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B-205439, JUL 19, 1982

B-205439 Jul 19, 1982
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Highlights

PROTEST ALLEGATIONS ARE UNTIMELY WHERE THEY COULD HAVE BEEN DISCOVERED AT THE TIME OF AWARD BUT WERE NOT RAISED UNTIL MORE THAN NINE MONTHS AFTER AWARD. 2. AN AIRCRAFT SERVICES CONTRACT MODIFICATION WHICH RELAXED A RELIEF PILOT REQUIREMENT AND REMOVED THE RISK OF LATE PAYMENT BY CHANGING THE METHOD OF PAYMENT WAS NOT A CARDINAL CHANGE WARRANTING CANCELLATION OF THE CONTRACT AND RESOLICITATION OF THE REQUIREMENT. WHERE THE MODIFICATION DID NOT CHANGE THE ESSENTIAL NATURE OF THE CONTRACT AND THE RECORD DOES NOT INDICATE THAT THE MODIFICATION WOULD HAVE ATTRACTED A SIGNIFICANTLY DIFFERENT FIELD OF COMPETITION THAN THAT WHICH COMPETED FOR THE ORIGINAL CONTRACT. 3. AN AGENCY'S FAILURE TO NOTIFY GAO BEFORE RENEWING A CONTRACT WHICH IS THE SUBJECT OF A PROTEST PENDING AT GAO.

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B-205439, JUL 19, 1982

DIGEST: 1. PROTEST ALLEGATIONS ARE UNTIMELY WHERE THEY COULD HAVE BEEN DISCOVERED AT THE TIME OF AWARD BUT WERE NOT RAISED UNTIL MORE THAN NINE MONTHS AFTER AWARD. 2. AN AIRCRAFT SERVICES CONTRACT MODIFICATION WHICH RELAXED A RELIEF PILOT REQUIREMENT AND REMOVED THE RISK OF LATE PAYMENT BY CHANGING THE METHOD OF PAYMENT WAS NOT A CARDINAL CHANGE WARRANTING CANCELLATION OF THE CONTRACT AND RESOLICITATION OF THE REQUIREMENT, WHERE THE MODIFICATION DID NOT CHANGE THE ESSENTIAL NATURE OF THE CONTRACT AND THE RECORD DOES NOT INDICATE THAT THE MODIFICATION WOULD HAVE ATTRACTED A SIGNIFICANTLY DIFFERENT FIELD OF COMPETITION THAN THAT WHICH COMPETED FOR THE ORIGINAL CONTRACT. 3. AN AGENCY'S FAILURE TO NOTIFY GAO BEFORE RENEWING A CONTRACT WHICH IS THE SUBJECT OF A PROTEST PENDING AT GAO, IS A PROCEDURAL DEFICIENCY WHICH WILL NOT, BY ITSELF, AFFECT THE LEGALITY OF THE AWARD.

SIERRA PACIFIC AIRLINES:

SIERRA PACIFIC AIRLINES PROTESTS THE AWARD OF CONTRACTS TO EMPIRE AIRWAYS AND AERO-DYNE UNDER SOLICITATION NO. R1-81-5, ISSUED BY THE U. S. FOREST SERVICE, DEPARTMENT OF AGRICULTURE, FOR SMOKE JUMPING AND PARACARGO SERVICES. SIERRA CONTENDS THAT THESE AWARDS WERE IMPROPER BECAUSE EMPIRE WAS A NONRESPONSIBLE BIDDER AND AERO-DYNE'S BID WAS NONRESPONSIVE. SIERRA ALSO PROTESTS A SUBSEQUENT MODIFICATION TO BOTH CONTRACTS ON THE GROUND THAT IT WENT BEYOND THE SCOPE OF THE CONTRACTS AS ORIGINALLY ADVERTISED, AND THUS WAS IMPROPER. FOR THE REASONS DISCUSSED BELOW, WE DENY THE PROTEST.

THE SOLICITATION, ISSUED NOVEMBER 14, 1980, SOUGHT BIDS ON THREE SEPARATE ITEMS OF AIRCRAFT SERVICES. ITEMS ONE AND TWO CALLED FOR PLANES TO BE STATIONED AT MISSOULA, MONTANA FROM JUNE 4, 1981 THROUGH SEPTEMBER 30 AND JUNE 15 THROUGH SEPTEMBER 30, RESPECTIVELY. ITEM THREE REQUIRED THAT A PLANE BE STATIONED AT WEST YELLOWSTONE, MONTANA FROM JULY 1 THROUGH SEPTEMBER 25. ITEMS ONE AND TWO PROVIDED FOR 115, AND ITEM THREE 100, GUARANTEED FLIGHT HOURS. THE CONTRACT PERIOD FOR ALL ITEMS WAS ONE CALENDAR YEAR FROM THE DATE OF AWARD, ALTHOUGH THE FOREST SERVICE RESERVED THE OPTION TO EXTEND THE CONTRACTS FOR TWO ADDITIONAL ONE YEAR PERIODS.

BIDS WERE TO BE EVALUATED BASED ON THE PRICE PER GUARANTEED FLIGHT HOUR. THIS METHOD OF BIDDING DIFFERED FROM PRIOR SOLICITATIONS WHICH CALLED FOR TWO PRICES - THE FIXED HOURLY FLIGHT RATE AND A DAILY AVAILABILITY RATE DESIGNED TO COVER THE OPERATOR'S DAILY COSTS OF PROVIDING THE AIRCRAFT. UNDER THE PRIOR SCHEME, THE ULTIMATE USER OF THE AIRCRAFT (I.E. THE OTHER FEDERAL AND STATE AGENCIES WITH FOREST MANAGEMENT RESPONSIBILITIES) PAID ONLY THE FLIGHT RATE PORTION WHILE THE DAILY AVAILABILITY WOULD BE PAID OUT OF THE FOREST SERVICE'S FIRE MANAGEMENT FUNDS. THE NEW SCHEME OF A SINGLE PAYMENT ON AN ACTUAL FLIGHT HOUR BASIS WAS INTENDED TO ALLOCATE THE ENTIRE COST TO THE USER BASED ON HOURS OF USE, AND THEREBY REDUCE EXPENDITURES OF THE FOREST SERVICE'S FIRE MANAGEMENT FUNDS.

BIDS WERE OPENED DECEMBER 16, 1980. FOUR BIDS WERE RECEIVED, TWO OF WHICH OFFERED ONLY ON ITEMS ONE AND TWO. EMPIRE WAS LOW ON ITEMS ONE AND TWO AT $2,222 PER GUARANTEED FLIGHT HOUR.

WHEN EMPIRE COMMENCED PERFORMANCE OF ITEMS ONE AND TWO IN JUNE 1981, USERS OTHER THAN THE FOREST SERVICE WERE UNWILLING TO PAY THE SIGNIFICANTLY HIGHER FLIGHT RATE AND THUS WERE NOT USING THE AIRCRAFT, AND THE FOREST SERVICE BECAME CONCERNED THAT IT WOULD HAVE TO PAY THE CONTRACTORS FOR GUARANTEED FLIGHT HOURS NOT USED. TO AVOID THIS POSSIBILITY, THE FOREST SERVICE MODIFIED THE CONTRACTS TO PROVIDE FOR THE BIFURCATED PAYMENT METHOD USED IN THE PAST; EFFECTIVE JULY 1, EMPIRE AND AERO-DYNE WOULD RECEIVE ONE PART OF THEIR TOTAL CONTRACT PRICE AS A PERIODIC PAYMENT FOR DAILY AVAILABILITY (TO BE PAID BY THE FOREST SERVICE), AND THE OTHER PART AS AN HOURLY FLIGHT RATE BASED ON ACTUAL USE (TO BE PAID BY THE USER). IT WAS HOPED THAT THE RESULTING REDUCTION IN FLIGHT RATES TO FORMER LEVELS WOULD LEAD TO GREATER USE OF THE AIRCRAFT.

SIERRA DOES NOT QUESTION THE NECESSITY FOR THIS MODIFICATION, BUT CONTENDS THAT IT CONSTITUTED A CARDINAL CHANGE, THAT IS, A CHANGE OUTSIDE THE SCOPE OF THE ADVERTISED CONTRACTS, WHICH WOULD HAVE SIGNIFICANTLY

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