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.