B-173199, B-172673, FEB 22, 1972

B-172673,B-173199: Feb 22, 1972

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THE RECORD CLEARLY REFUTES PROTESTANT'S CONTENTIONS THAT THE EVALUATION FACTORS WERE MISLEADING AND THAT IT WAS NOT GIVEN SUFFICIENT OPPORTUNITY TO NEGOTIATE. THERE IS NO LEGAL BASIS FOR DISTURBING THE AWARD. TO INTERFLIGHT CORPORATION: REFERENCE IS MADE TO THE TELEGRAM OF APRIL 21. FACTORS TO BE CONSIDERED IN THE EVALUATION OF OFFERS WERE LISTED IN DESCENDING ORDER OF IMPORTANCE IN SECTION J OF PART A OF THE RFQ AS FOLLOWS: "(1) AIRFRAME (A) GENERAL CONDITION (B) TOTAL HOURS (C) AD NOTES. OR X "(3) INSTRUMENTS (A) TYPE (B) DUAL OR SINGLE SYSTEM (C) MODEL (D) NUMBER OF COMPONENTS "(4) COST "(5) DELIVERY DATE" THE RFQ ALSO INCLUDED THE FOLLOWING STATEMENT: "FAILURE OF YOUR QUOTATION TO BE ACCEPTED FOR AWARD WILL NOT NECESSARILY REFLECT DEFICIENCIES.

B-173199, B-172673, FEB 22, 1972

BID PROTEST - EVALUATION CRITERIA - FAILURE TO NEGOTIATE DECISION DENYING THE PROTEST OF INTERFLIGHT CORPORATION AGAINST AWARD OF CONTRACTS TO ATLANTIC AVIATION UNDER AN RFQ ISSUED BY THE GEORGE C. MARSHALL SPACE FLIGHT CENTER OF THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION (NASA) FOR A GRUMMAN GULFSTREAM I, MODEL G-159 AIRCRAFT AND THE INSTALLATION OF A CARGO DOOR ON THAT AIRCRAFT. THE RECORD CLEARLY REFUTES PROTESTANT'S CONTENTIONS THAT THE EVALUATION FACTORS WERE MISLEADING AND THAT IT WAS NOT GIVEN SUFFICIENT OPPORTUNITY TO NEGOTIATE. FURTHER, IN NEGOTIATED PROCUREMENTS, THE CONTRACTING OFFICER MAY USE HIS DISCRETION TO MAKE AN AWARD ON THE BASIS OF FACTORS OTHER THAN PRICE. B-159032, AUGUST 1, 1966. IN THE INSTANT CASE, ATLANTIC'S SUPERIOR TECHNICAL RATING MORE THAN COMPENSATED FOR ITS SLIGHTLY HIGHER BID PRICE. ACCORDINGLY, THERE IS NO LEGAL BASIS FOR DISTURBING THE AWARD, AND THE PROTEST MUST BE DENIED.

TO INTERFLIGHT CORPORATION:

REFERENCE IS MADE TO THE TELEGRAM OF APRIL 21, 1971, AND LETTERS OF MAY 29 AND OCTOBER 6, 1971, CONCERNING YOUR PROTESTS AGAINST THE AWARD OF TWO CONTRACTS - ONE FOR A GRUMMAN GULFSTREAM I, MODEL G-159 (HEREAFTER MODEL G -159) AIRCRAFT AND THE OTHER FOR INSTALLING A CARGO DOOR ON THAT AIRCRAFT.

ON JANUARY 4, 1971, THE GEORGE C. MARSHALL SPACE FLIGHT CENTER OF THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION (NASA) ISSUED REQUEST FOR QUOTATIONS (RFQ) NO. 1-0-13-60202 FOR THE MODEL G-159. THE RFQ REQUESTED THAT QUOTATIONS BE SUBMITTED BY THE CLOSE OF BUSINESS ON JANUARY 25, 1971.

FACTORS TO BE CONSIDERED IN THE EVALUATION OF OFFERS WERE LISTED IN DESCENDING ORDER OF IMPORTANCE IN SECTION J OF PART A OF THE RFQ AS FOLLOWS:

"(1) AIRFRAME

(A) GENERAL CONDITION

(B) TOTAL HOURS

(C) AD NOTES, SERVICE AND CUSTOMER BULLETINS

COMPLIED WITH OR IMPLEMENTED

(D) AIRFRAME SERIAL NUMBER

"(2) ENGINES

(A) TOTAL HOURS

(B) HOURS TO OVERHAUL

(C) MODEL #E, H, OR X

"(3) INSTRUMENTS

(A) TYPE

(B) DUAL OR SINGLE SYSTEM

(C) MODEL

(D) NUMBER OF COMPONENTS

"(4) COST

"(5) DELIVERY DATE"

THE RFQ ALSO INCLUDED THE FOLLOWING STATEMENT:

"FAILURE OF YOUR QUOTATION TO BE ACCEPTED FOR AWARD WILL NOT NECESSARILY REFLECT DEFICIENCIES, BUT ONLY THAT ANOTHER OFFER WAS CONSIDERED TO BE MORE ADVANTAGEOUS TO THE GOVERNMENT."

OFFERS WERE RECEIVED ON TEN DIFFERENT AIRCRAFT IN RESPONSE TO THE SOLICITATION. GENERALLY, THE AIRCRAFT WERE OFFERED SUBJECT TO PRIOR SALE AND IN SOME CASES THE SAME AIRCRAFT WAS OFFERED BY MORE THAN ONE CONCERN.

A COPY OF THE ADMINISTRATIVE REPORT WAS FURNISHED TO YOU BY NASA. THE REPORT STATES THAT INITIALLY A POINT RATING PROCEDURE WAS ESTABLISHED WHICH PROVIDED A MAXIMUM OF 875 POINTS FOR AIRFRAME, ENGINES AND INSTRUMENTS, BROKEN DOWN AS FOLLOWS:

FACTOR POINTS AVAILABLE

AIRFRAME 500

ENGINES250

LEFT ENGINE 75

RIGHT ENGINE75

LEFT ENGINE TYPE 25

RIGHT ENGINE TYPE 25

LEFT PROP 25

RIGHT PROP 25

INSTRUMENTS 125

TOTAL 875

ANOTHER 125 POINTS WERE ASSIGNED TO COST AND DELIVERY DATE FOR A MAXIMUM OVERALL TOTAL OF 1,000 POINTS.

WITH RESPECT TO THE ENGINES, THE MODEL G-159 GULFSTREAM AIRCRAFT WAS ORIGINALLY BUILT WITH AN "E" TYPE ENGINE. A LATER MODIFICATION TO THE ENGINE PERMITTED THE PLANE TO CRUISE FASTER, AT HIGHER ALTITUDES WITH A HEAVIER TAKE-OFF LOAD. THESE MODIFIED ENGINES WERE DESIGNATED AS "H" ENGINES. A SUBSEQUENT MODIFICATION ADDED ANOTHER SLIGHT IMPROVEMENT; ENGINES SO MODIFIED WERE DESIGNATED AS "X" ENGINES.

THE AIRCRAFT OFFERED WERE EVALUATED BY A FOUR-MAN TEAM OF QUALIFIED PERSONNEL ON THE BASIS OF DETAILED EXAMINATIONS. CONSIDERATION WAS GIVEN TO THE AGE, CONDITION AND EQUIPMENT OF THE AIRCRAFT. FOR A MORE MEANINGFUL COST COMPARISON, THERE WAS ADDED TO THE OFFERED PRICE THE ESTIMATED COST TO NASA TO BRING ALL COMPONENTS (EXCEPT THE AIRFRAME) TO A "ZERO TIME" CONDITION INCLUDING MAKING ALL ENGINES "X" TYPE, MAKING ALL ELECTRONICS EQUIPMENT EQUAL AND PAINTING THE AIRCRAFT AND, WHERE REQUIRED, CLEANING THE WING TANKS. ON THIS BASIS SN 125, OFFERED BY ATLANTIC AVIATION, WAS EVALUATED AT AN ADJUSTED COST OF $852,725 AS COMPARED TO THE AIRCRAFT OFFERED BY YOUR FIRM, SN 132 AND SN 27 WHICH WERE EVALUATED AT $890,640 AND $845,302 RESPECTIVELY.

THE NASA REPORT STATES THE CONCLUSIONS OF THE EVALUATION TEAM AS FOLLOWS:

" *** THE EVALUATION TEAM RECOMMENDED ACQUISITION OF SN 125 BECAUSE IT WAS CONSIDERABLY HIGHER IN TECHNICAL QUALIFICATIONS THAN ANY OTHER AIRCRAFT OFFERED. SN 125 HAD 'X'-TYPE ENGINES, ELIMINATING ANY NEED FOR ENGINE CONVERSION, AND BECAUSE OF THE LOW ACCUMULATED TIME ON THE AIRFRAME, ENGINES, AND GEAR BOXES, IT WAS CONSIDERED THAT NO MAJOR INSPECTION OR OVERHAULS WOULD BE REQUIRED FOR QUITE SOME TIME. ADDITION, THE AVIONICS AND COMMUNICATION FLIGHT DIRECTOR EQUIPMENT WERE FOUND TO BE SIMILAR OR EQUAL TO CORRESPONDING EQUIPMENT IN OTHER NASA OWNED GULFSTREAMS, AND WOULD NOT REQUIRE UPDATING.

"THE OTHER TWO OF THE THREE HIGHEST-RATED AIRCRAFT WERE SN 132 AND SN 27. SN 132 HAD AN APPARENT PRICE ADVANTAGE, BUT ITS REAL COST TO THE GOVERNMENT WAS JUDGED TO BE THE HIGHEST OF THE THREE BECAUSE OF SUCH ANTICIPATED EXPENSES AS CONVERSION OF ITS 'E'-TYPE ENGINES TO 'X'-TYPE, AND EARLY OVERHAUL OF THE ENGINES NECESSITATED BY THEIR HIGH ACCUMULATED TIME. THE ALTERNATE QUOTATION OF $878,000 FOR SN 132, PROVIDING FOR 'X'- TYPE ENGINES OVERHAULED TO 'ZERO TIME', WOULD ALSO HAVE BEEN HIGHEST OF THE THREE. SN 132'S AVIONICS AND ELECTRONICS, HOWEVER, WOULD NOT REQUIRE UPDATING, AND HAD THE ADVANTAGE OF BEING EQUAL TO OR BETTER THAN CORRESPONDING NASA EQUIPMENT, AS POINTED OUT IN THE EVALUATION TEAM'S INSPECTION REPORT. SN 27 WAS GIVEN A HIGH RATING PRIMARILY BECAUSE ITS ENGINES HAD BEEN CONVERTED TO 'X'-TYPE AND BECAUSE IT HAD BEEN MAINTAINED IN EXCELLENT CONDITION. HOWEVER, THE AGE OF THE AIRFRAME (IT WAS NEXT- OLDEST OF ALL THE AIRCRAFT OFFERED) AND THE TOTAL TIME ACCUMULATED WERE NEGATIVE FACTORS WHICH OUTWEIGHED ITS SLIGHT PRICE ADVANTAGE. (AS MENTIONED ABOVE, AIRFRAME CRITERIA, THE HIGHEST-WEIGHED OF ALL, WERE NOT SUSCEPTIBLE OF INCLUSION IN THE COST ADJUSTMENT COMPARISON.) OTHER NEGATIVE FACTORS WERE THE AGE OF THE ELECTRICAL WIRING, THE LACK OF SOLID STATE AVIONICS, AND THE NEED FOR ADDITIONAL ELECTRONICS EQUIPMENT FOR NASA'S PURPOSES.

"THE EVALUATION TEAM RECOMMENDED THE PURCHASE OF SN 125 BASED ON THE CONSIDERATIONS OUTLINED ABOVE, AS SET FORTH IN ITS REPORT OF FINDINGS, WITH SN 132 AND SN 27 SECOND AND THIRD CHOICES, RESPECTIVELY. *** "

YOUR ALTERNATE PROPOSALS, ONE OFFERING AN AIRCRAFT WITH 24 SEATS INSTALLED PLUS OTHER MODIFICATIONS AND THE OTHER OFFERING THESE MODIFICATIONS IN ADDITION TO THE INSTALLATION OF A CARGO DOOR, WERE ALSO REJECTED. IN THIS REGARD NASA ADVISES THAT MODIFICATION OF THE AIRCRAFT WAS CONTEMPLATED AFTER PURCHASE IN ORDER TO MAXIMIZE COMPETITION; THEREFORE, PART A.I.A. 6 ON PAGE 2 OF THE RFQ ADVISED PROSPECTIVE CONTRACTORS THAT ALTERNATE OFFERS WOULD NOT BE CONSIDERED.

THE BASES FOR YOUR PROTEST ARE THAT THE SOLICITATION DID NOT PROVIDE SUFFICIENT INFORMATION REGARDING THE EVALUATION FACTORS; THAT NASA'S RESPONSES TO YOUR REQUESTS FOR ADDITIONAL INFORMATION WERE MISLEADING AND THAT YOU WERE NOT GIVEN A FURTHER OPPORTUNITY TO NEGOTIATE EVEN THOUGH YOUR PRICE WAS LOWER THAN THAT OF THE SUCCESSFUL OFFEROR. YOU HAVE CITED B-173333, AUGUST 26, 1971, IN SUPPORT OF YOUR POSITION.

YOUR PROTEST AGAINST THE AWARD OF A CONTRACT UNDER REQUEST FOR PROPOSALS 1-1-13-60215, ISSUED BY THE MARSHALL SPACE FLIGHT CENTER, FOR THE INSTALLATION OF THE CARGO DOOR ON THE GRUMMAN AIRCRAFT PURCHASED FROM ATLANTIC AVIATION, HINGES ON THE ASSUMPTION THAT THE AWARD OF THE CONTRACT FOR THE AIRCRAFT WILL BE FOUND INVALID.

THE RFQ IN THIS CASE ADVISED PROSPECTIVE CONTRACTORS OF THE VARIOUS FACTORS TO BE CONSIDERED IN THE EVALUATION IN DESCENDING ORDER OF IMPORTANCE AND OUR REVIEW INDICATES THAT THE EVALUATION WAS PATTERNED AFTER THE SCHEME SET FORTH IN THE RFQ. THE OMISSION OF PRECISE NUMERICAL WEIGHTS DOES NOT REFLECT ON THE ADEQUACY OF THE EVALUATION CRITERIA STATED IN THE RFQ WHERE PROSPECTIVE CONTRACTORS ARE OTHERWISE INFORMED OF THE RELATIVE WEIGHT OR IMPORTANCE ATTACHED TO EVALUATION CRITERIA. SEE B- 171609, MAY 12, 1971 (50 COMP. GEN. 788).

MOREOVER, WE HAVE NOT FOUND ANY SUPPORT IN THE RECORD TO SUBSTANTIATE YOUR CONTENTION THAT YOU WERE GIVEN MISLEADING INFORMATION REGARDING THE EVALUATION FACTORS.

ALL OFFERORS SUBMITTING ACCEPTABLE OFFERS WERE GIVEN THE OPPORTUNITY TO REVISE PRICES OR TO SUBSTITUTE AIRCRAFT AND THE RECORD INDICATES THAT YOU OFFERED REVISED PRICES AND SUBSTITUTED AIRCRAFT PURSUANT TO THIS OPPORTUNITY.

THE FOLLOWING PRINCIPLES FROM B-171580, JUNE 21, 1971, ARE APPLICABLE TO THIS PROCUREMENT:

"THE SELECTION OF THE CONTRACTOR BEST QUALIFIED FOR AWARD IN A NEGOTIATED PROCUREMENT IS TO BE MADE BY THE ADMINISTRATIVE OFFICE CONCERNED IN THE EXERCISE OF ITS SOUND JUDGMENT AS TO THE BEST INTEREST OF THE GOVERNMENT. B-149344, DECEMBER 26, 1962. UNDER FORMALLY ADVERTISED PROCUREMENTS AWARD MAY BE MADE ONLY TO THE LOWEST RESPONSIVE AND RESPONSIBLE BIDDER; HOWEVER, THIS RULE IS NOT NECESSARILY APPLIED TO NEGOTIATED PROCUREMENTS. IN THE LATTER SITUATION, THE CONTRACTING AGENCY IN ITS DISCRETION MAY RELY UPON FACTORS OTHER THAN PRICE. SEE B 155983, MARCH 31, 1965. OUR OFFICE HAS SPECIFICALLY UPHELD THE AWARD OF A NEGOTIATED CONTRACT ON THE BASIS OF FACTORS OTHER THAN PRICE. B 159032, AUGUST 1, 1966."

ATLANTIC AVIATION'S OFFER OF THE GRUMMAN SN 125 WAS SELECTED ON THE BASIS THAT THIS OFFER WAS THE MOST ADVANTAGEOUS TO THE GOVERNMENT. WHILE THE ADJUSTED PRICE OF YOUR OFFER OF THE GRUMMAN SN 27 WAS ABOUT $7,000 LOWER THAN ATLANTIC AVIATION'S ADJUSTED PRICE, THIS DIFFERENCE WAS MORE THAN OFF -SET BY THE SUBSTANTIALLY HIGHER TECHNICAL RATING ACHIEVED BY ATLANTIC AVIATION'S OFFER. IN THE CIRCUMSTANCES WE FIND NO BASIS TO QUESTION THE AWARD OF THE CONTRACT FOR THE AIRCRAFT TO ATLANTIC AVIATION.

THE DECISION CITED BY YOU, B-173333, AUGUST 26, 1971, CONCERNED A SITUATION WHERE A PROPOSAL WAS FOUND TO BE TECHNICALLY UNACCEPTABLE AND OUTSIDE THE COMPETITIVE RANGE. DISCUSSIONS WERE NOT REQUIRED WITH THE CONCERN SUBMITTING SUCH A PROPOSAL. WE DO NOT FIND THAT CASE TO BE APPLICABLE HERE.

FOR THESE REASONS, YOUR PROTEST AGAINST THE AWARD OF THE CONTRACT FOR THE AIRCRAFT IS DENIED.

THE ONLY BASIS FOR YOUR PROTEST AGAINST THE AWARD FOR THE INSTALLATION OF THE CARGO DOOR IS THAT THE CONTRACT FOR THE AIRCRAFT ITSELF WAS INVALID. SINCE THERE IS NO BASIS TO QUESTION THE VALIDITY OF THE CONTRACT FOR THE AIRCRAFT, YOUR PROTEST AGAINST THE CONTRACT FOR THE CARGO DOOR IS ALSO DENIED.