, HOWEVER, NOTHING IN THE DIRECTIVE THAT PRECLUDES ONE EMPLOYER FROM SOLICITING THE EMPLOYEES OF ANOTHER EMPLOYER FOR EMPLOYMENT. FURTHER, IT IS OUR UNDERSTANDING THAT ALL IMPROPERLY EMPLOYED PERSONS WERE DISMISSED AND RETURNED TO THE UNITED STATES BY NHA IN ACCORDANCE WITH THE MACV DIRECTIVE.

ALTHOUGH YOU HAVE SUBMITTED INFORMATION IN THE FORM OF NEWSPAPER ARTICLES INDICATING PAYROLL DIFFICULTIES BEING ENCOUNTERED BY NHA EMPLOYEES DURING THE PERFORMANCE OF THE PRESENT CONTRACT, SUCH INFORMATION DOES NOT AFFECT THE ORIGINAL FINDING OF RESPONSIBILITY MADE BY THE CONTRACTING OFFICER. IN THIS CONNECTION, IN B-169596, JULY 14, 1970, IT WAS STATED:

"WHILE A CONTRACTING OFFICER'S JUDGMENT IN ANY PARTICULAR CASE MAY PROVE TO BE MISTAKEN IN THE LIGHT OF SUBSEQUENT EVENTS, THE ISSUE THEN BECOMES ONE OF ADMINISTERING AN EXISTING, LEGALLY SUFFICIENT CONTRACT, BUT SUCH TURN OF EVENTS DOES NOT RETROACTIVELY AFFECT THE VALIDITY OF THE ORIGINAL CONTRACT-AWARD ACTION. *** "

IN VIEW OF THE FOREGOING, THE PROTEST IS DENIED.