B-167888, OCT. 27, 1969

B-167888, OCT. 27, 1969

NEGOTIATION--EVALUATION FACTORS--PROPRIETY OF EVALUATION REGARDING NEGOTIATED PROCUREMENT AWARD TO LOW BIDDER FOR FLIGHT INSTRUCTION, COST OF STUDENT FURNISHED TRANSPORTATION, BEING PART OF TOTAL CONTRACT PRICE, WAS IMPROPERLY EVALUATED SINCE CONTRACTING OFFICER DID NOT EXERCISE RESERVED RIGHT TO ADJUST MILEAGE AND DID NOT RESULT IN AWARD TO BEST GOVERNMENT ADVANTAGE; CONTRACT TERMINATION PROVIDED FOR IN AGREEMENT IS PRIMARILY FOR ADMINISTRATIVE DECISION OF BEST INTEREST OF GOVT. AND WHETHER CONTRACT CANCELLATION AND AWARD TO OTHER BIDDER IS IN GOVT.'S BEST INTEREST, PRICE AND OTHER FACTORS CONSIDERED, MUST INCLUDE DETERMINATION OTHER BIDDER IS RESPONSIBLE, PROSPECTIVE CONTRACTOR.

TO CLAIRE WALTERS FLIGHT ACADEMY:

FURTHER REFERENCE IS MADE TO YOUR PROTEST AGAINST THE PROPOSED CANCELLATION OF NEGOTIATED CONTRACT NO. F01600-70-C-0018, AWARDED TO YOU BY MAXWELL AIR FORCE BASE, FOR FURNISHING FLIGHT INSTRUCTIONS TO APPROXIMATELY 56 AIR FORCE ROTC STUDENTS ATTENDING FIVE COLLEGES IN THE LOS ANGELES AREA. THE CONTRACT INCLUDES REIMBURSEMENT TO YOU OF AN ALLOWANCE OF SIX CENTS PER MILE TO EACH STUDENT FOR PRIVATE TRANSPORTATION BETWEEN THE RESPECTIVE COLLEGES AND YOUR PLACE OF INSTRUCTION.

YOU SUBMITTED THE LOW OFFER OF $28,083.68, INCLUDING $1,843.50 FOR STUDENT FURNISHED TRANSPORTATION, AND FOX FLIGHT SERVICE WAS SECOND LOW AT $28,349.20 INCLUDING $2,293.20 FOR STUDENT FURNISHED TRANSPORTATION. THE AWARD WAS MADE TO YOU ON JULY 16, 1969, WITH PERFORMANCE TO BEGIN ON SEPTEMBER 1, 1969. ON JULY 18, FOX PROTESTED THE AWARD CONTENDING THAT YOU WERE LOW BECAUSE OF THE LOWER MILEAGE USED IN COMPUTING THE STUDENT FURNISHED TRANSPORTATION FIGURE. SINCE THE TWO FIRMS ARE LOCATED IN THE SAME BUILDING, THE MILEAGE SHOULD HAVE BEEN THE SAME IN BOTH CASES. LETTER DATED JULY 31, 1969, THE CONTRACTING OFFICER ADVISED YOU TO WITHHOLD PERFORMANCE UNTIL RESOLUTION OF THE PROTEST.

THE RECORD SHOWS THE FOLLOWING WITH RESPECT TO THE MILEAGE USED IN THE TWO PROPOSALS AND THE ACTUAL MILEAGE AS MEASURED BY THE AIR FORCE AFTER THE PROTEST:

COLLEGE FOX WALTERS ACTUAL

LOYOLA 12. 11.4 11.6

U.S.C. 30. 22.0 20.8

UCLA 12. 11.2 11.6

OCCIDENTAL 45. 44.4 37.2

CAL TECH 50. 49.6 47.6

THE REQUEST FOR PROPOSALS INCLUDES THE FOLLOWING PROVISION WITH RESPECT TO STUDENT FURNISHED TRANSPORTATION: "/B) PROPOSALS REQUIRING TRAVEL IN EXCESS OF THE ROUND TRIP MILEAGE INDICATED BELOW FROM THE AIR FORCE ROTC ADMINISTRATION BUILDING ON EACH CAMPUS TO THE LOCATION WHERE THE INSTRUCTION WILL BE PROVIDED MAY BE CONSIDERED NONRESPONSIVE AND MAY BE REJECTED. THE GOVERNMENT RESERVES THE RIGHT TO VERIFY THE ROUND TRIP MILEAGE SHOWN IN PART V OF THE SCHEDULE PROVISIONS AND TO ADJUST THE UNIT PRICE PER TRIP FOR STUDENT-FURNISHED TRANSPORTATION IF THE ROUND TRIP MILEAGE CITED IS IN ERROR. LOYOLA UNIVERSITY OF LOS ANGELES, LOS ANGELES, CALIF. -- 12 ROUND TRIP MILES, UNIVERSITY OF CALIFORNIA, LOS ANGELES, CALIF. -- 12 ROUND TRIP MILES, UNIVERSITY OF SOUTHERN CALIFORNIA, LOS ANGELES, CALIF. -- 30 ROUND TRIP MILES. OCCIDENTAL COLLEGE, LOS ANGELES, CALIF. -- 45 ROUND TRIP MILES, CALIFORNIA INSTITUTE OF TECHNOLOGY, PASADENA, CALIF. -- 50 ROUND TRIP MILES.'

IN VIEW OF THE FACT THAT BOTH YOU AND FOX ARE LOCATED IN THE SAME BUILDING AND THE REQUEST FOR PROPOSALS PERMITTED THE GOVERNMENT TO VERIFY AND ADJUST MILEAGE AS STATED IN THE PROPOSALS, HEADQUARTERS, UNITED STATES AIR FORCE, CONCLUDED THAT EVALUATION OF THE PROPOSALS AS SUBMITTED WAS IMPROPER. SINCE FOX'S PROPOSAL WOULD BE APPROXIMATELY $200 LESS THAN YOURS IF THE ACTUAL MILEAGE IS USED, IT IS THE ADMINISTRATIVE RECOMMENDATION THAT THE CONTRACT BE CANCELLED AND AWARD MADE TO FOX.

YOU WERE FURNISHED A COPY OF THE ADMINISTRATIVE REPORT AND HAVE REPLIED THERETO. IT IS YOUR PRIMARY CONTENTION, THAT THE AWARD SHOULD BE ALLOWED TO STAND AS PROPER IN THE CIRCUMSTANCES. IN THE FIRST PLACE, YOU ARGUE THAT THE PRICE DIFFERENCE IN THE PROPOSALS SHOULD NOT BE THE DETERMINATIVE FACTOR SINCE YOU CONTEND THAT FOX IS NOT A RESPONSIBLE PROSPECTIVE CONTRACTOR. YOU STATE THAT FOX'S PERFORMANCE OF THE SAME SERVICES DURING THE PRECEDING YEAR WAS UNSATISFACTORY; THAT FOX DID NOT KEEP ITS OFFICE OPEN DURING NORMAL BUSINESS HOURS AND DID NOT PAY ITS INSTRUCTORS THE GOING RATE; THAT FOX DOES NOT OWN ANY AIRCRAFT; AND THAT FOX HAD ON LEASE ONLY TWO AIRCRAFT OF THE TYPE USED FOR TRAINING AT THE BEGINNING OF THE CONTRACT LAST YEAR WHEN IT REPORTED HAVING FOUR. SECONDLY, YOU CONTEND THAT FOX SHOULD NOT BE PERMITTED TO CHANGE ITS PROPOSAL AFTER AWARD AND, IF IT IS PERMITTED TO DO SO, YOU SHOULD ALSO BE PERMITTED TO "BID AGAIN". YOU ALSO STATE THAT IF FOX TRANSPORTED STUDENTS LAST YEAR IT IS POSSIBLE THAT THE GOVERNMENT WAS OVER-CHARGED FOR SUCH SERVICES. YOU HAVE ALSO FURNISHED INFORMATION CONCERNING YOUR CAPABILITY TO PERFORM THE CONTRACT.

ALTHOUGH THIS WAS A NEGOTIATED PROCUREMENT AND AWARD IS NOT REQUIRED TO BE MADE TO THE LOW RESPONSIVE AND RESPONSIBLE BIDDER AS IN AN ADVERTISED PROCUREMENT, ARMED SERVICES PROCUREMENT REGULATION (ASPR) 3 101 REQUIRES THAT NEGOTIATED PROCUREMENTS BE MADE TO THE BEST ADVANTAGE OF THE GOVERNMENT,"PRICE AND OTHER FACTORS CONSIDERED.' THIS REGULATION CONTEMPLATES AWARD BEING MADE TO THE LOW OFFEROR, OTHER FACTORS BEING EQUAL. IN THE INSTANT CASE, THE COST OF STUDENT FURNISHED TRANSPORTATION IS A PART OF THE TOTAL COST OF THE CONTRACT TO THE GOVERNMENT, AND, THEREFORE, NECESSARY IN DETERMINING THE LOW OFFEROR. SINCE THE CONTRACTING OFFICER FAILED TO EXERCISE THE RESERVED RIGHT TO VERIFY AND ADJUST THE MILEAGE OF BOTH PROPOSALS, HIS EVALUATION WAS NOT PROPER AND DID NOT RESULT IN AN AWARD TO THE BEST ADVANTAGE OF THE GOVERNMENT INSOFAR AS PRICE IS CONCERNED.

ARTICLE 14, GENERAL PROVISION FOR FLIGHT INSTRUCTION, OF THE CONTRACT PROVIDES THAT THE CONTRACTING OFFICER MAY TERMINATE THE CONTRACT WHEN IT IS IN THE BEST INTEREST OF THE GOVERNMENT. THE DETERMINATION OF THE PUBLIC INTEREST IN THIS TYPE OF CASE IS A MATTER PRIMARILY FOR ADMINISTRATIVE DECISION. 47 COMP. GEN. 1; 34 ID. 74. ORDINARILY, OUR OFFICE DOES NOT DEEM IT PROPER TO SUBSTITUTE OUR JUDGMENT FOR THAT OF THE CONTRACTING AGENCY WHEN IT HAS BEEN DETERMINED THAT TERMINATION FOR CONVENIENCE IS IN THE BEST INTEREST OF THE GOVERNMENT.

HOWEVER, WHETHER CANCELLATION OF THE CONTRACT AND AWARD TO FOX IS IN THE BEST INTEREST OF THE GOVERNMENT, PRICE AND OTHER FACTORS CONSIDERED, MUST INCLUDE A DETERMINATION BY THE CONTRACTING OFFICER THAT FOX IS A RESPONSIBLE PROSPECTIVE CONTRACTOR AS REQUIRED BY ASPR 1 904. AS NOTED ABOVE, YOU HAVE RAISED QUESTIONS IN THIS AREA, INCLUDING THE CHARGE THAT FOX POSSIBLY OVERCHARGED FOR STUDENT FURNISHED TRANSPORTATION UNDER THE PREVIOUS CONTRACT. ALTHOUGH MR. RUEHMLING'S REPORT OF SEPTEMBER 10, 1969, OF WHICH YOU HAVE A COPY, STATES THAT THERE ARE NOT SUFFICIENT GROUNDS FOR DECLARING FOX NONRESPONSIBLE, WE ARE CALLING TO THE ATTENTION OF THE SECRETARY OF THE AIR FORCE THE REQUIREMENT OF ASPR 1-904.

SUBJECT TO THE ABOVE QUALIFICATION, WE FIND NO BASIS FOR OUR OFFICE TO OBJECT TO THE PROPOSED CANCELLATION OF YOUR CONTRACT.