B-174232, NOV 24, 1971

B-174232, NOV 24, 1971

BID PROTEST - BIDDER RESPONSIBILITY - MINIMUM REQUIREMENTS DECISION DENYING PROTEST OF FRIENDSHIP FLYING SERVICE AGAINST AWARD OF A CONTRACT TO BAY BRIDGE AIRPORT, INC. UNDER AN RFP ISSUED BY THE BUREAU OF NAVAL PERSONNEL FOR FLIGHT INSTRUCTION OF MIDSHIPMEN OF THE NAVAL ACADEMY TO TEST THEIR ADAPTABILITY FOR AN AVIATION CAREER. PROTESTANT CONTENDS THAT BAY BRIDGE IS A NONRESPONSIBLE OFFEROR, AS ITS FACILITIES DO NOT PROVIDE FOR INSTRUMENT FLIGHT TRAINING. DETERMINATION OF RESPONSIBILITY IS WITHIN ADMINISTRATIVE DISCRETION AND WILL BE UPHELD UNLESS BAD FAITH OR NO REASONABLE BASIS FOR THE DETERMINATION IS SHOWN. SPECIFICATIONS NEED STATE ONLY THE MINIMUM NEEDS FOR FULFILLING THE PARTICULAR CONTRACT UNDER CONSIDERATION. THE NAVY'S DETERMINATION THAT VISUAL FLIGHT TRAINING WAS ALL THAT WAS REQUESTED CANNOT, IN VIEW OF THE PURPOSE OF THE CONTRACT, BE SAID TO BE UNREASONABLE. FAILURE TO STATE THAT VISUAL FACILITIES WOULD SUFFICE IN THE RFP WAS NOT IMPROPER, AS EITHER VISUAL OR INSTRUMENT FACILITIES COULD HAVE BEEN USED.

TO FRIENDSHIP FLYING SERVICE:

REFERENCE IS MADE TO YOUR TELEGRAM AND LETTER DATED SEPTEMBER 30, 1971, PROTESTING THE AWARD OF A CONTRACT TO BAY BRIDGE AIRPORT, INC. (BAY BRIDGE) UNDER REQUEST FOR PROPOSALS (RFP) N00022-72-R-0068, ISSUED BY THE BUREAU OF NAVAL PERSONNEL (BUREAU), WASHINGTON, D.C.

IN FURTHERANCE OF THE NAVY'S AVIATION INDOCTRINATION PROGRAM, PROPOSALS WERE SOLICITED FROM THREE SOURCES TO PROVIDE PERSONNEL, AIRCRAFT, SUPPLIES, FACILITIES, INSTRUCTION, AND TRANSPORTATION AS MAY BE NECESSARY FOR FLIGHT INSTRUCTION OF MIDSHIPMEN OF THE U.S. NAVAL ACADEMY, SO THAT THE ADAPTABILITY OF THESE PERSONNEL TOWARD A NAVAL AVIATION CAREER MAY BE BETTER EVALUATED. INSTRUCTION WAS TO BE GIVEN IN TWO PHASES. PHASE A CONTEMPLATED THE INSTRUCTION OF APPROXIMATELY 200 MIDSHIPMEN. PHASE B CONTEMPLATED ADDITIONAL INSTRUCTION TO APPROXIMATELY 40 MIDSHIPMEN FROM THE ORIGINAL GROUP OF 200. THE RFP REQUIRED FIXED PRICE OFFERS ON A UNIT PRICE BASIS FOR EACH CATEGORY OF INSTRUCTION, AS WELL AS THE UNIT PRICE PER TRIP FOR TRANSPORTATION OF MIDSHIPMEN BETWEEN THE U.S. NAVAL ACADEMY AND CONTRACTOR'S PLACE OF INSTRUCTION.

YOU OBJECT TO THE AWARD OF THIS CONTRACT TO BAY BRIDGE BECAUSE YOU BELIEVE THEY ARE NOT A RESPONSIBLE OFFEROR. IN SUPPORT OF THIS POSITION YOU ALLEGE THAT BAY BRIDGE HAS INTERNAL MANAGEMENT, FINANCIAL AND OPERATIONAL PROBLEMS. FURTHERMORE, YOU INDICATE THAT SINCE THE REQUIREMENTS OF THIS CONTRACT ARE IN FURTHERANCE OF THE NAVY'S AVIATION INDOCTRINATION PROGRAM, PERFORMANCE OF THE CONTRACT SHOULD BE IN ACCORDANCE WITH THE PHILOSOPHY EXPRESSED BY THE NAVY REGARDING THE INTENT, SCOPE AND MAGNITUDE OF THIS PROGRAM, OF WHICH YOU BECAME KNOWLEDGEABLE WHEN YOU FURNISHED THE FIRST FLIGHT TRAINING PROGRAM FOR THE U.S. NAVAL ACADEMY. IT IS YOUR BELIEF THAT THIS PHILOSOPHY CONTEMPLATED A PROGRAM OF INSTRUMENT FLIGHT TRAINING. YOU THEREFORE CONTEND THAT THE AIRPORT, AND THE SUPPORT FACILITIES, TO BE USED BY BAY BRIDGE IN CARRYING OUT THE SPECIFIC TRAINING REQUIRED BY THE CONTRACT DO NOT SATISFY THIS POLICY CONSIDERATION BECAUSE THEIR AIRPORT FACILITY CONSISTS OF ONLY A SINGLE RUNWAY, WITH UNCONTROLLED AIR SPACE AND MARGINAL APPROACHES. FURTHER, THE AIRPORT HAS NO NAVIGATION AIDS INCLUDING A CONTROL TOWER NOR FIRE FIGHTING EQUIPMENT.

YOU NOTE THAT IN THE PERFORMANCE OF THIS CONTRACT YOU WOULD CONDUCT FLIGHT TRAINING AT A CONTROLLED FACILITY WITH MULTI-RUNWAYS, MODERN NAVIGATIONAL AIDS INCLUDING RADAR, AN INSTRUMENT LANDING SYSTEM, A CONTROL TOWER, WEATHER INFORMATION, GROUND SUPPORT AND FULL EMERGENCY EQUIPMENT AS EMPLOYED ON ALL MILITARY FACILITIES. YOU CONTEND THAT YOUR USE OF A FULLY CONTROLLED FACILITY, PROPERLY EQUIPPED AIRCRAFT TO FLY IN SUCH A SYSTEM AND HIGHER PAID FLIGHT INSTRUCTORS, ALONG WITH YOUR ONE YEAR OF EXPERIENCE IN THE NAVY'S AVIATION INDOCTRINATION PROGRAM, ARE WORTH THE DIFFERENCE BETWEEN YOUR OFFER AND THE LOWER OFFER BY BAY BRIDGE.

THE TERM "RESPONSIBLE BIDDER" REFERS TO THE POTENTIAL ABILITY OF A BIDDER OR OFFEROR TO PERFORM SUCCESSFULLY UNDER THE TERMS OF A PROPOSED CONTRACT. THE DETERMINATION OF WHETHER A BIDDER IS RESPONSIBLE IS REQUIRED TO BE MADE BY THE CONTRACTING AGENCY, AND SUCH DETERMINATIONS WILL BE ACCORDED FINALITY BY OUR OFFICE IN THE ABSENCE OF A CLEAR SHOWING OF BAD FAITH OR LACK OF A REASONABLE BASIS THEREFOR. B 167782(1), DECEMBER 2, 1969.

IN THE INSTANT CASE, THE BUREAU DETERMINED THAT BAY BRIDGE WOULD BE ABLE TO SATISFACTORILY PERFORM THE CONTRACT. THIS DETERMINATION WAS PREMISED ON A FINDING THAT BAY BRIDGE WAS "ABLE TO PROVIDE PERSONNEL, AIRCRAFT, SUPPLIES, FACILITIES, INSTRUCTION, AND TRANSPORTATION ADEQUATELY AND ACCEPTABLY TO PERFORM THE CONTRACT SATISFACTORILY." THE BUREAU RECOGNIZED THAT THIS COMPANY HAS HAD FINANCIAL TROUBLE IN PREVIOUS YEARS BUT ALSO FOUND THAT BAY BRIDGE IS PRESENTLY OPERATING AT A PROFIT AND APPEARS TO BE FINANCIALLY CAPABLE OF PERFORMING THE CONTRACT.

CONCERNING YOUR CONTENTION THAT BAY BRIDGE HAS NOT EVIDENCED THAT IT WILL EMPLOY THE FACILITIES REQUIRED TO PROPERLY PERFORM THE CONTRACT IN ACCORDANCE WITH THE OVERALL FLIGHT TRAINING PROGRAM, THE RECORD EVIDENCES THAT THE SPECIFIC TYPE OF FLIGHT TRAINING THE BUREAU WAS INTERESTED IN WAS VISUAL FLIGHT TRAINING, AND THE BUREAU DETERMINED THAT IN ORDER TO ACCOMPLISH THIS LIMITED OBJECTIVE THERE WAS NO ACTUAL NEED FOR A CONTROLLED AIRPORT OR FOR THE ELABORATE NAVIGATIONAL AIDS REQUIRED FOR INSTRUMENT FLIGHT TRAINING. WE ARE OF THE OPINION THAT CONSIDERATION OF WHAT FACILITIES ARE REQUIRED TO PERFORM THE CONTRACT SHOULD BE LIMITED TO A REVIEW OF THE FACILITIES NECESSARY TO ACCOMPLISH ONLY THIS ONE SPECIFIC CONTRACT. EACH PROCUREMENT, INSOFAR AS A PROSPECTIVE CONTRACTOR IS CONCERNED, IS AN INDEPENDENT ACTION AND AN OFFEROR MUST BE CAPABLE OF PERFORMING THE REQUIREMENTS OF A PROCUREMENT AS DETERMINED FROM THE FOUR CORNERS OF EACH PARTICULAR SOLICITATION. THE RATIONALE FOR AND SCOPE OF PRIOR SIMILAR PROCUREMENTS ARE NOT BINDING ON THE GOVERNMENT IN SUBSEQUENT PROCUREMENTS FOR SIMILAR ARTICLES OR SERVICES.

THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) SECTION 1-1201 STATES IN PERTINENT PART THAT:

" *** SPECIFICATIONS *** FOR PROCUREMENTS SHALL STATE ONLY THE ACTUAL MINIMUM NEEDS OF THE GOVERNMENT AND DESCRIBE THE SUPPLIES AND SERVICES IN A MANNER WHICH WILL ENCOURAGE MAXIMUM COMPETITION AND ELIMINATE, INSOFAR AS IS POSSIBLE, ANY RESTRICTIVE FEATURES WHICH MIGHT LIMIT ACCEPTABLE OFFERS *** ."

THE FACT THAT THE BUREAU DID NOT INDICATE IN THE RFP THAT IT WAS INTERESTED IN ONLY VISUAL FLIGHT TRAINING, WAS NOT LEGALLY IMPROPER. THIS TYPE OF TRAINING CAN BE ACCOMPLISHED AT EITHER CONTROLLED OR UNCONTROLLED AIRPORTS WITH EITHER LIMITED OR UNLIMITED FACILITIES. THE FAILURE TO SPECIFY THE TYPE OF FLIGHT TRAINING THEREFORE DID NOT RESULT IN A RESTRICTIVE SOLICITATION. CONVERSELY, IF THE BUREAU HAD INTENDED TO CONTRACT FOR INSTRUMENT FLIGHT TRAINING, WE BELIEVE THAT THIS REQUIREMENT WOULD HAVE TO BE CLEARLY STATED IN THE RFP SO THAT ONLY THOSE OFFERORS WITH SUFFICIENTLY SOPHISTICATED FACILITIES COULD BE CONSIDERED FOR CONTRACT AWARD.

WITH RESPECT TO YOUR CONTENTION THAT BAY BRIDGE WILL NOT BE ABLE TO PAY ITS INSTRUCTORS MORE THAN $4.00 PER HOUR, AND THAT GOOD INSTRUCTORS CANNOT BE OBTAINED AT THAT RATE, THE RFP REQUIRED ONLY THAT INSTRUCTORS BE FAA APPROVED AND DID NOT SPECIFY THAT INSTRUCTORS BE PAID AT ANY RATE IN EXCESS OF $4.00 PER HOUR. IN VIEW THEREOF, AND OF THE BUREAU'S DETERMINATION THAT BAY BRIDGE HAD PERSONNEL CAPABLE OF PERFORMING THE CONTRACT, WE ARE UNABLE TO FIND ANY MERIT IN THIS PORTION OF YOUR PROTEST.

WHERE, AS IN THIS CASE, THE LOW OFFEROR DISPLAYS THE CAPABILITY TO MEET THE REQUIREMENTS PRESCRIBED IN THE RFP, THE FACT THAT THE FACILITIES TO BE USED IN MEETING THESE SAME REQUIREMENTS BY ANOTHER PROSPECTIVE CONTRACTOR MAY BE SUPERIOR TO THOSE THE LOW OFFEROR WILL PROVIDE, DOES NOT JUSTIFY ACCEPTANCE OF THE HIGHER OFFER.

IN VIEW THEREOF, AND SINCE THE RECORD IS VOID OF ANY EVIDENCE OF IMPROPRIETY ON THE PART OF THE BUREAU IN CONCLUDING THAT BAY BRIDGE IS RESPONSIBLE, YOUR PROTEST MUST BE DENIED.