B-205279, JUL 19, 1982

B-205279, JUL 19, 1982

DIGEST: 1. WHEN REQUIREMENT WHICH HAS BEEN OMITTED FROM A SOLICITATION IS MADE KNOWN TO OFFERORS DURING NEGOTIATIONS, PROPOSAL WHICH FAILS TO COMPLY WITH IT PROPERLY MAY BE REJECTED. 2. CONTRACTING AGENCY HAS NO LEGAL OBLIGATION TO REOPEN NEGOTIATIONS TO REMEDY DEFECTS INTRODUCED INTO A PREVIOUSLY ACCEPTABLE TECHNIAL PROPOSAL BY A BEST AND FINAL OFFER OR TO READ AND EVALUATE PROPOSALS SUBMITTED BEFORE CLOSING DATE. 3. WHEN OFFEROR HAS NOT BEEN PREJUDICED BY AGENCY'S FAILURE TO SPECIFY PERFORMANCE CHARACTERISTICS OR TO LIST SALIENT CHARACTERISTICS FOR BRAND NAME OR EQUAL EQUIPMENT, PROTEST ON THE BASIS OF UNDISCLOSED REQUIREMENTS WILL BE DENIED. 4. REQUESTS FOR CLARIFICATION OR AMPLIFICATION WHICH LEAD OFFERORS TO AREAS OF THEIR PROPOSALS THAT ARE UNCLEAR ARE SUFFICIENT TO ALERT THEM TO DEFICIENCIES. WHEN RECORD SHOWS THAT AGENCY PRESENTED OFFEROR WITH WRITTEN REQUESTS FOR CLARIFICATION ON 11 DIFFERENT POINTS, HELD AT LEAST TWO MEETINGS WITH IT, AND ALLOWED OFFEROR TO REVISE PROPOSAL, MEANINGFUL DISCUSSIONS HAVE BEEN HELD. 5. WHEN PROPOSAL PROPERLY HAS BEEN FOUND TECHNICALLY UNACCEPTABLE, OFFEROR IS NOT ENTITLED TO BID PREPARATION COSTS.

SYSTEM SCIENCES INCORPORATED:

SYSTEM SCIENCES INCORPORATED PROTESTS AWARD OF A CONTRACT FOR A COMPUTERIZED INFORMATION SYSTEM THAT WILL BE USED TO SUPPORT THE AIRBORNE WARNING AND CONTROL SYSTEMS (AWACS) PROGRAM OFFICE. THE ELECTRONIC SYSTEMS DIVISION, AIR FORCE SYSTEMS COMMAND, HANSCOM AIR FORCE BASE, MASSACHUSETTS, AWARDED THE CONTRACT TO PROGRAM CONTROL CORPORATION, THE INCUMBENT AND ONLY OTHER OFFEROR UNDER SOLICITATION NO. F19628-81-R-0072. WE DENY THE PROTEST.

THE PRIMARY BASIS OF SYSTEM SCIENCES' PROTEST IS THAT THE AIR FORCE IMPROPERLY DECLARED ITS TECHNICAL PROPOSAL UNACCEPTABLE BECAUSE - IN ITS BEST AND FINAL OFFER - THE FIRM CHANGED BRANDS OF A PRINTER/PLOTTER THAT IT PROPOSED TO USE TO PRODUCE VARIOUS GRAPHIC DISPLAYS, OR "PLOTS," OF COMPUTER-GENERATED DATA.

SYSTEM SCIENCES ALSO ALLEGES THAT THE AIR FORCE FAILED TO CONDUCT MEANINGFUL DISCUSSIONS. THE FIRM CONCLUDES THAT IT SHOULD HAVE RECEIVED THE AWARD BECAUSE IT MET THE GOVERNMENT'S MINIMUM NEEDS AT A LOWER FIXED PRICE, $1,090,041, THAN PROGRAM CONTROL, WHOSE PRICE WAS $1,348,717; IT SEEKS AWARD OF THE CONTRACT OR BID PREPARATION COSTS OF $70,560.

A. PRINTER/PLOTTER REQUIREMENTS:

IN THE SOLICITATION, THE AIR FORCE IDENTIFIED REQUIREMENTS FOR THE PRINTER/PLOTTER IN ITS INSTRUCTIONS FOR PREPARATION OF COST PROPOSALS, WHERE SECTION L-3 STATED THAT THE SUCCESSFUL CONTRACTOR WOULD BE REIMBURSED FOR DIRECT COSTS OF TRAVEL AND CERTAIN ANCILLARY SUPPORT EQUIPMENT. INCLUDED IN A LIST OF FOUR REIMBURSABLE ITEMS WAS A "PLOTTER AND MAINTENANCE (VERSATEC OR EQUAL)."

THIS WAS THE ONLY PLACE IN THE SOLICITATION THAT THE BRAND NAME VERSATEC APPEARED. THE STATEMENT OF WORK INDICATED THAT CONTRACT DELIVERABLES WOULD INCLUDE A VARIETY OF PLANS, REPORTS, VIEWGRAPHS, AND "PLOTTED OUTPUTS" TO BE USED BY THE AWACS PROGRAM OFFICE. THE SPECIFICATIONS - GENERALLY PERFORMANCE-TYPE - REQUIRED THAT THE INFORMATION SYSTEMS HAVE THE CAPABILITY TO "OUTPUT CHARTS, GRAPHS, OR TABULATIONS VIA A PRINTER/PLOTTER" AND STATED THAT REPORTS TO BE DISPLAYED WOULD RANGE IN SIZE FROM 7-1/2-BY-10 INCHES TO 24-BY-36 INCHES.

THE RECORD INDICATES THAT DURING JULY AND AUGUST 1981, THE AIR FORCE AND SYSTEM SCIENCES DISCUSSED HOW COSTS FOR THE PRINTER PLOTTER WOULD BE ALLOCATED. IN ADDITION, THE AIR FORCE QUESTIONED SYSTEM SCIENCES' ABILITY TO DELIVER THE EQUIPMENT 60 DAYS AFTER AWARD. SYSTEM SCIENCES, BY LETTER DATED JULY 2, ADVISED THE AIR FORCE THAT IT HAD ISSUED A PURCHASE ORDER TO VERSATEC, THEREBY INSURING AVAILABILITY OF THE PRINTER/PLOTTER.

THE CONTRACTING OFFICER STATES THAT UPON ASSUMING THE JOB IN MID AUGUST HE DETERMINED THAT VERSATEC EQUIPMENT WAS NOT ACTUALLY REQUIRED AND THAT AN ELECTROSTATIC PLOTTER SIMILAR TO VERSATEC'S WOULD BE ACCEPTABLE. IN AN AUGUST 31 LETTER TO SYSTEM SCIENCES, THE AIR FORCE SUMMARIZED DISCUSSIONS, STATING THAT THE SUCCESSFUL CONTRACTOR WAS TO FURNISH:

(1) AN "ELECTROSTATIC PRINTER/PLOTTER," SUPPORT ITEMS SUCH AS PRINTER FLUID, AND ANY NECESSARY MAINTENANCE AGREEMENTS, AND

(2) PRINTER/PLOTTER PAPER FOR AN AVERAGE EXPECTED USAGE OF 750 PLOTS A MONTH, "NOT TO EXCEED" 36 INCHES A PLOT.

THE AIR FORCE ARGUES THAT THIS LETTER MADE IT CLEAR WHAT TYPE OF EQUIPMENT THE CONTRACTOR HAD TO FURNISH. ITS REPORT ALSO INDICATES THAT TELEPHONE DISCUSSIONS WITH SYSTEM SCIENCES CONFIRMED THE FACT THAT ALTHOUGH THE SOLICITATION ASKED FOR AN ELECTROSTATIC PRINTER/PLOTTER SUCH AS A VERSATEC OR EQUIVALENT, THE MENTION OF VERSATEC WAS NOT MEANT TO LIMIT A CONTRACTOR TO THAT LINE OF PRODUCTS.

THE "NOT TO EXCEED" LANGUAGE, THE PARTIES AGREE, WAS MEANT TO INDICATE THAT 36 INCHES WAS AN UPPER SIZE LIMIT, AND THAT A MACHINE WHICH PRODUCED GRAPHICS AS LARGE AS 36 INCHES WAS NOT ACTUALLY REQUIRED. IN VIEW OF THIS, SYSTEM SCIENCES APPARENTLY DECIDED TO CONSIDER ALTERNATE PRINTER/PLOTTERS, INCLUDING HEWLETT-PACKARD'S, AND ARGUES THAT IT ALERTED THE AIR FORCE TO THIS FACT. THE CONTRACTING OFFICER, HOWEVER, STATES THAT HE DOES NOT RECALL DISCUSSING THE HEWLETT PACKARD PLOTTER WITH SYSTEM SCIENCES AND ADDS THAT IF HE DID SO, IT WAS WITHOUT ANY KNOWLEDGE OF THE EQUIPMENT, ITS CHARACTERISTICS OR CAPABILITIES.

IN ITS BEST AND FINAL OFFER, SUBMITTED A DAY BEFORE THE SEPTEMBER 29 DEADLINE, SYSTEM SCIENCES PROPOSED A HEWLETT-PACKARD PLOTTER WITH AN 11 BY -17 INCH PLOT CAPABILITY, STATING THAT IT BELIEVED THIS EQUIPMENT MET ALL OTHER SPECIFICATIONS AND WAS MORE COST EFFECTIVE THAN THAT MANUFACTURED BY VERSATEC. THE FIRM REQUESTED THE CONTRACTING OFFICER TO USE THE MORE THAN 24 HOURS BEFORE BEST AND FINALS WERE DUE TO EXAMINE THE SUBSTITUTE EQUIPMENT.

THE AIR FORCE ARGUES THAT SYSTEM SCIENCES' INITIAL TECHNICAL PROPOSAL WAS ACCEPTABLE AND THAT IT CONDUCTED DISCUSSIONS ASSUMING THAT THE FIRM WOULD CONTINUE TO OFFER A VERSATEC PRINTER/PLOTTER. THE REASON IT DOWNGRADED SYSTEM SCIENCES' FINAL TECHNICAL PROPOSAL, THE AIR FORCE STATES, IS THAT THE HEWLETT-PACKARD MODEL PROPOSED IS A PEN PLOTTER WITH AN ELECTROSTATIC HOLD-DOWN FEATURE, RATHER THAN AN ELECTROSTATIC PLOTTER.

IN ITS EVALUATION REPORT, THE AIR FORCE STATES THAT ON VERSATEC EQUIPMENT, A PLOT CAN BE RUN IN 30 SECONDS, WHILE A PEN PLOTTER TYPICALLY TAKES FROM 15 TO 30 MINUTES. IN ADDITION, THE AIR FORCE STATES, THE COLOR GRAPHICS CAPABILITY OF THE HEWLETT-PACKARD PLOTTER IS UNNECESSARY. THE AIR FORCE INDICATES THAT THE EXPECTED DETAIL OF THE PLOTS TO BE PRODUCED AND THE EXPECTED DEMAND FOR 750 A MONTH CAUSED IT TO BE SERIOUSLY CONCERNED AS TO THE ABILITY OF THE HEWLETT-PACKARD EQUIPMENT TO MEET ITS NEEDS. SYSTEM SCIENCES, IN REBUTTAL, CONTENDS THAT PLOTTER SPEED IS A NEW AND UNDISCLOSED REQUIREMENT, INTRODUCED FOR THE FIRST TIME IN THE CONTEXT OF THIS PROTEST.

IN OUR OPINION, THE AIR FORCE SHOULD HAVE DESCRIBED ITS REQUIREMENTS FOR THE PRINTER/PLOTTER BY USING PERFORMANCE SPECIFICATIONS OR, IF A VERSATEC OR EQUAL WAS ACTUALLY NEEDED, SHOULD HAVE IDENTIFIED SALIENT CHARACTERISTICS IN ITS REQUEST FOR PROPOSALS. OFFERORS THEN WOULD NOT HAVE HAD TO GUESS THAT SPEED WAS IMPORTANT BUT COLOR GRAPHICS CAPABILITY WAS NOT. HOWEVER, WE BELIEVE OFFERORS COULD HAVE INFERRED A CERTAIN MINIMUM SPEED REQUIREMENT FROM THE ESTIMATED 750 PLOTS A MONTH. FOR EXAMPLE, IF THE AWACS PROGRAM OFFICE EXPECTS TO USE THE SYSTEM EIGHT HOURS A DAY, FIVE DAYS A WEEK, AND WE ASSUME A MONTH OF 22 WORKING DAYS, APPROXIMATELY 34 PLOTS A DAY OR 4.25 PLOTS AN HOUR WILL BE REQUIRED. THUS, WE BELIEVE THE AIR FORCE WAS LEGITIMATELY CONCERNED WITH PLOTTER SPEED.

MORE IMPORTANTLY, THE AIR FORCE LETTER OF AUGUST 31 SPECIFIED AN "ELECTROSTATIC PRINTER/PLOTTER." WE DO NOT BELIEVE THIS TERM IS AMBIGUOUS, I.E., HAS MORE THAN ONE REASONABLE MEANING. THE AIR FORCE WAS USING IT PRECISELY, TO DESCRIBE A PRINTER/PLOTTER THAT PRODUCED GRAPHICS BY MEANS OF LIGHT ACTING ON AN ELECTRICALLY CHARGED SURFACE, AS IN XEROGRAPHY. EVEN WHEN A REQUIREMENT HAS BEEN OMITTED FROM A SOLICITATION, WE HAVE UPHELD REJECTION OF PROPOSALS FOR FAILURE TO COMPLY IF THE REQUIREMENT HAS BEEN MADE KNOWN TO OFFERORS DURING NEGOTIATIONS. ADP NETWORK SERVICES, INC., B-193817, MARCH 7, 1979, 79-1 CPD 163. WE BELIEVE THE LETTER OF AUGUST 31 SERVED AS NOTICE TO SYSTEM SCIENCES THAT AN ELECTROSTATIC PLOTTER WAS REQUIRED.

SYSTEM SCIENCES HAS PROVIDED US WITH HEWLETT-PACKARD LITERATURE WHICH DESCRIBES THE MODEL PROPOSED: IT USES EIGHT MICROPROCESSOR CONTROLLED PENS AND HAS AN ELECTROSTATIC HOLD-DOWN FOR SECURING PAPER. IT MAY BE, AS SYSTEM SCIENCES HAS ARGUED IN LENGTHY SUBMISSIONS TO OUR OFFICE, THAT THIS PLOTTER WILL MEET THE AIR FORCE'S NEEDS EQUALLY AS WELL AS AN ELECTROSTATIC PLOTTER. BUT IT CLEARLY DOES NOT PREPARE GRAPHICS BY ELECTROSTATIC MEANS. SINCE THE AIR FORCE SPECIFIED AN ELECTROSTATIC PLOTTER, WE BELIEVE IT PROPERLY FOUND SYSTEM SCIENCES' BEST AND FINAL OFFER UNACCEPTABLE. SEE BELL & HOWELL COMPANY, B-203235.5, APRIL 26, 1982, 82-1 CPD 378.

MOREOVER, FROM THE RECORD WE CANNOT CONCLUDE THAT THE AIR FORCE EITHER KNEW OR SHOULD HAVE KNOWN, PRIOR TO SUBMISSION OF BEST AND FINALS, THAT SYSTEM SCIENCES HAD MISUNDERSTOOD ITS REQUIREMENTS FOR AN ELECTROSTATIC PRINTER/PLOTTER. IN ANY EVENT, AFTER BEST AND FINALS HAD BEEN REQUESTED, THE AIR FORCE HAD NO LEGAL OBLIGATION TO ADVISE SYSTEM SCIENCES OF ITS ERROR OR TO ALLOW IT TO REVISE ITS PROPOSAL. SEE TRW INC., B-200142, APRIL 16, 1981, 81-1 CPD 294. AN AGENCY IS NOT REQUIRED TO REOPEN NEGOTIATIONS TO REMEDY DEFECTS INTRODUCED INTO A PREVIOUSLY ACCEPTABLE TECHNICAL PROPOSAL BY A BEST AND FINAL OFFER. CENTENNIAL SYSTEMS, INC., B-201853.2, APRIL 16, 1982, 82-1 CPD 350, AND CASES CITED THEREIN. NOR DID THE AIR FORCE HAVE A LEGAL OBLIGATION TO READ OR EVALUATE A PROPOSAL SUBMITTED BEFORE THE CLOSING DATE. COLORADO RESEARCH AND PREDICTION LABORATORY, INC. - RECONSIDERATION, B-199755.2, MAY 11, 1981, 81-1 CPD 369.

B. OTHER EVALUATION FACTORS

EVEN IF SYSTEM SCIENCES' SUBSTITUTION HAD BEEN ACCEPTABLE TO THE AIR FORCE, IT DOES NOT APPEAR THAT THE FIRM WOULD HAVE BEEN SELECTED FOR AWARD UNDER EVALUATION CRITERIA IN WHICH TECHNICAL AND MANAGERIAL SKILLS WERE RATED EQUALLY, BUT WERE SIGNIFICANTLY MORE IMPORTANT THAN COST. SEVERAL OTHER AREAS, THE AIR FORCE REGARDED SYSTEM SCIENCES' PROPOSAL AS PRESENTING SIGNIFICANTLY HIGHER RISKS THAN PROGRAM CONTROL'S.

FOR EXAMPLE, THE AIR FORCE QUESTIONED BOTH THE COST AND FEASIBILITY OF TRANSFERRING THE MODULAR INTERNATIONAL BUSINESS MACHINE CORPORATION (IBM) SOFTWARE OFFERED BY SYSTEM SCIENCES TO A NEW AND POSSIBLY DIFFERENT HOST COMPUTER DURING A PLANNED MOVE OF THE AWACS PROGRAM OFFICE TO HANSCOM AIR FORCE BASE. SYSTEM SCIENCES DID NOT INDICATE WHETHER ITS PROPOSED INFORMATION MANAGEMENT SYSTEM WOULD BE COMPATIBLE WITH EQUIPMENT OF VENDORS OTHER THAN IBM, AND COULD NOT ESTIMATE THE EXTENT OF ADAPTATION WHICH MIGHT BE REQUIRED.

WITH REGARD TO TRAINING, SYSTEM SCIENCES PLANNED TO RESERVE PLACES FOR 20 REPRESENTATIVES OF THE AWACS PROGRAM OFFICE IN AN IBM TRAINING COURSE IN LOS ANGELES. THE AIR FORCE STATED THAT ONGOING TRAINING OF PROGRAM OFFICE PERSONNEL WOULD BE PREFERABLE, AND THAT THE TRAINING PROPOSED BY SYSTEM SCIENCES WOULD NOT ACCOMMODATE NEW PERSONNEL OR PROVIDE FOR CHANGED REQUIREMENTS.

IN ADDITION, THE AIR FORCE RATED SYSTEM SCIENCES' CORPORATE EXPERIENCE AND THE FAMILIARITY OF ITS PERSONNEL WITH THE PROPOSED INFORMATION MANAGEMENT SYSTEM AS ONLY FAIR. THE FIRM STATED THAT IT HAD NOT HAD A DEPARTMENT OF DEFENSE PRIME CONTRACT AND THAT ITS PERSONNEL HAD NOT APPLIED THE PROPOSED SYSTEM TO ANY CONTRACT, ALTHOUGH OTHER DEPARTMENT OF DEFENSE CONTRACTORS HAD DONE SO SUCCESSFULLY. IN ITS BEST AND FINAL OFFER, SYSTEM SCIENCES PROPOSED TO REMEDY ITS LACK OF EXPERIENCE BY USING SUBCONTRACTORS OR CONSULTANTS FOR SUCH TASKS AS TRAINING AND BACKUP GRAPHICS PRODUCTION. THE AIR FORCE, HOWEVER, NOTED THAT THE GOVERNMENT SHOULD NOT BE RELYING ON THIRD PARTIES TO RESOLVE PROBLEMS THAT NORMALLY WOULD BE WITHIN THE PURVIEW OF THE CONTRACTOR.

IN VIEW OF THIS EVALUATION, WE BELIEVE IT IS UNLIKELY THAT SYSTEM SCIENCES WOULD HAVE BEEN SELECTED FOR AWARD, AND THUS EVEN IF, CONTRARY TO OUR CONCLUSION ABOVE, THE COMPANY WAS MISLED WITH RESPECT TO THE PRINTER/PLOTTER, WE WOULD NOT VIEW THE AIR FORCE'S FAILURE TO STATE ITS REQUIREMENTS FOR A PRINTER/PLOTTER IN MORE SPECIFIC TERMS AS MATERIALLY PREJUDICIAL TO THE PROTESTER.

C. DISCUSSIONS

FURTHER, WE FIND NO FACTUAL BASIS FOR THE ALLEGATION THAT THE AIR FORCE FAILED TO CONDUCT MEANINGFUL DISCUSSIONS REGARDING SYSTEM SCIENCES' PROPOSAL. WE HAVE HELD THAT REQUESTS FOR CLARIFICATION OR AMPLIFICATION WHICH LEAD OFFERORS TO AREAS OF THEIR PROPOSALS THAT ARE UNCLEAR ARE SUFFICIENT TO ALERT THEM TO DEFICIENCIES. HEALTH MANAGEMENT SYSTEMS, B-200775, APRIL 3, 1981, 81-1 CPD 255.

IN THIS CASE, THE RECORD SHOWS THAT THE AIR FORCE PRESENTED SYSTEM SCIENCES WITH WRITTEN REQUESTS FOR CLARIFICATION ON 11 DIFFERENT POINTS (INCLUDING ITS ABILITY TO DELIVER THE PRINTER/PLOTTER WITHIN 60 DAYS OF AWARD). ALTHOUGH THE CONTRACTING OFFICER STATES THAT THERE WERE NO DEFICIENCIES IN THE FIRM'S INITIAL PROPOSAL, SYSTEM SCIENCES' RESPONSES TO THE REQUESTS FOR CLARIFICATION CAUSED THE AIR FORCE TO CONTINUE TO RATE IT LOWER THAN PROGRAM CONTROL IN ALL AREAS OTHER THAN THE PRINTER/PLOTTER. IN OUR OPINION, FURTHER DISCUSSIONS WOULD NOT HAVE CORRECTED PROBLEMS INHERENT IN SYSTEM SCIENCES' USE OF SOFTWARE COMPATIBLE ONLY WITH IBM COMPUTERS OR ITS LACK OF EXPERIENCE, SINCE A COMPLETELY REVISED PROPOSAL WOULD HAVE BEEN REQUIRED.

D. PROPOSAL PREPARATION COSTS

FINALLY, SINCE SYSTEM SCIENCES' TECHNICAL PROPOSAL PROPERLY WAS FOUND TO BE UNACCEPTABLE, IT IS NOT ENTITLED TO PROPOSAL PREPARATION COSTS. SECURITY ASSISTANCE FORCES AND EQUIPMENT INTERNATIONAL, INC., B-195196, 195196.2, JULY 10, 1980, CPD 24.

THE PROTEST IS DENIED. ALTERED THE COMPETITION FOR THOSE CONTRACTS. SIERRA POINTS OUT IN THIS REGARD THAT, DUE TO THE UNPREDICTABILITY AS TO WHEN FLIGHT HOURS WOULD BE FLOWN, PAYMENT SOLELY ON A FLIGHT HOUR BASIS ENTAILED A GREATER DEGREE OF RISK FOR A POTENTIAL CONTRACTOR THAN DID PAYMENT UNDER THE MODIFIED METHOD. THIS RISK ALLEGEDLY CAUSED BIDDERS TO FIGURE ADDITIONAL INTEREST COSTS INTO THEIR BIDS (TO COVER THE POTENTIAL NEED TO BORROW OPERATING FUNDS EARLY IN THE AVAILABILITY PERIOD). BUT FOR THIS INCREASED RISK FACTOR, SIERRA CONTINUES, IT WOULD HAVE BEEN ABLE TO BID ON ALL THREE ITEMS RATHER THAN ONLY THE FIRST TWO. SIERRA REASONS THAT THIS RISK SURELY MUST HAVE AFFECTED OTHER POTENTIAL CONTRACTORS IN A SIMILAR WAY, AND THUS REDUCED THE NUMBER OF BIDDERS AND INCREASED THE BID PRICES ON THE ORIGINAL SOLICITATION. IT CONCLUDES THAT, IN VIEW OF THE LIKELIHOOD OF RECEIVING GREATER COMPETITION AND LOWER PRICES, THE FOREST SERVICE SHOULD HAVE CANCELED THE CONTRACTS AND RESOLICITED THESE REQUIREMENTS ONCE IT DETERMINED THAT THE PAYMENT METHOD HAD TO BE CHANGED.

SIERRA FURTHER CONTENDS THAT (1) EMPIRE WAS A NONRESPONSIBLE BIDDER SINCE IT IDENTIFIED IN ITS BID CERTAIN AIRCRAFT WHICH IT NEITHER OWNED NOR TO WHICH IT HAD ACCESS; AND (2) AERO-DYNE'S BID WAS NONRESPONSIVE BECAUSE IT FAILED TO IDENTIFY ITS OFFERED AIRCRAFT BY "N" NUMBER AS REQUIRED BY THE IFB. THESE LATTER TWO ALLEGATIONS ARE UNTIMELY.

OUR BID PROTEST PROCEDURES REQUIRE THAT PROTESTS BE FILED IN OUR OFFICE WITHIN 10 WORKING DAYS AFTER THE BASIS FOR PROTEST IS KNOWN OR SHOULD HAVE BEEN KNOWN, WHICHEVER IS EARLIER. 4 C.F.R. SEC. 21.2(B)(2). WHILE DISCLOSURE OF INFORMATION AT BID OPENING AND NOTICE OF AWARD TO A COMPETITOR DO NOT NECESSARILY PROVIDE KNOWLEDGE OF THE BASIS OF PROTEST, IT IS INCUMBENT UPON A POTENTIAL PROTESTER TO DILIGENTLY SEEK WHATEVER RELEVANT INFORMATION IS NEEDED TO DETERMINE WHETHER A BASIS FOR PROTEST EXISTS. POLICY RESEARCH INCORPORATED, B-200386, MARCH 5, 1981, 81-1 CPD 172. IN NO CASE MAY A POTENTIAL PROTESTER SIT IDLY BY AND, AFTER ALLOWING A SIGNIFICANT AMOUNT OF TIME TO PASS, DECIDE TO SEEK INFORMATION THAT COULD HAVE BEEN OBTAINED EARLIER. A PROTESTER'S FAILURE TO DILIGENTLY PURSUE THE MATTER BY SEEKING THE NECESSARY INFORMATION WITHIN A REASONABLE TIME REQUIRES REJECTION OF THE PROTEST AS UNTIMELY. FOWLER'S REFRIGERATION AND APPLIANCE, INC., B-201389, MARCH 25, 1981, 81-1 CPD 223.

BIDS HERE WERE OPENED DECEMBER 16, AND AWARD WAS MADE ON FEBRUARY 3. THE RESPONSIVENESS OF AERO-DYNE'S BID AND THE RESPONSIBILITY OF EMPIRE COULD HAVE BEEN ASCERTAINED BY SIERRA AT LEAST AS OF THE TIME OF AWARD. SIERRA DID NOT RAISE THESE ALLEGATIONS UNTIL NOVEMBER 6, HOWEVER, MORE THAN NINE MONTHS AFTER THE AWARDS. IN VIEW OF THIS DELAY, THESE ALLEGATIONS ARE UNTIMELY RAISED AND NOT FOR CONSIDERATION IN THE MERITS.

THE FOREST SERVICE CONTENDS THAT THE MODIFICATION ISSUE IS ALSO UNTIMELY. IT BELIEVES SIERRA MUST HAVE BECOME AWARE OF THE CONTRACT MODIFICATIONS MORE THAN 10 DAYS PRIOR TO ITS SEPTEMBER 25 PROTEST TO THE CONTRACTING OFFICER, SINCE SIERRA HAS AIRCRAFT STATIONED AT MISSOULA, MONTANA AND THUS COMES INTO DAILY CONTACT WITH REPRESENTATIVES OF EMPIRE AND AERO-DYNE. WE FIND THAT THIS PORTION OF THE PROTEST IS TIMELY. SIERRA STATES THAT IT FIRST BECAME AWARE OF THE MODIFICATIONS ON SEPTEMBER 18, DURING A CONVERSATION WITH FOREST SERVICE OFFICIALS. THE RECORD CONTAINS NO EVIDENCE, BEYOND THE FOREST SERVICE'S SPECULATION, THAT SIERRA LEARNED OF THE MODIFICATION AT SOME EARLIER DATE. SUCH SPECULATION IS NOT SUFFICIENT TO ESTABLISH THE UNTIMELINESS OF A PROTEST. MARMAC INDUSTRIES, INC., B-203377.5, JANUARY 8, 1982, 82-1 CPD 22. FURTHERMORE, THERE IS NO REQUIREMENT THAT AN UNSUCCESSFUL BIDDER MONITOR A CONTRACT TO ASSURE THAT IT IS NOT MODIFIED. THUS, SIERRA'S SEPTEMBER 25 PROTEST TO THE AGENCY WAS TIMELY. THE FOREST SERVICE DENIED THIS PROTEST ON OCTOBER 27 AND SIERRA FILED ITS PROTEST IN OUR OFFICE ON NOVEMBER 6, FEWER THAN 10 WORKING DAYS LATER. SEE 4 C.F.R. SEC. 21.2(A).

ADDRESSING THE MERITS OF THIS REMAINING ISSUE, THE FOREST SERVICE ARGUES THAT MODIFICATION OF THE PAYMENT METHOD DID NOT HAVE ANY SIGNIFICANT IMPACT ON PRICE, QUANTITY, DELIVERY OR THE ORIGINAL PURPOSE OF THE CONTRACTS, AND THUS WAS NOT BEYOND THE SCOPE OF THE ORIGINAL CONTRACTS. IT IS THE FOREST SERVICE'S VIEW THAT THIS MODIFICATION WAS A MATTER OF CONTRACT ADMINISTRATION WITHIN THE AMBIT OF THE CONTRACTING OFFICER. THE FOREST SERVICE ALSO NOTES THAT THE MODIFICATION IN FACT CONFERRED NO BENEFIT ON THE CONTRACTORS SINCE EMPIRE ALREADY HAD PERFORMED THE EARLY, HIGH RISK PORTION OF ITS CONTRACTS, AND AERO-DYNE WAS REQUIRED TO INSTALL A $1,940 ANCHOR CABLE IN CONSIDERATION FOR THE CHANGE. FURTHER, THE CONTRACTORS RECEIVED FINAL PAYMENT FOR THEIR UNUSED GUARANTEED FLIGHT HOURS IN LATE SEPTEMBER INSTEAD OF LATE AUGUST AS WOULD HAVE BEEN THE CASE UNDER THE ORIGINAL CONTRACT. FINALLY, THE FOREST SERVICE REPORTS THAT ITS FISCAL OFFICE HAS DISCOVERED A MEANS BY WHICH THE FOREST SERVICE CAN PAY THE OPERATORS PART OF THE FLIGHT RATE. THUS, THERE IS NO LONGER A NEED FOR THE MODIFICATION, AND THE OPTION YEAR CONTRACTS FOR AERO-DYNE AND EMPIRE WILL BE CHANGED TO REMOVE THE MODIFICATION.

AS WE HAVE STATED IN PRIOR DECISIONS, PROTESTS CONCERNING CONTRACT MODIFICATIONS ORDINARILY WILL NOT BE APPROPRIATE FOR REVIEW BY OUR OFFICE SINCE SUCH MATTERS INVOLVE CONTRACT ADMINISTRATION AND THUS COME UNDER THE AUTHORITY OF THE CONTRACTING AGENCY. MOORE SERVICE, INC., B-200718, AUGUST 17, 1981, 81-2 CPD 145. OUR OFFICE WILL REVIEW SUCH MATTERS, HOWEVER, WHERE, AS HERE, IT IS ALLEGED THAT THE MODIFICATION WENT BEYOND THE SCOPE OF THE CONTRACT AND SHOULD HAVE BEEN THE SUBJECT OF A NEW PROCUREMENT, SINCE THE MODIFICATION COULD BE VIEWED AS AN ATTEMPT BY THE AGENCY TO CIRCUMVENT PROCUREMENT STATUTES. SEE WEBCRAFT PACKAGING, DIVISION OF BEATRICE FOODS CO., B-194087, AUGUST 14, 1979, 79-2 CPD 120. WE REVIEW THESE CASES TO DETERMINE WHETHER THE MODIFICATION SO MATERIALLY ALTERED THE CONTRACT THAT THE FIELD OF COMPETITION FOR THE CONTRACT AS MODIFIED WOULD BE SIGNIFICANTLY DIFFERENT FROM THAT OBTAINED FOR THE ORIGINAL CONTRACT. ID. IN MAKING THIS DETERMINATION, WE WILL CONSIDER ANY RELEVANT FACTORS, INCLUDING THE MAGNITUDE, QUALITY AND EFFECT OF THE CHANGE. ID. CONSIDERING THESE AND OTHER RELEVANT FACTORS INVOLVED HERE, WE DO NOT BELIEVE THE CHANGE IN METHOD OF PAYMENT WAS OUTSIDE THE SCOPE OF THE ORIGINAL CONTRACTS.

THE MODIFICATION HAD NO EFFECT ON THE TYPE OR AMOUNT OF WORK REQUIRED, THE MANNER IN WHICH IT WAS TO BE PERFORMED, OR THE SCHEDULE OF PERFORMANCE. THE MODIFICATION MERELY OBVIATED THE POSSIBILITY THAT NO PAYMENTS WOULD BE MADE TO THE OPERATORS UNTIL THE END OF THE AVAILABILITY PERIOD. WE QUESTION THE SIGNIFICANCE OF THIS RISK. EVEN IF NO FLIGHT HOURS WERE REQUIRED DURING THE AVAILABILITY PERIOD, OPERATORS UNDER THE ORIGINAL CONTRACTS WOULD HAVE HAD TO WAIT NO LONGER THAN THREE MONTHS BEFORE RECEIVING FULL PAYMENT. ALTHOUGH THE BORROWING OF OPERATING FUNDS TO COVER THE ENTIRE PERFORMANCE PERIOD CLEARLY WOULD INCREASE THE COST TO THE OPERATOR, IT IS ALSO TRUE THAT OPERATING COSTS WOULD BE SUBSTANTIALLY REDUCED IF THE AIRCRAFT REMAINED ON THE GROUND FOR THE ENTIRE AVAILABILITY PERIOD. WE FURTHER NOTE THAT THERE EXISTED SOME REASONABLE POSSIBILITY THAT A NUMBER OF FLIGHT HOURS WOULD BE FLOWN AND THAT THE OPERATORS WOULD THUS NOT HAVE TO WAIT UNTIL THE END OF THE AVAILABILITY PERIOD TO RECEIVE SOME PAYMENT (THIS IS, IN FACT, WHAT HAPPENED HERE). THESE LATTER TWO CONSIDERATIONS MITIGATED THE RISK INVOLVED. IN OUR OPINION, THIS ACTUAL RISK WAS NOT SO GREAT THAT ITS REMOVAL CAN BE SAID TO HAVE CHANGED THE ESSENTIAL NATURE OF THE CONTRACTS.

WHILE SIERRA MAINTAINS THAT, ABSENT THE RISK OF DELAYED PAYMENT, IT WOULD HAVE BEEN ABLE TO BID ON ITEM THREE WHILE OFFERING LOWER PRICES FOR ALL THREE ITEMS, THE FOREST SERVICE VALUED THIS CHANGE AT ONLY $2,000, AS MEASURED BY THE CONSIDERATION EXTRACTED FROM AERO-DYNE. SIERRA HAS PRESENTED NO EVIDENCE INDICATING A DIFFERENT VALUE FOR THE CHANGE; IT CERTAINLY HAS NOT SHOWN, AS IT ALLEGES, THAT THE RISK WAS OF SUCH A MAGNITUDE THAT A SIGNIFICANT SEGMENT OF THE POTENTIAL COMPETITION WAS THEREBY DISSUADED FROM BIDDING ON THE PROCUREMENT.

SIERRA CITES AS SUPPORT FOR ITS PROTEST SEVERAL PRIOR DECISIONS OF OUR OFFICE DECLARING CERTAIN CONTRACT CHANGES TO BE BEYOND THE SCOPE OF THE ORIGINAL CONTRACT. IN EACH OF THOSE CASES, HOWEVER - WEBCRAFT PACKAGING, DIVISION OF BEATRICE FOODS CO., SUPRA; LAMSON DIVISION OF DIEBOLD, INC., B-196029.2, JUNE 30, 1980, 80-1 CPD 447, AND AMERICAN AIR FILTER CO., INC., B-188408, FEBRUARY 16, 1978, 78-1 CPD 136 - THE RECORD ESTABLISHED THAT THE WORK CALLED FOR UNDER THE ORIGINAL CONTRACT HAD BEEN SO SIGNIFICANTLY ALTERED BY THE CHANGE THAT IT EFFECTIVELY CREATED A NEW CONTRACT. WEBCRAFT, FOR EXAMPLE, THE SPECIFICATION WAS CHANGED SHORTLY AFTER AWARD TO PERMIT USE OF A COMMONLY AVAILABLE PAPER INSTEAD OF A SCARCE SPECIALTY PAPER IN THE PERFORMANCE OF A PRINTING CONTRACT. WE FOUND THAT THE FIELD OF COMPETITION UNDER THE CHANGED SPECIFICATION WOULD HAVE BEEN MATERIALLY DIFFERENT IN VIEW OF CLEAR EVIDENCE THAT AT LEAST NINE PAPER MILLS COULD HAVE SUPPLIED PAPER UNDER THE CHANGED SPECIFICATION. AGAIN, THE CHANGE TO THE EMPIRE AND AERO-DYNE CONTRACTS HAS NOT BEEN SHOWN TO HAVE HAD A SIMILAR IMPACT.

SIERRA ALSO RELIES ON OUR DECISION DYNETERIA, INC., B-178701, JULY 15, 1975, 75-2 CPD 36, WHERE WE FOUND IMPROPER A MODIFICATION INCREASING THE CONTRACT PRICE BY $137,214 TO REFLECT A POST-BID OPENING CHANGE IN A SERVICE CONTRACT ACT WAGE DETERMINATION. IT WAS CLEAR THERE, HOWEVER, THAT SUCH AN INCREASE IN PRICE WOULD BE PREJUDICIAL TO OTHER BIDDERS SINCE THE NEXT LOW BID WAS ONLY $58,000 ABOVE THE AWARDEE'S BID. THERE IS NO EVIDENCE THAT SIERRA OR OTHER BIDDERS WERE SIMILARLY PREJUDICED BY THE MODIFICATIONS HERE.

AS PART OF THE MODIFICATION OF THE AERO-DYNE AND EMPIRE CONTRACTS, A PROVISION MANDATING THE AVAILABILITY OF RELIEF PILOTS FOR EACH AIRCRAFT FOR EVERY DAY OF THE AVAILABILITY PERIOD WAS CHANGED TO REQUIRE RELIEF PILOTS ONLY WHEN REQUESTED BY THE CONTRACTING OFFICER. SIERRA CONTENDS THAT THIS CHANGE, TOGETHER WITH THE PAYMENT MODIFICATION, EXCEEDED THE SCOPE OF THE ORIGINAL CONTRACTS. WE DISAGREE. THE IMPACT OF THIS CHANGE ON THE CONTRACTS APPEARS TO HAVE BEEN NEGLIGIBLE. ACCORDING TO THE FOREST SERVICE, THE CHANGE WAS IMPOSED TO ALLOW MORE ROOM FOR PASSENGERS WHEN NEEDED. SINCE THE REQUIREMENT REMAINED DISCRETIONARY WITH THE AGENCY, AND SINCE THERE WAS NO BASIS FOR PREDICTING WHETHER OR WHEN A RELIEF PILOT WOULD BE REQUIRED, OPERATORS NECESSARILY WOULD HAVE TO BE PREPARED TO FURNISH A RELIEF PILOT AT ALL TIMES. THIS IS PRECISELY THE BASIS UPON WHICH BIDS WERE ORIGINALLY SOLICITED. THUS, WE FIND NO REASON TO CONCLUDE THAT THIS CHANGED REQUIREMENT WOULD HAVE HAD ANY SIGNIFICANT EFFECT ON THE COMPETITION, EVEN WHEN CONSIDERED JOINTLY WITH THE PAYMENT MODIFICATION. THE TWO CHANGES, IN OUR OPINION, DID NOT RENDER THE CONTRACTS FUNDAMENTALLY DIFFERENT FROM THE AWARDED CONTRACTS.

SIERRA FINALLY COMPLAINS THAT THE FOREST SERVICE EXERCISED ITS CONTRACT OPTION AND RENEWED THE EMPIRE AND AERO-DYNE CONTRACTS WHILE SIERRA'S PROTEST WAS PENDING IN OUR OFFICE. SIERRA MAINTAINS THAT THIS RENEWAL WAS ILLEGAL UNDER THE RULING IN ROBERT E. DERECKTOR OF R. I., INC. V. GOLDSCHMIDT, 506 F.SUPP. 1059 (D.R.I. 1980), SINCE THE FOREST SERVICE FAILED TO GIVE OUR OFFICE ADVANCE NOTICE OF THE RENEWALS AS REQUIRED BY FEDERAL PROCUREMENT REGULATIONS SEC. 1-2.407-8(B)(3). THE CITED DISTRICT COURT OPINION NOTWITHSTANDING, IT IS OUR STUDIED VIEW, AS WE HAVE INDICATED IN A NUMBER OF PRIOR DECISIONS, THAT AN AGENCY'S FAILURE TO NOTIFY GAO OF AN IMPENDING AWARD IS A MERE PROCEDURAL DEFECT WHICH WILL NOT, BY ITSELF, AFFECT THE LEGALITY OF AN AWARD. DIVERSIFIED COMPUTER SERVICES, INC., B-201681, JULY 7, 1981, 81-2 CPD 13; STARLINE, INCORPORATED, 55 COMP.GEN. 1160, 1172 (1976), 76-1 CPD 365. THE VIEWS OF THE DISTRICT COURT OF RHODE ISLAND, EXPRESSED IN A MATTER IN NO WAY RELATED TO THIS PROTEST, ARE NOT BINDING ON THIS OFFICE. IN VIEW OF OUR CONCLUSION THAT SIERRA'S PROTEST IS WITHOUT MERIT, THE QUESTION WHETHER THE RENEWALS WERE OTHERWISE PROPER IS ACADEMIC. DIVERSIFIED COMPUTER SERVICES, INC., SUPRA.

THE PROTEST IS DENIED.