B-180456, MAY 16, 1974

B-180456, MAY 16, 1974

1. WHERE IFB FOR AIR TANKER SERVICES CONTAINS CLAUSE WHICH IN PART STATES THAT "AWARD WILL BE MADE TO THE LOWEST BIDDER IN ORDER OF PREFERENCES LISTED (FOR ITEMS WITHIN IFB)," GAO CONCLUDES THAT IFB INTENDS THAT AWARD OF A GIVEN ITEM BE MADE TO THE LOW RESPONSIVE, RESPONSIBLE BIDDER, AND WHERE THAT BIDDER IS ALSO LOW ON ANOTHER ITEM AS TO WHICH THE BIDDER PRESUMABLY OFFERED SAME AIRCRAFT, AWARD SHOULD BE MADE ON BASIS OF LOW BIDDER'S PREFERENCE. 2. WHERE IFB FOR AIR TANKER SERVICES CALLS FOR INSERTION OF FAA AIRCRAFT NUMBER AND BIDDER'S BASE PREFERENCE, INSERTION BY BIDDER OF TWO FAA NUMBERS FOR SINGLE BASE (LISTED IN ORDER OF PREFERENCE) DOES NOT PRECLUDE AWARD TO BIDDER FOR ONE OF THESE AIRCRAFT ON FIFTH PREFERENCE (WHERE BIDDER WAS LOW) EVEN THOUGH AWARD FOR OTHER AIRCRAFT WAS MADE ON BIDDER'S FIRST PREFERENCE SINCE BIDDER WAS LOW AND HAD AIRCRAFT (SPECIFIED) TO PERFORM AT BOTH FIRST AND FIFTH PREFERENCE BASES. 3. AGENCY MAY CANCEL PORTION OF IFB UNDER PARAGRAPH 10(C) OF SF 33A (SOLICITATION INSTRUCTIONS AND CONDITIONS) WHERE BIDS CONTAIN NO LIMITATION AGAINST THIS ACTION AND WHERE REASONABLE BASIS EXISTS FOR ELIMINATING ITEMS. HERE, SINCE TYPE OF AIRCRAFT SPECIFIED FOR USE ON ITEM OF IFB FOR AIR TANKER SERVICES COULD NOT SAFELY USE RUNWAY AT SPECIFIED BASE, OUR OFFICE CANNOT SAY THAT AGENCY HAS NOT ACTED PROPERLY IN CANCELING ITEM. 4. PROTEST OF PROVISIONS IN SOLICITATION SHOULD BE FILED PRIOR TO BID OPENING. THEREFORE, PROTEST FILED NEARLY 4 WEEKS AFTER BID OPENING MUST BE DECLARED UNTIMELY. 5.WHERE NO OTHER BIDDER APPEARS TO BE PREJUDICED BY AWARD ON POSSIBLY NONRESPONSIVE BID, GAO SEES NO REASON TO PRECLUDE AWARD TO THAT BIDDER.

TO HEMET VALLEY FLYING SERVICE CO., INC.; ROSENBALM AVIATION, INC.; CENTRAL AIR SERVICES, INC.; BUTLER AIRCRAFT COMPANY; STELL AVIATION:

THE FOLLOWING DECISIONS ARE ALL RELATED TO PROTESTS ON VARIOUS ASPECTS OF INVITATION FOR BIDS (IFB) FS-4-74. IN VIEW OF THE VERY UNIQUE SITUATION RELATIVE TO THE FOREST SERVICE'S NEEDS FOR FIREFIGHTING EQUIPMENT, THE SUBJECT IFB SOUGHT BIDS ON A LINE ITEM BASIS FOR AIR TANKER SERVICES AT VARIOUS BASES THROUGHOUT THE UNITED STATES AND ALLOWED BIDDERS TO BID INDIVIDUAL AIRCRAFT BY ORDER OF PREFERENCE ON 33 ITEMS IN THE SCHEDULE.

CLAUSE 10 OF STANDARD FORM (SF) 33A, INCLUDED IN THIS IFB, STATES:

"THE CONTRACT WILL BE AWARDED TO THAT RESPONSIBLE OFFEROR WHOSE OFFER CONFORMING TO THE SOLICITATION WILL BE MOST ADVANTAGEOUS TO THE GOVERNMENT, PRICE AND OTHER FACTORS CONSIDERED."

THE IFB GOES ON TO STATE IN THE SCHEDULE OF ITEMS:

"BASIS OF AWARD: PARAGRAPH (C) CLAUSE 10, AWARD OF CONTRACT, SF-33A IS SUPPLEMENTED AS FOLLOWS:

"BIDDERS MAY OFFER THE SAME AIRCRAFT UNDER MORE THAN ONE BID ITEM, AND QUALIFY THEIR BIDS BY SHOWING A PREFERENCE (FIRST, SECOND, THIRD, AND SO FORTH) AS TO THE BASES DESIRED. *** AWARD WILL BE MADE TO THE LOWEST BIDDER IN ORDER OF PREFERENCES LISTED. IF BIDDERS ARE NOT LOW ON FIRST PREFERENCE, BUT ARE LOW ON SECOND, AWARD WILL BE MADE ON SECOND PREFERENCE AND SO FORTH.

"TOTAL NUMBER OF AIRCRAFT OFFERED ."

IN VIEW OF THE DIVERSITY OF PARTIES AND ISSUES, EACH PROTEST WILL BE CONSIDERED SEPARATELY.

BUTLER AIRCRAFT COMPANY

(ITEMS 3 AND 4)

BUTLER CONTENDS THAT THE EVALUATED LOW BIDDER ON ITEMS 4A AND 4B (WENATCHEE, WASHINGTON) SHOULD HAVE BEEN JOHNSON FLYING SERVICE (JOHNSON) THEREBY MAKING BUTLER THE APPARENT LOW BIDDER ON ITEMS 3A AND 3B (REDMOND, OREGON). THE FOREST SERVICE, HOWEVER, PROPOSES TO AWARD ITEMS 3A AND 3B TO JOHNSON AND ITEMS 4A AND 4B TO CENTRAL AIR SERVICES, INC. (CENTRAL).

THE ABSTRACT OF BIDS APPEARS AS FOLLOWS:

ITEM PRICE/HOUR PREFERENCE AIRCRAFT

3A JOHNSON* $386.23 (3) P2-V N14448

BUTLER 459.00 (1) DC-7 N6318C

3B JOHNSON* 386.23 (2) P2-V N14447

BUTLER 459.00 (1) DC-7 N45W

4A JOHNSON 386.23 (2) P2-V N14448

CENTRAL*424.00 (1) DC-7 816D

4B JOHNSON 386.23 (1) P2-V N14447

CENTRAL* 424.00 (1) DC-7 848D

*PROPOSED AWARDEE

COUNSEL FOR BUTLER ARGUES, RELYING ON THE ORDER OF BIDDERS' PREFERENCE CLAUSE (QUOTED ABOVE), THAT AWARD SHOULD BE MADE TO THE LOW BIDDER ON EACH ITEM, BUT WHERE A BIDDER IS LOW ON TWO DIFFERENT ITEMS WHICH WOULD UTILIZE THE SAME AIRCRAFT, AWARD IS REQUIRED TO BE MADE IN ORDER OF THAT BIDDER'S PREFERENCE. THE FOREST SERVICE, HOWEVER, RELYING MOST HEAVILY ON THE "BASIS OF AWARD" CLAUSE, PARAGRAPH 10(C) OF SF 33A, ARGUES THAT IT HAS THE RIGHT TO SELECT THE BASE TO BE AWARDED TO A BIDDER LOW ON TWO SEPARATE ITEMS FOR THE SAME AIRCRAFT, BASED ON THE LOWEST TOTAL COST TO THE GOVERNMENT.

WHILE WE AGREE THAT MINIMIZING THE COST TO THE GOVERNMENT SHOULD ALWAYS BE OF CONCERN TO A PROCUREMENT ACTIVITY, WE ALSO FEEL THAT THE INTEGRITY OF THE COMPETITIVE BIDDING SYSTEM MUST BE MAINTAINED. CONTRARY TO THE CONTENTION OF COUNSEL, WE DO NOT FIND ANY INCONSISTENCY BETWEEN THE "BASIS OF AWARD" CLAUSE OF SF 33A AND THE ORDER OF BIDDERS' PREFERENCE CLAUSE. FOR THIS REASON, WE SEE NO BASIS TO INVOKE THE "ORDER OF PRECEDENCE" CLAUSE OF THE IFB. HOWEVER, THE IFB, TAKEN AS A WHOLE, PROVIDES THAT AWARD OF A GIVEN ITEM WILL BE MADE TO THE LOW RESPONSIVE, RESPONSIBLE BIDDER AND WHERE THE BIDDER IS LOW ON ANOTHER ITEM WHERE THE BIDDER PRESUMABLY OFFERED THE SAME AIRCRAFT, AWARD SHOULD BE MADE ON THE BASIS OF THE LOW BIDDER'S STATED ITEM PREFERENCE.

THUS, WE FEEL THAT A RESPONSIVE, RESPONSIBLE BIDDER WHO IS LOW ON ITS FIRST PREFERENCE SHOULD, UNDER THE IFB LANGUAGE, BE AWARDED HIS FIRST PREFERENCE ITEM.

JOHNSON WAS THE LOW BIDDER ON SUBITEMS 4A AND 4B; 4B WAS ITS FIRST PREFERENCE FOR N14447, 4A WAS ITS SECOND PREFERENCE FOR N14448 AND THIS AIRCRAFT HAD NOT BEEN PREVIOUSLY AWARDED ON ANY HIGHER OFFERED PREFERENCE. JOHNSON APPEARS TO BE THE LOW RESPONSIVE BIDDER FOR ITEM 4 AND WOULD APPEAR TO BE THE LOGICAL AWARDEE.

IN VIEW OF THE ABOVE FINDINGS, BUTLER WOULD SEEM TO BECOME THE APPARENT LOW BIDDER ON ITEMS 3A AND 3B BECAUSE JOHNSON'S AIRCRAFT THERE BID SHOULD BE AWARDED ON ITEMS 4A AND 4B.

STELL AVIATION

THE CONTENTIONS RAISED IN STELL'S AFTER-AWARD PROTEST OF ITEMS 10 AND 14 PARALLEL THOSE RAISED BY BUTLER ON ITEMS 3 AND 4 ABOVE.

BIDS ON THE ITEMS IN QUESTION WERE AS FOLLOWS;

PRICE PREFERENCE

ITEM 10 STELL* $330 (2)

PRESCOTT, HAWKINS AND POWERS 525 (2)

ARIZONA

ITEM 14 STELL 360 (1)

TUCSON, HAWKINS AND POWERS* 525 (3)

ARIZONA

*AWARDED CONTRACT

AS WE STATED WITH RESPECT TO BUTLER'S PROTEST, THE IFB LANGUAGE INDICATES THAT WHERE A BIDDER IS THE LOW RESPONSIVE BIDDER ON ITS FIRST PREFERENCE ITEM, AWARD SHOULD BE MADE TO THAT BIDDER. ACCORDINGLY, WE FEEL THAT AWARD SHOULD HAVE BEEN MADE TO STELL ON ITEM 14 AND THAT THE CONTRACT AWARDED TO HAWKINS AND POWERS SHOULD, THEREFORE, BE TERMINATED FOR THE CONVENIENCE OF THE GOVERNMENT WITH A NEW CONTRACT ENTERED INTO BETWEEN STELL AND THE FOREST SERVICE.

FOR THE REASONS NOTED ABOVE, STELL'S PROTEST IS SUSTAINED.

HEMET VALLEY FLYING SERVICE CO., INC. (ITEM 5)

THE SUBJECT PROTEST CONCERNS THE ELIGIBILITY OF BIDDERS FOR AWARD UNDER ITEM 5 (BURNS, OREGON). THE PROTEST IS PREDICATED UPON THE ALLEGEDLY IMPROPER BIDDING TECHNIQUE USED BY AIR TANKERS, INC. (AIR TANKERS).

ON ITEM 13A (COOLIDGE, ARIZONA), AIR TANKERS BID A B-17 AIRCRAFT NO. N- 3509G. THIS AIRCRAFT WAS BID ONLY ON ITEM 13A AND ITEM 13A WAS STATED AS AIR TANKERS' FIRST PREFERENCE.

AIR TANKERS ALSO BID DC-7B AIRCRAFT ON THE FOLLOWING ITEMS, IN ORDER OF PREFERENCE: ITEMS 13B (COOLIDGE, ARIZONA; ONTARIO, CALIFORNIA); 16A (LOS PADRES, GALETA); 4A AND 4B (WENATCHEE, WASHINGTON); 5; 2A, 2B AND 2C (MEDFORD, OREGON); 3A (REDMOND, OREGON); 1A (FORT SMITH, ARKANSAS; LAKEVIEW, OREGON); 1C (FORT SMITH, ARKANSAS; LA GRANDE, OREGON); AND 25 (SALT LAKE CITY, UTAH). IN EACH CASE THE ITEM OR SUBITEM REQUIRED ONLY A SINGLE AIRCRAFT AND IN EACH AIR TANKERS BID AS FOLLOWS:

TYPE FAA NO. PRICE PREFERENCE

DC-7B N51701 * *

N1097

*SINGLE ENTRIES

MOREOVER, AIR TANKERS STATED IN THE APPROPRIATE SPACE IN ITS BID THAT A TOTAL OF TWO AIRCRAFT WAS BEING OFFERED.

THE AGENCY PROPOSES TO AWARD ITEM 13B TO AIR TANKERS (AIR TANKERS' FIRST PREFERENCE), USING FAA IDENTIFICATION NO. DC-7B N51701 FOR THAT BASE. MOREOVER, IT ALSO PROPOSED TO AWARD ITEM 5 TO AIR TANKERS USING FAA IDENTIFICATION NO. DC-7B N1097.

THE AGENCY STATED IN ITS REPORT THAT:

"AIR TANKERS INC. DID INSERT THE FIGURE '2' ON PAGE 10 FOR THE TOTAL NUMBER OF AIRCRAFT OFFERED, HOWEVER, ON ITEM 13A, HE OFFERED A B-17 (N3509G) AND ON 13B HE OFFERED TWO DC-7B (N51701, N1097).

SINCE ONLY ONE DC-7 WAS REQUIRED ON ITEM 13B, THE FOREST SERVICE COULD CHOOSE EITHER ONE BECAUSE THEY WERE BOTH LISTED AS FIRST PREFERENCE."

THE FOREST SERVICE HAS ALSO INFORMED US, AT THE CONFERENCE HELD ON APRIL 1, 1974, THAT IT CONSIDERS AIR TANKERS' INSERTION OF THE NUMBER 2 IN RESPONSE TO THE NUMBER OF AIRCRAFT OFFERED AS AN OBVIOUS MISTAKE IN BID. IT FURTHER STATED THAT THE INTENDED NUMBER, 3, IS ALSO OBVIOUS FROM THE BID.

COUNSEL FOR HEMET VALLEY, ON THE OTHER HAND, CONTENDS THAT AIR TANKERS, BY BIDDING SINGLE PRICES AND SINGLE PREFERENCES FOR EACH OF THE ABOVE SUBITEMS, BID ONLY A "SINGLE DC-7B AIRPLANE" FOR EACH SUBITEM (LEAVING IT TO THE FOREST SERVICE TO CHOOSE WHICH OF THE TWO AIRCRAFT WOULD BE USED). SINCE THE "SINGLE DC-7B" OFFERED BY AIR TANKERS ON SUBITEM 13B "MUST BE AWARDED," COUNSEL FOR HEMET VALLEY CONTENDS THAT AIR TANKERS HAS NO OTHER DC-7B AVAILABLE FOR ITS PROPOSED AWARD OF ITEM 5.

FROM THE FOREGOING, WE MAY CONCLUDE THAT AWARD OF SUBITEM 13B TO AIR TANKERS WOULD BE PROPER BECAUSE (1) THE TYPE OF AIRCRAFT OFFERED MET THE SPECIFICATION; (2) AIR TANKERS WAS THE LOW BIDDER; (3) AIR TANKERS LISTED SUBITEM 13B AS ITS FIRST PREFERENCE; AND (4) AIR TANKERS LISTED THE APPROPRIATE FAA TAIL NUMBER.

THE IFB CLEARLY IMPLIED, BY ALLOWING BIDDERS TO STATE PREFERENCES FOR THE PLACEMENT OF THEIR AIRCRAFT, THAT EACH BIDDER, AS AN ENTITLEMENT TO AWARD, MUST DESIGNATE BY TAIL NUMBER AND HAVE AVAILABLE THE SPECIFIC AIRCRAFT THAT IT WOULD USE ON THE GIVEN ITEM.

WHERE A BIDDER IS THE LOW BIDDER ON MORE THAN ONE OF ITS PREFERENCE ITEMS FOR AN AIRCRAFT, AWARD CAN BE MADE TO THAT BIDDER ONLY ON THE HIGHEST PREFERENCE ITEM FOR WHICH IT STILL HAS DESIGNATED AIRCRAFT AVAILABLE.

IN THE INSTANT CASE, AIR TANKERS OFFERED CONFORMING DC-7B TYPE AIRCRAFT ON A NUMBER OF ITEMS AND WAS FOUND TO BE THE APPARENT LOW BIDDER ON TWO ITEMS. COUNSEL FOR HEMET VALLEY STATES THAT AS TO ITEM 13B (AIR TANKER'S FIRST PREFERENCE) THE FOREST SERVICE COULD SELECT WHICH OF THE DC-7B'S IT DESIRED TO USE AND AWARD TO AIR TANKERS ON THAT BASIS. WE CONCUR IN THIS VIEW.

HOWEVER, UNLIKE COUNSEL, WE FEEL THAT AIR TANKERS WAS ALSO THE LOW RESPONSIVE BIDDER ON ITEM 5, SINCE IN THAT INSTANCE ITS BID DOES CONTAIN AN FAA NUMBER OF AN AIRCRAFT (OF THE REQUISITE TYPE) WHICH HAD NOT PREVIOUSLY BEEN AWARDED ON ANOTHER ITEM OF THIS SOLICITATION.

ON BALANCE, IT SEEMS INHERENTLY MORE REASONABLE TO CONCLUDE THAT AIR TANKERS ACTUALLY INTENDED TO BID THE THREE AIRCRAFT (TWO DC-7B'S AND ONE B -17) IT OWNS RATHER THAN TO CONCLUDE THAT AIR TANKERS, BY INSERTING TWO TAIL NUMBERS FOR THE SINGLE TYPE OF AIRCRAFT (DC-7B), MERELY MEANT TO OFFER ONE OF THESE TWO AIRCRAFT (WITH THE CHOICE LEFT TO THE GOVERNMENT). THE LATTER APPEARS TO US TO BE AN UNTENABLE ARGUMENT SINCE IT ASSUMES THAT AIR TANKERS INSERTED TWO DC-7B TAIL NUMBERS BUT ONLY INTENDED TO OFFER ONE AIRCRAFT.

ACCORDINGLY, HEMET VALLEY'S PROTEST IS DENIED.

CENTRAL AIR SERVICES, INC.

(ITEMS 15, 32, 33 AND IFB SPECIFICATIONS)

ITEM 15

CENTRAL PROTESTS THE FACT THAT THE FOREST SERVICE HAS DETERMINED TO CANCEL ITEM 15 (RAMONA, CALIFORNIA) OF THE IFB.

THIS ITEM CALLED FOR AN AIRCRAFT WITH A MINIMUM PAYLOAD OF 9,500 POUNDS. CENTRAL, THE LOW BIDDER ON ITEM 15, PROPOSED TO USE A B-26 WHICH, UNDER THE SPECIFICATIONS, HAS A MAXIMUM PAYLOAD OF 9,750 POUNDS AND IS CAPABLE OF OPERATING FROM AIRPORTS WITH EFFECTIVE RUNWAY LENGTHS OF 5,000 FEET. HOWEVER, THE RAMONA AIRSTRIP IS ONLY 4,000 FEET IN LENGTH.

THE FOREST SERVICE STATED AS TO THIS ITEM THAT THE LENGTH OF THE RAMONA RUNWAY WAS NOT INCLUDED IN THE IFB AS A CONDITION OR LIMITATION ON BIDDING SPECIFIC TYPES OF AIRCRAFT. WE UNDERSTAND THAT THE FOREST SERVICE HAS CANCELED ITEM 15 OF THE IFB FOR THIS REASON.

PARAGRAPH 10(C) OF THE IFB'S INSTRUCTIONS AND CONDITIONS STATES THAT:

"THE GOVERNMENT MAY ACCEPT ANY ITEM OR GROUP OF ITEMS OF ANY OFFER, UNLESS THE OFFEROR QUALIFIES HIS OFFER BY SPECIFIC LIMITATIONS. ***"

THE FOREST SERVICE NOTES AN INADEQUACY AND AMBIGUITY IN THE SPECIFICATIONS SINCE (1) THEY IMPLY THAT DUE TO ITS PAYLOAD CAPACITY, A B- 26 WOULD BE ACCEPTABLE AT RAMONA; (2) THEY DO NOT STATE THE LENGTH OF THE RAMONA AIRSTRIP; AND (3) THEY ALSO STATE THAT THE B-26 SHOULD BE CAPABLE OF OPERATING FROM AIRPORTS WITH A MINIMUM EFFECTIVE RUNWAY LENGTH OF 5,000 FEET. SINCE, AS HAS BEEN SHOWN, A FULLY LOADED B-26 CANNOT OPERATE SAFELY OUT OF RAMONA DURING THE SUMMER FIRE SEASON, AND ALTHOUGH RUNWAYS OF LESS THAN 5,000 FEET MIGHT BE UTILIZED (SUCH USAGE, HOWEVER, BEING MARGINAL IN TERMS OF SAFETY), THE FOREST SERVICE HAS FOUND COMPELLING REASON TO CANCEL THIS ITEM OF THE IFB.

THE ESSENCE OF CENTRAL'S PROTEST IS THAT THE FOREST SERVICE SHOULD HAVE AWARDED IT ITEM 15 AS CENTRAL WAS LOW BIDDER. CENTRAL, AS NOTED, OFFERED AN AIRCRAFT WHICH COULD NOT, HOWEVER, OPERATE OUT OF RAMONA. THEREFORE, THE FOREST SERVICE HAD TWO OPTIONS AVAILABLE TO IT UPON DISCOVERING ALL PERTINENT FACTS: (1) IT COULD HAVE DECLARED CENTRAL'S BID NONRESPONSIVE - IN DOING SO ESSENTIALLY SHIFTING THE BURDEN OF FINDING OUT THE LENGTH OF THE RAMONA RUNWAY TO CENTRAL, OR (2) IT COULD HAVE CANCELED THE ITEM BECAUSE THE SPECIFICATIONS WERE DEFICIENT IN NOT CALLING TO THE ATTENTION OF ALL BIDDERS THE LIMITATIONS OF THE RAMONA AIRSTRIP.

SINCE CENTRAL'S BID CONTAINED NO LIMITATION AS REFERENCED IN PARAGRAPH 10(C) OF THE IFB AND A REASONABLE BASIS EXISTED, OUR OFFICE CANNOT SAY THAT THE AGENCY HAS NOT ACTED PROPERLY IN CANCELING ITEM 15. B-177967, JUNE 5, 1973; B-161374, JUNE 8, 1967.

ACCORDINGLY, CENTRAL'S PROTEST ON ITEM 15 IS DENIED.

ITEM 32 CENTRAL PROTESTS AWARD ON THIS ITEM TO OTHER THAN THE LOW BIDDER. CENTRAL BID $235 AN HOUR AS COMPARED TO THE NEXT LOW BID OF $249 AN HOUR BY DON GOODMAN (GOODMAN). THE FOREST SERVICE PROPOSES TO AWARD TO GOODMAN BECAUSE THE SPECIFIC AIRCRAFT BID BY CENTRAL, A B-26 AIRCRAFT (N3428G) HAD BEEN OPTION-LEASED TO SIS-Q FLYING SERVICE INC. (SIS-Q), AND IS PRESENTLY BEING USED BY SIS-Q TO PERFORM ITEM 1C OF THIS IFB.

AS WE STATED ABOVE WITH REGARD TO THE PROTEST OF HEMET VALLEY FLYING SERVICE CO., INC., WE BELIEVE THAT THE IFB REQUIRED THAT A BIDDER INDICATE IN ITS BID A TYPE OF AIRCRAFT SUITABLE FOR THE REQUIREMENTS AT THE PARTICULAR BASE AND STATE THE FAA TAIL NUMBER OF AN AIRCRAFT (OF THE REQUISITE TYPE) NOT PREVIOUSLY COMMITTED FOR USE AT ANOTHER BASE COVERED BY THE IFB.

SINCE IN THE PRESENT SITUATION N3428G, THE AIRCRAFT BID BY CENTRAL, IS PRESENTLY IN USE ON ITEM 1C, EVEN THOUGH CENTRAL IS THE LOW BIDDER ON ITEM 32, AWARD CANNOT BE MADE TO CENTRAL BECAUSE THE AIRCRAFT OFFERED IS NO LONGER AVAILABLE FOR AWARD.

THE PV-2 SPECIFICATION

CENTRAL IN A LETTER DATED FEBRUARY 13, 1974, PROTESTED THE PROVISION IN THE SOLICITATION WHICH LIMITS THE MAXIMUM PAYLOAD OF THE TWIN-ENGINE LOCKHEED PV-2 AIRCRAFT TO 8,500 POUNDS. OUR OFFICE FEELS, HOWEVER, THAT THE PROTEST OF THIS SPECIFICATION IS UNTIMELY.

SECTION 20.2(A) OF OUR BID PROTEST PROCEDURES AND STANDARDS, 4 CFR 20, ET SEQ., STATES IN PERTINENT PART THAT:

"*** PROTESTS BASED UPON ALLEGED IMPROPRIETIES IN ANY TYPE OF SOLICITATION WHICH ARE APPARENT PRIOR TO BID OPENING *** SHALL BE FILED PRIOR TO BID OPENING. ***"

SINCE THE ALLEGED DEFECT IN THE SPECIFICATION WAS OR SHOULD HAVE BEEN APPARENT TO CENTRAL PRIOR TO BID OPENING (JANUARY 15, 1974), ITS PROTEST APPROXIMATELY 4 WEEKS LATER MUST BE HELD TO BE UNTIMELY.

ROSENBALM AVIATION, INC. (ITEM 2)

WITH REGARD TO ITEM 2, MEDFORD, OREGON, THE APPARENT LOW BIDDER, ROSENBALM, BID $1 FOR THE FIRST HOUR AND $540 PER HOUR FOR EVERY FLIGHT HOUR THEREAFTER.

THE SOLICITATION DID NOT PROVIDE FOR DUAL-RATE BIDDING NOR DID IT SET OUT ANY ESTIMATED NUMBER OF FLIGHT HOURS. IN FACT, A REQUIREMENTS-TYPE CONTRACT WAS CONTEMPLATED WHEREBY THE NUMBER OF FLIGHT HOURS REQUIRED WOULD BE DICTATED BY NEEDS ARISING OUT OF FOREST FIRES NEAR EACH RESPECTIVE BASE.

THE FOREST SERVICE FEELS THAT WITHOUT AN ESTIMATE IN THE IFB A COMPARISON OF ROSENBALM'S PRICE WITH THOSE OF ITS COMPETITORS (WHO EACH BID ONLY A SINGLE PRICE) IS IMPOSSIBLE. CONSEQUENTLY, ROSENBALM'S BID WAS DECLARED NONRESPONSIVE.

ROSENBALM CONTENDS THAT ITS BID SHOULD NOT HAVE BEEN REJECTED BECAUSE, IN THE PAST, THE FOREST SERVICE HAS ACCEPTED DUAL-PRICE BIDS FROM THE PROTESTER.

IT IS CLEAR THAT ROSENBALM'S BID CREATED SOME AMBIGUITY AS TO WHAT ITS ACTUAL PRICE PER HOUR FOR SUCH SERVICES WOULD BE SINCE ITS ACTUAL AVERAGE PRICE PER HOUR WOULD VARY WITH EACH ADDITIONAL HOUR, I.E. -

TOTAL FLIGHT

HOURS AVERAGE

REQUIRED TOTAL COST PRICE/HOUR

1 $ 1 $ 1.00

2 541 270.50

3 1,081 360.33 25

12,961 518.44 100

53,461 534.61

WHERE THE SOLICITATION DOES NOT PROVIDE ANY MEANS OF DETERMINING AN AVERAGE PRICE PER UNIT, OTHER THAN THE BIDDER'S OWN SINGLE HOURLY PRICE, A MEANINGFUL COMPARISON OF A BID SUCH AS ROSENBALM'S WITH THOSE OTHER BIDDERS' BECOMES IMPOSSIBLE. SEE, IN THIS REGARD, B-145761, JUNE 19, 1961.

SINCE THE NEXT LOW BIDDER, BUTLER AIRCRAFT COMPANY (BUTLER) BID $468 PER HOUR, ROSENBALM WOULD BE THE ACTUAL LOW BIDDER ONLY IF THE NUMBER OF FLIGHT HOURS REQUIRED BY THE FOREST SERVICE DID NOT EXCEED 7 HOURS (AN AVERAGE PRICE OF $463 PER HOUR). THEREFORE, THERE APPEARS TO BE AN IMPLIED CONDITION PRESENT, ARISING FROM THE MANNER IN WHICH ROSENBALM BID, THAT ROSENBALM WOULD BE THE LOW BIDDER IF THE NUMBER OF FLYING HOURS REQUIRED DOES NOT EXCEED 7.

WE NOTE, HOWEVER, THE ARGUMENT THAT THERE IS NO IMPLIED CONDITION IN ROSENBALM'S BID, BECAUSE THE OTHER LOWER PRICED BIDDERS WITH WHICH ROSENBALM WOULD HAVE TO BE COMPARED - BUTLER AT $468 PER HOUR; AIR TANKERS AT $480 PER HOUR - MAY NOT HAVE AVAILABLE THE AIRCRAFT OFFERED ON ITEM 2 DUE TO PREVIOUS HIGHER PREFERENCE AWARDS. FOR THIS REASON, IT IS ALLEGED THAT, IN ANY EVENT, NO BIDDER WOULD BE PREJUDICED BY AN AWARD TO ROSENBALM.

AS WE STATED WITH REGARD TO THE BUTLER PROTEST, THAT FIRM APPEARS TO BE THE LOW RESPONSIVE BIDDER ON ITEMS 3A AND 3B, ITS FIRST PREFERENCE FOR THE AIRCRAFT BID ON ITEM 2. LIKEWISE, AIR TANKERS' AIRCRAFT HAVE BEEN DESIGNATED BY THE FOREST SERVICE ON HIGHER PREFERENCES. UNDER THE RATIONALE EXPRESSED IN B-159955, SEPTEMBER 15, 1966, AND B-159267, JUNE 30, 1966, SINCE NO BIDDER THEREFORE APPEARS TO BE PREJUDICED BY AN AWARD TO ROSENBALM, OUR OFFICE SEES NO REASON TO PRECLUDE AWARD OF ITEM 2 TO THE PROTESTER.