B-175523(1), AUG 28, 1972

B-175523(1): Aug 28, 1972

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PROTESTANT'S CONTENTIONS THAT THE METHOD OF AWARD LIMITED POSSIBLE AWARD TO CONDOR AND THAT THE EVALUATION SCHEDULE HELD LITTLE OR NO VALUE FOR COST TO THE GOVERNMENT ARE BOTH UNTIMELY. THESE TWO WERE APPARENTLY THE ONLY FIRMS QUALIFIED FOR THIS PROCUREMENT AND. ALTHOUGH SOME IMPROPER ONES WERE INCLUDED. INC.: REFERENCE IS MADE TO YOUR TELEFAX DATED MARCH 23. PROPOSALS WERE INVITED FROM CONDOR AND ANCHORAGE HELICOPTER SERVICE. EACH BID WAS TO INCLUDE A TOTAL ESTIMATED RENTAL COST MADE UP OF A FIXED BASE AMOUNT FOR 146 DAYS EXCLUSIVE USE. A SIGNIFICANT PART OF THE RFP WAS THE FORMAL LISTING OF THE CATEGORIES AND ASSIGNED POINT EVALUATION FACTORS THAT WERE TO BE USED IN ASSIGNING A RATING TO PROPOSALS SUBMITTED.

B-175523(1), AUG 28, 1972

BID PROTEST - TIMELINESS - EVALUATION FACTORS - QUALIFIED FIRM DENIAL OF PROTEST BY ANCHORAGE HELICOPTER SERVICE, INC., AGAINST THE AWARD OF A CONTRACT TO CONDOR HELICOPTER, INC., UNDER AN RFP ISSUED BY THE BUREAU OF LAND MANAGEMENT (BLM). PROTESTANT'S CONTENTIONS THAT THE METHOD OF AWARD LIMITED POSSIBLE AWARD TO CONDOR AND THAT THE EVALUATION SCHEDULE HELD LITTLE OR NO VALUE FOR COST TO THE GOVERNMENT ARE BOTH UNTIMELY. PROTESTS ON SUCH GROUNDS MUST BE FILED PRIOR TO BID OPENING. SEE INTERIM BID PROTEST PROCEDURES AND STANDARDS, 4 CFR 1-20.2(A). THE RECORD HERE SUPPORTS THE PROCURING ACTIVITY'S ACTIONS IN NEGOTIATING WITH ONLY CONDOR AND ANCHORAGE UNDER THE PROVISIONS OF 41 U.S.C. 252(C)(10). THESE TWO WERE APPARENTLY THE ONLY FIRMS QUALIFIED FOR THIS PROCUREMENT AND, BECAUSE OF THE RELATIVELY SHORT WORKING SEASON IN ALASKA, BLM COULD NOT AFFORD THE DELAY INVOLVED IN HAVING ANOTHER FIRM CERTIFIED. THE COMP. GEN. BELIEVES THAT BLM SUFFICIENTLY IDENTIFIED, QUALITATIVELY AND QUANTITATIVELY, ALL THE EVALUATION FACTORS ACTUALLY USED TO DETERMINE AWARD, ALTHOUGH SOME IMPROPER ONES WERE INCLUDED. SEE 49 COMP. GEN. 229 (1969). ON THE BASIS OF THE AVAILABLE RECORD, GAO CAN FIND NO COMPELLING LEGAL OR FACTUAL ARGUMENT ON WHICH TO OBJECT TO THE CONTRACT AWARDED CONDOR.

TO ANCHORAGE HELICOPTER SERVICE, INC.:

REFERENCE IS MADE TO YOUR TELEFAX DATED MARCH 23, 1972, AND YOUR LETTER DATED APRIL 1, 1972, PROTESTING AGAINST THE AWARD OF A CONTRACT TO CONDOR HELICOPTER, INC., OF VENTURA, CALIFORNIA (CONDOR), UNDER REQUEST FOR PROPOSALS (RFP) NO. P-2-200, ISSUED JANUARY 10, 1972, BY THE BUREAU OF LAND MANAGEMENT, U.S. DEPARTMENT OF THE INTERIOR (BLM).

PROPOSALS WERE INVITED FROM CONDOR AND ANCHORAGE HELICOPTER SERVICE, INC., (ANCHORAGE) FOR THE SUPPLYING OF TWO FH-1100 LIGHT TURBINE POWERED HELICOPTERS WITH PILOTS AND MAINTENANCE PERSONNEL TO FUNCTION AS UNITS OF THE AIRBORNE CADASTRAL SURVEY SYSTEM AND INCIDENTAL TRANSPORTATION OF SURVEY PERSONNEL AND EQUIPMENT IN ALASKA FOR 146 CONSECUTIVE CALENDAR DAYS DURING THE ESTIMATED PERIOD BEGINNING ON OR ABOUT MAY 15, 1972, AND ENDING ON OR ABOUT OCTOBER 7, 1972. EACH BID WAS TO INCLUDE A TOTAL ESTIMATED RENTAL COST MADE UP OF A FIXED BASE AMOUNT FOR 146 DAYS EXCLUSIVE USE, PLUS A COST FIGURE FOR AN ESTIMATED 800 HOURS FLYING HOURS AT $45 PER HOUR. EACH ACTUAL FLYING HOUR ORDERED WOULD BE PAID FOR AT THE FIXED HOURLY RATE OF $45 PER FLYING HOUR AND THERE WOULD BE NO MINIMUM OR MAXIMUM ON THE AMOUNT OF FLYING HOURS WHICH MIGHT BE PURCHASED DURING THE CONTRACT PERIOD.

A SIGNIFICANT PART OF THE RFP WAS THE FORMAL LISTING OF THE CATEGORIES AND ASSIGNED POINT EVALUATION FACTORS THAT WERE TO BE USED IN ASSIGNING A RATING TO PROPOSALS SUBMITTED, IN PERTINENT PART, AS FOLLOWS:

"1. PILOT QUALIFICATIONS - HOVERSIGHT HELICOPTER

A. HOVERSIGHT EXPERIENCE (80)

10 - 50 HOURS - 10

50 - 100 HOURS - 30

100 - 200 HOURS - 55

OVER 200 HOURS - 80

B. COMPATIBILITY ( 8)

C. EXPERIENCE IN BLM SURVEY

OPERATIONS ( 8)

D. SAFETY RECORD ( 4)

"2. PILOT QUALIFICATIONS - SUPPORT HELICOPTER

A. HOVERSIGHT EXPERIENCE (15)

10 - 50 HOURS - 5

50 - 100 HOURS - 10

B. COMPATIBILITY (15)

C. EXPERIENCE IN BLM SURVEY

OPERATIONS (16)

D. SAFETY RECORD ( 4)

"3. EQUIPMENT - RESERVE OR REPLACEMENT

A. FH 1100 MODIFIED AS

SUPPORT SHIP (20)

B. HOVER SIGHT (30)

C. MONUMENT DROPPER (10)

D. BEACON ( 8)

E. ANTENNA MOUNT ( 7)

"4. COMPANY EXPERIENCE AND QUALIFICATIONS

A. REPLACEMENT OR RESERVE HOVER PILOT (15)

B. GENERAL SURVEY EXPERIENCE IN ALASKA (15)

C. FINANCIAL ADEQUACY FOR OPERATION (10)

D. SAFETY RECORD ( 5)

"5. PRICING

A. LOWEST PRICE OR WITHIN 5% OF

LOWEST PRICE (30)

B. 5% - 6% OVER LOWEST PRICE (25)

C. 6% - 7% OVER LOWEST PRICE (20)

D. 7% - 8% OVER LOWEST PRICE (15)

E. 8% - 9% OVER LOWEST PRICE (10)

F. 9% - 10% OVER LOWEST PRICE ( 5)

G. MORE THAN 10% OVER LOWEST PRICE ( 0)"

THE PROPOSALS WERE OPENED AND EVALUATED ON FEBRUARY 4, 1972. BASED ON THE STATED EVALUATION FACTORS, CONDOR WAS RATED AS THE MORE QUALIFIED OPERATOR (287 POINTS) AT A TOTAL ESTIMATED COST OF $166,232, AS COMPARED WITH ANCHORAGE AS THE LESSER QUALIFIED OPERATOR (156 POINTS) AT A TOTAL ESTIMATED COST OF $159,519 (LESS 1% 20-DAY DISCOUNT). A CONTRACT WAS AWARDED TO CONDOR ON MARCH 13, 1972.

IN YOUR LETTER OF APRIL 1, 1972, YOU PRESENT FOUR AREAS OF PROTEST WHICH ESSENTIALLY QUESTION WHETHER THE EVALUATION FACTORS WERE PROPERLY DEVELOPED AND WHETHER THEY WERE FAIRLY EVALUATED BY BLM. THE FIRST AREA TO WHICH YOUR PROTEST IS DIRECTED IS THAT THE METHOD OF AWARD, BY ITS STRUCTURE, LIMITED POSSIBLE AWARD TO CONDOR, PRIMARILY BASED ON PILOT QUALIFICATION. IN THIS REGARD, YOU CONTEND THAT BLM ARBITRARILY DISALLOWED CREDIT FOR HOVERSIGHT EXPERIENCE IN PISTON-POWERED HELICOPTERS, THEREBY ELIMINATING THE POSSIBILITY OF EFFECTIVE COMPETITION AGAINST CONDOR. YOU ALSO QUESTION THE ABILITY TO OBJECTIVELY EVALUATE THE COMPATIBILITY FACTOR. IN ADDITION, YOU NOTE THAT BLM ARBITRARILY GAVE NO CONSIDERATION FOR EXPERIENCE IN BLM SURVEY OPERATIONS FOR SIMILAR UNITED STATES GEOLOGICAL SURVEY OR UNITED STATES COASTAL AND GEODETIC SURVEY OPERATIONS. YOU CONTEND THAT BLM WAS ARBITRARY AND INCONSISTENT IN EVALUATING ANCHORAGE'S SAFETY RECORD (FIRST EVALUATION - 4 POINTS; SECOND EVALUATION - 0 POINTS). IN SUMMATION, YOU CONTEND THAT TO REQUIRE SPECIFIC PILOTS TO PERFORM UNDER THIS CONTRACT WOULD BE INVOLUNTARY SERVITUDE. AS A RESULT, YOU BELIEVE BLM WAS GROSSLY IN ERROR IN PLACING FIFTY PERCENT OF THE RATING POINTS IN PILOT QUALIFICATION, WHEN THERE IS NO ABSOLUTE ASSURANCE THAT THE NAMED PILOTS WILL ACTUALLY BE USED FOR THE WORK.

THE SECOND AREA OF YOUR PROTEST IS THAT BLM ARBITRARILY ELECTED TO SOLICIT PROPOSALS FROM ONLY CONDOR AND ANCHORAGE, WHICH IS NOT IN THE BEST INTEREST OF THE GOVERNMENT AND FREE ENTERPRISE. SPECIFICALLY YOU CONTENDED THAT THE JUSTIFICATION FOR NEGOTIATION WAS INADEQUATE SINCE ANY OPERATOR COULD HAVE SECURED THE NECESSARY SUPPLEMENTAL TYPE CERTIFICATE (S.T.C.) FOR THE MOUNTING MECHANISM FOR THE HOVERSIGHT PRIOR TO BID OPENING. THE S.T.C. CERTIFIES THE AIR WORTHINESS OF THE SPECIALLY REQUIRED EQUIPMENT.

THE THIRD AREA OF YOUR PROTEST IS THAT THE EVALUATION PROCEDURE WAS IMPROPER, INCONSISTENT, WENT BEYOND THE SCOPE OF THE RFP AND DISREGARDED OUR DECISION B-172252, MARCH 23, 1971, WHICH RECOMMENDED THAT LANGUAGE IDENTICAL TO THE LAST SENTENCE OF ADDITIONAL GENERAL PROVISION SECTION 22 ("ANY FACTOR NOT SPECIFICALLY MENTIONED OR PROVIDED FOR HEREIN, IN ADDITION TO THAT OF PRICE, WHICH WILL AFFECT THE FINAL COST TO THE GOVERNMENT WILL BE TAKEN IN CONSIDERATION IN MAKING AWARD.") BE DELETED FROM FUTURE PROCUREMENTS. YOU SPECIFICALLY NOTE THAT THE EVALUATION SCHEDULE AWARDS POINTS INCONSISTENTLY FOR HOVER EXPERIENCE, AND THAT CONDOR DID NOT MEET THE REQUIREMENT OF ITEM NO. D OF THE QUESTIONNAIRE REQUIRING SUBMISSION OF FEDERAL AVIATION ADMINISTRATION (FAA) DOCUMENTED PROOF OF OWNERSHIP. FURTHER, YOU CLAIM THAT TO RECEIVE A FULL 75 POINTS FOR EQUIPMENT, REPLACEMENT OR RESERVE YOU HAD TO DEMONSTRATE OWNERSHIP OF A THIRD FH-1100, AND YOU QUESTION WHETHER CONDOR MET THIS UNLISTED REQUIREMENT. IN ADDITION, YOU CLAIM THAT YOUR SUPPORT PILOT RECEIVED ZERO POINTS FOR HOVERSIGHT EXPERIENCE BECAUSE YOU WERE NOT ADVISED THAT PISTON- POWERED EQUIPMENT WOULD NOT QUALIFY. AS A RESULT, YOU CONCLUDE THAT BLM, CONTRARY TO OUR DECISION B-172252, SUPRA, USED FACTORS NOT QUANTITATIVELY AND QUALITATIVELY IDENTIFIABLE IN RATING THE PROPOSALS.

THE FOURTH AND FINAL AREA TO WHICH YOUR PROTEST IS DIRECTED IS THAT THE EVALUATION SCHEDULE HELD LITTLE OR NO VALUE FOR COST TO THE GOVERNMENT. IN ADDITION, YOU SPECIFICALLY NOTE THAT CONDOR INCORRECTLY RECEIVED 30 POINTS EVEN THOUGH THEIR PRICE WAS .0526 PERCENT HIGHER THAN ANCHORAGE'S PRICE.

IN REGARD TO YOUR CONTENTION THAT THE METHOD OF AWARD LIMITED POSSIBLE AWARD TO CONDOR BECAUSE IT WAS BASED PRIMARILY ON PILOT QUALIFICATION (SPECIFICALLY HOVERSIGHT EXPERIENCE, A COMPATIBILITY FACTOR AND BLM EXPERIENCE), OUR OFFICE IS OF THE VIEW THAT THIS CONTENTION SHOULD HAVE BEEN FILED WITH OUR OFFICE PRIOR TO THE CLOSING DATE FOR RECEIPT OF PROPOSALS. SEE B-173743, NOVEMBER 15, 1971; B 164444(2), MARCH 13, 1969. IN THIS REGARD, OUR INTERIM BID PROTEST PROCEDURES AND STANDARDS (4 CFR 1- 20.2(A)) REQUIRE THAT A PARTY HAVING KNOWLEDGE OF ANY ALLEGED IMPROPRIETIES APPARENT PRIOR TO THE CLOSING DATE FOR RECEIPT OF PROPOSALS MUST FILE A PROTEST PRIOR TO THE CLOSING DATE.

WHILE WE MUST THEREFORE DECLINE TO RULE ON THIS PORTION OF YOUR PROTEST, WE ARE TODAY ADVISING THE SECRETARY OF THE INTERIOR THAT WE BELIEVE THE FACTORS DESIGNATED FOR EVALUATING A PILOT'S QUALIFICATIONS (HOVERSIGHT FLYING EXPERIENCE, COMPATIBILITY AND BLM EXPERIENCE) WERE NOT TRUE INDICATORS OF THE BEST QUALIFIED PILOTS, SINCE EVALUATION FACTORS DID NOT CLEARLY ESTABLISH THAT THE OFFEROR AWARDED THE CONTRACT COULD PERFORM THE CONTRACT IN THE LEAST NUMBER OF ORDERED FLYING HOURS. WE HAVE THEREFORE RECOMMENDED THAT IN FUTURE SIMILAR PROCUREMENTS, AN OBJECTIVE TEST (FOR EXAMPLE, A UNIFORM PILOT'S TEST) SHOULD BE USED TO ACTUALLY DETERMINE A PILOT'S ABILITIES. SUCH A TEST AND THE RESULTING POINTS AWARDED FOR TEST PERFORMANCE RESULTS SHOULD RESULT IN AWARD OF A CONTRACT TO THE CONTRACTOR WHO CAN REASONABLY BE EXPECTED TO PERFORM IN THE LEAST NUMBER OF FLYING HOURS, THEREBY LOWERING THE COST OF PERFORMING THE CONTRACT.

WITH RESPECT TO YOUR CONTENTION THAT BLM WAS ARBITRARY IN EVALUATING YOUR FIRM'S SAFETY RECORD, THE U.S. DEPARTMENT OF THE INTERIOR (DEPARTMENT) REPORTS THAT ANCHORAGE'S ORIGINAL PROPOSAL DID NOT SHOW THE SAFETY RECORDS OF ITS PROPOSED PILOTS, AND AT A FEBRUARY 23 MEETING IN PORTLAND, ANCHORAGE WAS GIVEN AN OPPORTUNITY TO FURNISH THE ADDITIONAL INFORMATION. NONE BEING FURNISHED, NO POINTS WERE GIVEN FOR PILOT SAFETY CONTROL. VIEW THEREOF, WE FIND NO SUBSTANCE TO YOUR ALLEGATION THAT BLM'S METHOD OF EVALUATING THIS PORTION OF YOUR PROPOSAL WAS ARBITRARY.

REGARDING YOUR SECOND AREA OF PROTEST, THE DEPARTMENT REPORTS THAT A SURVEY PERFORMED BY BLM AND THE RESULTS SUBSEQUENTLY NOTED IN A FINDINGS AND DETERMINATION DATED JANUARY 4, 1972, DISCLOSED ONLY TWO FIRMS QUALIFIED TO MAKE A PROPOSAL FOR THE SUBJECT PROCUREMENT. IN ADDITION, THE DEPARTMENT NOTES THAT YOUR STATEMENT, THAT OTHER OPERATORS COULD HAVE OBTAINED AN S.T.C. PRIOR TO BID OPENING, IS ERRONEOUS. THE DEPARTMENT WAS ADVISED BY FAA THAT A MINIMUM OF SIX MONTHS WOULD BE REQUIRED TO OBTAIN THE NECESSARY S.T.C. BECAUSE OF THE RELATIVELY SHORT SEASON IN ALASKA FOR PERFORMING THE WORK, IT IS REPORTED THAT BLM COULD NOT RISK A LENGTHY CERTIFICATION DELAY. IN VIEW THEREOF, WE MUST CONCLUDE THAT THE PROCURING ACTIVITY APPROPRIATELY NEGOTIATED WITH ONLY CONDOR AND ANCHORAGE PURSUANT TO THE AUTHORITY VESTED IN 41 U.S.C. 252(C)(10). SEE B-150035, FEBRUARY 4, 1963.

IN RESPONSE TO YOUR THIRD AREA OF PROTEST, IT IS REPORTED THAT THE REASON BLM DID NOT REJECT CONDOR'S PROPOSAL FOR FAILING TO COMPLY LITERALLY WITH ITEM NO. D OF THE QUESTIONNAIRE IS BECAUSE OUR DECISION B-172252, SUPRA, DID NOT ALLOW REJECTION OF A BID FOR FURNISHING A BILL OF SALE, RATHER THAN A FAA RECORD, AS PROOF OF OWNERSHIP. THE DEPARTMENT ALSO NOTES THAT ARTICLE 17 OF THE SPECIFICATIONS MAKES PROVISION FOR A REPLACEMENT HELICOPTER. IN THIS REGARD, CONDOR AND ANCHORAGE BOTH RECEIVED 75 POINTS BASED ON THEIR STATEMENTS THAT THEY COULD MEET THE REQUIREMENTS. SINCE THE RFP DID NOT REQUIRE PROOF OF OWNERSHIP FOR THIS EQUIPMENT, WE MUST AGREE WITH BLM'S POSITION.

IN RESPONSE TO YOUR CONTENTION THAT THE LAST SENTENCE OF SECTION 22, ADDITIONAL GENERAL PROVISIONS, SHOULD HAVE BEEN DELETED, OUR OFFICE CONSIDERS ITS INCLUSION TO BE A MINOR DEVIATION NOT PREJUDICIAL TO EITHER PARTY, SINCE BLM SUFFICIENTLY IDENTIFIED, QUALIFATIVELY AND QUANTITATIVELY, ALL THE EVALUATION FACTORS ACTUALLY USED TO DETERMINE AWARD, ALTHOUGH SOME IMPROPER ONES WERE INCLUDED. SEE 49 COMP. GEN. 229 (1969); 48 ID. 464, 467 (1969), QUOTING 36 ID. 380, 385 (1956).

IN RESPONSE TO THE FIRST POINT IN YOUR FOURTH AREA OF PROTEST, OUR OFFICE IS OF THE VIEW THAT THIS CONTENTION SHOULD HAVE BEEN FILED WITH OUR OFFICE PRIOR TO THE CLOSING DATE FOR RECEIPT OF PROPOSALS. SEE 4 CFR 1-20.2(A). WE MUST THEREFORE DECLINE TO CONSIDER ITS MERITS AT THIS TIME.

IN RESPONSE TO THE SECOND HALF OF YOUR FOURTH POINT, THE DEPARTMENT REPORTS THAT BLM, UPON REEXAMINATION OF YOUR EVALUATION SCHEDULE, CONCURS WITH YOUR CONTENTION THAT CONDOR SHOULD HAVE BEEN ALLOTTED ONLY 25 POINTS ON THE PRICE FACTOR, BEING .0526 PERCENT IN EXCESS OF ANCHORAGE'S PRICE. THEREFORE, CONDOR'S POINT EVALUATION HAS BEEN CORRECTED TO 282 POINTS WHILE ANCHORAGE'S REMAINS AT 156 POINTS. NEVERTHELESS, THIS CORRECTION DOES NOT CHANGE THE STANDING IN RELATION TO AWARD.

ON THE BASIS OF THE ENTIRE WRITTEN RECORD BEFORE OUR OFFICE, WE FIND NO COMPELLING LEGAL OR FACTUAL ARGUMENT ON WHICH WE CAN OBJECT TO THE CONTRACT AWARDED CONDOR. ACCORDINGLY, YOUR PROTEST IS DENIED.