B-171381(2), JUN 3, 1971

B-171381(2): Jun 3, 1971

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MILLER: REFERENCE IS MADE TO YOUR TELEGRAM OF NOVEMBER 24. 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. FIVE FIRMS SUBMITTED 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. NEGOTIATIONS WERE HELD WITH ALL FIVE OFFERORS BETWEEN NOVEMBER 3 AND 10. THE REVISED PROPOSAL WAS EVALUATED AT $1. IN VIETNAM WAS AWARDED TO NHA. YOU HAVE PROTESTED THAT THE SUBJECT RFP WAS DEFECTIVE IN THAT OFFERORS WERE REQUIRED TO INCLUDE A COST FACTOR IN THEIR PROPOSALS FOR SO MANY CONTINGENCIES THAT THE TOTAL COST TO THE GOVERNMENT WILL BE INCREASED OVER THE PREVIOUSLY USED BOA DELIVERY ORDER COSTS.

B-171381(2), JUN 3, 1971

BID PROTEST - BID PREPARATION DECISION DENYING PROTEST BY SECOND LOW BIDDER AGAINST AWARD OF A CONTRACT TO 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 COMP. GEN. SEES NO LEGAL OBJECTION TO THE SOLICITATION REQUIREMENT THAT OFFERORS INCLUDE ROUNDTRIP TRANSPORTATION COSTS OF EMPLOYEES IN THEIR OFFERED RATES, NOTWITHSTANDING THE POSSIBLE DIFFICULTY OF COMPUTATION BY A FIRM IN PREPARING ITS OFFER.

TO MR. K. E. MILLER:

REFERENCE IS MADE TO YOUR TELEGRAM OF NOVEMBER 24, 1970, AND LETTER OF FEBRUARY 22, 1971, 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. 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 THE SERVICES TO ONE CONTRACTOR BASED ON A DETERMINATION THAT IT WOULD RESULT IN BETTER MANAGEMENT AND WOULD FACILITATE GOVERNMENT ADMINISTRATION AND MAKING CONTRACTUAL ADJUSTMENT OF CHANGES IN REQUIRED SERVICES RESULTING FROM DEESCALATION AND VIETNAMIZATION. THE SUBJECT RFP WAS ISSUED IN FURTHERANCE OF THAT DECISION AND DETERMINATION.

THE RFP SOLICITED PROPOSALS ON AN ALTERNATE BASIS. FIVE FIRMS SUBMITTED PROPOSALS THAT WERE EVALUATED AS FOLLOWS:

NHA $1,833,526.80

LEAR SIEGLER, INC. 1,886,528.40

DYNALECTRON CORPORATION 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 PROPOSAL WAS EVALUATED AT $1,796,069.52. ON NOVEMBER 27, 1970, A CONTRACT TO COMMENCE ON JANUARY 1, 1971, IN VIETNAM WAS AWARDED TO NHA.

YOU HAVE PROTESTED THAT THE SUBJECT RFP WAS DEFECTIVE IN THAT OFFERORS WERE REQUIRED TO INCLUDE A COST FACTOR IN THEIR PROPOSALS FOR SO MANY CONTINGENCIES THAT THE TOTAL COST TO THE GOVERNMENT WILL BE INCREASED OVER THE PREVIOUSLY USED BOA DELIVERY ORDER COSTS. FOR EXAMPLE, YOU CONTEND THAT WHILE THE PROVISIONS OF THE RFP ALLOW THE GOVERNMENT TO MAKE CHANGES IN PERSONNEL REQUIREMENTS IN THE OPTION PERIOD FROM A MAXIMUM OF 2,000 DOWN TO A MINIMUM OF 1,000 PERSONS, THE RFP DOES NOT PROVIDE THAT THE COST OF TRANSPORTING RELEASED PERSONNEL BACK TO THE UNITED STATES WILL BE REIMBURSED TO THE CONTRACTOR IN THE EVENT OF GOVERNMENT-ORDERED CHANGES IN MANPOWER. YOU ASSERT THAT THE COST OF TRANSPORTATION OF PERSONNEL BECAUSE OF GOVERNMENT-ORDERED CHANGES IN MANPOWER SHOULD HAVE BEEN MADE A REIMBURSABLE ITEM AND, BY HAVING THIS TRANSPORTATION COST AND OTHER SIMILAR CONTINGENCIES INCLUDED IN THE OFFEROR'S PROPOSAL, THE TOTAL PRICE TO THE GOVERNMENT WILL PROBABLY BE INCREASED.

ALL OFFERORS WERE AFFORDED AN OPPORTUNITY TO SUBMIT FOUR DIFFERENT COMPOSITE DIRECT HOUR RATES (1,000-1,250, 1,251-1,500, 1,501-1,750, 1,751- 2,000E AND TO NEGOTIATE OPTION RATES BEGINNING JULY 1, 1972, WITHIN REASONABLE CEILINGS, AND WE SEE NO LEGAL OBJECTION TO THE REQUIREMENT THAT OFFERORS INCLUDE ROUNDTRIP TRANSPORTATION OF THE EMPLOYEES IN THEIR OFFERED RATES. FURTHER, NONE OF THE OTHER OFFERORS TOOK EXCEPTION TO THE TRANSPORTATION REQUIREMENT, AND IT IS REPORTED THAT YOUR FIRM'S PROPOSED RATES OFFERED PERFORMANCE TO THE GOVERNMENT SUBSTANTIALLY LESS THAN THE COST TO THE GOVERNMENT UNDER PRIOR BOA'S WITH YOUR FIRM. IN ANY EVENT, WE DID NOT VIEW THE "CONTINGENCY" ASPECT IN COST AREAS AS ILLEGAL OR INVALID, NOTWITHSTANDING THE POSSIBLE DIFFICULTY OF COMPUTATION BY A FIRM IN PREPARING ITS OFFER. CF. 45 COMP. GEN. 273, 276-277 (1965). WE HAVE CONSISTENTLY HELD THAT THE DETERMINATION OF HOW BEST TO SATISFY THE GOVERNMENT'S REQUIREMENTS IS WITHIN THE AMBIT OF SOUND ADMINISTRATIVE DISCRETION, AND WE WILL NOT SUBSTITUTE OUR JUDGMENT FOR THAT OF THE AGENCY WHEN THAT DISCRETION HAS BEEN PROPERLY EXERCISED. 48 COMP. GEN. 62, 65 (1968).

YOU HAVE ALSO PROTESTED AGAINST THE AWARD OF THIS PROCUREMENT TO NHA ON THE BASIS THAT NHA WAS NOT A QUALIFIED OR EXPERIENCED OFFEROR UNDER THE REQUIREMENTS OF THE RFP. WE ARE ENCLOSING A COPY OF OUR DECISION OF TODAY TO THE DYNALECTRON CORPORATION WHEREIN WE HAVE DENIED A SIMILAR PROTEST BY DYNALECTRON.

ACCORDINGLY, YOUR PROTEST IS DENIED.