B-171776, AUG 2, 1971

B-171776, AUG 2, 1971

BID PROTEST - FAILURE TO AMEND SPECIFICATIONS DENIAL OF PROTEST BY MOHAWK AIRLINES, INC. AGAINST AWARD OF A CONTRACT FOR PILOT TRAINING UNDER AN RFP ISSUED BY THE CONTRACT DEVELOPMENT AND PLACEMENT BRANCH, FEDERAL AVIATION ADMINISTRATION (FAA) AERONAUTICAL CENTER, OKLAHOMA CITY, OKLAHOMA. IT APPEARS FROM THE RECORD THAT THE AWARD, WITHOUT A SPECIFICATIONS AMENDMENT TO THE RFP, WAS IMPROPER IN VIEW OF SECTION 1-3.805-1(D), FEDERAL PROCUREMENT REGULATIONS. HOWEVER, SINCE PROTESTANT'S COMPETITIVE POSITION WAS NOT ADVERSELY AFFECTED BY THE LACK OF AN AMENDMENT, THE COMP. GEN. IS UNABLE TO CONCLUDE THAT THE AWARD IS LEGALLY DEFECTIVE.

TO MOHAWK AIRLINES, INC.:

WE REFER TO YOUR TELEGRAM OF JANUARY 26, 1971, AND SUBSEQUENT CORRESPONDENCE, PROTESTING AWARD OF A CONTRACT FOR PILOT TRAINING TO ANOTHER FIRM UNDER REQUEST FOR PROPOSALS (RFP) AC-73-1-2445, ISSUED BY THE CONTRACT DEVELOPMENT & PLACEMENT BRANCH, FEDERAL AVIATION ADMINISTRATION (FAA) AERONAUTICAL CENTER, OKLAHOMA CITY, OKLAHOMA.

RFP AC-73-1-2445 WAS ISSUED OCTOBER 7, 1970, REQUESTING PROPOSALS ON A REQUIREMENTS BASIS FOR "ANNUAL REQUIREMENTS FOR FH-227/F-27 PILOT TRAINING." THE SCHEDULE DELINEATED THE ESTIMATED HOURS OF INSTRUCTION COMMENSURATE WITH THE REQUISITE EQUIPMENT FOR EACH PHASE OF THE TOTAL PILOT TRAINING PROGRAM FOR FAA AIR CARRIER INSPECTORS. ITEMS 2 AND 5, THE SUBJECTS OF THIS PROTEST, REQUIRED RESPECTIVELY: "FH-227/F-27 INITIAL PILOT SIMULATOR TRAINING FOR TWO (2) FEDERAL AVIATION ADMINISTRATION PILOTS (NOT TO EXCEED 10 SIMULATOR HOURS PER PILOT)." AND "FH-227/F-27 RECURRENT PILOT SIMULATOR TRAINING FOR THIRTEEN (13) FEDERAL AVIATION ADMINISTRATION PILOTS (NOT TO EXCEED 4 SIMULATOR HOURS PER PILOT)." ALSO CONTAINED IN THE RFP AT ARTICLE II, SECTION A WAS THE FOLLOWING: "ALL INSTRUCTION MUST COMPLY WITH THE CONTRACTOR'S EXISTING TRAINING PROGRAMS, COURSES, CURRICULA, MANUALS AND PRACTICES, ALL AS APPROVED BY THE FEDERAL AVIATION ADMINISTRATION."

IN RESPONSE TO THE RFP, MOHAWK AIRLINES, INC. (MOHAWK) SUBMITTED A PROPOSAL BASED ON THE UTILIZATION OF A SIMULATOR AS REQUIRED BY THE RFP, WHILE PIEDMONT AVIATION, INC. (PIEDMONT) OFFERED TO EMPLOY A COCKPIT PROCEDURES TRAINER. WE HAVE BEEN ADVISED THAT A SIMULATOR, AS DEFINED IN THE AVIATION INDUSTRY, IS AN EXACT REPLICA OF THE AIRCRAFT COCKPIT REPRODUCING FLIGHT CONDITIONS THROUGH COMPUTER CONTROLLED MOVEMENT, WITH AIRCRAFT INSTRUMENTATION RESPONSES AND HANDLING BEING DUPLICATED. THE TRAINER METHOD IS A STATIC APPROACH WITH A COCKPIT ENVIRONMENT AND CONTROL OPERATION TO IMITATE ACTUAL AIRCRAFT PROCEDURES. IT IS THE PROPOSED UTILIZATION OF THE TRAINER BY PIEDMONT THAT MOHAWK PROTESTS AS BEING NONRESPONSIVE TO THE RFP.

FROM THE RECORD, IT APPEARS THAT DURING THE COURSE OF NEGOTIATIONS, THE FAA DECIDED THAT THE PIEDMONT PROPOSAL INCORPORATING A TRAINER RATHER THAN A SIMULATOR WOULD SATISFY ITS REQUIREMENTS. ACCORDINGLY, SINCE PIEDMONT'S OFFER WAS LOW, A CONTRACT WAS AWARDED TO PIEDMONT. HOWEVER, WE NOTE THAT THE AWARDED CONTRACT DIFFERS SIGNIFICANTLY FROM THE ORIGINAL SOLICITATION. SPECIFICALLY, ITEM 2 OF THE PIEDMONT CONTRACT READS "PROVIDE FH-227/F-27 INITIAL PILOT SYNTHETIC TRAINER FOR TWO (2) FEDERAL AVIATION ADMINISTRATION PILOTS (NOT TO EXCEED 4 TRAINER HOURS PER PILOT)," AND ITEM 5 HAS BEEN CHANGED TO "PROVIDE FH-227/F-27 RECURRENT PILOT SYNTHETIC TRAINER FOR THIRTEEN (13) FEDERAL AVIATION ADMINISTRATION PILOTS (NOT TO EXCEED 1 TRAINER HOUR PER PILOT)," WHILE, AS INDICATED ABOVE, THE RFP SPECIFIED THE USE OF A SIMULATOR FOR THOSE ITEMS AND REQUIRED THAT UP TO 10 AND 4 TRAINING HOURS PER PILOT BE FURNISHED. FURTHER, IN AN INSERTION TO THE PIEDMONT CONTRACT, THE TERM "SYNTHETIC TRAINER" IS DEFINED AS HAVING "NO MOTION BASE."

CONCERNING REQUIREMENTS CHANGES SECTION 1-3.805-1(D) OF THE FEDERAL PROCUREMENT REGULATIONS (FPR) PROVIDES:

"WHEN, DURING NEGOTIATIONS, A SUBSTANTIAL CHANGE OCCURS IN THE GOVERNMENT'S REQUIREMENTS OR A DECISION IS REACHED TO RELAX, INCREASE, OR OTHERWISE MODIFY THE SCOPE OF THE WORK OR STATEMENT OF REQUIREMENTS, SUCH CHANGE OR MODIFICATION SHALL BE MADE IN WRITING AS AN AMENDMENT TO THE REQUEST FOR PROPOSALS, AND A COPY SHALL BE FURNISHED TO EACH PROSPECTIVE CONTRACTOR."

IT IS THE POSITION OF THE FAA THAT THE ACCEPTANCE OF PIEDMONT'S PROPOSAL, WHEN VIEWED IN THE CONTEXT OF THE ENTIRE TRAINING PROGRAM, DID NOT CONSTITUTE A MODIFICATION OF THE SCOPE OF WORK. TO THIS END IT IS CONTENDED THAT AN INTERPRETATION OF THE TERM "SIMULATOR" SHOULD BE THAT OF GENERAL USAGE TO INCLUDE ANY MECHANICAL DEVICE THAT PORTRAYS SOME CHARACTERISTIC OF ANOTHER OPERATIVE MECHANICAL DEVICE, THEREBY INCORPORATING THE TRAINER EMPLOYED BY PIEDMONT. IT IS A WELL ESTABLISHED PRINCIPLE, HOWEVER, THAT CONTRACT LANGUAGE IS GENERALLY TO BE INTERPRETED ACCORDING TO THE TRADE MEANING ASSOCIATED WITH A GIVEN TERM. B-168759, APRIL 15, 1970. FURTHER, WE HAVE BEEN ADVISED BY A MANUFACTURER OF FLIGHT SIMULATION EQUIPMENT THAT THE TERM, AS CURRENTLY USED IN THE AVIATION INDUSTRY, NECESSARILY IMPLIES A MOTION-BASED APPARATUS CAPABLE OF REPRODUCING THE ACTUAL IN-FLIGHT OPERATIONAL FEELINGS AND RESPONSE OF AN AIRCRAFT. IN THIS CONNECTION, THE FACT THAT THE TERM "SYNTHETIC TRAINER" WAS SUBSTITUTED IN THE PIEDMONT CONTRACT FOR THE TERM "SIMULATOR" AND THAT THE TERM WAS DEFINED THEREIN AS HAVING "NO MOTION BASE" WOULD SEEM TO INDICATE THAT BOTH FAA AND PIEDMONT RECOGNIZED THAT THE TERM "SIMULATOR" AS USED IN THE RFP WAS NOT BROAD ENOUGH TO INCLUDE A STATIC TRAINER. MUST CONCLUDE THEREFORE THAT THE ACCEPTANCE OF THE PIEDMONT PROPOSAL AS MODIFIED AMOUNTED TO A CHANGE IN THE SCOPE OF THE REQUIREMENTS AS CONTEMPLATED BY SECTION 1-3.805-1(D) OF THE FEDERAL PROCUREMENT REGULATIONS (FPR).

THEREFORE, UPON THE DETERMINATION THAT A TRAINER WAS ACCEPTABLE, IT BECAME INCUMBENT UPON THE FAA TO ADVISE OTHER OFFERORS OF THE REVISED SPECIFICATIONS IN ORDER TO PROVIDE AN OPPORTUNITY TO THOSE OFFERORS TO CONSIDER REVISION OF THEIR OFFERS BASED UPON THE SPECIFICATIONS AS REVISED. WHILE WE ARE COGNIZANT OF THE REQUIREMENT FOR FAA CERTIFICATION OF PROPOSED TRAINING PROGRAMS, THAT REQUIREMENT, IN OUR OPINION, HAS NO BEARING ON THE DUTY IMPOSED BY THE FPR SECTION QUOTED ABOVE TO MODIFY THE RFP WHERE A SPECIFICATION CHANGE OCCURS DURING NEGOTIATIONS. IN THIS CASE, THE FAILURE OF FAA TO MODIFY THE RFP PRECLUDED OTHER OFFERORS OR POTENTIAL OFFERORS FROM OFFERING ALREADY CERTIFIED SYSTEMS INCLUDING A TRAINER AS OPPOSED TO A SIMULATOR OR FROM SEEKING FAA CERTIFICATION FOR SUCH A SYSTEM FOR PURPOSES OF SUBMITTING AN OFFER UNDER THE RFP. IN THIS REGARD, WE HAVE BEEN ADVISED BY A REPRESENTATIVE OF YOUR COMPANY THAT MOHAWK POSSESSES EXISTING EQUIPMENT WHICH MAY QUALIFY TO FAA STANDARD.

ACCORDINGLY, WE CONCLUDE THAT THE AWARD, WITHOUT A SPECIFICATION AMENDMENT TO THE RFP, WAS IMPROPER AND, BY LETTER OF TODAY TO THE SECRETARY OF TRANSPORTATION, WE SUGGEST THAT APPROPRIATE STEPS BE TAKEN TO ASSURE FUTURE COMPLIANCE WITH REGULATORY REQUIREMENTS. HOWEVER, WE NOTE THAT EVEN IF YOU HAD OFFERED THE REQUESTED TRAINING UNDER ITEMS 2 AND 5 AT NO COST, YOUR PROPOSAL STILL WOULD HAVE NOT BEEN LOW. THEREFORE, SINCE YOUR COMPETITIVE POSITION WAS NOT ADVERSELY AFFECTED BY THE LACK OF AN AMENDMENT, WE ARE UNABLE TO CONCLUDE THAT THE AWARD AS MADE WAS LEGALLY DEFECTIVE.