B-161997, OCT. 12, 1967

B-161997, OCT. 12, 1967

BIDS - EVALUATION - PROPRIETY DECISION TO BLACKHAWK-DUNCAN-GRAFT RE PROTEST TO AWARD TO NORTH AMERICAN AVIATION, INC. FOR LEASE OF 3 JET AIRCRAFT UNDER NEGOTIATED CONTRACT BY NAVAL AIR SYSTEMS COMMAND. LOW OFFEROR FOR LEASE OF JET AIRCRAFT WHO PROTESTS TECHNICAL EVALUATION OF ITS LEAR MODEL 24 AIRCRAFT SUBMITTED UNDER SPECIFICATION FOR AIRCRAFT WITH 1400 NAUTICAL MILE RANGE HAS NOT FURNISHED EVIDENCE SHOWING THAT AGENCY EVALUATION WAS ARBITRARY OR CAPRICIOUS OR MADE IN BAD FAITH. SINCE EVIDENCE BASED ON DATA SUPPLIED BY PLANE MANUFACTURER THAT MODEL OFFERED BY PROTESTANT HAD MAXIMUM RANGE OF ONLY 1040 NAUTICAL MILES WHICH IS SUBSTANTIALLY LESS THAN REQUIREMENT ADMINISTRATIVE DETERMINATION MUST BE ACCEPTED IN ABSENCE OF EVIDENCE OF ARBITRARY OR CAPRICIOUS DETERMINATION.

TO BLACKHAWK-DUNCAN-GRAFT:

REFERENCE IS MADE TO YOUR LETTER OF JULY 6, 1967, AND SUPPLEMENTAL COMMUNICATIONS, PROTESTING THE AWARD OF A CONTRACT TO NORTH AMERICAN AVIATION, INC., FOR THE LEASE (WITH OPTION TO PURCHASE) OF THREE JET AIRCRAFT UNDER REQUEST FOR PROPOSAL NO. N00019-67-R-0378 (RFP) ISSUED JUNE 10, 1967, BY THE NAVAL AIR SYSTEMS COMMAND.

THE PERTINENT FACTS ARE SET FORTH IN NAVY'S ADMINISTRATIVE REPORT OF AUGUST 15, 1967, AS FOLLOWS: "REQUEST FOR PROPOSAL N00019-67-R-0378 WAS ISSUED 10 JUNE 1967. FOUR PROPOSALS WERE RECEIVED AS FOLLOWS:

COMPANY LEASE PRICE PURCHASE PRICE TOTAL

NORTH AMERICAN $1,130,360 $2,370,000 $3,500,360

LEAR JET 925,600 1,500,000 2,425,600

BLACKHAWK-DUNCAN-GRAFT 1,374,600 1,350,000 2,724,600

(JOINT VENTURE)

REMMERT-WARNER 1,227,750 2,640,000 3,867,750 "NAVAIR EVALUATED THE BIDS RECEIVED ON THE BASIS OF THE TOTAL PRICE. A DEVIATION TO ASPR 1-1504 (B) WAS OBTAINED FOR THIS PURPOSE. THE PURCHASE PRICE WAS OF IMPORTANCE TO NAVAIR AND IT WAS CONSIDERED APPROPRIATE TO INCLUDE IT IN THE EVALUATION OF THE BIDS. "PARAGRAPH E OF THE SPECIFICATION FOR THIS AIRCRAFT LEASE/PURCHASE, AS AMENDED, STATED THAT THE RANGE REQUIREMENT WHEN UTILIZING THE MILITARY SPECIFICATION ALLOWANCES AND RESERVES WAS 1400 NAUTICAL MILES. THIS RANGE REQUIREMENT WAS ESTABLISHED BY THE CHIEF OF NAVAL OPERATIONS TO PROVIDE A QUICK RESPONSE AIRCRAFT FOR USE IN SOUTHEAST ASIA. NAVAIR TECHNICAL PERSONNEL INDICATED THAT THE LEAR MODEL 24 AIRCRAFT PROPOSED BY BLACKHAWK-DUNCAN-GRAF DID NOT MEET THIS RANGE REQUIREMENT. THE LEAR MODEL 25 AIRCRAFT PROPOSED BY LEAR JET ALSO DID NOT MEET THE RANGE REQUIREMENT. IN ADDITION, THE LEAR MODEL 25 WAS NOT CERTIFICATED BY THE FEDERAL AVIATION AGENCY AS REQUIRED IN THE SPECIFICATION. "ACCORDINGLY, THE LEAR JET AND BLACKHAWK-DUNCAN-GRAF PROPOSALS WERE DETERMINED TO BE NON-RESPONSIVE AND WERE NOT CONSIDERED FOR AWARD. THE CONTRACT FOR THE LEASE/PURCHASE WAS AWARDED TO NORTH AMERICAN AVIATION ON 30 JUNE 1967. TWO LEASED AIRCRAFT ARE CURRENTLY DEPLOYED AND THE THIRD WILL BE DEPLOYED IN EARLY SEPTEMBER 1967.'

BY LETTER OF JULY 19, 1967, TO THE NAVAL AIR SYSTEMS COMMAND YOU QUESTIONED NAVY'S TECHNICAL EVALUATION OF THE RANGE CAPABILITIES OF THE LEAR MODEL 24 AIRCRAFT OFFERED IN YOUR PROPOSAL, AND REQUESTED THAT A REEVALUATION BE MADE THEREOF AND THAT YOU BE AFFORDED THE OPPORTUNITY TO PROVE THAT SUCH AIRCRAFT MEETS THE RANGE REQUIREMENTS OF THE RFP SPECIFICATIONS. IN YOUR SUPPLEMENTAL LETTER TO THIS OFFICE OF AUGUST 16, 1967, YOU STATED THAT YOU HAD NOT RECEIVED ANY DIRECT RESPONSE TO YOUR REQUEST OF JULY 19, AND THAT YOU CANNOT, WITHOUT THE BENEFIT OF KNOWING EVEN GENERALLY WHAT DATA SUPPORTED NAVY'S DECISION, ACCEPT THE FACT THAT SUCH DECISION DID NOT ARBITRARILY ASSIGN UNDUE CONSIDERATION TO FACTORS NOT PROPER TO SUCH EVALUATION.

THE BASIS FOR REJECTION OF THE LEAR MODEL 24 AIRCRAFT IS EXPLAINED IN NAVY'S SUPPLEMENTAL REPORT TO THIS OFFICE AS FOLLOWS: "THE LEAR MODEL 24 ORIGINALLY PROPOSED BY BOTH THE LEAR COMPANY ITSELF AND BLACKHAWK-DUNCAN- GRAF HAS, ACCORDING TO THE LEAR COMPUTATION, A MAXIMUM NON-STOP RANGE OF 1040 NAUTICAL MILES UNDER SPECIFICATION REQUIREMENTS. BLACKHAWK-DUNCAN- GRAF PROPOSED THE LEAR MODEL 24 IN THEIR SUBMISSION CLAIMING A CAPABILITY OF 1400 NAUTICAL MILES NON STOP. HOWEVER, THIS RANGE CANNOT BE CORROBORATED FROM LEAR DATA SOURCES. BLACKHAWK-DUNCAN-GRAF BASED THEIR COMPUTATION ON A SINGLE LEAR FLIGHT TEST REPORT COVERING A FLIGHT THAT WAS NOT FLOWN ACCORDING TO, OR CORRECTED TO, MILITARY SPECIFICATIONS AS REQUIRED BY THE REQUEST FOR PROPOSALS, NOR WAS THE DATA REDUCED TO SHOW EITHER STANDARD DAY PERFORMANCE OR MILITARY SPECIFICATION RESERVES AND ALLOWANCES. THE FLIGHT PLAN DOES NOT GIVE TIME, FUEL, OR DISTANCE TO CLIMB, AND TAKES CREDIT FOR DISTANCE GAINED IN DESCENT. IN ADDITION, FUEL ALLOWANCES CONSISTENT WITH THE SPECIFICATION AND THE REQUEST FOR PROPOSALS REQUIREMENTS WERE NOT ADHERED TO IN THE AREAS OF WARM-UP, TAXI, TAKE-OFF FUEL, LOITER FUEL AND RESERVE FUEL. NAVAIR CALCULATIONS FROM THE LEAR JET PERFORMANCE REPORT INDICATE THAT THE SPECIFIC RANGE AT THE ACTUAL AVERAGE GROSS WEIGHT OF 10,470 POUNDS AT 41,000 FEET IS .3395 NAUTICAL MILES/POUND OF FUEL. THE SAME CALCULATION APPLIED TO DATA FURNISHED BY BLACKHAWK- DUNCAN-GRAF INDICATES A SPECIFIC RANGE OF .362 NAUTICAL MILES/POUND OF FUEL. THIS CAN ONLY BE ATTAINED AT A GROSS WEIGHT OF 8,000 POUNDS AND AN ALTITUDE OF APPROXIMATELY 40,000 FEET. THE 8,000 POUNDS GROSS WEIGHT IS UNREALISTIC SINCE IT IS LESS THAN 100 POUNDS HEAVIER THAN THE LANDING WEIGHT OF THE AIRCRAFT. UNDER THESE CIRCUMSTANCES, IT SEEMS CLEAR THAT THE CLAIM OF A 1400 NAUTICAL MILE RANGE WAS NOT SUBSTANTIATED AND THAT THE LEAR MODEL 24 FAILS TO MEET THIS CRITICAL REQUIREMENT BY A SIGNIFICANT MARGIN. ENCLOSED ARE THE CHARTS AND WORK MATERIALS USED BY NAVAIR IN DEVELOPING THE RANGE CAPABILITY OF THE AIRCRAFT PROPOSED BY BDG AND NORTH AMERICAN. "BDG ALSO REFERS TO THEIR LETTER OF 19 AUGUST 1967 ADDRESSED TO NAVAIR CONCERNING THE SUBJECT PROTEST. IT SHOULD BE NOTED THAT NAVAIR HAS CONSIDERED IN CONSIDERABLE DETAIL THE POINTS RAISED BY BDG IN ITS LETTERS TO THE GAO AND ALSO IN THOSE ADDRESSED DIRECTLY TO NAVAIR. MOST RECENTLY ON 14 AUGUST 1967, BDG WAS INFORMED OF NAVAIR'S RE EVALUATION AND ALSO THAT WE WOULD BE PLEASED TO DISCUSS THE BDG PROPOSAL. A MEETING WAS SUGGESTED FOR THIS PURPOSE. (ENCLOSURE (2) ). TO DATE, BDG HAS NOT CHOSEN TO AVAIL THEMSELVES OF THIS OPPORTUNITY. "THE THREE (3) MULTIPLE- ENGINE LIGHT JET AIRCRAFT WHICH ARE THE SUBJECT OF THIS PROCUREMENT ACTION ARE CURRENTLY DEPLOYED IN SOUTHEAST ASIA UNDER CONTRACT WITH NORTH AMERICAN AVIATION.'

IT IS WELL ESTABLISHED THAT PROCURING ACTIVITIES OF THE GOVERNMENT HAVE PRIMARY RESPONSIBILITY FOR DETERMINING THE NEED FOR EQUIPMENT TO CONFORM TO PARTICULAR SPECIFICATIONS AND TO DETERMINE WHETHER OFFERED EQUIPMENT MEETS SUCH SPECIFICATIONS. HERE, THE CHIEF OF NAVAL OPERATIONS DETERMINED THAT A RANGE REQUIREMENT OF 1400 NAUTICAL MILES WAS ESSENTIAL FOR THE INTENDED USE OF THE AIRCRAFT IN SOUTHEAST ASIA, AND NAVAL PERSONNEL HAVE EVALUATED AND REEVALUATED THE RANGE CAPABILITIES OF THE LEAR MODEL 24 AIRCRAFT IN ACCORDANCE WITH THE MILITARY SPECIFICATIONS REQUIRED BY THE RFP. BASED UPON MISSION BREAKDOWN DATA SUPPLIED BY THE AIRCRAFT'S MANUFACTURER, LEAR-JET CORPORATION, THE NAVY TECHNICIANS HAVE DETERMINED THAT THE LEAR MODEL 24 HAS A MAXIMUM NON-STOP RANGE OF 1040 NAUTICAL MILES UNDER THE SPECIFICATION REQUIREMENTS, WHICH IS SUBSTANTIALLY LESS THAN THE 1400 NAUTICAL MILES REQUIRED. ALSO, THE AREAS IN WHICH YOUR MISSION BREAKDOWN, SHOWING A RANGE OF 1400 NAUTICAL MILES, IS CONSIDERED TO BE DEFICIENT IS OUTLINED IN THE ABOVE SUPPLEMENTAL REPORT. IN SUCH MATTERS OUR OFFICE MUST ORDINARILY ACCEPT THE CONSIDERED JUDGMENT OF THE AGENCY'S SPECIALISTS AND TECHNICIANS AS TO THE ADEQUACY OF A TECHNICAL PROPOSAL, UNLESS IT IS CLEARLY SHOWN THAT THE AGENCY ACTION WAS ARBITRARY OR CAPRICIOUS OR MADE IN BAD FAITH. 40 COMP. GEN. 35.

IN VIEW OF THE FOREGOING, WHICH DOES NOT INDICATE ANY ABUSE OF ADMINISTRATIVE DISCRETION OR AUTHORITY IN THE EVALUATION OF THE RANGE CAPABILITIES OF THE LEAR MODEL 24 AIRCRAFT, YOUR PROTEST MUST BE DENIED.