B-197444, SEP 4, 1980

B-197444, SEP 4, 1980

DIGEST: USE OF NEGOTIATION PROCEDURES IS PROPER WHERE AGENCY, IN PROCUREMENT OF FLIGHT TRAINING, AIRCRAFT MAINTENANCE, AND RELATED FACILITIES MANAGEMENT SERVICES, REQUIRES HIGH LEVEL OF TECHNICAL COMPETENCE TO SATISFY ITS MINIMUM NEEDS AND ADEQUATE SPECIFICATIONS DESCRIBING NEEDS CANNOT BE DRAFTED.

DEL RIO FLYING SERVICE:

DEL RIO FLYING SERVICE (DEL RIO) PROTESTS THE ISSUANCE BY THE DEPARTMENT OF THE AIR FORCE OF REQUEST FOR PROPOSALS (RFP) F41689-80-B 0010 TO OPERATE THE T-41 FLIGHT SCREENING AND TRAINING PROGRAM, INCLUDING AIRCRAFT AND FACILITIES MAINTENANCE, AT HONDO, TEXAS. DEL RIO CONTENDS THAT THE REQUIREMENT SHOULD BE FORMALLY ADVERTISED RATHER THAN NEGOTIATED. DEL RIO FURTHER CONTENDS THAT THE CONTRACTING OFFICER IMPROPERLY DENIED OFFERORS AN OPPORTUNITY TO INSPECT THE SITE.

WE DENY THE PROTEST.

THE PROCUREMENT WAS TOTALLY SET ASIDE FOR SMALL BUSINESS UNDER THE AUTHORITY OF 10 U.S.C. SEC. 2304(A)(1) (1976). DEFENSE ACQUISITION REGULATION (DAR) SEC. 1-706.5(B) (1976 ED.) PROVIDES THAT UNILATERAL SMALL BUSINESS SET-ASIDES MAY BE COMPETED BY EITHER "CONVENTIONAL NEGOTIATION" OR "SMALL BUSINESS RESTRICTED ADVERTISING," BUT ESTABLISHES A PREFERENCE FOR RESTRICTED ADVERTISING WHICH "SHALL BE USED WHENEVER POSSIBLE."

DEL RIO MAINTAINS THAT THE HONDO PROGRAM IS NOT A COMPLEX ACQUISITION REQUIRING NEGOTIATION. DEL RIO STATES THAT THE CONTRACTOR HAS NO LATITUDE AS TO THE FORM OR TYPE OF TRAINING FOR STUDENT PILOTS, AND THAT THE TEACHING PROGRAMS AND TECHNIQUES ARE FULLY ESTABLISHED, FULLY DEVELOPED AND IMPOSED ON THE CONTRACTOR. ESSENTIALLY, DEL RIO BELIEVES THAT THIS PROCUREMENT SHOULD BE ADVERTISED SINCE THE SPECIFICATIONS CLEARLY SET FORTH THE AIR FORCE'S REQUIREMENTS AND NOTHING IS LEFT TO THE CONTRACTOR'S DISCRETION.

THE FLIGHT SCREENING PROGRAM IS DESIGNED TO ELIMINATE PROSPECTIVE STUDENT PILOTS WHO DO NOT HAVE THE APTITUDE NECESSARY FOR A MORE COSTLY UNDERGRADUATE PILOT TRAINING PROGRAM ON THE T-37 JET AIRCRAFT. STUDENTS FROM ALLIED NATIONS ARE INCLUDED IN THE FLIGHT TRAINING. THE CONTRACTOR IS TO BE RESPONSIBLE FOR MANAGING THE PROGRAM, PROVIDING INSTRUCTOR PILOTS, AND FURNISHING OPERATION, SUPPLY AND MAINTENANCE SUPPORT FOR THE HONDO FACILITY, INCLUDING MECHANICAL REPAIRS, SECURITY GUARDS, GROUNDS KEEPING, JANITORIAL SERVICES, AND FIREFIGHTING.

THE CONTRACTING OFFICER JUSTIFIED THE NEGOTIATION OF THIS REQUIREMENT ON THE GROUNDS THAT THE PROCUREMENT IS FOR PROPERTY OR SERVICES FOR WHICH IT IS IMPRACTICABLE TO OBTAIN COMPETITION. 10 U.S.C. SEC. 2304(A)(10); DAR SEC. 3-210. IN THIS RESPECT, THE CONTRACTING OFFICER DETERMINED THAT:

"*** THE T-41 AIRCRAFT IS DEEMED TO BE EQUIPMENT OF A HIGHLY TECHNICAL OR SPECIALIZED NATURE ***. EXTENSIVE TRAINING AND FAA CERTIFICATION ARE REQUIRED TO PERFORM MAINTENANCE ON THE AIRCRAFT. OPERATION OF THE AIRCRAFT AND PROVIDING INSTRUCTION REQUIRE A PILOT'S LICENSE, INSTRUCTOR CERTIFICATION AND EXTENSIVE EXPERIENCE *** PROPER SERVICING IS ESSENTIAL TO THE LIVES OF THE STUDENTS ***. THE GOVERNMENT MUST THEREFORE INSURE THAT THE PROCEDURES USED TO SELECT A CONTRACTOR WILL RESULT IN OBTAINING THE HIGHEST QUALITY PERFORMANCE POSSIBLE FOR THE DOLLARS EXPENDED.

"*** ADDITIONALLY, ACQUISITION BY NEGOTIATION PROCEDURES *** IS NECESSARY BECAUSE THEY INVOLVE MAINTENANCE, REPAIR, ALTERATION OR INSPECTION *** (FOR WHICH) THE EXACT NATURE OR AMOUNT OF WORK TO BE DONE IS NOT KNOWN ***. (BASED ON THE ESTIMATES OF STUDENT LOADS AND FLYING HOURS) OFFERORS MUST PROJECT THE SERVICES AND MATERIALS REQUIRED TO MAINTAIN, ALTER, REPAIR AND INSPECT THE EQUIPMENT. THESE PROJECTIONS ARE PART OF TECHNICAL PROPOSALS AND ARE EVALUATED TO DETERMINE THE OFFEROR'S UNDERSTANDING OF THE REQUIREMENT. ***

"*** THE CONTRACTOR MUST HAVE THE NECESSARY MANAGEMENT EXPERTISE TO RESPOND TO VARIATIONS IN THE PLANNED SCHEDULE ON SHORT NOTICE AND TO MAINTAIN A SMOOTH OPERATION IN CASE OF UNFORESEEN CIRCUMSTANCES. IN ORDER TO INSURE THE SELECTION OF A CONTRACTOR POSSESSING THE NECESSARY MANAGEMENT EXPERTISE, FACTORS SUCH AS MANAGEMENT EXPERIENCE DEMONSTRATING AN UNDERSTANDING OF THE REQUIREMENT *** MUST BE EVALUATED."

THUS, AS REFLECTED IN THE CONTRACTING OFFICER'S STATEMENT AND THE AGENCY REPORT, THE AIR FORCE'S PRIMARY CONCERN APPEARS TO BE ITS NEED FOR A HIGHLY QUALIFIED CONTRACTOR WITH THE REQUISITE MANAGEMENT EXPERTISE AND UNDERSTANDING OF THE PROGRAM'S REQUIREMENTS TO INSURE HIGH PERFORMANCE, WITH RESPECT TO CLASSROOM AND COCKPIT INSTRUCTION (ACTUAL FLIGHT TRAINING IN THE AIRCRAFT), MAINTENANCE AND REPAIR OF THE AIRCRAFT, AND MANAGEMENT OF THE TRAINING FACILITY.

IT IS CLEAR THAT THE AIR FORCE IS BUYING TECHNICAL AND MANAGERIAL COMPETENCE, NOT MERELY ROUTINE SERVICES WHICH COULD BE SPECIFICALLY DESCRIBED, AND THAT ITS MINIMUM NEEDS CAN BE SATISFIED ONLY BY A HIGH LEVEL OF SUCH COMPETENCE. UNDER SUCH CIRCUMSTANCES, NEGOTIATION IS AUTHORIZED. SEE, E.G., TIDEWATER PROTECTIVE SERVICES, INC., ET AL. - RECONSIDERATION, 56 COMP.GEN. 649 (1977), 77-1 CPD 361; CHAMELEON CO., INC., B-197244, JULY 22, 1980, 80-2 CPD 59. IN FACT, WE POINT OUT THAT GENERALLY PROCUREMENTS FOR TRAINING AND INSTRUCTOR SERVICES ARE NEGOTIATED, SEE, E.G., DEL RIO FLYING SERVICE, INC., B-197448, AUGUST 6, 1980, 80-2 CPD ; HARBRIDGE HOUSE, INC., B-195320, FEBRUARY 8, 1980, 80-1 CPD 112, AS ARE PROCUREMENTS FOR MANAGEMENT AND MAINTENANCE OF GOVERNMENT FACILITIES. SEE, E.G., MANAGEMENT SERVICES, INC., 55 COMP.GEN. 715 (1976), 76-1 CPD 74; 52 COMP.GEN. 718 (1973); 50 COMP.GEN. 390 (1970); BURNS AND ROE TENNESSEE, INC., B-189462, JULY 21, 1978, 78-2 CPD 57.

THE PROTESTER'S RELIANCE ON B. B. SAXON COMPANY, INC., 57 COMP.GEN. 501 (1978), 78-1 CPD 410, IS MISPLACED. IN THAT CASE WE HELD THAT THE AIR FORCE IMPROPERLY USED NEGOTIATION PROCEDURES IN LIEU OF SMALL BUSINESS RESTRICTED ADVERTISING TO AWARD A CONTRACT FOR AIRCRAFT ENGINE OVERHAUL SERVICES BECAUSE WE FOUND THAT ADEQUATE SPECIFICATIONS EXISTED TO PERMIT THE USE OF FORMAL ADVERTISING. OF PARTICULAR SIGNIFICANCE IN THAT CASE WAS THE FACT THAT THE AGENCY WAS CONDUCTING ONLY A PRICE COMPETITION; TECHNICAL PROPOSALS WERE NOT REQUIRED AND A COMPARATIVE EVALUATION OF OFFERORS' TECHNICAL ABILITIES AND EXPERIENCE WAS NOT MADE. HERE, HOWEVER, THE AIR FORCE IS SEEKING TO CONDUCT SUCH AN EVALUATION, REQUIRING OFFERORS TO DEMONSTRATE IN THEIR TECHNICAL PROPOSALS THEIR PERSONNEL AND MANAGEMENT CAPABILITY TO PROVIDE FLIGHT TRAINING AND AIRCRAFT MAINTENANCE AND THEIR UNDERSTANDING OF THE OVERALL REQUIREMENT, INCLUDING THEIR ORGANIZATIONAL STRUCTURE AND ITS RELATIONSHIP TO THE MANAGEMENT AND OPERATION OF THE HONDO FACILITY. THIS SITUATION IS THUS MORE AKIN TO THE ONE IN CHAMELEON, SUPRA, WHERE THE AGENCY ALSO REQUIRED A HIGH LEVEL OF TECHNICAL COMPETENCE AND EVALUATED COMPETING TECHNICAL PROPOSALS TO ACQUIRE THAT COMPETENCE AND WHERE WE UPHELD THE USE OF NEGOTIATION PROCEDURES DESPITE THE PROTESTER'S ASSERTION THAT THE SERVICES TO BE PROVIDED WERE "ROUTINE."

WITH RESPECT TO THE SITE INSPECTION, THE AIR FORCE REPORTS THAT A SITE INSPECTION TOOK PLACE IN JANUARY 1980 AND THAT A DEL RIO REPRESENTATIVE STARTED BUT DID NOT COMPLETE THE TOUR BECAUSE HE LEFT THE INSPECTION EARLY. THE AIR FORCE FURTHER REPORTS THAT IT ADVISED THE PROTESTER THAT IT COULD ARRANGE FOR ANOTHER INSPECTION, BUT THAT NONE HAS BEEN REQUESTED.

THE PROTEST IS DENIED.