B-222432, JUL 25, 1986, 86-2 CPD 112

B-222432, JUL 25, 1986, 86-2 CPD 112

CONTRACTS - NEGOTIATION - OFFERS OR PROPOSALS - EVALUATION - ADMINISTRATIVE DISCRETION DIGEST: 1. PROCURING OFFICIALS ENJOY A REASONABLE DEGREE OF DISCRETION IN EVALUATING PROPOSALS, AND THE GENERAL ACCOUNTING OFFICE WILL NOT DISTURB AN EVALUATION WHERE THE RECORD INDICATES THAT THE CONCLUSIONS REACHED ARE SUPPORTED BY THE INFORMATION IN PROPOSALS AND CONSISTENT WITH THE CRITERIA SET FORTH IN THE SOLICITATION. WHERE THE RELEVANT FACTUAL INFORMATION WAS CORRECTLY PRESENTED TO THE SELECTION OFFICIAL, TECHNICAL RANKINGS WERE NOT DISTURBED AND DIFFERENCES IN TECHNICAL POINT SCORES WERE NOT CONSIDERED DETERMINATIVE, A MINOR ERROR IN POINT SCORING DOES NOT INVALIDATE THE EVALUATION. CONTRACTS - NEGOTIATION - OFFERS OR PROPOSALS - DISCUSSION WITH ALL OFFERORS REQUIREMENT - "MEANINGFUL" DISCUSSIONS 2. REQUIREMENT TO CONDUCT MEANINGFUL DISCUSSIONS DOES NOT OBLIGATE AGENCIES TO IDENTIFY EVERY ASPECT OF A TECHNICALLY ACCEPTABLE PROPOSAL THAT RECEIVES LESS THAN A MAXIMUM SCORE, PARTICULARLY WHERE THE SUBJECT MATTER, THE NUMBER OF PASSENGER AIRLINE SEATS AVAILABLE AT THE LOCAL AIRPORT, DOES NOT APPEAR TO BE WITHIN THE OFFEROR'S CONTROL. CONTRACTS - PROTESTS - GENERAL ACCOUNTING OFFICE PROCEDURES - TIMELINESS OF PROTEST - SOLICITATION IMPROPRIETIES - APPARENT PRIOR TO BID OPENING/CLOSING DATE FOR PROPOSALS 3. PROTEST ALLEGING THAT A SOLICITATION CONTAINS AN IMPROPER EVALUATION CRITERION, OR THAT IT DID NOT CONTAIN CERTAIN NECESSARY CRITERIA, IS UNTIMELY WHEN IT IS NOT FILED UNTIL AFTER THE CLOSING DATE FOR RECEIPT OF INITIAL PROPOSALS. CONTRACTS - NEGOTIATION - REQUESTS FOR PROPOSALS - EVALUATION CRITERIA 4. WHERE A SOLICITATION DOES NOT INDICATE IN RELATIVE TERMS THE IMPORTANCE OF COST, TECHNICAL, AND BUSINESS MANAGEMENT FACTORS, IT MUST BE PRESUMED THAT EACH WILL BE CONSIDERED APPROXIMATELY EQUAL IN WEIGHT.

IRA T. FINLEY INVESTMENTS:

IRA T. FINLEY INVESTMENTS PROTESTS THE FEDERAL AVIATION ADMINISTRATION'S (FAA) PROPOSED AWARD TO EMBRY-RIDDLE AERONAUTICAL UNIVERSITY OF 20-YEAR LEASE FOR THE FACILITIES AND SERVICES NEEDED TO SUPPORT THE AGENCY'S MANAGEMENT TRAINING SCHOOL.

THE MIKE MONRONEY AVIATION CENTER, OKLAHOMA CITY, OKLAHOMA, ISSUED THE SOLICITATION FOR OFFERS, NO. DTFA-02-84-R-00584, ON AUGUST 29, 1984, WITH AN AMENDED CLOSING DATE OF JANUARY 15, 1985. FINLEY PRIMARILY CONTENDS THAT THE FAA FAILED TO EVALUATE EITHER ITS OWN OR EMBRY-RIDDLE'S PROPOSAL PROPERLY.

WE DENY THE PROTEST IS PART AND DISMISS IT IN PART.

BACKGROUND

THE FAA HAS OPERATED A MANAGEMENT TRAINING SCHOOL ON THE CAMPUS OF CAMERON UNIVERSITY IN LAWTON, OKLAHOMA, SINCE 1971. FOR A VARIETY OF REASONS, INCLUDING CAMERON'S DESIRE TO RECLAIM THE DORMITORY SPACE THE FAA OCCUPIES, THE FAA SOUGHT NEW FACILITIES, INCLUDING CLASSROOMS, OFFICES, A DINING HALL, AND STUDENT HOUSING. THE SOLICITATION, ISSUED UNDER AUTHORITY DELEGATED BY THE GENERAL SERVICES ADMINISTRATION, CONTEMPLATES A 10-YEAR LEASE WITH TWO 5-YEAR OPTION PERIODS. IN ADDITION TO FACILITIES, THE CONTRACTOR WILL PROVIDE BUILDING AND GROUNDS MAINTENANCE, SECURITY, LINEN AND MAID SERVICE, DESK SERVICES, STUDENT HOUSING, AND MEALS.

THE FAA RECEIVED 10 PROPOSALS, ALL OF WHICH IT INCLUDED IN THE COMPETITIVE RANGE. AFTER ADVISING OFFERORS OF THE WEAKNESSES AND DEFICIENCIES IN THEIR PROPOSALS AND MAKING FACT-FINDING VISITS TO ALL SITES, THE SOURCE EVALUATION BOARD COMPLETED NEGOTIATIONS, REQUESTED BEST AND FINAL OFFERS, AND SUBMITTED ITS FINDINGS TO THE SOURCE SELECTION OFFICIAL ON SEPTEMBER 3, 1985. THAT OFFICIAL SELECTED EMBRY RIDDLE ON THE BASIS OF ITS RELATIVELY LOW PROPOSED PRICE, THE EXCELLENT, LOW-RISK NATURE OF ITS BUSINESS MANAGEMENT PROPOSAL, AND ITS ACCEPTABLE TECHNICAL PROPOSAL. THE FAA PUBLICLY ANNOUNCED ITS SELECTION ON MARCH 14, 1986, AND SENT WRITTEN NOTICES TO THE UNSUCCESSFUL OFFERORS ON MARCH 18; FINLEY FILED ITS PROTEST HERE ON MARCH 24.

TECHNICAL CONSIDERATIONS

FINLEY FIRST CONTENDS THAT THE FAA DID NOT EVALUATE TECHNICAL PROPOSALS IN ACCORD WITH EITHER THE CRITERIA SET FORTH IN THE SOLICITATION OR THE AGENCY'S EVALUATION PLAN. THE SOLICITATION LISTED SIX MAJOR FACTORS (WITH A TOTAL OF 31 SUBFACTORS) FOR CONSIDERATION. IN DESCENDING ORDER OF IMPORTANCE, THESE WERE: LOCATION, FACILITIES, SERVICE PLANS, COMMUNITY RESOURCES, PROXIMITY TO DEPARTMENT OF TRANSPORTATION HEADQUARTERS IN WASHINGTON, D.C., AND PROCUREMENT PREFERENCE PROGRAMS PLANS, I.E., PLANS FOR SUBCONTRACTING WITH SMALL, MINORITY, AND WOMEN-OWNED BUSINESSES.

OF 1,000 POSSIBLE TECHNICAL POINTS, EMBRY-RIDDLE RECEIVED 770, WHILE THE PROTESTER RECEIVED 730. ACCORDING TO FINLEY, THE IMPROPER EVALUATION CAUSED IT TO LOSE ENOUGH POINTS TO AFFECT ITS RANKING MATERIALLY. FINLEY ASKS THAT BOTH ITS PROPOSAL AND EMBRY-RIDDLE'S BE REEVALUATED BY INDEPENDENT, IMPARTIAL EVALUATORS.

IN REVIEWING PROTESTS AGAINST THE PROPRIETY OF A TECHNICAL EVALUATION, IT IS NOT THE FUNCTION OF OUR OFFICE INDEPENDENTLY TO EVALUATE PROPOSALS. AT&T TECHNOLOGY SYSTEMS, B-220052, JAN. 17, 1986, 86-1 CPD PARA. 57. RATHER, THE DETERMINATION OF THE RELATIVE DESIRABILITY AND TECHNICAL ADEQUACY OF OFFERS IS PRIMARILY A FUNCTION OF THE PROCURING AGENCY, WHICH ENJOYS A REASONABLE RANGE OF DISCRETION. ID. CONSEQUENTLY, WE WILL QUESTION AN AGENCY'S TECHNICAL EVALUATION ONLY WHERE THE RECORD CLEARLY SHOWS THAT IT WAS CONDUCTED ARBITRARILY OR CAPRICIOUSLY. ID. FURTHERMORE, THE PROTESTER HAS THE BURDEN OF AFFIRMATIVELY PROVING ITS CASE, AND MERE DISAGREEMENT WITH A TECHNICAL EVALUATION DOES NOT SATISFY THIS REQUIREMENT. A.B. DICK CO., B-211119.3, SEPT. 22, 1983, 83-2 CPD PARA. 360, AFF'D ON RECONSIDERATION, B-211119.5, APR. 17, 1984, 84-1 CPD PARA. 424.

WE CANNOT CONCLUDE THAT IN THIS CASE THE AGENCY'S SELECTION WAS EITHER ARBITRARY OR CAPRICIOUS. WHILE THE AGENCY ARGUABLY SHOULD HAVE AWARDED EMBRY-RIDDLE FEWER POINTS UNDER THE LOCATION CRITERION, THIS WOULD NOT HAVE AFFECTED FINLEY'S RANKING VIS-A-VIS EMBRY-RIDDLE'S IN THE TECHNICAL AREA. AN ITEM-BY-ITEM ANALYSIS OF THOSE PORTIONS OF THE FAA'S EVALUATION THAT FINLEY CHALLENGES FOLLOWS.

LOCATION

FINLEY QUESTIONS THE FAA'S FAILURE TO GIVE ITS PROPOSAL THE MAXIMUM SCORE FOR LOCATION, ARGUING THAT ITS PROPOSED SITE ON THE PROPERTY OF THE LAWTON MUNICIPAL AIRPORT IS SECLUDED, FREE FROM DISTRACTION, AND OTHERWISE APPROPRIATE FOR A SCHOOL.

THE FAA DOWNGRADED FINLEY'S PROPOSAL UNDER THE SUBCRITERION "RETREAT ATMOSPHERE" BECAUSE ITS BUILDING SITE WAS NEAR A LIGHT INDUSTRIAL AREA; WAS CLOSE TO A MODERATELY BUSY HIGHWAY; AND, IN THE OPINION OF THE EVALUATORS, APPEARED "STARK, BARE, AND DEVOID OF TREES AND SHRUBS." FINLEY ARGUES THAT THE AIRPORT AUTHORITY HAS AGREED TO ESTABLISH A GENERAL BEAUTIFICATION PROGRAM, A FACT THAT EVALUATORS RECOGNIZED; THEY NOTED, HOWEVER, THAT FINLEY'S PROPOSAL OFFERED NO INFORMATION AS TO THE EXTENT OR TIMING OF THAT EFFORT.

JUDGING BY PHOTOGRAPHS IN THE FILE, FINLEY'S PROPOSED SITE IS A FLAT GRASSY LOT LOCATED IN A LIGHT INDUSTRIAL AREA ON THE LAWTON MUNICIPAL AIRPORT PROPERTY. BY COMPARISON, EMBRY-RIDDLE'S PROPOSED LOCATION ON SEVERAL ACRES IN THE PALM COAST PLANNED COMMUNITY NEAR DAYTONA BEACH, FLORIDA, IS IMMEDIATELY SURROUNDED BY TREES. IN THE FAA'S JUDGMENT, THE EMBRY-RIDDLE SITE HAS A RETREAT ATMOSPHERE THAT IS HIGHLY CONDUCIVE TO STUDY. GIVEN THESE CONSIDERATIONS, WE SEE NO BASIS TO QUESTION THE FAA'S EVALUATION OF EITHER SITE. FINLEY'S STRONG DISAGREEMENT IS NOT AN ADEQUATE BASIS FOR DISTURBING THE EVALUATORS' JUDGMENT.

FINLEY ALSO OBJECTS TO THE FAA'S EVALUATION OF THE DISTANCE FROM EMBRY- RIDDLE'S PROPOSED SITE TO THE NEAREST COMMERCIAL AIRPORT UNDER ANOTHER LOCATION SUBCRITERION. FINLEY POINTS OUT THAT ALTHOUGH EMBRY RIDDLE WAS EVALUATED ON THE BASIS OF ITS FACILITY BEING JUST 30 MILES FROM DAYTONA AIRPORT, THE FAA'S OWN SOURCE EVALUATION BOARD REPORT STATES THAT EMBRY- RIDDLE'S PROPOSED SITE IS 31.8 MILES FROM THE AIRPORT. FINLEY ALSO ASSERTS THAT IT VISITED THE SITE, MEASURED THE DISTANCE TO THE DAYTONA AIRPORT ON TWO SEPARATE OCCASIONS, AND FOUND THAT THE DISTANCE IS ACTUALLY 32.6 MILES. ACCORDINGLY, FINLEY ARGUES, EMBRY-RIDDLE SHOULD HAVE BEEN GIVEN ONLY 18 POINTS-- THE SCORE ASSIGNED FOR SITES LOCATED 31 TO 40 MILES FROM AN AIRPORT-- RATHER THAN THE 36 POINTS ASSIGNED FOR SITES 21 TO 30 MILES FROM AN AIRPORT.

THE FAA RESPONDS THAT THE SOURCE EVALUATION BOARD REPORT SHOULD HAVE STATED THAT THE EMBRY-RIDDLE SITE IS 30 MILES FROM THE DAYTONA AIRPORT. THE FAA REPORTS THAT DUE TO A MISTAKE ON THE PART OF AN INDIVIDUAL MEMBER OF THE EVALUATION TEAM, THE 31.8 MILE DISTANCE WAS INADVERTENTLY INCLUDED IN THE SOURCE EVALUATION BOARD REPORT. CONSEQUENTLY, THE FAA CONTENDS, THE CORRECT DISTANCE WAS THE 30 MILES PROPOSED BY EMBRY-RIDDLE AND ADOPTED BY THE FAA IN ITS FINAL EVALUATION.

WHERE THE ONLY EVIDENCE ON AN ISSUE OF FACT IS THE CONFLICTING STATEMENTS OF THE PROTESTER AND CONTRACTING OFFICIALS, THE PROTESTER HAS NOT CARRIED ITS BURDEN OF PROVING THE CASE. XEROX SPECIAL INFORMATION SYSTEMS, B-215557, FEB. 13, 1985, 85-1 CPD PARA. 192. HERE, THE FAA'S OWN SOURCE EVALUATION BOARD REPORT FURNISHES EVIDENCE SUPPORTING THE PROTESTER'S ALLEGATION, EVEN THOUGH THE FAA NOW DISAVOWS THAT EVIDENCE. THEREFORE, WE MUST ASSESS THE FACTS ON THE BASIS OF THE ENTIRE RECORD, WITHOUT BENEFIT OF PRESUMPTION.

JUDGING FROM THE MAPS EMBRY-RIDDLE FURNISHED WITH ITS PROPOSAL, THERE IS ONLY ONE DIRECT ROUTE FROM THE DAYTONA AIRPORT TO ITS PROPOSED SITE, SINCE BOTH ARE CLOSE TO THE SAME INTERSTATE HIGHWAY. JUST HOW THE EXACT DISTANCE BETWEEN THE TWO LOCATIONS SHOULD BE MEASURED IS NOT SPECIFIED IN THE SOLICITATION, AND IT IS POSSIBLE TO VARY IT DEPENDING ON THE POINTS BETWEEN WHICH THE DISTANCE IS MEASURED, I.E., FROM (1) THE ENTRANCE TO THE AIRPORT PROPERTY, (2) THE AIRPORT PARKING LOT, OR (3) THE MAIN DOOR OF THE PASSENGER TERMINAL TO THE PROPOSED FACILITY. THE FAA ADVISES THAT IT USED THE MAP PROVIDED WITH EMBRY-RIDDLE'S PROPOSAL TO MEASURE THE DISTANCE, BUT THE SCALE OF THAT MAP DOES NOT PERMIT MEASUREMENT ACCURATE ENOUGH TO RESOLVE THIS DISPUTE.

GIVEN THIS RECORD, AND TAKING INTO ACCOUNT THE FAA'S FAILURE TO PROVIDE OTHER INFORMATION TO SUBSTANTIATE ITS POSITION, WE ADOPT THE DISTANCE IN THE SOURCE EVALUATION BOARD REPORT, 31.8 MILES. EVEN IF WE USE THIS FIGURE, HOWEVER, AND SUBTRACT 18 POINTS FROM EMBRY-RIDDLE'S TOTAL TECHNICAL SCORE, THE FIRM STILL OUTRANKS FINLEY WITH 752 POINTS, COMPARED WITH FINLEY'S 730.

ALSO UNDER THE LOCATION CRITERION, FINLEY OBJECTS TO THE FAA'S EVALUATION OF THE NUMBER OF PASSENGER SEATS AVAILABLE ON SCHEDULED AIRLINES SERVING LAWTON ON WEEKDAYS. FINLEY ARGUES THAT THE NUMBER OF SEATS ACTUALLY AVAILABLE IS TWICE THAT STATED IN ITS PROPOSAL-- 414 EACH FOR MONDAY, TUESDAY AND WEDNESDAY AND 476 EACH FOR THURSDAY AND FRIDAY-- BECAUSE INBOUND SEATS SHOULD BE COUNTED SEPARATELY FROM OUTBOUND SEATS. /1/ CONSEQUENTLY, FINLEY ARGUES, IT SHOULD HAVE BEEN GIVEN 53 POINTS-- THE SCORE ASSIGNED FOR AIRPORTS WITH 800 OR MORE SEATS AVAILABLE EACH WEEKDAY- - NOT THE 13 POINTS ASSIGNED FOR AIRPORTS WITH 350 TO 499 SEATS AVAILABLE EACH WEEKDAY.

ALTERNATIVELY, FINLEY ARGUES THAT THE FAA SHOULD HAVE USED THE HIGHER SEATING FIGURES IN AN INFORMATION PACKET GIVEN FAA EVALUATORS WHEN THEY VISITED LAWTON MUNICIPAL AIRPORT DURING THEIR TOUR OF FINLEY'S PROPOSED SITE. IN ANY EVENT, FINLEY BELIEVES THAT THE FAA SHOULD HAVE PROBED THIS MATTER DURING THE COURSE OF NEGOTIATIONS.

THE FAA REPLIES THAT IT SCORED AIRLINE SEATING AVAILABILITY IN ACCORD WITH THE INFORMATION THAT OFFERORS PROVIDED. /2/

SINCE FINLEY'S PROPOSAL INDICATED WEEKDAY PASSENGER SEATING THAT FELL IN THE PREESTABLISHED RANGE OF 350-499, IT RECEIVED 13 POINTS. SIMILARLY, SINCE EMBRY-RIDDLE'S PROPOSAL INDICATED THAT SOME 3,441 PASSENGER SEATS WERE AVAILABLE EACH WEEKDAY AT THE DAYTONA AIRPORT, IT RECEIVED THE MAXIMUM 53 POINTS.

IN OUR OPINION, THE FAA CANNOT BE FAULTED FOR SCORING FINLEY'S PROPOSAL IN ACCORD WITH THE INFORMATION FURNISHED IN ITS PROPOSAL. SEE JOSEPH L. DE CLERK AND ASSOCIATES, INC., B-220142, NOV. 19, 1985, 85-2 CPD PARA. 567. IN THIS REGARD, IN NUMAX ELECTRONICS INC., B-210266, MAY 3, 1983, 83-1 CPD PARA. 470, WHEN REPLYING TO A PROTESTER'S ARGUMENT THAT INFORMATION CONTAINED IN THE PRE-AWARD SURVEY SHOULD HAVE BEEN CONSIDERED DURING EVALUATION OF ITS TECHNICAL PROPOSAL, WE SAID:

"A TECHNICAL EVALUATION MUST BE BASED UPON THE INFORMATION CONTAINED IN THE PROPOSAL, SO THAT NO MATTER HOW CAPABLE AN OFFEROR MAY BE, IT RUNS THE RISK OF LOSING THE COMPETITION IF IT DOES NOT SUBMIT AN ADEQUATE PROPOSAL. BLURTON, BANKS & ASSOCIATES, INC., B-205865, AUGUST 10, 1982, 82-2 CPD PARA. 121. THUS, IF THE SURVEY OF NUMAX'S PREMISES WAS CONDUCTED IN CONNECTION WITH THIS PROCUREMENT (IT IS NOT CLEAR FROM THE RECORD WHETHER THE SURVEY NUMAX REFERS TO WAS CONDUCTED WITH RESPECT TO THIS PROCUREMENT OR SOME OTHER PROCUREMENT), THE USE OF THE SURVEY'S RESULTS FOR EVALUATION PURPOSES WOULD BE IMPROPER. THUS, NUMAX IS MISGUIDED TO THE EXTENT IT BELIEVES THE PREAWARD SURVEY SHOULD BE USED AS A SUBSTITUTE FOR INFORMATION THAT SHOULD HAVE BEEN INCLUDED IN ITS WRITTEN PROPOSAL."

CONSEQUENTLY, IT WAS INCUMBENT UPON FINLEY TO MODIFY ITS PROPOSAL IF IT WISHED TO BE EVALUATED ON THE BASIS OF THE SEATING DATA CONTAINED IN THE AIRPORT'S INFORMATION PACKET, OR ON THE BASIS OF COUNTING INBOUND PASSENGER SEATS SEPARATELY FROM OUTBOUND. THE 13 POINTS FINLEY RECEIVED ARE ALL THAT IT WAS ENTITLED TO RECEIVE FOR THE NUMBER OF WEEKDAY PASSENGER SEATS IT PROPOSED FOR LAWTON MUNICIPAL AIRPORT.

AS FOR FINLEY'S ASSERTION THAT THE FAA SHOULD HAVE POINTED OUT THE NUMBER OF PASSENGER SEATS AVAILABLE AT THE LAWTON MUNICIPAL AIRPORT AS A WEAKNESS OR DEFICIENCY, THE FAA REPORTS THAT IT DID NOT DO SO BECAUSE IT BELIEVED THERE WAS NOTHING AN OFFEROR COULD DO TO INCREASE THE NUMBER OF SEATS MADE AVAILABLE BY SCHEDULED AIR CARRIERS. IN THESE CIRCUMSTANCES, WE FIND THAT THE FAA'S USE OF THE SEATING DATA CONTAINED IN FINLEY'S PROPOSAL WAS UNOBJECTIONABLE.

FACILITIES

FINLEY ALSO CONTENDS THAT ITS PROPOSAL WAS IMPROPERLY DOWNSCORED FOR ITS ABILITY TO ACCOMMODATE FLUCTUATIONS IN ENROLLMENT EITHER THROUGH EXPANSION OR USE OF OTHER NEARBY FACILITIES OR THROUGH RECONFIGURATION OF PROPOSED SPACE. FINLEY CONTENDS THAT ITS PROPOSED FACILITY CAN ACCOMMODATE FLUCTUATIONS BY EXPANSION, WHICH ITS DESIGN FACILITATES, AND BY TURNING OVER TO THE FAA AN EXTRA CLASSROOM IN THE BUILDING THAT IS NOT INCLUDED IN THE FAA'S INITIAL LEASE. FINLEY ALSO POINTS OUT THAT ITS OFFER IDENTIFIED A NUMBER OF NEARBY FACILITIES WHERE ADDITIONAL CLASSES COULD BE HELD. FOR RECONFIGURATION OF ITS PROPOSED FACILITY, FINLEY ARGUES THAT ITS NON- LOAD-BEARING STUD WALLS CAN BE EASILY RELOCATED TO SUIT THE FAA'S DESIRES.

THE FAA REPLIES THAT FINLEY'S PROPOSAL RECEIVED 6 OUT OF 24 POINTS FOR FUTURE EXPANSION BECAUSE THE ONLY ADDITIONAL SPACE AVAILABLE AT THE FACILITY FOR A CLASSROOM IS THE DINING HALL, WHICH IS USABLE ONLY WHEN MEALS ARE NOT BEING SERVED. THE FAA POINTS OUT THAT THE DRAWINGS FINLEY SUBMITTED DO NOT SHOW AN ADDITIONAL NONLEASED CLASSROOM. THE FAA ADVISES THAT THE NEAREST ADDITIONAL SLEEPING QUARTERS ARE MORE THAN 4 MILES FROM THE SITE FINLEY PROPOSED, AND THAT ADDITIONAL CLASSROOM SPACE IS SIMILARLY DISTANT. ACCORDING TO THE FAA, THE FACT THAT THE FACILITY IS DESIGNED SO THAT IT CAN BE EXPANDED IS UNSATISFACTORY, DUE TO THE EXTENDED PERIOD NEEDED FOR DESIGN AND CONSTRUCTION OF A NEW WING. FINALLY, AS TO EASE OF RECONFIGURATION OF THE EXISTING SPACE, WHILE BOTH FINLEY AND EMBRY-RIDDLE PROPOSED NON-LOAD-BEARING, RELOCATABLE INTERIOR STUD WALLS, EMBRY-RIDDLE SUBDIVIDED MUCH OF ITS ADMINISTRATIVE SPACE WITH MOVABLE ACOUSTIC PARTITIONS, WHICH CAN BE RELOCATED WITH EVEN GREATER EASE.

AS TO FINLEY'S CONTENTION THAT ITS FACILITY WOULD CONTAIN AN ADDITIONAL NONLEASED CLASSROOM AVAILABLE FOR FUTURE FAA EXPANSION, THE DRAWINGS FINLEY FURNISHED SHOW ONLY EIGHT CLASSROOMS, THE REQUIRED NUMBER, AS THE FAA ASSERTS. THE SEEMING INCONSISTENCY MAY BE EXPLAINED BY THE ADDITIONAL GROSS FLOOR AREA AVAILABLE IN FINLEY'S PROPOSED FACILITY OVER AND ABOVE THE MINIMUM SPACE THE FAA REQUIRED. IF FINLEY INTENDED TO RETAIN NONLEASED OFFICE OR CLASSROOM SPACE WITHIN THE FAA FACILITY, IT NEITHER EXPRESSED THIS INTENT IN ITS PROPOSAL NOR INDICATED THE LOCATION OF THE NONLEASED SPACE IN ITS DRAWINGS. /3/ THUS, FINLEY, NOT THE FAA, IS TO BLAME FOR ANY POSSIBLE MISUNDERSTANDING IN THIS AREA. AS TO THE OTHER CONSIDERATIONS, THE FAA'S EVALUATION APPEARS AMPLY SUPPORTED BY THE RECORD AND IS, ACCORDINGLY, WITHIN THE EVALUATORS' LEGITIMATE DISCRETION.

SERVICE PLANS

FINLEY FURTHER CONTESTS THE FAA'S LOWERING OF ITS SCORE FOR BUILDING MAINTENANCE. THE FAA EXPLAINS THAT FINLEY PROPOSED TO FURNISH JUST ONE ENGINEER BECAUSE THE FACILITY, BEING NEW, WOULD REQUIRE LITTLE MAINTENANCE AND BECAUSE ROUTINE MECHANICAL SERVICING OF SYSTEMS SUCH AS AIR CONDITIONING WOULD BE SUBCONTRACTED. ALTHOUGH EMBRY-RIDDLE ALSO PROPOSED TO BUILD A NEW FACILITY, IT OFFERED TO FURNISH A BACKUP REPAIRMAN, AND IT PROVIDED MORE COMPREHENSIVE INFORMATION ON ITS MAINTENANCE PLANS. GIVEN THESE DIFFERENCES, WE BELIEVE THAT THE FAA'S AWARD OF 33 POINTS TO EMBRY- RIDDLE FOR THIS SUBCRITERION, AS OPPOSED TO 28 FOR FINLEY, IS AMPLY SUPPORTED BY THE RECORD.

IN ADDITION, FINLEY CHALLENGES THE FAA'S EVALUATION OF THE TELEPHONE SERVICE PROPOSED FOR STUDENTS RESIDING IN THE DORMITORY. FINLEY POINTS OUT THAT ITS PROPOSED INSTALLATION OF ONE PAY PHONE FOR EACH 12.5 STUDENTS MORE THAN SATISFIES THE MINIMUM REQUIREMENT OF ONE PHONE PER 15 STUDENTS.

ACCORDING TO FINLEY, IF THE FAA WANTED A TELEPHONE IN EACH ROOM, IT SHOULD SIMPLY HAVE ASKED FOR THAT. CONSEQUENTLY, FINLEY ARGUES, THE FAA'S FAILURE TO POINT OUT THIS ALLEGED DEFICIENCY IN FINLEY'S PROPOSAL WAS IMPROPER, SINCE THE DEFICIENCY WAS READILY CORRECTABLE.

THE FAA REPLIES THAT STUDENT TELEPHONE SERVICE WAS EVALUATED IN STRICT ACCORD WITH THE SOLICITATION CRITERIA AND THE FAA'S EVALUATION PLAN, WHICH AWARDED 9 POINTS TO EMBRY-RIDDLE, BASED ON ITS OFFER TO PLACE A TELEPHONE IN EACH ROOM, AND 2 POINTS TO FINLEY, BASED ON ITS PROPOSED 12.5 STUDENTS PER TELEPHONE. FURTHER, THE FAA CONTENDS, THE APPLICABLE DEPARTMENT OF TRANSPORTATION SOURCE SELECTION ORDER PROHIBITS SUGGESTING WAYS TO IMPROVE PROPOSALS WHEN POINTING OUT WEAKNESSES AND DEFICIENCIES. SINCE THE FAA FULLY UNDERSTOOD FINLEY'S PROPOSED LEVEL OF SERVICE, AND SINCE THAT LEVEL OF SERVICE SATISFIED THE SPECIFIED MINIMUM REQUIREMENTS, THE FAA ARGUES THAT IT COULD NOT HAVE POINTED OUT THE NUMBER OF TELEPHONES AS A WEAKNESS OR DEFICIENCY.

WE AGREE THAT IT WOULD BE DIFFICULT TO DO SO WITHOUT DIRECTLY SUGGESTING THAT THE OFFEROR PROPOSE ADDITIONAL TELEPHONES, WHICH WOULD LEAD TO TECHNICAL LEVELING. WHEN A PROPOSAL IS CONSIDERED TO BE ACCEPTABLE AND IN THE COMPETITIVE RANGE, THE AGENCY IS UNDER NO OBLIGATION TO DISCUSS EVERY ASPECT OF IT THAT HAS RECEIVED LESS THAN THE MAXIMUM SCORE. BAUER OF AMERICA CORP. & RAYMOND INTERNATIONAL BUILDERS, INC., A JOINT VENTURE, B-219343.3, OCT. 4, 1985, 85-2 CPD PARA. 380. HERE, ALTHOUGH THE SOLICITATION STATED THAT OFFERORS WOULD BE GIVEN CREDIT FOR SERVICE BEYOND THE MINIMUM SPECIFIED, FINLEY ELECTED TO PROPOSE SERVICE VERY NEAR THE MINIMUM LEVEL, PRESUMABLY FOR COST REASONS. GIVEN THESE CIRCUMSTANCES, WE BELIEVE THAT FINLEY HAD ADEQUATE NOTICE OF THE GOVERNMENT'S INTENTIONS AND THAT THE FAA HAD NO DUTY TO POINT OUT THIS DEFICIENCY.

COMMUNITY RESOURCES

FINLEY ALSO CONTENDS THAT ITS PROPOSAL SHOULD NOT HAVE RECEIVED A LOWER RATING THAN EMBRY-RIDDLE'S UNDER THE CRITERION "COMMUNITY RESOURCES." ACCORDING TO FINLEY, THERE IS A WIDE VARIETY OF CULTURAL AND ENTERTAINMENT ACTIVITIES AVAILABLE IN THE LAWTON AREA, INCLUDING ART, THEATER, SPORTS, MUSIC, AND DINING, AND SO IT SHOULD HAVE RECEIVED THE HIGHEST POSSIBLE RATING UNDER THE SUBCRITERION "RECREATION/ENTERTAINMENT OPPORTUNITIES FOR STUDENTS." FINLEY ALSO QUESTIONS THE FAA'S DOWNSCORING OF ITS PROPOSAL UNDER THE SUBCRITERION "PUBLIC TRANSPORTATION FOR STUDENTS," EVEN THOUGH NONE IS AVAILABLE, SINCE FINLEY OFFERED TO PROVIDE SUCH TRANSPORTATION ON A REIMBURSABLE BASIS. IN ANY EVENT, FINLEY ARGUES, LAWTON'S RECREATIONAL ACTIVITIES ARE IN WALKING DISTANCE, BEING, WITH FEW EXCEPTIONS, WITHIN A 4 -MILE RADIUS OF THE PROPOSED FACILITY.

THE FAA RECOGNIZED LAWTON'S NUMEROUS RECREATIONAL ADVANTAGES AND GAVE FINLEY 5 OUT OF 7 POSSIBLE POINTS FOR THIS SUBCRITERION. EMBRY RIDDLE RECEIVED 7 POINTS ON THE BASIS OF ITS LOCATION NEAR THE ATLANTIC OCEAN, THE YEAR-ROUND OPPORTUNITIES FOR SWIMMING, GOLF, TENNIS, AND HIKING WITHIN APPROXIMATELY 2 MILES OF ITS PROPOSED SITE, AND THE FACT THAT IT IS WELL SUITED FOR TAKING ADVANTAGE OF OTHER ACTIVITIES IN CENTRAL FLORIDA, SUCH AS DAYTONA BEACH, DISNEY WORLD, AND EPCOT CENTER ON WEEKENDS. AS TO LOCAL PUBLIC TRANSPORTATION FOR STUDENTS, FINLEY RECEIVED 16 POINTS, WHICH TOOK INTO ACCOUNT THE FIRM'S OFFER TO MAKE TRANSPORTATION AVAILABLE FOR RECREATIONAL PURPOSES ON A REIMBURSABLE BASIS. EMBRY-RIDDLE, BY COMPARISON, RECEIVED ONLY 11 POINTS IN THIS AREA. WE SEE NO BASIS TO QUESTION THE FAA EVALUATORS' FINDINGS UNDER THIS SUBCRITERION SIMPLY BECAUSE FINLEY DISAGREES WITH THEM.

BUSINESS MANAGEMENT CONSIDERATIONS

FINLEY ALSO PROTESTS THE FAA'S EVALUATION OF ITS FINANCIAL CAPABILITIES. THE FAA RATED EMBRY-RIDDLE'S FINANCIAL CAPABILITY AS "SUPERIOR" AND FINLEY'S AS "SATISFACTORY," SINCE EMBRY-RIDDLE HAS FIRM COMMITMENTS IN PLACE FOR BOTH THE CONSTRUCTION AND PERMANENT FINANCING OF THE FACILITY, WHILE FINLEY DID NOT OFFER SUCH FIRM COMMITMENTS. BECAUSE ITS PROPOSED FINANCING ARRANGEMENTS COMPLIED WITH THE SOLICITATION'S MINIMUM REQUIREMENTS, FINLEY CONTENDS THAT IT SHOULD HAVE RECEIVED THE HIGHEST POSSIBLE RATING IN THIS AREA. FINLEY ARGUES THAT IT DID NOT HAVE TO SUBMIT EVIDENCE OF A FIRM COMMITMENT UNTIL AFTER AWARD, SINCE NEITHER THE SOLICITATION NOR THE CONTRACTING OFFICER, WHEN THE MATTER WAS DISCUSSED DURING NEGOTIATIONS, REQUIRED SUCH. ACCORDING TO FINLEY, EMBRY-RIDDLE'S ABILITY TO OBTAIN A FIRM COMMITMENT RESULTS FROM ITS ASSOCIATION IN THIS PROJECT WITH ONE OF THE WORLD'S LARGEST CONGLOMERATES, ITT, SO THAT COMPARATIVELY EVALUATING FINANCIAL CONDITION CREATES AN UNFAIR COMPETITIVE ADVANTAGE FOR LARGE BUSINESS ORGANIZATIONS.

THE FAA REPLIES THAT THE SOLICITATION SPECIFICALLY STATED THAT AS PART OF ITS ASSESSMENT OF BUSINESS MANAGEMENT CAPABILITIES, THE FAA WOULD EVALUATE EACH OFFEROR'S ABILITY TO PROVIDE FINANCING FOR THE FACILITY. THIS FIRM COMMITMENT LED THE FAA TO ASSESS EMBRY-RIDDLE'S PROPOSAL AS AN EXCELLENT RISK, WHILE FINLEY'S LESS FIRM COMMITMENTS LED THE FAA TO ASSESS ITS PROPOSAL AS A MODERATE RISK. THE FAA ARGUES THAT IT WAS PROPER TO ASSESS THE COMPARATIVE DEGREE OF RISK FOR EACH OFFEROR'S FINANCING, RATHER THAN SIMPLY TO DETERMINE WHETHER AN OFFEROR MET THE MINIMUM REQUIREMENTS FOR FINANCING.

THE SOLICITATION STATED THAT OFFERORS WOULD BE "EVALUATED ON THEIR FINANCIAL CAPABILITIES, INCLUDING THEIR ABILITY TO ADEQUATELY FINANCE CONTRACT OPERATIONS." IN APPROPRIATE CIRCUMSTANCES, AND WHERE THE SOLICITATION SO APPRISES OFFERORS, FINANCIAL CONDITION MAY BE USED TO ASSESS THE RELATIVE MERITS OF INDIVIDUAL PROPOSALS. SEE DELTA DATA SYSTEMS CORP. V. WEBSTER, 747 F.2D 197, 200 (D.C. CIR. 1984); SEA-LAND SERVICE, INC., B-219665 ET AL., DEC. 17, 1985, 85-2 CPD PARA. 677. HERE, THE SOLICITATION DID APPRISE OFFERORS OF THE FAA'S INTENT, AND THE AGENCY THEREFORE WAS NOT LIMITED TO DETERMINING WHETHER A PARTICULAR OFFEROR SATISFIED, OR DID NOT SATISFY, THE MINIMUM REQUIREMENTS FOR FINANCING SET FORTH IN IT. ANY OBJECTION BY FINLEY TO THAT PROCEDURE SHOULD HAVE BEEN FILED BEFORE THE TIME SET FOR RECEIPT OF PROPOSALS. 4 C.F.R. SEC. 21.2 (1986); PROSPECTIVE COMPUTER ANALYSTS, INC., B-221414, FEB. 27, 1986, 86-1 CPD PARA. 206.

AS TO THE VALIDITY OF THE FAA'S ASSESSMENT OF RELATIVE FINANCIAL CAPABILITY FINLEY'S ARGUMENT THAT EMBRY-RIDDLE'S ASSOCIATION WITH ITT IN THIS PROJECT CREATES AN UNFAIR COMPETITIVE ADVANTAGE SUGGESTS THAT FINLEY ITSELF RECOGNIZES EMBRY-RIDDLE'S SUPERIOR FINANCIAL CAPABILITY. AND, OF COURSE, FINLEY'S OBJECTIONS TO ANY COMPETITIVE ADVANTAGE THAT LARGE BUSINESS FIRMS MAY HAVE ARE ALSO UNTIMELY, SINCE THE SOLICITATION DID NOT PRECLUDE OFFERS FROM LARGE BUSINESSES. ID.

ADDITIONAL CONSIDERATIONS

FINLEY FURTHER OBJECTS TO THE SOURCE SELECTION OFFICIAL'S FAILURE TO CONSIDER THE ADVERSE IMPACT THAT MOVING THE FAA'S MANAGEMENT TRAINING SCHOOL WOULD HAVE UPON THE TOWN OF LAWTON AND UPON THE LEVEL OF INSTRUCTION AT THE SCHOOL. FINLEY ALSO QUESTIONS THE PREFERENCE STATED IN THE SOLICITATION FOR COLLEGES AND UNIVERSITIES OFFERING STRONG AVIATION, BUSINESS, AND PUBLIC ADMINISTRATION PROGRAMS.

FINLEY IS ESSENTIALLY PROTESTING THE SOLICITATION TERMS-- FOR FAILING TO INCLUDE CERTAIN CONSIDERATIONS AND FOR INCLUDING ANOTHER CONSIDERATION. OUR BID PROTEST REGULATIONS REQUIRE THAT PROTESTS BASED UPON ALLEGED IMPROPRIETIES IN A SOLICITATION THAT ARE APPARENT BEFORE THE CLOSING DATE FOR RECEIPT OF PROPOSALS BE FILED BY THAT DATE. 4 C.F.R. SEC. 21.2(A)(1).

FINLEY'S PROTEST ON THESE BASES WAS FILED MORE THAN A YEAR AFTER THE CLOSING DATE. THEREFORE, IT IS UNTIMELY AND WE WILL NOT CONSIDER IT. PROSPECTIVE COMPUTER ANALYSTS, INC., B-221414, SUPRA. WE DISMISS THE PROTEST ON THESE BASES.

SUMMARY: TECHNICAL AND BUSINESS MANAGEMENT

WE BELIEVE THAT THE FAA'S EVALUATION OF TECHNICAL AND BUSINESS MATTERS, INCLUDING RISK ASSESSMENT, IS SUPPORTED BY THE RECORD. FINLEY HAS SHOWN ONLY THAT 18 TECHNICAL POINTS, RELATING TO THE DISTANCE FROM EMBRY- RIDDLE'S PROPOSED SITE TO THE DAYTONA AIRPORT, DO NOT APPEAR TO BE IN KEEPING WITH THE PREESTABLISHED SCORING SCHEME. IT DOES NOT APPEAR THAT THE SLIGHT REDUCTION IN EMBRY-RIDDLE'S TECHNICAL SCORE WOULD HAVE MADE A DIFFERENCE IN ITS OVERALL STANDING VIS-A-VIS FINLEY.

THEREFORE, WE BELIEVE THAT THE SOURCE EVALUATION BOARD REPORT FORMED A PROPER BASIS FOR THE SELECTION OFFICIAL'S DECISION.

PRICE AND COST CONSIDERATIONS

FINLEY CONTENDS THAT THE TOTAL DIFFERENCE IN COST BETWEEN ITS PROPOSAL AND EMBRY-RIDDLE'S IS MUCH GREATER THAN THE FAA SUGGESTS, SO THAT THE SELECTION OFFICIAL ERRED WHEN HE RELIED UPON LOWER COST AS A CONSIDERATION SUPPORTING AWARD TO EMBRY-RIDDLE. FINLEY ARGUES THAT THE SELECTION DECISION IMPROPERLY TOOK INTO ACCOUNT ONLY OFFERORS' PROPOSED PRICES AND IGNORED UNIQUE PROGRAM COSTS, FOR EXAMPLE, RELOCATION OF FAA PERSONNEL AND STUDENT TRANSPORTATION, THAT THE FAA WILL INCUR, BUT THAT WILL DIFFER FROM SITE TO SITE. FINLEY POINTS OUT THAT SUCH COSTS WILL HAVE A SIGNIFICANT IMPACT UPON TOTAL COSTS THE FAA WILL ACTUALLY INCUR. FINLEY ARGUES THAT EVEN WHEN THE FAA CONSIDERED BOTH PROPOSED PRICES AND UNIQUE PROGRAM COSTS, IT DOWNPLAYED THE DIFFERENCE BY FOCUSING ON THE ESTIMATED DIFFERENCE BETWEEN ITS OWN AND EMBRY-RIDDLE'S PROPOSED COSTS, WHEN ADJUSTED FOR THE PRESENT VALUE OF MONEY, RATHER THAN THE OTHER METHODS OF COMPARING PROPOSED COSTS WHICH INDICATED GREATER COST DIFFERENCES.

THE FAA REPLIES THAT UNIQUE PROGRAM COSTS WERE ONLY ONE COMPONENT OF THE COST EVALUATION. FURTHER, UNLIKE THE SPECIFIC PRICES PROPOSED FOR LEASING AND OPERATING THE FACILITY, UNIQUE PROGRAM COSTS ARE OUTSIDE THE CONTRACT AND ARE SUBJECT TO MUCH GREATER MARKET FLUCTUATIONS. IN THIS REGARD, THE PRIMARY COMPONENT OF UNIQUE PROGRAM COSTS, THE AIR FARES ASSOCIATED WITH STUDENT TRAVEL, IS SUBJECT TO EXTREME PRICE FLUCTUATIONS. FOR THIS REASON, THE COST OF TRAVEL FOR EACH OFFEROR WAS ESTIMATED AS A RANGE, ALTHOUGH A SET FIGURE (THE MIDDLE OF THE RANGE) WAS USED FOR COMPARISON PURPOSES. THE FAA CONCLUDES THAT GIVEN THE SPECULATIVE NATURE OF UNIQUE PROGRAM COSTS AND THE FACT THAT PRICE WAS ONLY ONE OF THREE EQUALLY IMPORTANT AREAS OF CONSIDERATION-- TECHNICAL, BUSINESS MANAGEMENT, AND PRICE-- THE CHOICE OF EMBRY-RIDDLE WAS A REASONABLE AND PROPER EXERCISE OF THE SELECTION OFFICIAL'S DISCRETION.

IN A NEGOTIATED PROCUREMENT, AWARD NEED NOT BE MADE TO A FIRM OFFERING THE LOWEST COST UNLESS THE SOLICITATION SO SPECIFIES. RAY CAMP, INC., B-221004, FEB. 27, 1986, 86-1 CPD PARA. 205. MOREOVER, WHERE THE SOLICITATION DOES NOT INDICATE THE RELATIVE IMPORTANCE OF THE EVALUATION FACTORS, IT MUST BE PRESUMED THAT EACH WILL BE GIVEN APPROXIMATELY EQUAL WEIGHT IN MAKING AN AWARD. RIGGINS CO., INC., B-214460, JULY 31, 1984, 84-2 CPD PARA. 137.

THE FAA HERE CONSIDERED TWO SEPARATE SETS OF COSTS, NAMELY, THE OFFEROR'S PROPOSED PRICE FOR LEASING AND OPERATING THE FACILITY, WHICH REPRESENT A CONTRACTUAL OBLIGATION, AND THE UNIQUE PROGRAM COSTS ASSOCIATED WITH EACH PROPOSED FACILITY. EACH OFFEROR'S PRICE WAS EVALUATED OVER THE 20-YEAR MAXIMUM SPAN OF THE LEASE ON THE BASIS OF (1) TOTAL PROPOSED PRICE; (2) TOTAL PROPOSED PRICE AND ADJUSTED FOR 5 PERCENT INFLATION OVER THE CONTRACT LIFE; AND (3) TOTAL PROPOSED PRICE AS ADJUSTED FOR INFLATION, THEN DISCOUNTED TO REFLECT THE PRESENT VALUE OF MONEY. /4/ THE LATTER FIGURE, WITHOUT CONSIDERATION OF UNIQUE COSTS, WAS THE FIGURE USED IN THE SELECTION. FINLEY AND EMBRY-RIDDLE'S PROPOSED PRICES WERE EVALUATED AS FOLLOWS: (TABLE OMITTED)

THE SOURCE EVALUATION BOARD REPORT FURNISHED THIS INFORMATION, AND A GOOD DEAL MORE DEALING WITH PRICE AND COST ESTIMATES, FOR THE SOURCE SELECTION OFFICIAL'S CONSIDERATION. WE THEREFORE CANNOT AGREE WITH THE CONTENTION THAT THE REPORT DOWNPLAYED THE SIGNIFICANCE OF THE DIFFERENCES IN COST AND PRICE BETWEEN THE PROPOSALS. WHILE FINLEY HAS NOT SAID SO, IT MAY BE OBJECTING TO PLACING ANY RELIANCE UPON ESTIMATES THAT ARE ADJUSTED FOR THE PRESENT VALUE OF MONEY. IF SO, SUCH OBJECTIONS ARE UNTIMELY, SINCE THE SOLICITATION ADVISED OFFERORS THAT COSTS WERE TO BE EVALUATED IN THIS MANNER. 4 C.F.R. SEC. 21.2.

AS TO THE ALLEGED LACK OF EMPHASIS THE SOURCE SELECTION OFFICIAL PLACED UPON UNIQUE COSTS, THAT OFFICIAL HAD BROAD DISCRETION IN DETERMINING THE MANNER AND EXTENT THIS FACTOR SHOULD BE USED IN SELECTION. INTELCOM EDUCATIONAL SERVICES, INC., B-220192.2, JAN. 24, 1986, 86-1 CPD PARA. 83. THE EMPHASIS THAT THE OFFICIAL PLACED ON THE OFFERORS' PROPOSED PRICES, AS COMPARED WITH THE LACK OF EMPHASIS ON UNIQUE PROGRAM COSTS, APPEARS REASONABLE IN LIGHT OF THE PREDICTABILITY OF CONTRACT COSTS AND THE HIGH DEGREE OF UNCERTAINTY ASSOCIATED WITH AIR FARES AND THE OTHER ELEMENTS OF UNIQUE PROGRAM COSTS. MOREOVER, THIS TREATMENT IS CONSISTENT WITH THE SOLICITATION, WHICH, AFTER DESCRIBING THE VARIOUS ASPECTS OF THE OFFEROR'S PROPOSED CONTRACT PRICE THAT WOULD BE EVALUATED, STATED THAT "IN ADDITION, FAA WILL CONSIDER PROGRAM UNIQUE COSTS." WE THEREFORE SEE NO BASIS TO QUESTION THE SELECTION DECISION IN THIS REGARD.

FINLEY ALSO ASSERTS THAT THE FAA IMPROPERLY IGNORED ITS OFFER TO PROVIDE SHUTTLE BUS SERVICE FOR INCOMING AND DEPARTING STUDENTS AT A COST SIGNIFICANTLY LESS THAN THE TAXI FARES THE FAA USED TO EVALUATE FINLEY'S UNIQUE COSTS. THE FAA RESPONDS THAT ALTHOUGH FINLEY'S FINAL TECHNICAL PROPOSAL OFFERED TO PROVIDE SHUTTLE BUS SERVICE, PRICING INFORMATION WAS INADEQUATE, SO THAT THE SERVICE COULD NOT BE EVALUATED.

THE MERE MENTION OF A MONTHLY RATE IN FINLEY'S FINAL TECHNICAL PROPOSAL DID NOT BIND FINLEY, AND WE AGREE THAT IT WAS NOT ADEQUATE FOR PURPOSES OF PRICE EVALUATION. FINLEY SHOULD HAVE INCORPORATED ITS PROPOSED PRICE FOR OPERATING THE SHUTTLE SERVICE INTO ITS TOTAL PRICE FOR OPERATING THE FACILITY; THIS WOULD HAVE PERMITTED EVALUATION OF THE SHUTTLE BUS SERVICE OVER THE 20-YEAR PERIOD OF THE LEASE, WITH ALLOWANCE FOR INFLATION AND THE PRESENT VALUE OF MONEY, AS WAS THE CASE FOR ALL OTHER PRICES PROPOSED FOR OPERATION OF THE FACILITY. WE THEREFORE DENY FINLEY'S PROTEST CONCERNING THE FAA'S COST EVALUATION.

CONCLUSION

COMPARED WITH FINLEY'S PROPOSAL, EMBRY-RIDDLE'S PROPOSAL WAS SOMEWHAT HIGHER TECHNICALLY, APPRECIABLY HIGHER IN BUSINESS MANAGEMENT, AND SLIGHTLY LOWER IN EVALUATED COST FOR FACILITY LEASE AND OPERATION. CONCLUSION, WE FIND THE SOURCE SELECTION OFFICIAL'S CONSIDERATION OF TECHNICAL, BUSINESS MANAGEMENT, AND COST FACTORS RATIONAL AND CONSISTENT WITH THE EVALUATION CRITERIA.

THE PROTEST IS DISMISSED IN PART AND DENIED IN PART.

/1/ EMBRY-RIDDLE APPEARS TO HAVE PROPOSED ON THIS BASIS, BUT IT WAS ENTITLED TO THE MAXIMUM NUMBER OF POINTS FOR THE CATEGORY UNDER EITHER METHOD.

/2/ ACTUALLY, THE FAA SCORED FINLEY ON THE BASIS OF 390 SEATS, A FIGURE APPARENTLY ATTRIBUTABLE TO ANOTHER PROPOSAL OFFERING A SITE IN LAWTON. SINCE BOTH FINLEY'S PROPOSED SEATS AND THE SEATS THAT THE FAA EVALUATED FELL WITHIN THE 350 TO 499 RANGE, FINLEY SUFFERED NO PREJUDICE FROM THIS ERROR.

/3/ IF FINLEY DID INTEND TO RETAIN SPACE IN THE LEASED FACILITY FOR NON- FAA PURPOSES, SUCH INTENT WOULD BE INCONSISTENT WITH THE REQUIREMENT FOR EXCLUSIVE USE OF THE LEASED FACILITY AND PRESUMABLY WOULD RESULT IN A DOWNGRADING OF FINLEY'S PROPOSAL.

/4/ BECAUSE THE PROPOSED COSTS OF OPERATION WERE ESCALATED FOR INFLATION WHILE THE COST FOR LEASING REMAINED AS PROPOSED, OFFERS WITH DIFFERING RATIOS OF FACILITIES TO OPERATIONAL COSTS WERE AFFECTED DIFFERENTLY BY THE EVALUATION PROCESS, WITH THE RESULT THAT THE RELATIVE POSITION OF THE OFFERORS WAS CHANGED BY THE EVALUATION PROCESS.