BNUMBER:  B-261787.2
DATE:  November 8, 1995
TITLE:  Sciaky, Inc.

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REDACTED DECISION
A protected decision was issued on the date below and was subject to a 
GAO Protective Order.  This version has been redacted or approved by 
the parties involved for public release.

Matter of:Sciaky, Inc.

File:     B-261787.2

Date:     November 8, 1995

J. William Eshelman, Esq., and Michael C. Poliner, Esq., Feith & Zell, 
P.C., for the protester.
Jerold I. Schneider, Esq., and Edward W. Gray, Jr., Esq., Spencer, 
Frank & Schneider, for Liburdi Engineering, Ltd., an interested party.
Gregory H. Petkoff, Esq., and Milton D. Watkins, Esq., Department of 
the Air Force, for the agency.
Andrew T. Pogany, Esq., and Michael R. Golden, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision
for the protester.

DIGEST

Solicitation terms are ambiguous and result in unequal competition 
where the two offers reasonably understood requirements and submitted 
proposals on different assumptions which potentially skewed the 
agency's determination as to which offeror was the low, technically 
acceptable offeror eligible for award.

DECISION

Sciaky, Inc. protests the award of a contract to Liburdi Engineering 
Ltd. under request for proposals (RFP) No. F34650-95-R-0072, issued by 
the Department of the Air Force, Tinker Air Force Base, for the repair 
and refurbishment of six Sciaky welding machines.  As relevant here, 
Sciaky contends that Liburdi's proposal should have been rejected as 
technically unacceptable because Liburdi proposed to modify only one 
of the six welding machines to accommodate the welding of F110 mixing 
ducts,[1] while the RFP clearly required all six refurbished welders 
to be capable of welding the F110 mixing ducts.[2]

We sustain the protest.

The RFP, issued on January 17, 1995, and as subsequently amended, 
stated that award would be made, on the basis of all or none, to the 
"responsive, responsible offeror, whose offer represents the low 
aggregate on all" items of the schedule.[3]  The RFP also established 
a site visit for offerors on February 6.  Amendment 0002 to the RFP 
included Revision F of the SOW which included an "Exhibit A" that 
listed four parts that the refurbished Sciaky welding machines had to 
be able to weld, including the F110 mixing duct,[4] the F101 LPT 
Nozzle, the F110 LPT Nozzle Support, and the TF33 Air Seal.  The RFP 
also contained Contract Data Requirements List (CDRL) Nos. A002 and 
A003. CDRL No. A002 stated that the contractor would have to prepare a 
test plan, including "[t]est item configuration identification for 
each system, subsystem, component . . . to include quantities."

 CDRL No. A003 stated, in relevant part, as follows:

 "TESTING PLANS . . . The contractor shall develop and provide an 
 acceptance plan, including validation and verification tests to meet 
 requirements. . . .  Validation shall be held at Contractor's 
 facility.  Verification shall be held at Tinker AFB.  Contractor 
 shall plan for testing each machine to original . . . specifications 
 and perform a weld test using an actual component, one component per 
 machine. . . .  Components will include an F110 combustor, LPT 
 nozzle, LPT nozzle support, and a TF33 air seal."[5]

After the RFP was issued, representatives from three companies, 
including Sciaky and Liburdi, attended the site visit.  After the site 
visit, the agency issued amendment No. 0002 in response to questions 
at the site visit and revised the SOW.  Two proposals were received by 
the March 23 due date for initial proposals--one from Sciaky and one 
from Liburdi.  Sciaky's total price in its initial proposal for 
refurbishing the welders was [deleted]; Liburdi's price was [deleted].  
Liburdi also offered various pricing options.  As pertinent here, 
Liburdi's option 3 offered to "provide modifications to allow welding 
of F110 mixing duct" for [deleted] additional.[6]  After technical 
evaluation, the contracting officer sent a letter to Liburdi on March 
31 in which she specifically stated that "[o]ption 3 will be 
required."[7]  On April 6, the agency requested best and final offers 
(BAFO).  In the BAFOs, Liburdi proposed a price of [deleted], while 
Sciaky offered a price of [deleted], a difference of approximately 
[deleted].  In its BAFO, Liburdi stated as follows concerning the 
agency's previous written direction that the firm's option 3 was 
required:

     "Acknowledged.  The option is included in our best & final 
     pricing, and will be applied to one of the six (6) machines (to 
     be selected by [the agency]).  The pricing for this option is 
     [deleted]. . . ."

In contrast, Sciaky did not propose the mixing duct welding capability 
as an option in its initial proposal but included it in its total 
price.  In her subsequent discussion letter to Sciaky, the contracting 
officer asked whether Sciaky's "proposed work envelope [would accept] 
our largest component, the mixing duct, and be able to successfully 
complete weld repairs?"  She further asked whether "any additional 
set-ups, equipment, tooling [would be required] for this process?"  In 
its BAFO, Sciaky proposed to provide a "bracket [for] all 6 machines 
to permit offset of the weld package.  This is required to accommodate 
large assemblies, in particular the Mixing Duct."[8]  The agency 
determined that both proposals were technically acceptable and awarded 
the contract to Liburdi as the low, technically acceptable offeror.  
This protest followed.

As relevant here, Sciaky argues that Liburdi's BAFO contained a 
material deviation from the requirements of the RFP by offering to 
modify only one of six machines to accommodate the F110 mixing duct.  
According to Sciaky, the RFP required in several places that all six 
welding machines be modified.[9]  Further, Sciaky contends that since 
Liburdi offered to modify one machine for [deleted], it can reasonably 
be assumed that Liburdi would have offered to do the remaining five 
machines for approximately [deleted]--which would have made Sciaky the 
low offeror by [deleted].

For the reasons that follow, we think that, at a minimum, this RFP was 
not sufficiently definite and free from ambiguity to permit 
competition on an equal and common basis.  As we stated in Wheeler 
Bros., Inc.; Defense Logistics Agency--Recon., B-214081.3, Apr. 4, 
1985, 85-1 CPD  388, an ambiguity exists where two or more reasonable 
interpretations of the terms or specifications of the solicitation are 
possible.  Moreover, a party's particular interpretation need not be 
the most reasonable to have a finding of ambiguity; rather, a party 
need only show that its reading of the solicitation provisions is 
reasonable and susceptible of the understanding that it reached.  When 
a dispute exists as to the actual meaning of a solicitation 
requirement, we will resolve the dispute by reading the solicitation 
as a whole and in a manner that gives effect to all provisions of the 
solicitation.  Energy Maintenance Corp., B-223328, Aug. 27, 1986, 86-2 
CPD  234.

We find the protester's interpretation and understanding of the terms 
of the RFP to be reasonable.  First, as a technical provision, the 
RFP's Exhibit A listed four aircraft engine parts that the refurbished 
welding machines had to be able to weld.  We find nothing in the RFP 
that suggested that any of the four parts would be treated differently 
from any other part listed in Exhibit A.[10]  The Air Force does not 
dispute that it required all six machines to be capable of welding the 
F101 LPT Nozzle, the F110 LPT Nozzle Support, and the TF33 Air Seal.  
Nevertheless, the Air Force argues that Sciaky ignores a "critical 
fact" (outside the RFP) concerning the mixing duct:  that the "Air 
Force presently has only one fixture[11] to hold the F110 Mixing Duct 
in place during welding."  In an affidavit from an agency engineer, 
the following is stated concerning the site visit:

     "Sciaky's and Liburdi's representatives then asked to view the 
     F110 Mixing Duct.  I directed them to the rotor shop stacker 
     [where I] pointed out the F110 Mixing Duct mounted on the one 
     currently available holding fixture. . . .  No one asked whether 
     there were additional F110 Mixing Duct fixtures.  I stated that 
     welding the F110 Mixing Duct was a new, prototype workload 
     requirement, currently not programmed on any of the welders, but 
     the Air Force needed the capability to weld this part."

To the extent that the Air Force is arguing that Sciaky should have 
known solely from the site visit that the agency only needed one 
welding machine at a time to perform F110 mixing duct welding, we 
agree with Sciaky that the Air Force's position is unreasonable.  As 
Sciaky states, the Air Force is apparently arguing that because "no 
one asked" about the quantity of F110 mixing duct fixtures, Sciaky was 
supposed to interpret the RFP as a "one machine at a time" 
implementation of the F110 mixing duct requirement.  Even if Sciaky 
knew (which it says it did not) that the Air Force currently had only 
one F110 mixing fixture, there would be no basis for any offeror to 
assume that the Air Force would not buy more fixtures, or at least 
want the flexibility to buy more.  In short, there is nothing in the 
RFP or in the site visit that shows that Sciaky actually knew or 
should have known that the Air Force was permanently limited to one 
F110 mixing duct fixture.

Second, the Air Force argues that the requirement for the refurbished 
welding machines to be able to weld the F110 mixing duct did not 
appear as a requirement in several provisions of the RFP as the 
protester argues.  The Air Force states that CDRL No. A003 referred to 
an "F110 combustor" which is not the same part as the mixing duct 
listed in Exhibit A.[12]  We also reject this argument.

The record shows, and we find, that the only reason CDRL No. A003 did 
not reference the mixing duct is that the agency failed to correct 
this provision when it corrected Exhibit A.  Prior to its inclusion in 
the SOW, the agency realized that, although Exhibit A had correctly 
specified the diameter, height, and weight of the largest and heaviest 
part the Air Force wanted to weld (the F110 mixing duct), Exhibit A 
incorrectly described the part as the much smaller and lighter 
"combustor" instead of the "mixing duct."  The agency's engineer then 
crossed out the word "combustor" and inserted the words "mixing duct."  
However, a corresponding correction was not made to CDRL No. A003.

Sciaky states that it assumed that it was simply an oversight by the 
Air Force not to make the corresponding correction to CDRL No. A003.  
Sciaky states that the oversight seemed too obvious to inquire about 
since it would have been totally irrational for the Air Force to 
require the capability to weld the mixing duct and then base 
acceptance tests on the successful welding of the smaller and lighter 
combustor.  Further, Sciaky points to paragraph 5.0 of the SOW which, 
under Sciaky's understanding, confirmed that Exhibit A and CDRL No. 
A003 were supposed to match.  This paragraph provided as follows:

     ". . .Verification testing, including component weld testing 
     shall be in accordance with the Final Test Plan per A003.  
     Thereafter, the Government's representative shall accept the 
     refurbishment of the equipment.  Refer to Exhibit A."

We therefore conclude that Sciaky's interpretation of the RFP was 
reasonable as requiring the modification of six machines to 
accommodate the welding of the F110 mixing duct.[13]  Consequently, 
since the offerors here responded to the solicitation based upon 
different reasonable assumptions as to what the requirements were, the 
competition was conducted on an unequal basis such that the award to 
Liburdi was improper.[14]  Accordingly, we sustain the protest.

We recommend that the agency reopen discussions, amend the RFP to 
state its accurate minimum needs concerning the F110 welding, and 
request a new round of BAFOs.  If, after receipt of BAFOs, Sciaky is 
the low, technically acceptable offeror, we recommend that Liburdi's 
contract be terminated for the convenience of the government.  Sciaky 
is also entitled to the costs of filing and pursuing its protest, 
including reasonable attorneys' fees.  4 C.F.R.  21.6(d) (1995).  In 
accordance with 4 C.F.R.  21.6(f), Sciaky should submit its certified 
claim for such costs, detailing the time expended and costs incurred, 
directly to the agency within 60 days after receipt of this decision.

The protest is sustained.

Comptroller General
of the United States

1. The F110 mixing duct is a military aircraft engine component.

2. In this decision, we limit our discussion to this issue which we 
consider dispositive.  The protester has raised and withdrawn two 
other protest bases and has also raised several other contentions.  We 
have examined these other arguments of the protester which concern 
alleged bias against Sciaky, alleged software inadequacies in 
Liburdi's proposal, and alleged agency misappropriation of Sciaky's 
proprietary data, and we find no merit to any of these arguments.

3. While the offerors submitted technical information in their initial 
and best and final offers (BAFO) responsive to the RFP's statement of 
work (SOW), as amended, the agency states that award was "based on 
price and price-related factors."  Thus, the evaluation methodology 
here employed was award to the low, technically acceptable offeror.

4. Exhibit A was a technical memorandum by the agency's mechanical 
engineer.  The original typewritten memorandum listed the F110 mixing 
duct as the "F110 combustor."  Before the amendment was issued, this 
reference to the F110 was crossed out by hand by the engineer and 
corrected to read as the F110 "mixing duct."  Additionally, for all 
four parts listed, Exhibit A provided the diameter, height and weight 
as well as the fixture number for each part to be welded.  Each 
offeror had to provide modifications of the welding machines 
consisting of brackets or other accessories to permit welding of the 
different size and weight aircraft parts.

5. Emphasis added.  There were six welding machines that had to 
undergo acceptance testing.

6. In technical submissions in its initial proposal, Liburdi stated 
that it would "comply [with the RFP requirements] with the following 
clarification.  [Liburdi] will provide as an option, the modifications 
that allow the capability to weld the [F110] mixing duct.  The 
existing work envelope . . . will not allow positioning of the part 
without a special weld head assembly.  The assembly will be provided 
[with] ease of mounting and removing, as to introduce the minimum 
amount of set-up for this weld."

7. This direction from the contracting officer was based on the 
findings of the technical evaluators that this welding capability was 
required.

8. We here simply note that the record clearly shows that Liburdi, in 
its BAFO, proposed to provide one weld head assembly accessory which 
could be transferred from welder to welder to be used one machine at a 
time to perform F110 mixing duct welds.  In contrast, Sciaky clearly 
proposed F110 welding capability for all six machines (one accessory 
per machine meaning a total of six accessories for  six machines).

9. Sciaky refers to Exhibit A and CDRL No. A003.

10. Indeed, the agency's April 10 request for BAFOs required the 
offerors to provide 1000 pound positioners for all six machines.  
According to Exhibit A, the F110 mixing duct weighed 900 pounds and 
was the only part that would need to employ such large positioners.  
The other aircraft parts listed in Exhibit A weighed less than 300 
pounds and did not require such large positioners.

11. The fixture is a government-owned holding fixture that is not a 
part of or a delivery item under this RFP.

12. The Air Force does not dispute that the requirement for F110 
mixing duct welding capability appeared in Exhibit A of the RFP.

13. The agency also argues that the language of CDRL No. A003 "states 
that the weld test shall be done using an actual component, one 
component per machine."  (Emphasis supplied by the agency.)  We merely 
note that the terminology of one component per machine can easily and 
reasonably be read as one component for each machine.

14. Liburdi states that "if Liburdi had bid all six F110 assemblies, 
this would only have raised [its] offer by approximately forty 
thousand dollars."  We note again that the difference in price here 
was approximately [deleted]; thus, despite Liburdi's speculation as to 
what the prices would have been under equal competition, we think the 
possibility of prejudice here is evident.  See generally Ashland Sales 
& Serv., Inc., B-255159, Feb. 14, 1994, 94-1 CPD  108.