B-172061(1), AUG 24, 1971

B-172061(1): Aug 24, 1971

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THE CONTRACTING OFFICER DETERMINED THAT LSI WAS A NONRESPONSIBLE BIDDER BASED UPON FINDINGS BY THE DALLAS PREAWARD SURVEY BOARD. THE RESPONSIBILITY OF A BIDDER IS PRIMARILY FOR DETERMINATION BY THE CONTRACTING AGENCY. GAO WILL NOT OVERTURN THE ADMINISTRATIVE DETERMINATION ABSENT A SHOWING OF BAD FAITH. INCORPORATED: REFERENCE IS MADE TO YOUR TELEFAX DATED MARCH 3. THE SUBJECT SOLICITATION WAS ISSUED ON OCTOBER 5. THE RFQ CAUTIONED OFFERORS THAT THIS "FIVE-YEAR POLICY" WAS MERELY A TENTATIVE PLAN AND THE GOVERNMENT DID NOT THEREBY OBLIGATE ITSELF TO IMPLEMENT THE "FIVE-YEAR POLICY" OR ANY PART OF IT AT THE TIME OF THE SOLICITATION OR THEREAFTER UNLESS THE RFQ OR A SUBSEQUENT CONTRACT WAS APPROPRIATELY AMENDED.

B-172061(1), AUG 24, 1971

BID PROTEST - NONRESPONSIBLE BIDDER DENIAL OF PROTEST BY LEAR SIEGLER, INCORPORATED (LSI) AGAINST THE AWARD OF A CONTRACT FOR THE "INSPECTION AND REPAIR AS NECESSARY" OF C 130 AIRCRAFT UNDER AN RFQ ISSUED BY THE WARNER ROBINS AIR MATERIEL AREA. THE CONTRACTING OFFICER DETERMINED THAT LSI WAS A NONRESPONSIBLE BIDDER BASED UPON FINDINGS BY THE DALLAS PREAWARD SURVEY BOARD, AND THE FAILURE OF LSI TO MEET THE EXPERIENCE REQUIREMENTS OF THE DEMONSTRATION OF RESPONSIBILITY PROVISION. THE RESPONSIBILITY OF A BIDDER IS PRIMARILY FOR DETERMINATION BY THE CONTRACTING AGENCY, AND GAO WILL NOT OVERTURN THE ADMINISTRATIVE DETERMINATION ABSENT A SHOWING OF BAD FAITH, OR THE ABSENCE OF REASONABLE BASIS. IN THIS CASE, THE CONTRACTING OFFICER HAD BEFORE HIM INFORMATION AND INFORMED OPINION WITH RESPECT TO LSI'S MANAGEMENT AND EXPERIENCE WHICH WOULD SUPPORT THE DETERMINATION OF

TO LEAR SIEGLER, INCORPORATED:

REFERENCE IS MADE TO YOUR TELEFAX DATED MARCH 3, 1971, AND LETTER DATED MARCH 9, 1971, WITH ATTACHMENTS, AND SUBSEQUENT CORRESPONDENCE, PROTESTING THE AWARD OF A CONTRACT FOR THE "INSPECTION AND REPAIR AS NECESSARY" OF A NUMBER OF C-130 AIRCRAFT UNDER REQUEST FOR QUOTATIONS (RFQ) NO. F09603-71- Q-0138, ISSUED BY THE WARNER ROBINS AIR MATERIEL AREA (WRAMA), ROBINS AIR FORCE BASE, GEORGIA, TO AERO CORPORATION OF LAKE CITY, FLORIDA.

THE SUBJECT SOLICITATION WAS ISSUED ON OCTOBER 5, 1970, FOR THE PROCUREMENT OF SERVICES TO "INSPECT AND REPAIR AS NECESSARY (IRAN)" AND RELATED MAINTENANCE AND MODIFICATION FOR 21 TO 100 AIRCRAFT. ADDITIONALLY, THE RFQ INCLUDED A "FIVE-YEAR POLICY" WHICH INFORMED OFFERORS THAT THE GOVERNMENT INTENDED TO CONTINUE THE IRAN ON THE C-130 AIRCRAFT WITH THE SAME CONTRACTOR PROVIDED THAT (1) THE CONTRACTOR HAD RENDERED SATISFACTORY SERVICE DURING THE PRECEDING PERIOD, (2) A VALID REQUIREMENT EXISTED FOR THE CONTINUATION OF THE SERVICES, (3) THE INCUMBENT CONTRACTOR HAD THE CAPABILITY TO PERFORM SUCH FOLLOW-ON CONTRACTS, AND (4) BOTH PARTIES WOULD AGREE WITH REGARD TO PRICE FOR EACH FOLLOW-ON YEAR. THE RFQ CAUTIONED OFFERORS THAT THIS "FIVE-YEAR POLICY" WAS MERELY A TENTATIVE PLAN AND THE GOVERNMENT DID NOT THEREBY OBLIGATE ITSELF TO IMPLEMENT THE "FIVE-YEAR POLICY" OR ANY PART OF IT AT THE TIME OF THE SOLICITATION OR THEREAFTER UNLESS THE RFQ OR A SUBSEQUENT CONTRACT WAS APPROPRIATELY AMENDED.

THE ORIGINAL CLOSING DATE FOR THE SUBMISSION OF OFFERS WAS NOVEMBER 4, 1970. MODIFICATION NO. 0001 TO THE RFQ EXTENDED THAT DATE UNTIL NOVEMBER 9, 1970. PROPOSALS RECEIVED ON OR BEFORE THE CLOSING DATE WERE EVALUATED BY THE PROCURING ACTIVITY. ON DECEMBER 2, 1970, THE RFQ WAS MODIFIED TO REQUEST FIRM PRICES FOR THE FIRST AND SECOND ANNUAL OPTIONS - I.E., THE OFFEROR WAS REQUESTED TO SUBMIT FIRM PRICES FOR EACH OF TWO CONSECUTIVE YEARS UNDER WHICH THE GOVERNMENT WOULD HAVE OPTION RIGHTS FOR BETWEEN 75 AND 112 AIRCRAFT FOR EACH OF THE OPTION YEARS; FOR THE TWO YEARS FOLLOWING THE SECOND OPTION THE PARTIES WOULD REVERT TO THE "FIVE-YEAR POLICY" AS SET FORTH IN THE ORIGINAL RFQ.

OF THE FIVE OFFERS SUBMITTED, THE ONE FROM LEAR SIEGLER, INCORPORATED (LSI), WAS EVALUATED LOWEST, FOLLOWED IN ORDER BY THOSE FROM AERO CORPORATION, AND LING TEMPCO VAUGHT ELECTROSYSTEMS, INCORPORATED (LTVE).

A PRE-AWARD SURVEY (PAS) WAS CONDUCTED ON LSI DURING THE PERIOD JANUARY 20-23, 1971. THE SURVEY TEAM INCLUDED PERSONNEL FROM BOTH DCASD BIRMINGHAM, ALABAMA, AND WRAMA. THE INITIAL PRE-AWARD SURVEY CONTAINED FAVORABLE FINDINGS REGARDING LSI'S CAPABILITY, BUT RECOMMENDED WITHHOLDING AWARD ON THE BASIS THAT EXISTING FACILITIES UNDER THE CONTROL OF LSI WERE NOT SUFFICIENT TO SATISFY THE NEEDS OF THE GOVERNMENT. THE PAS FILE ALSO INCLUDED A DOCUMENT DATED JANUARY 25, 1971 (PAS FILE PAGES 42-43) WHICH STATES:

"IN ADDITION TO THE SURVEY COMMENTS, THE WRAMA MANAGEMENT SURVEY TEAM IS OF THE OPINION THAT THE PROPOSED LSI MANAGEMENT PROPOSAL FOR THE C 130 EFFORT IS WEAK IN THE AREA OF PLANNING. IT IS APPARENT THAT NOT ENOUGH FORESIGHT & INGENUITY WAS EXERTED TOWARD SATISFYING THE PROGRAM PROPOSAL, PARTICULARLY IN THE AREA OF BACK UP SHOPS AND SUPPORT. SINCE THIS AREA IS OF UTMOST IMPORTANCE IT COULD BE THE FACTOR THAT WILL PERMIT THE CONTRACTOR TO EITHER SATISFY OR FAIL ON ANY RESULTANT PROGRAM OF THE MAGNITUDE ANTICIPATED. EVEN THOUGH LSI DID NOT PRESENT A PROGRAM THAT REFLECTED DUE CONSIDERATION TO ALL ASPECTS TO BE ENCOUNTERED IT APPEARS THAT ASSETS ARE AVAILABLE THAT COULD BE UTILIZED MORE EFFECTIVELY THAN THAT PROPOSED. IN THE EVENT OF AN AWARD TO THIS FIRM, IT WILL BE ESSENTIAL THAT PERSONNEL ASSIGNED TO ADMINISTER A CONTRACT BE COMPLETELY AWARE OF THESE FACTORS & PLACE SPECIAL EMPHASIS IN THE AREA OF CONTRACT MANAGEMENT. IN ADDITION, COGNIZANT WRAMA MANAGEMENT PERSONNEL WILL BE APPRISED OF THIS AREA TO ENSURE COMPLETE AWARENESS BY ALL GOVT. PARTIES CONCERNED."

A DOCUMENT ENTITLED, "ADDENDUM NUMBER ONE, LEAR SIEGLER PRE-AWARD SURVEY C-130 AIRCRAFT, RFQ F09603-71-Q-0138, S/N53702A110065C," ISSUED JANUARY 27, 1971, PROVIDED ADDITIONAL INFORMATION REGARDING THE LSI PAS AND RECOMMENDED COMPLETE AWARD TO LSI AS FOLLOWS:

"1. AS SET FORTH IN SECTION XI, PAGE 3, OF PRE-AWARD SURVEY FORM DD 1524 -1, LSI HAD TO SUPPLY THE PAS TEAM WITH ADDITIONAL EVIDENCE OF ABILITY TO PROVIDE ABOUT 100,000 SQ. FT. OF ADDITIONAL HANGER/PAINT FACILITIES SPACE.

"2. ENCLOSURES 1 AND 2 TO THIS ADDENDUM ARE A LETTER FROM THE CITY OF MOBILE DATED 26 JANUARY 1971, TO LSI AND A LETTER FROM LSI TO THE GOVERNMENT DATED 26 JANUARY 1971, THAT SATISFIES THE PAS TEAM THAT LSI CAN ACQUIRE IN SUFFICIENT TIME A MAINTENANCE HANGAR WHICH WILL ACCOMMODATE 4 A/C AND PAINT FACILITIES WHICH WILL ACCOMMODATE 2 A/C.

"3. SINCE THE TIMES FOR COMPLETION OF THESE FACILITIES ARE COMMENSURATE WITH FLOW DATES SET FORTH IN THE RFQ, ALL REQUIREMENTS FOR PERFORMANCE HAVE BEEN MET BY LSI AND THE RECOMMENDATION OF 'NO AWARD' IS CHANGED TO A 'COMPLETE AWARD' FOR 23/112/112 A/C."

THE LETTER FROM THE CITY OF MOBILE, REFERENCED IN THE ADDENDUM ABOVE, WAS SIGNED BY THE MAYOR AND TWO COMMISSIONERS OF THE CITY AND STATED:

"THIS LETTER IS TO CONFIRM OUR AGREEMENT OF JANUARY 25, 1971, ON THE CONSTRUCTION OF ADDITIONAL HANGARS ON THE BROOKLEY AIRPORT PROPERTY.

"THE CITY OF MOBILE WILL CONVEY FOR FAIR MARKET VALUE THE NECESSARY LAND REQUIRED TO SATISFY THE DIMENSIONS TO ALLOW CONSTRUCTION OF THE BUILDINGS WHICH YOU PROPOSE.

"THE CITY OF MOBILE HAS RECOMMENDED TO THE INDUSTRIAL DEVELOPMENT BOARD THAT IT ISSUE REVENUE BONDS IN THE PRINCIPAL AMOUNT OF $800,000.00; THE PROCEEDS OF WHICH WILL BE UTILIZED TOWARD THE ACQUISITION OF LAND AND THE CONSTRUCTION OF THE FACILITY.

"THE CITY OF MOBILE HAS BEEN ASSURED THAT THE PROPOSED BONDS TO BE ISSUED BY THE INDUSTRIAL DEVELOPMENT BOARD WILL BE UNDERWRITTEN BY THE INVESTMENT BANKING FIRM OF THORNTON, FARISH AND GAUNTT, INC., AT A FAIR AND REASONABLE INTEREST. THE PROPOSED BONDS WILL MATURE UNDER TEN YEAR PERIOD SECURED BY A FIRM IRREVOCABLE LEASE AGREEMENT WITH LEAR SIEGLER, INC. THE ANNUAL RENTALS WILL BE SUFFICIENT TO PAY ALL DEBT SERVICE REQUIREMENTS AND THE FEES OF THE TRUSTEE BANK. APPROVAL OF THE INDUSTRIAL DEVELOPMENT BOARD SHOULD BE ROUTINE SINCE THE ENTIRE DEBT WILL BE SATISFIED OVER THE TEN YEAR LEASE PERIOD.

"FAA, WHO WAS ALSO PRESENT DURING OUR MEETING, HAS GIVEN TENATIVE APPROVAL OF THE LOCATION, OF THE PROPOSED FACILITIES ON THE AIRPORT PROPERTY AND HAVE APPROVED OF THE FINANCING PLAN FOR THE PROJECT."

THE LSI PAS WAS FORWARDED TO THE DCASR - DALLAS, TEXAS PAS BOARD THROUGH DCASO - OKLAHOMA CITY. DD FORM 1524 DATED JANUARY 27, 1971, AT DCASO - OKLAHOMA CITY (PAS FILE, PAGE 21) RECOMMENDED "COMPLETE AWARD" TO LSI.

THE "MINUTES OF DCASR DALLAS PREAWARD SURVEY BOARD MEETING" DATED FEBRUARY 5, 1971 (PAS FILE, PAGES 2-4), REVEAL THAT THE BOARD VOTED UNANIMOUSLY TO OVER-RIDE THE RECOMMENDATION FOR AWARD OF CONTRACT SUBMITTED BY DCASD - BIRMINGHAM AND BY DCASO - OKLAHOMA CITY, AND SUBMITTED A RECOMMENDATION OF NO AWARD. THE PAS BOARD FOUND THAT THE CITY OF MOBILE'S LETTER OF JANUARY 26, 1971, CONTAINED THREE OUTSTANDING CONTINGENCIES AND CONCLUDED THERE WAS A LACK OF FACILITIES TO MEET THE BASIC REQUIREMENT FOR THE 23 AND 49 AIRCRAFT PLAN. THE BOARD ALSO CONCLUDED THAT THE LSI QUALITY ASSURANCE CAPABILITY WAS UNSATISFACTORY.

ON FEBRUARY 12, 1971, THE CONTRACTING OFFICER DETERMINED LSI TO BE NONRESPONSIBLE STATING, IN PART, AS FOLLOWS:

"4. BASED ON THE COMPLETE INPUT FROM THE PAS PARTICIPATING ACTIVITIES, INCLUDING CORRESPONDENCE FROM LEAR SIEGLER, INC., THE DCASR DALLAS PRE- AWARD SURVEY BOARD MET, REVIEWED/ANALYZED ALL SUCH INPUTS AND FOUND THAT THE 26 JAN 1971 LETTER OF ADDITIONAL COMMITMENT FROM LSI, AS REFERENCED IN PARAGRAPH 3 NEXT ABOVE, CONTAINED A LETTER FROM THE CITY OF MOBILE CONCERNING HOW THE TWO ADDITIONAL HANGARS WOULD BE MADE AVAILABLE. AS A RESULT OF THEIR REVIEW/ANALYSIS OF SAID LETTER, IT WAS FOUND THAT THREE OUTSTANDING CONTINGENCIES WERE EVIDENT THEREIN THAT LEFT SERIOUS DOUBT AS TO THE FIRMNESS OF COMMITMENTS MADE BY THE CITY OF MOBILE. BASED ON THE LACK OF CONFIRMING EVIDENCE OF THE CONTINGENCIES IN THE OFFEROR'S HANGAR CONSTRUCTION PLAN, THE DCASR DALLAS PAS BOARD CONCLUDED THAT THE AREA OF REQUIRED FACILITIES WAS NEGATIVE FOR THE BASIC CONTRACT REQUIREMENTS OF 23 AIRCRAFT. THE DCASR DALLAS PAS BOARD ALSO CONCLUDED THAT THE LEAR SIEGLER, INC. QUALITY ASSURANCE CAPABILITY WAS UNSATISFACTORY.

"5. IT WAS THE CONCENSUS OF THE MANAGEMENT SURVEY TEAM (ASSIGNED TO REVIEW THE WRAMA INDIVIDUAL TEAM MEMBER FINDINGS ON-SITE AT THE MOBILE, ALABAMA (FACILITY) THAT THE LEAR SIEGLER KEY MANAGEMENT PERSONNEL PROPOSED FOR THE C-130 EFFORT WERE WEAK IN THE AREA OF PLANNING. IT WAS APPARENT TO THE MANAGEMENT TEAM THAT NOT ENOUGH FORESIGHT AND INGENUITY WERE EXERTED TOWARD SATISFYING THE PROGRAM PROPOSED, PARTICULARLY IN THE AREA OF BACKUP SHOPS AND SUPPORT. BASED ON THE MAGNITUDE OF EFFORT ANTICIPATED TO BE REQUIRED IN THESE AREAS, THIS FACTOR WILL BE OF UTMOST IMPORTANCE IN THE SUCCESSFUL OPERATION OF THE C-130 IRAN PROGRAM."

THE RECORD CONTAINS DOCUMENTATION IN ADDITION TO THE JANUARY 26, 1971, LETTER FROM THE CITY OF MOBILE (QUOTED ABOVE), CONFIRMING AND AMPLIFYING THE COMMITMENTS INVOLVED IN CONSTRUCTING THE FACILITIES. IN VIEW THEREOF, WE HAVE SERIOUS QUESTION AS TO THE CORRECTNESS OF THE CONCLUSIONS REACHED BY DCASR-DALLAS AND THE CONTRACTING OFFICER IN THIS REGARD. HOWEVER, WE NEED NOT PASS ON THIS ISSUE SINCE WE BELIEVE THE ISSUE DISCUSSED BELOW IS DISPOSITIVE OF THE CONTROVERSY.

IT IS THE POSITION OF THE AIR FORCE THAT LSI DID NOT MEET THE REQUIREMENTS OF THE DEMONSTRATION OF RESPONSIBILITY PROVISION AS PROVIDED ON PAGES 10 AND 11 OF THE RFQ. SPECIFICALLY, WITH RESPECT TO EXPERIENCE, THE RFQ REQUIRED IN SECTION C-16, PARAGRAPH (B), THAT THE OFFEROR SUBMIT DOCUMENTATION TO AFFIRMATIVELY DEMONSTRATE ITS ABILITY TO PERFORM INCLUDING QUALIFICATIONS OF MANAGEMENT, PRIOR EXPERIENCE AND PARTICULARLY A SHOWING THAT THE OFFEROR HAD SUCCESSFULLY PERFORMED WORK OF COMPARABLE DIFFICULTY IN AN AIRCRAFT PROGRAM REQUIRING THE SERVICES OF A FULL TIME FACILITY MANAGER, A PROPERTY ADMINISTRATOR, FUNDS ADMINISTRATOR, CHIEF OF PRODUCTION AND QUALITY ASSURANCE CONTROLLER.

THE CONTRACTING OFFICER STATES THAT A POTENTIAL CONTRACTOR MUST HAVE HAD EXPERIENCE ON A PROGRAM COMPARABLE TO THE C-130 IRAN PROGRAM - I.E., A FOUR-ENGINE AIRCRAFT OF A COMPARABLE QUANTITY REQUIRING A FULL TIME FACILITY MANAGER, CHIEF OF PRODUCTION, ETC. THE CONTRACTING OFFICER STATES FURTHER THAT THE CONTRACTOR MUST HAVE OPERATED A FIXED FACILITY WHICH PERFORMED SATISFACTORILY A PROGRAM OF THE SIZE AND MAGNITUDE OF THE C- 130. IN THIS CONNECTION, HE NOTES THAT DESPITE THE LARGE NUMBER OF CONTRACTS PERFORMED BY LSI AS A FIELD TEAM EFFORT, THE ONLY APPRECIABLE EXPERIENCE THAT LSI POSSESSES IN A FIXED-FACILITY CONCEPT OF MAINTENANCE IS THE NAVY S-2 PROGRAM, WHICH DID NOT DEMAND THE LEVEL AND DEGREE OF EXPERTISE ESSENTIAL TO THE SUCCESSFUL OPERATION OF THE C-130 PROGRAM.

LSI CONTENDS THAT THE RFQ DOES NOT SPECIFICALLY REQUIRE THAT EXPERIENCE ON C-130 AIRCRAFT MUST HAVE BEEN PERFORMED IN A FACILITY AND STATES THAT IT HAS HAD OVER 1,577,000 MANHOURS OF FIELD-TEAM EXPERIENCE ON THE C-130 AIRCRAFT. OBVIOUSLY, THE LEVEL OF EXPERIENCE REQUIRED UNDER THE SOLICITATION WAS TO INSURE THAT THE OFFEROR HAD EXPERIENCE WHICH WOULD ENABLE IT TO EFFECTIVELY PROVIDE THE SERVICES REQUIRED. IN THIS REGARD, WE QUOTE A LETTER DATED FEBRUARY 20, 1971, FROM THE DEPUTY CHIEF, WEAPONS SYSTEMS AND MAJOR EQUIPMENT DIVISION, WRAMA:

"THIS CONFIRMS OUR DISCUSSIONS REGARDING 1,577,000 MANHOURS OF C-130 AIRCRAFT EXPERIENCE SHOWN IN THE LSI BROCHURE AND LISTED IN THE PRE AWARD SURVEY. THE C-130 EXPERIENCE REFERRED TO BY LSI DOES NOT QUALIFY AS IRAN EXPERIENCE AS REQUIRED BY THE REQUEST FOR QUOTATION. FOLLOWING ARE SOME OF THE MAJOR DIFFERENCES BETWEEN FIELD TEAM EFFORT AND IRAN AT A FIXED FACILITY.

"A. CONTRACTOR FIELD TEAM EFFORT

FIELD TEAM EFFORT IS CONTRACTED FOR BY THE AIR FORCE TO ACCOMPLISH WORK AT AN AIR FORCE INSTALLATION AND IS NORMALLY A FIELD LEVEL EFFORT AND REPRESENTS MANHOURS OF WORK BEYOND THE RESOURCES OF AN AIR FORCE BASE. FIELD LEVEL WORK IS, IN LAYMAN'S LANGUAGE, A LEVEL OF EFFORT MUCH SIMPLER, LESS COMPLEX, REQUIRING LESS SKILL AND FACILITIES THAN DOES DEPOT LEVEL. THE WORK NORMALLY WOULD INVOLVE AN URGENT MODIFICATION TO AN AIRCRAFT SUCH AS INSTALLATION OF A MODIFICATION KIT, ETC. FIELD TEAM EFFORT DOES NOT NORMALLY REQUIRE EXTENSIVE TEAR-DOWN OR DISASSEMBLY OF THE AIRCRAFT. THE WORK IS ACCOMPLISHED CONTRACTUALLY ON A T&M BASIS WHERE THE GOVERNMENT WOULD PAY THE CONTRACTOR FOR ALL EFFORT REQUIRED, I.E., FOR ALL DIRECT MANHOURS EXPENDED. THE AIR FORCE PROVIDES ALL SUPPORT INCLUDING MODIFICATION KITS, SPECIAL TOOLS, TEST EQUIPMENT AND FACILITIES. THE CONTRACTOR PROVIDES MANPOWER, INCLUDING SUPERVISION. PERSONNEL ARE EMPLOYED BY THE CONTRACTOR AS REQUIRED AND MAY NOT NECESSARILY BE FULL- TIME EMPLOYEES. THE CONTRACTOR ASSEMBLES AND HIRES PERSONNEL AS REQUIRED TO FULFILL THE REQUIREMENTS OF ANY ORDER. AGAIN, FIELD TEAM EFFORT BY NATURE IS THAT WORK WHICH DOES NOT REQUIRE DEPOT LEVEL FACILITIES FOR ACCOMPLISHMENT. FIELD TEAM WORK WOULD NOT REQUIRE ALL THE VARIOUS SKILLS NEEDED FOR IRAN. "B. INSPECT AND REPAIR AS NECESSARY - CONTRACTOR FACILITY

THIS EFFORT BY NATURE REQUIRES AIRCRAFT TO BE IN-PUT TO A CONTRACTOR FACILITY. UNDER CONTRACTOR IRAN DEPOT LEVEL FACILITIES ARE REQUIRED. THIS INCLUDES HANGARS, WASH AND STRIP RACKS, PAINT FACILITIES, TOOLS AND TEST EQUIPMENT, EXPERIENCED AND QUALIFIED WORKERS AS WELL AS MANAGEMENT AND SUPERVISION, AND THE TOTAL ADMINISTRATIVE EFFORT FOR ACCOMPLISHMENT OF THE WORK. THE CONTRACTOR UNDER A FIXED PRICE IRAN CONTRACT MUST ACCOMPLISH THE WORK WITHIN THE NUMBER OF MANHOURS BID OR ELSE HE IS IN A 'LOSS POSITION.' ACCOMPLISHMENT OF IRAN AT THE BID PRICES ESTABLISHED UNDER FIERCE COMPETITION REQUIRES A VERY EFFICIENT MANAGEMENT TEAM AS WELL AS ALL FACILITIES, EXPERIENCED WORKERS, AND A HIGH DEGREE OF EXPERTISE IN ALL THESE AREAS; OTHERWISE, HE CANNOT COMPETE. SPECIFICALLY UNDER AN IRAN CONTRACT THE AIRCRAFT IS WASHED, STRIPPED AND DISASSEMBLED. THIS INCLUDES REMOVAL OF ENGINES, PROPELLERS, LOADING GEARS, REMOVAL OF WINGS, WING PANELS, CONTROL SURFACES, LONGERONS, REPLACEMENT OF HEAVY STRUCTURAL MEMBERS, ETC. ALL THIS WORK MUST BE ACCOMPLISHED WITHIN A PRECISE TIME FRAME FOR EACH REQUIRED OPERATION IN ORDER TO MEET THE TOTAL AUTHORIZED AIRCRAFT FLOW SCHEDULE WHICH IS PREESTABLISHED BY CONTRACT. IN ADDITION, THE CONTRACTOR MUST RE-ASSEMBLE THE AIRCRAFT AFTER ALL REQUIRED REPAIRS HAVE BEEN EFFECTED. THEN THE AIRCRAFT MUST BE FUNCTIONALLY TESTED AS WELL AS FLIGHT TESTED TO ASSURE THAT ALL SYSTEMS ARE WORKING PRIOR TO ACCEPTANCE BY THE GOVERNMENT. ACCOMPLISHMENT OF IRAN PROGRAM WOULD ASSURE A FULLY-QUALIFIED WORK FORCE WAS ESTABLISHED AND IN BEING WITH ALL REQUIRED SKILLS.

"IN SUMMARY THE APPROXIMATELY 1,577,000 MANHOURS OF FIELD TEAM EFFORT SHOWN AS C-130 EXPERIENCE BY LSI AND THE PAS IN NO WAY QUALIFIES AS COMPARABLE EXPERIENCE UNDER IRAN. SATISFACTORY PERFORMANCE UNDER FIELD TEAM EFFORT IS NOT EVEN REMOTELY SIMILAR TO THE EFFORT REQUIRED OF A CONTRACTOR TO ACCOMPLISH IRAN IN A FIXED FACILITY. THE DEGREE OF EXPERIENCE, MANAGEMENT OF PRODUCTION EXPERTISE REQUIRED FOR IRAN IS NOT OR CANNOT BE ATTAINED UNDER CONTRACTOR FIELD TEAM EFFORT. AGAIN, THE FIELD TEAM EFFORT IS NOT THE SAME SKILL LEVEL AND THE WORKERS MAY BE 2500 MILES FROM THE CONTRACTOR'S PROPOSED IRAN FACILITY. EVEN IF THESE SKILLS WERE POSSIBLY AVAILABLE TO LSI IT IS UNLIKELY THAT HE COULD AFFORD TO 'PCS' A TOTAL WORK FORCE OF ABOUT 500 PEOPLE."

THE MANAGEMENT EVALUATION, WHICH WAS CONSIDERED BY AND IS ATTACHED TO THE CONTRACTING OFFICER'S DETERMINATION OF NONRESPONSIBILITY OF FEBRUARY 12, 1971, ALSO STATED IN PART, AS FOLLOWS:

" *** SPECIFICALLY, THE RFQ REQUIRED IN PART THAT A POTENTIAL CONTRACTOR MUST HAVE HAD COMPARABLE EXPERIENCE ON A PROGRAM COMPARABLE TO THE C-130 IRAN PROGRAM, I.E., 4-ENGINE AIRCRAFT OF A COMPARABLE QUANTITY AND REQUIRED FULL TIME FACILITY MANAGER, CHIEF OF PRODUCTION, ETC. AS SIMPLY STATED, THE CONTRACTOR MUST HAVE OPERATED A FIXED FACILITY WHICH PERFORMED SATISFACTORILY A PROGRAM OF THE SIZE AND MAGNITUDE OF THE C-130. LEAR SIEGLER CLEARLY DOES NOT QUALIFY UNDER THIS PROVISION. THE ONLY FIXED FACILITY EXPERIENCE BY LEAR SIEGLER WAS ON THE S-2 PROGRAM FOR THE NAVY WHICH WAS NOT COMPARABLE AND WAS NOT PERFORMED SATISFACTORILY. THE S-2 IS A SMALL 2-ENGINE NAVY AIRCRAFT RECIP ENGINE."

IN ADDITION, THE MANAGEMENT EVALUATION DISCUSSES IN CONSIDERABLE DETAIL THE DEFICIENCIES AND WEAKNESSES OF THE KEY MANAGEMENT PERSONNEL TO BE IN CHARGE OF LSI'S PROPOSED OPERATION.

THE RESPONSIBILITY OF A PROSPECTIVE CONTRACTOR IS PRIMARILY FOR DETERMINATION BY THE CONTRACTING AGENCY AND WE WILL NOT OVERTURN THE ADMINISTRATIVE DETERMINATION ABSENT A SHOWING OF BAD FAITH OR ABSENCE OF A REASONABLE BASIS. ACCORDINGLY, WE ACCEPT THE AIR FORCE'S POSITION IN THIS REGARD. ADDITIONALLY, AS ALREADY STATED, THE MANAGEMENT EVALUATION INCORPORATED IN THE DETERMINATION OF NONRESPONSIBILITY CONCLUDED THAT LSI'S KEY MANAGEMENT WAS INADEQUATE. IN VIEW OF THE AIR FORCE POSITION WITH RESPECT TO LSI'S PREVIOUS COMPARABLE EXPERIENCE AND EVALUATION OF LSI'S MANAGEMENT PERSONNEL, OUR OFFICE CANNOT CONCLUDE THAT THE CONTRACTING OFFICER'S DETERMINATION OF NONRESPONSIBILITY WAS ARBITRARY, CAPRICIOUS, OR OTHERWISE UNREASONABLE, EVEN THOUGH A MAJOR PORTION OF THE REASONS ON WHICH THE CONTRACTING OFFICER RELIED MAY HAVE BEEN INAPPROPRIATE.

IN YOUR LETTER DATED AUGUST 13, 1971, YOU RELY ON 45 COMP. GEN. 4 (1965). IN THAT CASE, WE DETERMINED THAT THE CONTRACTING OFFICER'S DECISION "WAS NOT BASED ON A COMPLETE INVESTIGATION OF LORAL'S QUALIFICATIONS, BUT RATHER UPON AN ARBITRARY DETERMINATION" THAT DID NOT APPEAR TO BE SUPPORTED OR REASONABLY SUPPORTABLE. THAT CASE ADDITIONALLY STATED AT PAGE 10:

"CERTAINLY, WHERE THERE ARE CONFLICTING SURVEYS AS TO THE QUESTION OF RESPONSIBILITY, AND OTHER FACTUAL INFORMATION AND DATA AVAILABLE, IT IS THE PREROGATIVE OF THE CONTRACTING OFFICER TO CONSIDER AND WEIGH ALL THESE EVIDENTIARY DATA AND TO MAKE THE DETERMINATION REQUIRED BY THE APPLICATION OF HIS OWN BEST JUDGMENT THERETO. HOWEVER, IN THE INSTANT CASE IT IS OUR OPINION THAT THE CONTRACTING OFFICER HAD NO SUCH CONFLICT OF SURVEYS, INFORMATION, OR DATA."

IN THE CASE AT ISSUE, UNLIKE THE CITED CASE, THE CONTRACTING OFFICER HAD BEFORE HIM WHEN MAKING HIS DETERMINATION, INFORMATION AND INFORMED OPINION WITH RESPECT TO LSI'S MANAGEMENT AND EXPERIENCE WHICH WOULD IN OUR JUDGMENT SUPPORT THE DETERMINATION OF NONRESPONSIBILITY. WE FIND THE CITED CASE DISTINGUISHABLE SINCE IN THE INSTANT SITUATION THE DATA AVAILABLE CONTAINED NEGATIVE AS WELL AS POSITIVE APPRAISALS AND INFORMATION IN THE KEY AREAS NOTWITHSTANDING THE ORIGINAL AFFIRMATIVE PRE- AWARD SURVEY RECOMMENDATION.

IN VIEW OF THE FOREGOING, WE HAVE NO BASIS TO RECOMMEND THAT THE AIR FORCE RECOMPETE THE REMAINDER OF THE IRAN OF C-130 AIRCRAFT WHICH WOULD OTHERWISE BE SUBJECT TO THE FIRST OPTION.