B-240729, Dec 14, 1990, 90-2 CPD ***

B-240729, Dec 14, 1990, 90-2 CPD ***

PROCUREMENT - Bid Protests - GAO procedures - Protest timeliness - Apparent solicitation improprieties DIGEST: 1. Protest that solicitation specifications and evaluation scheme were deficient concerns apparent solicitation improprieties, which must be protested prior to receipt of initial offers in order to be timely under Bid Protest Regulations. PROCUREMENT - Competitive Negotiation - Offers - Evaluation - Technical acceptability 2. Agency reasonably found awardee's proposal for training course in aircraft structural fatigue acceptable where awardee's resumes demonstrated significant experience in structural fatigue. PROCUREMENT - Competitive Negotiation - Technical evaluation boards Bias allegation - Allegation substantiation - Evidence sufficiency 3. Protest that agency technical evaluator was a graduate of the university which was awarded the contract and consequently may be biased against the protester is denied where the record is devoid of any evidence of improper influence or bias.

Attorneys

Faside International Inc.:

Faside International, Inc. protests the award of a contract to the University of Oklahoma under request for proposals (RFP) No. DTFA-02-90 R- 00080 issued by the Federal Aviation Administration, Department of Transportation, for training courses in aircraft structural fatigue. Faside contends that both the solicitation specifications and the evaluation of proposals were flawed.

We dismiss the protest in part and deny it in part.

The RFP contemplated the award of a fixed-price contract for a 1 year base period with two 1-year options, and provided that award would be made to the lowest priced technically acceptable offeror. Proposals were to be evaluated "for basic adequacy" and determined either "acceptable" or "unacceptable," based on the following four technical evaluation factors, listed in descending order of importance:

1. Evidence of knowledge of the requirement

2. Course content

3. Training aids and equipment

4. Related experience

Three proposals were received and evaluated by an aeronautical engineer and instructor in the agency's aircraft certification unit, whose evaluation was reviewed and adopted by the contracting officer. One offeror was determined technically unacceptable because it lacked a background in fatigue analysis. The University of Oklahoma and Faside were found technically acceptable. Discussions were conducted and best and final offers (BAFO) received. The University of Oklahoma was the lowest-priced technically acceptable offeror and accordingly was awarded the contract for $31,470 for the base period. Faside's technically acceptable offer offered a price of $33,628.

Faside contends that the solicitation specifications did not accurately reflect the government's needs. The firm also contends that the technical evaluation was improper because excessive emphasis was placed on price rather than technical quality, the awardee had no recognized experience and the technical evaluator was a graduate of the University of Oklahoma.

Faside first contends that the RFP's statement of work was inadequate because it failed to address factors that Faside considers essential to proper training such as requiring instructors to describe how structural failure takes place in actual aircraft and to discuss differences between new and aging aircraft. Faside also contends that the RFP was deficient for failing to require that instructors have adequate experience in areas such as new and aging aircraft, fatigue in gas turbine engines, and applicable industry standards.

Under our Bid Protest Regulations, protests based on apparent improprieties must be filed prior to the deadline for receipt of initial proposals. 4 C.F.R. Sec. 21.2(a)(1) (1990). Although Faside argues that it was unaware of these weaknesses in the RFP until award was made to an inexperienced offeror, all were apparent from the face of the RFP. Thus, these issues, protested only after award was made, are dismissed as untimely.

Similarly, Faside's contention that the agency placed excessive emphasis on price rather than technical quality is also untimely. While Faside contends that its qualifications and experience are superior and should have been given more weight in the award evaluation, the RFP specifically provided that award would be made to the lowest priced offeror that was found technically acceptable. Therefore, this protest ground is also untimely and is dismissed.

Faside asserts that the awardee did not have experience in structural fatigue in new and aging aircraft. Faside specifically asserts that the awardee did not have the experience required by sections 3e, 3h and 7a of the Training Requirement Statement of the RFP, that is, demonstrated experience in rotorcraft fatigue, aircraft maintenance related to fatigue of particular types of aircraft and the technical aspects of parts 23, 25, 27, and 29 of the Federal Airworthiness Regulations.

We note first that the RFP did not require offerors to demonstrate expertise in these four areas. The RFP sections referred to by the protester concern training objectives of the course to be conducted; these objectives set forth the classroom skills or information that students taking the training should acquire and did not address the experience required to be demonstrated by offerors in their proposals. The agency asserts that the resumes submitted with the University of Oklahoma's proposal showed significant experience in structural fatigue. Our review of the University of Oklahoma's technical proposal, including the resumes which contain detailed information regarding the instructors' qualifications, supports the agency's conclusion. Thus, we find reasonable the agency's determination that the University of Oklahoma's proposal was acceptable.

Faside next argues that the evaluator of the technical proposals had a conflict of interest because he was a graduate of the University of Oklahoma and may have been biased in his evaluation of the proposals. The agency responds that the evaluator was also a graduate of the aircraft structural fatigue course Faside conducted for the agency, and that one of Faside's own team members is a graduate of the University of Oklahoma. Further, the agency asserts that since the evaluation was limited to assigning a rating of "acceptable" or "unacceptable" to the proposals (as opposed to relative standings), it was unlikely any bias would have survived the contracting officer's review.

Our review of conflict of interest allegations focuses on whether the individual involved in the alleged conflict exerted improper influence in the procurement on behalf of the awardee. Louis Berger Assocs., Inc., B-233694, Mar. 28, 1989, 89-1 CPD Para. 347. We find no evidence of improper influence here. Our review of the proposals and evaluation documentation shows no reason to conclude that the evaluator's "acceptable" ranking of the University of Oklahoma's proposal was anything but objective. In fact, the evaluator's brief narrative noted that Faside's background was excellent while the awardee's was more limited. Further, we agree with the agency that the acceptable/unacceptable evaluation is not easily susceptible to bias.

The protest is dismissed in part and denied in part.