B-213205.2, SEP 27, 1985, 64 COMP.GEN. 888

B-213205.2, SEP 27, 1985, 64 COMP.GEN. 888

CONTRACTS - NEGOTIATION - OFFERS OR PROPOSALS - EVALUATION - METHOD - NOT PREJUDICIAL PROTEST OF USE OF NORMALIZED PRICE SCORING IS DENIED WHERE RECORD SHOWS PROTESTERS WERE NOT PREJUDICED BY THE USE OF THIS TECHNIQUE. CONTRACTS - NEGOTIATION - OFFERS OR PROPOSALS - EVALUATION - PRICE CONSIDERATION AGENCY DID NOT ACT IMPROPERLY IN ASSIGNING TECHNICAL SCORES FOR PAST PERFORMANCE BASED ON PRIOR DEMONSTRATED AIRCRAFT AVAILABILITY RATES. OFFERORS WERE AWARE OF AGENCY'S NEED FOR BEST POSSIBLE AVAILABILITY AND REQUEST FOR PROPOSALS INDICATED THAT PERFORMANCE OF LESS THAN 90 PERCENT AVAILABILITY WOULD NOT BE ACCEPTABLE UNDER THE CONTRACTS TO BE AWARDED. APPORTIONING SCORES AS SUGGESTED BY PROTESTERS SO THAT 90 PERCENT AVAILABILITY WOULD BE AWARDED 90 PERCENT OF AVAILABLE POINTS WOULD DILUTE IMPORTANCE ASSIGNED TO PAST PERFORMANCE BY RFP. CONTRACTS - NEGOTIATION - OFFERS OR PROPOSALS - EVALUATION - CRITERIA - EXPERIENCE CONTENTION THAT AGENCY SHOULD NOT HAVE TAKEN INTO CONSIDERATION PAST PERFORMANCE FOR SUBCONTRACTED WORK IS DENIED. RECORD DOES NOT SHOW THAT PROTESTER WAS RELEASED FROM ITS OBLIGATION AS THE GOVERNMENTS PRIME CONTRACTOR TO FURNISH AIRCRAFT IN ACCORD WITH ITS PRIOR CONTRACT WHICH, FOR A PERIOD OF TIME, IT DID NOT DO. CONTRACTS - NEGOTIATION - OFFERS OR PROPOSALS - EVALUATION - CRITERIA - EXPERIENCE CONTENTION THAT GOVERNMENT WAS REQUIRED TO OBTAIN AND CONSIDER RECORDS OF PAST PERFORMANCE FOR OTHER GOVERNMENT AGENCIES IS DENIED. THE PROTESTERS WERE ON NOTICE THAT THE AGENCY DID NOT CONSTRUE THE RFP AS REQUIRING SUCH ACTION. CONTRACTS - NEGOTIATION - OFFERS OR PROPOSALS - EVALUATION - ERRORS - NOT PREJUDICIAL WHERE IMPACT ON SCORING WOULD BE MINIMAL, POSSIBLE DEFECTIVE SCREENING OF ACCIDENT AND INCIDENT DATA BY AGENCY WAS NOT PREJUDICIAL. CONTRACTS - NEGOTIATION - AWARDS - NOT PREJUDICIAL TO OTHER OFFERORS WHERE AGENCY HAD CONTRACTUAL RIGHT TO ALLOW SUBSTITUTION OF AIRCRAFT DECISION TO MAKE SUBSTITUTION AT TIME OF AWARD WAS NOT OBJECTIONABLE BECAUSE RECORD CLEARLY SHOWS THAT PROTESTERS WERE NOT PREJUDICED. CONTRACTS - NEGOTIATION - AWARDS - PROPRIETY FACT THAT MINIMUM QUANTITY WAS NOT ORDERED FROM PROTESTER DOES NOT ENTITLE THAT FIRM TO RECEIVE ADDITIONAL ORDERS REQUIRED TO MAKE UP MINIMUM. RATHER, FIRM IS NOT ENTITLED TO ANY AWARDS UNLESS IT WOULD BE ENTITLED TO AWARD OF ITS SPECIFIED MINIMUM QUANTITY. CONTRACTORS - RESPONSIBILITY - DETERMINATION - REVIEW BY GAO - AFFIRMATIVE FINDING ACCEPTED MATTERS RELATING TO AGENCY'S AFFIRMATIVE DETERMINATION OF AWARDEES' RESPONSIBILITY ARE NOT FOR CONSIDERATION BY GENERAL ACCOUNTING OFFICE.

MATTER OF: DOUGLAS COUNTY AVIATION, INC., HAWKINS & POWERS AVIATION, INC., HEMET VALLEY FLYING SERVICE, SEPTEMBER 27, 1985:

DOUGLAS COUNTY AVIATION INC., HAWKINS & POWERS AVIATION INC., AND HEMET VALLEY FLYING SERVICE PROTEST THE AWARD OF ALL LINE ITEMS NOT AWARDED TO THEMSELVES UNDER FOREST SERVICE REQUEST FOR PROPOSALS (RFP) 49-83-05 FOR AIR TANKER SERVICES. UNDER THE RFP, OFFERORS ARE TO PROVIDE AIRCRAFT WHICH ARE SPECIALLY MODIFIED AND USED TO AID IN CONTROLLING FOREST FIRES DURING THE FIRE SEASON, AT WHICH TIME THE AIRCRAFT ARE ASSIGNED TO BASES ESTABLISHED FOR THIS PURPOSE BY THE GOVERNMENT. THE AIRCRAFT ARE DISPATCHED AS NEEDED BY THE NATIONAL FIRE CENTER AT BOISE, IDAHO TO MEET THE COMBINED FIRE FIGHTING REQUIREMENTS OF SEVERAL GOVERNMENT AGENCIES.

THE PROTESTED PROCUREMENT CONDUCTED BY THE FOREST SERVICE, WAS FOR THE COMBINED NEEDS OF SEVERAL AGENCIES OVER A 3-YEAR PERIOD. OFFERORS WERE PERMITTED TO PROPOSE AIRCRAFT TO MEET ANY OF THE 42 LINE ITEMS SET OUT IN THE RFP; EACH LINE ITEM REPRESENTED ONE AIRPLANE AS WELL AS CREW AND MAINTENANCE SUPPORT FOR THE AIRPLANE. CONTRACTS WERE AWARDED FOR 40 LINE ITEMS. /1/

COLLECTIVELY THE PROTESTERS RECEIVED FOUR AWARDS. DOUGLAS COUNTY WHICH OFFERED AIRCRAFT UNDER NUMEROUS COMBINATIONS OF 39 POSSIBLE LINE ITEMS WAS AWARDED 2 LINE ITEMS. HAWKINS & POWERS OFFERED 11 AIRCRAFT FOR POSSIBLE USE UNDER 12 LINE ITEMS AND RECEIVED 2 AWARDS. HEMET VALLEY OFFERED 8 AIRCRAFT UNDER 19 LINE ITEMS, BUT RECEIVED NO AWARD. THE THREE PROTESTERS RECEIVED A MUCH GREATER NUMBER OF AWARDS UNDER PRIOR FOREST SERVICE SOLICITATIONS AND CONTEND THAT THE FOREST SERVICE IMPROPERLY DENIED THEM AWARDS UNDER THE CURRENT SOLICITATION. IN PART THE PROTESTERS ASSERT THAT THE FOREST SERVICE'S ACTIONS WERE INTENDED TO FORCE THEM OUT OF THE AIR TANKER BUSINESS.

BASED ON A THOROUGH REVIEW OF THE RECORD, INCLUDING AN EXTENSIVE EXAMINATION OF FOREST SERVICE CONTRACTING RECORDS AT THE ITS BOISE OFFICE, WE DENY THE PROTESTS.

ISSUES CONCERNING SCORING METHODOLOGY

THE RFP STATED THAT PRICE AND TECHNICAL MERIT WERE TO BE ACCORDED WEIGHTS OF ONE-THIRD AND TWO-THIRDS RESPECTIVELY. THE AGENCY WAS TO EVALUATE TECHNICAL MERIT BY CONSIDERING SUPPORT CAPABILITY, PAST PERFORMANCE, MANAGEMENT EFFECTIVENESS, AIRCRAFT FLEET, FLIGHT CREWS AND ACCIDENT/INCIDENT EXPERIENCE. THE RFP FURTHER STATED THAT SUPPORT CAPABILITY AND PAST PERFORMANCE WOULD BE GIVEN GREATER WEIGHT THAN MANAGEMENT EFFECTIVENESS AND AIRCRAFT FLEET. FLIGHT CREWS AND ACCIDENT/INCIDENT EXPERIENCE WERE TO BE GIVEN LESS WEIGHT. MULTIPLE SUBCRITERIA WERE LISTED UNDER SEVERAL OF THE PRINCIPAL TECHNICAL CRITERIA.

THE PROTESTERS CONTEND THAT THE FOREST SERVICE'S EVALUATION OF PROPOSALS WAS FUNDAMENTALLY FLAWED. THEY SAY THE AGENCY DID NOT PROPERLY WEIGH PRICE AND TECHNICAL FACTORS AS DEMONSTRATED, THEY STATE, BY THE FACT THAT PRICE WAS NOT GIVEN A WEIGHT OF ONE-THIRD, OR TECHNICAL MERIT TWO THIRDS, BECAUSE THE LOWEST PRICED OFFER FOR EACH LINE ITEM WAS GIVEN 900 POINTS WHILE THE MAXIMUM OF 1700 POINTS ALLOWED FOR TECHNICAL MERIT WAS NOT ACTUALLY AWARDED TO ANY FIRM.

PRICE PROPOSALS WERE SCORED BY USING A PRICE NORMALIZATION METHOD. THE LOWEST PRICE FOR ANY LINE ITEM WAS ASSIGNED 900 POINTS HIGHER PRICES WERE ASSIGNED POINTS IN INVERSE PROPORTION TO THE LOW PRICE, THAT IS THE LOW PRICE WAS DIVIDED BY THE PRICE OFFERED AND THE RESULT WAS MULTIPLE BY 900. SCORES FOR TECHNICAL MERIT WERE ASSIGNED, IN PART, BY SCALING STATISTICAL DATA DERIVED FROM EACH VENDOR'S PAST CONTRACT PERFORMANCE AND ACCIDENT/INCIDENT EXPERIENCE. OTHER TECHNICAL FACTORS WERE SCORED BY ASSIGNING POINTS IN DIRECT PROPORTION TO THE EVALUATORS' PERCEPTION OF THE MERIT OF THE PROPOSALS.

THE FOREST SERVICE HAD INTENDED TO COMPUTE A TOTAL SCORE FOR EACH VENDOR BY ADDING THE OFFEROR'S COMPOSITE TECHNICAL SCORE TO ITS PRICE SCORE AND BY THEN SELECTING THE HIGHEST SCORED PROPOSAL UNDER EACH LINE ITEM. PRACTICE, THE PROBLEM TURNED OUT TO BE MUCH MORE COMPLEX THAN ANTICIPATED. TWELVE OFFERORS SUBMITTED PROPOSALS, ALL OF WHICH WERE INCLUDED IN THE COMPETITIVE RANGE; COLLECTIVELY, THE AIRCRAFT OFFERED COMPRISED MOST OF THE DOMESTIC AIR TANKER FLEET. OFFERORS WERE FREE TO PROPOSE MULTIPLE TYPES OF AIRCRAFT TO MEET ANY COMBINATION OF THE 42 LINE ITEMS THEY CHOOSE. THEY WERE FREE TO OFFER SPECIAL COMBINATION PACKAGES, SUCH AS PRICE DISCOUNTS THAT VARIED WITH THE NUMBER OF AIRCRAFT FOR WHICH THEY RECEIVED AWARDS. THEY DID SO, LEAVING THE FOREST SERVICE WITH THE TASK OF PICKING THE BEST COMBINATION-- A NEARLY IMPOSSIBLE UNDERTAKING GIVEN THE HUGE NUMBER OF POSSIBLE COMBINATIONS FROM WHICH TO CHOOSE.

THE FOREST SERVICE, RECOGNIZING THE MAGNITUDE OF THE TASK, USED A LINEAR PROGRAMMING MATHEMATICAL MODEL RUNNING AT ITS FORT COLLINS COMPUTER CENTER TO SELECT A COMBINATION OF OFFERS. THE MODEL MAXIMIZED THE COMPOSITE SCORE OF THE COMBINATION OF LINE ITEMS CHOSEN. EIGHT COMPUTER RUNS WERE PERFORMED TO TEST THE ASSUMPTIONS ON WHICH THE MODEL WAS BASED.

AFTER REVIEWING THE RESULTS OF THESE RUNS, THE FOREST SERVICE CONCLUDED THAT THE RUN IT HAS CALLED "ALTERNATE 4" WAS MOST APPROPRIATE AND MADE THE AWARDS ON THAT BASIS. AS THE FOREST SERVICE POINTS OUT, HAWKINS & POWERS WAS THE PROSPECTIVE AWARDEE IN ALL RUNS FOR THE TWO ITEMS IT WAS AWARDED AND WAS NOT THE PROSPECTIVE AWARDEE ON ANY OTHER ITEMS ON ANY RUN. DOUGLAS COUNTY WAS THE PROSPECTIVE AWARDEE FOR ONE OF THE ITEMS IT WAS AWARDED (ITEM 38) ON ALL EIGHT RUNS. THAT FIRM WAS IN LINE FOR AWARD OF THE OTHER ITEM WHICH MADE UP ITS ACTUAL AWARD (ITEM 18), ONLY UNDER ALTERNATIVES 3 OR 4. HEMET VALLEY WAS NOT IN LINE FOR AN AWARD UNDER ANY OF THE RUNS.

AGENCIES MUST EVALUATE PROPOSALS IN ACCORDANCE WITH THE CRITERIA ESTABLISHED IN THE RFP. TELECOMMUNICATIONS MANAGEMENT CORP., 57 COMP.GEN. 251 (1978), 78-1 CPD PARA. 80. RECOGNIZING THAT PROPOSAL EVALUATION INVOLVES SUBJECTIVE JUDGMENTS, OUR OFFICE HAS NOT FAVORED THE USE OF PRECISE NUMERICAL FORMULAS IN SELECTING AWARDEES IN NEGOTIATED PROCUREMENTS, PREFERRING INSTEAD TO ENCOURAGE THEIR USE MERELY AS AIDS IN ASSESSING THE IMPORTANCE OF SIGNIFICANT DIFFERENCES BETWEEN PROPOSALS. GREY ADVERTISING, INC., 55 COMP.GEN. 1111 (1976), 76-1 CPD PARA. 325. WHILE AGENCIES MAY USE A VARIETY OF METHODS, INCLUDING METHODS SIMILAR TO THOSE USED HERE IN WHICH THE LOWEST PRICED PROPOSAL IS AWARDED THE MAXIMUM NUMBER OF POSSIBLE POINTS, FRANCIS & JACKSON, ASSOCIATES, 57 COMP.GEN. 244 (1978), 78-1 CPD PARA. 79, WE HAVE CAUTIONED AGENCIES THAT SOME OF THE METHODS IN COMMON USE, SUCH AS THE PRICE NORMALIZATION METHOD USED HERE CAN PRODUCE DISTORTED SCORES. DESIGN CONCEPTS, INC., B-186125, OCT. 27, 1976, 76-2 CPD PARA. 365. IN THIS REGARD, WE HAVE POINTED OUT THAT EVALUATORS MUST AVOID MISLEADING RESULTS. UMPQUA RESEARCH CO., B-199014, APR. 3, 1981, 81-1 CPD PARA. 254.

HERE, WE HAVE ANALYZED THE FOREST SERVICE'S SCORING USING METHODS OTHER THAN THOSE USED BY THE AGENCY. OUR ANALYSIS INDICATES THAT, REGARDLESS OF THE FOREST SERVICE'S CHOICE OF PRICE SCORING METHOD, IN NO INSTANCE DO ANY PROTESTERS' OFFERS DISPLACE ANY OF THE AWARDEES' OFFERS.

THE PROTESTERS FURTHER CONTEND THAT THE SCORING SYSTEM USED TO EVALUATE PAST PERFORMANCE WAS IMPROPER BECAUSE THE FOREST SERVICE SCALED THE ASSIGNED SCORES. PAST PERFORMANCE WAS CALCULATED BY COMPUTING THE TIME EACH OFFEROR'S AIRCRAFT WAS ACTUALLY AVAILABLE FOR USE UNDER PRIOR CONTRACTS AND DIVIDING THE RESULT BY THE TIME THE FIRM WAS REQUIRED TO HAVE AIRCRAFT AVAILABLE. POINTS WERE ASSIGNED BASED ON THE RESULTING "AVAILABILITY RATE," EXPRESSED AS A PERCENTAGE, ABOVE 90 PERCENT. EXTRA POINTS WERE GIVEN FOR AVAILABILITY RATES NEAR 100 PERCENT. ACCORDING TO THE PROTESTERS, OFFERORS SHOULD HAVE RECEIVED POINTS IN DIRECT PROPORTION TO THEIR AVAILABILITY RATES, I.E., A FIRM WHICH HAD AN AVAILABILITY RATE OF 95 PERCENT SHOULD BE ENTITLED TO 95 PERCENT OF THE TOTAL PAST PERFORMANCE POINTS. (IN FACT, A 95 PERCENT AVAILABILITY RATE RECEIVED ABOUT A QUARTER OF SUCH POINTS.)

WE DISAGREE. HAD THE FOREST SERVICE APPLIED THE METHOD PROPOSED BY THE PROTESTERS, IT WOULD NOT HAVE EVALUATED THE PROPOSALS IN ACCORDANCE WITH THE RFP. THE RFP RANKED PAST PERFORMANCE AS THE SECOND MOST IMPORTANT TECHNICAL FACTOR (AFTER CAPABILITY). IF THE PROTESTERS' SCORING METHOD WERE APPLIED, ALL OFFERORS WOULD RECEIVE HIGH SCORES UNDER PAST PERFORMANCE, BECAUSE ALL OF THE OFFERORS HAD AVAILABILITY RATES IN THE 90 PERCENT RANGE, EVEN THOUGH THEIR PRIOR CONTRACT PERFORMANCE VARIED CONSIDERABLY. MOREOVER, THE SIGNIFICANCE OF THE POINT SPREAD ADOPTED IS EMPHASIZED BY THE FACT THAT THE RFP STATED THAT AN AVAILABILITY RATE OF LESS THAN 90 PERCENT WOULD BE A GROUND FOR CONTRACT DEFAULT. THUS, AN AVAILABILITY RATE ONLY SLIGHTLY ABOVE 90 PERCENT INDICATES PERFORMANCE THAT WOULD BE ONLY MARGINALLY ACCEPTABLE.

CONSIDERATION AND EXCLUSION OF DATA

THE PROTESTERS ALSO RAISE SEVERAL ISSUES CONCERNING THE FOREST SERVICE'S INCLUSION AND EXCLUSION OF DATA IN COMPILING AVAILABILITY RATES AND ACCIDENT/INCIDENT EXPERIENCE. WE CONSIDER FIRST THEIR CONTENTIONS CONCERNING DATA USED TO COMPILE AVAILABILITY RATES.

HAWKINS & POWERS ARGUES THAT THE FOREST SERVICE IMPROPERLY INCLUDED, IN ITS EVALUATION OF THAT FIRM'S PROPOSAL, DATA RELATING TO A 1981 CRASH OF A TANKER ASSIGNED TO A BASE KNOWN AS GOLETA. WHILE THE CONTRACTOR FOR THAT BASE AT THAT TIME WAS HAWKINS & POWERS, IT HAD SUBCONTRACTED THE OPERATION TO HEMET VALLEY. NEITHER HEMET VALLEY NOR HAWKINS & POWERS PROVIDED A REPLACEMENT AIRCRAFT IMMEDIATELY FOLLOWING THE CRASH, WITH THE RESULT THAT AN AIR TANKER WAS NOT AVAILABLE FOR AN EXTENDED PERIOD OF TIME. THIS LOSS OF AVAILABLE TIME WAS CHARGED TO HAWKINS & POWERS IN EVALUATING ITS OFFER.

ACCORDING TO HAWKINS & POWERS, THE LOSS OF AVAILABILITY SHOULD NOT HAVE BEEN CHARGED TO IT BECAUSE IT HAD SUBCONTRACTED THE OPERATIONS AT GOLETA AND BECAUSE, IT CLAIMS, THE FOREST SERVICE AGREED THAT THE AIRCRAFT WAS NOT NEEDED PENDING ITS REPAIR. THUS, THE PROTESTER SAYS, IT DID NOT BELIEVE THE AIRCRAFT HAD TO BE REPLACED. HEMET VALLEY SUPPORTS HAWKINS & POWERS POSITION AND CITES THE ALLEGED AGREEMENT TO REPAIR RATHER THAN REPLACE THE AIRCRAFT IN ARGUING THAT IT, ALSO, SHOULD NOT BE CHARGED WITH THE LOSS.

WE THINK THAT THE FOREST SERVICE'S DECISION TO INCLUDE THIS DATA WAS REASONABLE. THE FOREST SERVICE CONCEDES THAT IT ACCEPTED HAWKINS & POWERS CHOICE OF A SUBCONTRACTOR. IT DOES NOT AGREE THAT IT RELEASED HAWKINS & POWERS FROM ITS CONTRACTUAL OBLIGATIONS. THE PROTESTER DOES NOT CLAIM AND HAS NOT ESTABLISHED THAT IT WAS FORMALLY RELEASED. MOREOVER, THE RECORD DOES NOT SUPPORT THE PROTESTER'S CONTENTION THAT IT WAS RELIEVED OF ITS OBLIGATION PENDING REPAIR OF THE DAMAGED AIRCRAFT.

THE PROTESTERS ALSO CONTEND THAT THE FOREST SERVICE SHOULD HAVE CONSIDERED PERFORMANCE EXPERIENCE DATA FROM OTHER GOVERNMENT AGENCIES. THEY CONTEND THE RFP, WHICH STATED THAT EVALUATION OF THIS ITEM WOULD BE BASED ON DATA "TAKEN FROM FOREST SERVICE AND OTHER AGENCY RECORDS" REQUIRED THE FOREST SERVICE TO CONSIDER RECORDS OF OTHER AGENCIES THAT WOULD HAVE IMPROVED THEIR SCORES. ACCORDING TO HAWKINS & POWERS, FOR EXAMPLE, ITS AVAILABILITY RATE WOULD HAVE BEEN INCREASED CONSIDERABLY HAD ITS EXPERIENCE WITH THE BUREAU OF LAND MANAGEMENT (BLM) IN ALASKA BEEN INCLUDED.

IN OUR VIEW, THE RFP LANGUAGE CAN BE INTERPRETED AS MERELY PLACING OFFERORS ON NOTICE THAT OTHER AGENCIES' RECORDS COULD BE CONSIDERED. THE PROTESTERS, MOREOVER, APPEAR TO HAVE ACQUIESCED IN THIS CONSTRUCTION. THE PROTESTERS WERE GIVEN THE FOREST SERVICE'S AVAILABILITY CALCULATIONS PRIOR TO THE CLOSING DATE FOR RECEIPT OF PROPOSALS. THE DATA GIVEN HAWKINS & POWERS, FOR EXAMPLE, SHOWS ANNUAL AVAILABILITY RATES OF 97.44, 89.88 AND 99.06 PERCENT FOR THE PRIOR 3 YEARS. IN VIEW OF THE DATA FURNISHED, THE PROTESTERS KNEW OR SHOULD HAVE KNOWN THAT THE DATA THEY WERE GIVEN WERE LOWER THAN THE FIGURES THEY CLAIM THEIR RECORDS SUPPORT.

THE PROTESTERS ALSO COMPLAIN THAT THE FOREST SERVICE IMPROPERLY DEDUCTED POINTS FOR ACCIDENTS/INCIDENTS THAT DID NOT OCCUR. IN THE PROTESTERS' VIEW, THEY SHOULD BE AWARDED THE FULL NUMBER OF POINTS ALLOWED FOR THIS FACTOR.

THE RECORD SHOWS THAT THE FOREST SERVICE ASSIGNED SCORES BY COUNTING THE NUMBER OF ACCIDENT/INCIDENT REPORTS CONTAINED IN ITS FILES FOR THE PRIOR CONTRACT PERIOD AND BY NORMALIZING THE RESULTS TO TAKE DIFFERENCES IN FLIGHT TIME INTO ACCOUNT. ACCIDENT/INCIDENT REPORTS ARE FILED BY FOREST SERVICE FIELD PERSONNEL WHEN THEY DEEM SUCH ACTION TO BE APPROPRIATE. ALTHOUGH IT APPEARS THAT THE REPORTS WERE SCREENED TO ELIMINATE DUPLICATION BEFORE THEY WERE COUNTED, IT IS NOT CLEAR HOW THEY WERE SCREENED FOR SUBSTANTIVE CONTENT.

FOR EXAMPLE, OUR REVIEW OF THE FOREST SERVICE RECORDS IN BOISE DISCLOSED A NUMBER OF REPORTED INSTANCES WHERE THE ALLEGED INCIDENT HAD NO BEARING ON THE CONTRACTOR'S ABILITY TO CARRY OUT ITS MISSION. WE FOUND OTHER INSTANCES IN WHICH IT APPEARED ON THE FACE OF THE REPORT THAT THE CONTRACTOR WAS NOT AT FAULT. WHILE WE BELIEVE THE FOREST SERVICE SHOULD MAKE SURE THAT ANY EVALUATION OF ACCIDENT/INCIDENT REPORTS IN CONNECTION WITH FUTURE PROCUREMENTS REFLECTS MEANINGFUL DIFFERENCES AMONG OFFERORS, WE DO NOT FIND THAT ITS HANDLING OF ACCIDENT/INCIDENT REPORTS IN THIS INSTANCE AFFECTED THE SELECTION PROCESS. ACCIDENTS/INCIDENTS WERE ALLOCATED 150 OUT OF 1700 POSSIBLE TECHNICAL POINTS, WITH INCIDENTS ALLOCATED LESS POINTS THAN ACCIDENTS. SINCE ALL THREE PROTESTERS RECEIVED A PORTION OF THE POINTS ALLOWED, ANY CORRECTION OF SCORING UNDER THIS EVALUATION CRITERION, WOULD BE SMALL. OUR EVALUATION OF THE FOREST SERVICE'S SELECTION PROCESS INDICATES THAT A SHIFT IN ACCIDENT/INCIDENT SCORES WOULD NOT HAVE ALTERED THE SELECTIONS. ACCEPTABILITY OF SPECIFIC AIRCRAFT

THE PROTESTERS CONTEND THAT THE FOREST SERVICE IMPROPERLY ACCEPTED SEVERAL AIRCRAFT FOR AWARD. THEY CONTEND, FOR EXAMPLE, THAT THE AGENCY KNEW THAT THE DC-4 AIRCRAFT OFFERED BY ARDCO, INC. WERE OVERWEIGHT AND OPERATE UNDER FEDERAL AVIATION ADMINISTRATION RESTRICTED AIRWORTHINESS CERTIFICATES THAT DO NOT PERMIT CARGO TO BE CARRIED. THEY SAY THAT THESE AIRCRAFT SHOULD NOT HAVE BEEN CONSIDERED WITHOUT FIRST DETERMINING THAT THEY COULD OPERATE LEGALLY AS 2000 GALLON TANKERS AND THAT THEY SHOULD NOT HAVE BEEN AWARDED ANY LINE ITEMS REQUIRING INCIDENTAL CARGO HAULING. /2/

THE PROTESTERS ALSO ARGUE THAT THE FOREST SERVICE IMPROPERLY AWARDED ONE LINE ITEM TO TBM, INC. FOR A C-L23 AIRCRAFT. THEY ARGUE THAT THE C 123 SHOULD NOT HAVE BEEN CONSIDERED BECAUSE IT WAS NOT A TYPE OF AIRCRAFT LISTED IN THE RFP AND BECAUSE IT CANNOT QUALIFY AS A 2000 GALLON TANKER.

WE DISAGREE WITH THE PROTESTERS THAT THE FOREST SERVICE IMPROPERLY QUALIFIED THE C-123 AS A 2000 GALLON TANKER. ESSENTIALLY, THE PROTESTERS VIEW THE C-123 AS LESS CAPABLE OF MEETING THE FOREST SERVICE'S NEEDS BASED ON THEORETICAL REQUIREMENTS THEY POSIT THAT, HOWEVER, GO BEYOND THE LITERAL REQUIREMENTS OF THE RFP.

WHILE IT IS TRUE THAT THE RFP DID NOT INCLUDE THE C-123 IN ITS LIST OF ACCEPTABLE AIRCRAFT, THE RECORD SHOWS THAT THE C-123 WAS ACCEPTED ONLY AFTER THE FOREST SERVICE DETERMINED THAT TBM WAS IN LINE FOR AWARD BASED ON A DC-6 UNDER THE ITEM IN QUESTION. THE C-123 WAS DESIGNATED IN LIEU OF THE DC-6, WHICH WAS NOT THE SUBJECT OF ANY OTHER AWARD. UNDER THE CONTRACT TERMS, THE FOREST SERVICE MAY ALLOW CONTRACTORS TO SUBSTITUTE AIRCRAFT WHERE IT FINDS THAT THE SUBSTITUTE IS CAPABLE OF MEETING ITS NEEDS.

WE RECOGNIZE THAT AN AWARD MUST BE BASED ON THE REQUIREMENTS STATED IN THE SOLICITATION. SEE INTERNATIONAL BUSINESS MACHINES INC., B-194365, JULY 7, 1980, 80-2 CPD PARA. 12. WE WILL NOT, HOWEVER, OBJECT TO AN AWARD IF THE RECORD CLEARLY SHOWS THAT A PROTESTER WAS NOT PREJUDICED BY AN AGENCY'S FAILURE TO AMEND THE RFP TO ALLOW COMPETITION ON ITS CHANGED REQUIREMENTS. AUL INSTRUMENTS, INC., B-199416.2, JAN. 19, 1981, 81-1 CPD PARA. 31.

HERE, WE FIND THAT THE PROTESTERS WERE NOT PREJUDICED BY THE C-123 AWARD. THE C-123 SUBSTITUTION DOES NOT APPEAR TO CONSTITUTE A RELAXATION OF THE RFP REQUIREMENTS TO ANY SIGNIFICANT DEGREE SINCE, IN THE PARTICULAR CIRCUMSTANCES OF THIS RFP, ALLOWING A C-123 AWARD INVOLVED ONLY THE QUALIFICATION OF A TYPE OF AIRCRAFT, THE C-123, NOT LISTED IN THE RFP AND HAD NO IMPACT ON MOST OF THE EVALUATION. /3/

WITH REGARD TO THE ARDCO DC-4S, WE ARE UNAWARE OF ANY INDICATION IN ARDCO'S PROPOSAL THAT IT INTENDED TO FURNISH AIRCRAFT THAT WERE OVERWEIGHT OR WERE INAPPROPRIATELY CERTIFIED. THE RECORD DOES SHOW THAT ARDCO'S FLIGHT MANUALS STATE THAT CARGO IS NOT TO BE CARRIED, LANGUAGE THE AGENCY CONSTRUES AS PRECLUDING CARRIAGE OF CARGO OTHER THAN THAT NORMALLY REQUIRED IN CONNECTION WITH AIR TANKER OPERATIONS. THE FOREST SERVICE HAS ALSO SUBMITTED AN ANALYSIS SHOWING THAT THE AIRCRAFT ARE NOT OVERWEIGHT.

ISSUES CONCERNING DOUGLAS COUNTY AVIATION

DOUGLAS HAS RAISED ISSUES OF UNIQUE CONCERN TO IT. THE FIRST INVOLVES THE AWARDING OF LINE ITEMS FOR DC-7 AIRCRAFT. DOUGLAS RECEIVED ONE SUCH AWARD AND BELIEVES IT SHOULD HAVE RECEIVED AT LEAST THREE MORE BECAUSE, IT SAYS, IT PROPOSED DC-7 AIRCRAFT ONLY ON THE BASIS THAT AT LEAST FOUR SUCH AIRCRAFT BE HIRED.

WE AGREE WITH DOUGLAS THAT IT DID NOT PROPOSE TO FURNISH LESS THAN FOUR DC-7S. DOUGLAS' BEST AND FINAL PRICE PROPOSAL INCLUDED PRICES FOR FOUR, FIVE OR SIX DC-7S ONLY. THERE WAS NO PRICE PROPOSAL FOR LESS THAN FOUR AIRCRAFT, A FACT THAT THE FOREST SERVICE APPEARS TO HAVE OVERLOOKED.

WE DO NOT AGREE WITH DOUGLAS, HOWEVER, THAT IT IS THEREFORE ENTITLED TO AWARDS FOR FOUR DC-7S. RATHER, DOUGLAS WAS ENTITLED TO NO DC-7 AWARDS BECAUSE OUR ANALYSIS INDICATES IT WAS IN LINE FOR ONLY ONE DC-7 AWARD. EVEN IF WE WERE TO AGREE WITH DOUGLAS THAT IT WAS ENTITLED TO SOME ADJUSTMENT IN ITS TECHNICAL SCORES THERE IS NO PROSPECT THAT IT WOULD BE ENTITLED TO THREE ADDITIONAL AWARDS. IN VIEW OF THE ADVANCED STAGE OF PERFORMANCE UNDER THESE CONTRACTS WE DO NOT BELIEVE IT WOULD BE APPROPRIATE FOR US TO RECOMMEND ANY CORRECTIVE ACTION IN CONNECTION WITH THE IMPROPER AWARD OF THE SINGLE DC-7 LINE ITEM TO DOUGLAS.

MISCELLANEOUS ISSUES

THE PROTESTERS HAVE PRESENTED A NUMBER OF OTHER ISSUES WE CAN DISPOSE OF SUMMARILY.

THE PROTESTERS COMPLAIN THAT ONE FIRM RECEIVED TWO LINE ITEM AWARDS EMPLOYING THE SAME AIRPLANE. AS THE FOREST SERVICE EXPLAINS, THE PERIOD OF REQUIRED AVAILABILITY FOR THE TWO LINE ITEMS DO NOT OVERLAP. MOREOVER, WE FIND NOTHING IN THE RFP PRECLUDING TWO AWARDS UNDER SUCH CIRCUMSTANCES.

THE PROTESTERS ALSO CONTEND THAT THE FOREST SERVICE SHOULD HAVE REEVALUATED ALL PROPOSED AWARDS BEFORE MAKING THEM TO ASSURE THAT EACH OFFEROR SELECTED WOULD BE ABLE TO HANDLE THE AWARDS MADE TO IT.THE PROTESTERS SAY THAT AN OFFEROR'S ABILITY TO PERFORM SAFELY WILL DECLINE AS THE NUMBER OF AIRCRAFT IT PLACES INCREASES. WHILE WE AGREE WITH THE PROTESTERS THAT THE FOREST SERVICE WAS REQUIRED TO CONSIDER EACH OFFEROR'S ABILITY TO PERFORM THE CONTRACT AWARDED, WE ALSO AGREE WITH THE FOREST SERVICE THAT THIS IS A MATTER OF RESPONSIBILITY WHICH OUR OFFICE WILL NOT CONSIDER ABSENT CIRCUMSTANCES THAT HAVE NOT BEEN ALLEGED. CENTRAL METAL PRODUCTS, INC., 54 COMP.GEN. 64 (1974), 74-2 CPD PARA. 64.

FINALLY, THE PROTESTERS HAVE SUGGESTED THAT THE FOREST SERVICE HAS DELIBERATELY EXCLUDED C-119 AIRCRAFT IN FAVOR OF AIRCRAFT NOT PREVIOUSLY OUTFITTED FOR AIR TANKER USE AND THUS HAS SOUGHT TO DRIVE THEM OUT OF BUSINESS. THE RECORD CONTAINS NO SUPPORT FOR THIS CONTENTION. WHILE NO C -119S WERE THE SUBJECT OF AWARD, THIS WAS BECAUSE THE OFFERORS WHOSE PROPOSALS WERE BASED ON FURNISHING C-119S WERE LESS COMPETITIVE THAN OTHER OFFERORS.

THE PROTESTS ARE DENIED.

/1/ TWO LINE ITEMS WERE CANCELED AFTER THE FOREST SERVICE DECIDED THEY WERE NOT NEEDED; ONE OF THE TWO WAS LATER REINSTATED. NONE OF THE PROTESTERS OFFERED AIRCRAFT UNDER EITHER OF THE CANCELED LINE ITEMS.

/2/ TWO OTHER ARGUMENTS RAISED BY THE PROTESTERS REQUIRE ONLY BRIEF COMMENT. THE PROTESTERS STATE THAT CERTAIN DC-6S DO NOT QUALIFY AS 3000 GALLON TANKERS BECAUSE THEY MIGHT NOT BE CAPABLE OF CARRYING 3000 GALLONS FROM SOME BASES. THIS ASSERTION IS UNSUPPORTED BY THE RECORD, WHICH INDICATES THE SUBJECT AIRCRAFT CAN OPERATE FROM, THE BASES TO WHICH THEY ARE TO BE ASSIGNED. LIKEWISE, AN ASSERTION THAT DC-6S AND KC-97S SHOULD NOT HAVE BEEN CONSIDERED FOR ASSIGNMENT TO BASES REQUIRING A 2000 GALLON CAPACITY IS WITHOUT MERIT BECAUSE THE SOLICITATION DID NOT PRECLUDE OFFERS OF AIRCRAFT WITH EXCESS CAPACITY.

/3/ AS INDICATED, MOST OF THE TECHNICAL EVALUATION DEALT WITH EVALUATING EACH OFFEROR'S CAPABILITY AND DEMONSTRATED PERFORMANCE IN SUPPORTING AIR TANKER OPERATIONS. THE EVALUATION OF AIRCRAFT WAS GIVEN ONLY LIMITED WEIGHT AND CONCERNED PRINCIPALLY THEIR CONDITION. THE RECORD INDICATES THE DIFFERENCES IN POINT SCORES THAT COULD HAVE RESULTED FROM LISTING OF THE C-123 WOULD NOT HAVE BEEN SUBSTANTIAL. LIKEWISE THE IMPACT ON COST IS LIMITED. MUCH OF THE GOVERNMENT'S COST IS FIXED BECAUSE THE GOVERNMENT SPECIFIED RATES IN THE RFP TO BE PAID FOR FLIGHT TIME DEPENDING ON THE AMOUNT OF FIRE RETARDANT (HERE 2000 GALLONS) THE TANKER WAS REQUIRED TO CARRY AND ON FUEL PRICE. OFFERORS' PRICE PROPOSALS WERE BASED ON A QUOTED DAILY PRICE FOR MAKING AN AIRCRAFT OF THE REQUIRED CAPACITY AVAILABLE AND WERE HEAVILY DEPENDENT ON FIXED COSTS REGARDLESS OF THE TYPE OF AIRCRAFT OFFERED.