BNUMBER: B-261953.5
DATE: February 5, 1996
TITLE: Cessna Aircraft Company
**********************************************************************
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:Cessna Aircraft Company
File: B-261953.5
Date:February 5, 1996
Terrence O'Donnell, Esq., Ari S. Zymelman, Esq., and Kevin M. Hodges,
Esq., Williams & Connolly; and John S. Pachter, Esq., Jonathan D.
Shaffer, Esq., and Christina M. Pirrello, Esq., Smith, Pachter,
McWhorter & D'Ambrosio, for the protester.
Gerard F. Doyle, Esq., Ron R. Hutchinson, Esq., Scott A. Ford, Esq.,
Alexander T. Bakos, Esq., and Scott W. Woehr, Esq., Doyle & Bachman;
and Steven A. Kaufman, Esq., Clayton S. Marsh, Esq., and James M.
Lichtman, Esq., Ropes & Gray, for Beech Aircraft Corporation, the
interested party.
Gregory H. Petkoff, Esq., Duncan Butts, Esq., Jeffrey Watson, Esq.,
Janice Beckett, Esq., Mark Otto, Esq., and Robert McGrath, Esq., for
the agency.
Aldo A. Benejam, Esq., and Christine S. Melody, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
1. Protester's contention that agency improperly evaluated proposals
is denied where the record shows that the agency evaluated in
accordance with the criteria announced in the solicitation, and the
record reasonably supports the evaluators' conclusions.
2. Allegation that the agency's source selection advisory council
(SSAC) improperly changed the source selection evaluation board's
(SSEB) rating of protester's proposal for trainer aircraft under the
"system safety" evaluation factor from blue (exceptional) to green
(acceptable) is denied, where the record shows that the SSEB's rating
was primarily based on the protester's twin-engine design, and,
despite a specific request from the SSAC, the SSEB could not convince
the SSAC that a twin-engine design resulted in a "safer" aircraft.
3. Contracting agency reasonably evaluated protester's performance
risk based upon unfavorable information in "contractor performance
assessment reports" and in responses to questionnaires reflecting the
protester's recent poor performance on other contracts.
4. Contracting agency's life-cycle cost analysis involves the
exercise of informed judgment and our Office will not question such an
analysis unless it clearly lacks a reasonable basis. Protester's
contention that the agency's cost analysis was flawed is denied where
the protester has not shown that the agency's approach was
unreasonable.
5. Where solicitation and agency's letter requesting best and final
offers (BAFO) clearly required offerors to substantiate any BAFO price
reductions, so that the agency could adequately assess and develop
most probable life-cycle costs, agency's decision to rely on
protester's pre-BAFO pricing was reasonable, where record shows that
protester failed to substantiate significant price reductions in its
BAFO.
DECISION
The Cessna Aircraft Company protests the proposed award of a contract
to the Beech Aircraft Corporation under request for proposals (RFP)
No. F33657-94-R-0006, issued by the Department of the Air Force for a
joint primary aircraft training system (JPATS). Cessna contends that
the Air Force improperly evaluated technical proposals and that the
agency's life-cycle cost evaluation was flawed.
We deny the protest.
BACKGROUND
The objective of the JPATS procurement is to replace the Air Force's
T-37B and the Navy's T-34C aircraft and associated ground-based
training systems (GBTS). The primary mission of the JPATS aircraft
and its GBTS is to train entry-level Air Force and Navy student pilots
in primary flying and to prepare them to transition into advanced
training tracks leading to qualification as a military pilot. The
JPATS aircraft and GBTS will also provide entry-level officers with a
basic understanding of airmanship prior to their designation as Naval
Flight Officers or Air Force Navigators, as well as provide support
and training for pilot instructors.
The RFP characterized the acquisition as a "fly-before-buy"
procurement. That is, the RFP stated that as part of the evaluation
process, the government would fly each offeror's proposed aircraft to
assess its performance and flying qualities. Thus, in addition to
written proposals, offerors were required to provide an evaluation
aircraft with flying qualities which duplicated those of the proposed
production aircraft.
The RFP stated that the flight evaluation would assess the capability
of each aircraft to train an entry-level student pilot with no prior
flying experience to the proficiency level required by the primary
pilot training syllabus. Air Force and Navy test pilots and customer
pilots would evaluate each aircraft. In addition, the Air Force's
Operational Test and Evaluation Center was to perform an early
operational assessment of each aircraft. Offerors were also required
to provide a full-scale mock-up of the cockpit of the proposed
production aircraft, which was to be evaluated for crew member
accommodation characteristics, including anthropometric range
capability, lighting checks, and other engineering components.
The RFP, issued on May 18, 1994, contemplated the award of two
contracts to one offeror--a fixed-price incentive contract with award
fee and economic price adjustments for the manufacturing development
of a primary training aircraft, with options for varying quantities of
production aircraft; and a fixed-price contract for a base period with
up to nine 1-year options for logistics support.
Section M of the RFP stated that in evaluating proposals, the agency
would consider three types of criteria: (1) areas (related to
important program characteristics); (2) assessment criteria (related
to an offeror's proposal and ability to perform); and (3) cost/price
and schedule. The RFP listed the following evaluation areas in
descending order of importance (factors within each area are shown in
parentheses): operational utility/technical (operational capability;
crew accommodations; structural integrity;
certification/qualification; aircraft missionization; and system
safety); manufacturing and quality assurance (manufacturing;
production control; and quality assurance); cost/price; logistics
support (acquisition logistics; partial contractor logistics support
(CLS); and total CLS for the Air Force and Navy);[1] management
(aircraft management; and GBTS support and management); and schedule.
The RFP stated that the manufacturing and quality assurance area was
slightly more important than the cost/price area.[2]
The RFP further stated that, except for the cost/price and schedule
area, the agency would apply three "assessment criteria" of equal
importance (soundness of approach, understanding the requirements, and
compliance with requirements) to the evaluation areas. The RFP also
identified "general considerations" (including, but not limited to,
proposed contractual terms and conditions and the results of the early
operational assessment of each offeror's evaluation aircraft). The
agency would also assess proposal and performance risk. The RFP
stated that the integrated assessment of the results of the evaluation
would favor proposals that offered the best value to the government
considering development risk and total system life-cycle cost. The
contracts were to be awarded to the offeror whose proposal was
considered to be most advantageous to the government.
Seven offerors responded to the RFP by the time set on July 18, for
receipt of initial proposals. Air Force and Navy pilots conducted
flight evaluations and a source selection evaluation board (SSEB)
evaluated written proposals. A performance review assessment group
evaluated the offerors' past performance and a separate panel
evaluated cost/price. Based on the results of those evaluations, the
agency eliminated one offeror's proposal from further consideration,
and initiated discussions with the remaining six offerors. Following
initial discussions, the agency amended the RFP; requested and
evaluated revised proposals; held further discussions; and requested
best and final offers (BAFO).
The SSEB evaluated BAFOs by assigning color/adjectival and risk
ratings[3] to each factor announced in the RFP. With the exception of
"crew accommodations" and "production control," where Beech's proposal
was rated "yellow" and "blue" respectively,[4] Beech's proposal was
rated "green" under all other evaluation factors, with low proposal
and performance risk.
Cessna's proposal[5] received final ratings of "yellow" with
"moderate" proposal risk and "low" performance risk under the
"operational capability" factor, and "blue" with low proposal and
performance risk under "crew accommodations." Under all other
evaluation factors, Cessna's proposal was rated "green." With the
exception of "structural integrity," "manufacturing," and "production
control," where Cessna's offer received proposal risk ratings of
either "moderate" or "low-moderate," Cessna's proposal received
proposal risk ratings of "low" under all other evaluation factors. As
for performance risk, except for a "moderate" rating under "aircraft
missionization," Cessna's proposal received a rating of "low" risk
under all other factors. The agency developed a most probable
life-cycle cost (MPLCC) of $14.597 billion for Beech and [DELETED]
billion for Cessna.[6] The evaluation results for Beech and Cessna
were as follows:
[DELETED]
A source selection advisory council (SSAC) reviewed the results of the
SSEB's final evaluation and presented its findings to the source
selection authority (SSA).[7] Based on the SSAC's report, the SSA
selected Beech for award. This protest followed.[8]
PROTESTER'S CONTENTIONS
Cessna challenges several aspects of the evaluation of Beech's and
Cessna's technical proposals, including proposal and performance and
risk ratings. Specifically, Cessna challenges the evaluation of
proposals under the "system safety" and "operational capability"
factors.[9] Cessna also challenges the evaluation of Beech's proposal
under the "crew accommodations" factor and maintains that the agency
erred in assessing Beech's and Cessna's performance risk. With
respect to evaluated cost, Cessna challenges virtually every aspect of
the agency's life-cycle cost evaluation.
EVALUATION OF PROPOSALS
System Safety
The SSEB rated Cessna's proposal "blue" with low proposal and
performance risk under this factor, based primarily on Cessna's
twin-engine design. During 2 days of briefings, however, the SSAC
members discussed at length whether Cessna's proposal warranted that
rating, especially since it was based primarily on the proposed
twin-engine design. In view of recent technological and engineering
advances, the SSAC members were particularly concerned with the
relevance of certain information, such as historical accident rate
data of single versus twin-engine aircraft, which formed the basis of
the SSEB's rating. The SSAC's concerns reflect what apparently is a
long-standing debate in the industry surrounding the issue of whether
an aircraft is inherently "safer" (and therefore deserving of a higher
rating under the "system safety" factor) by virtue of having more than
one engine.
Following those initial discussions, the SSAC requested that the SSEB
submit additional information in support of Cessna's "blue" rating
under this factor. In response, the SSEB presented the SSAC a chart
comparing "mishaps rates" between different single-engine and
twin-engine aircraft. Based on its review of that additional
information, and following further discussions, the SSAC concluded
that the SSEB had not shown that two engines necessarily result in a
safer aircraft. Not convinced by the SSEB's presentation, the SSAC
assigned Cessna a "green" rating under "system safety."
Cessna contends that the SSAC's decision to change the SSEB's rating
under this factor was unreasonable. In support of its position,
Cessna points to the "mishaps rates" data shown to the SSAC comparing
twin- versus single-engine aircraft. According to Cessna, the data
conclusively show that a twin-engine design is "safer" than a
single-engine aircraft, and thus its proposal deserved the "blue"
rating initially assigned under this factor.
Source selection officials in negotiated procurements are not bound by
the recommendations or evaluation judgments of evaluators. Grey
Advertising, Inc., 55 Comp. Gen. 1111 (1976), 76-1 CPD para. 325. Thus,
source selection officials have broad discretion in determining the
manner and extent to which they will make use of the technical and
cost evaluation results, and their technical judgments are governed
only by the tests of rationality and consistency with the stated
evaluation criteria. Id.; Oklahoma Aerotronics, Inc.--Recon.,
B-237705.2, Mar. 28, 1990, 90-1 CPD para. 337. Source selection officials
may properly question the conclusions reached by a technical
evaluation panel, and, where those conclusions are not convincing or
lack support, we see nothing improper with selection authorities
requesting additional information from the evaluators in support of
their ratings. See, e.g., Wyle Labs., Inc.; Latecoere Int'l., Inc.,
69 Comp. Gen. 648 (1990), 90-2 CPD para. 107; Calspan Corp., B-255268,
Feb. 22, 1994, 94-1 CPD para. 136; Latecoere Int'l., Inc.--Advisory
Opinion, B-239113.3, Jan. 15, 1992, 92-1 CPD para. 70. In reviewing a
protest challenging an agency's technical evaluation, we examine the
record to ensure that the agency's evaluation was reasonable and
consistent with the stated evaluation criteria. See Abt Assocs.,
Inc., B-237060.2, Feb. 26, 1990, 90-1 CPD para. 223. Based on our review
of the record, we find no basis to question the SSAC's decision to
assign Cessna's proposal a "green" rating under "system safety."
The SSAC discussed this issue at length and concluded that although
Cessna's aircraft offered several strengths as identified by the SSEB
related to the twin-engine design, those strengths did not support a
"blue" (exceptional) rating. In this connection, the agency[10]
points out that there are numerous factors which have far greater
effects on accident rates, and hence system safety, than the number of
engines. For instance, the agency points out that a twin-engine
aircraft that displays unsuitable flying characteristics to train
entry-level student pilots with no previous flying experience may be
less safe than a single-engine trainer aircraft without unsuitable
characteristics. The Air Force explains that a twin-engine aircraft
with objectionable [DELETED] such as Cessna's, for example, which
makes it difficult or impossible for a student to [DELETED]. In
another example cited by the Air Force, a twin-engine aircraft such as
Cessna's, which is difficult to [DELETED].
The record shows that the SSAC debated the issue of the relative
safety of twin- versus single-engine aircraft, and that the SSAC's
discussions took into account the dynamics of various relevant factors
and characteristics of Cessna's aircraft, which interact to affect
system safety. The SSAC considered in its deliberations the strengths
identified by the SSEB, based on Cessna's twin-engine design, and
agreed with the SSEB's conclusion that some strengths in Cessna's
proposal were attributable, in large part, to Cessna's twin-engine
design. The SSAC was not convinced, however, that those strengths
warranted rating Cessna's aircraft "exceptional" with respect to
safety, and requested the SSEB to further support its recommendation.
Despite the specific request from the SSAC for support for the "blue"
rating, the SSEB did not convincingly show the SSAC that Cessna's
twin-engine design had any inherent safety advantages over a
single-engine aircraft to warrant a rating of "exceptional" under this
factor. The SSAC's reason for changing the SSEB's initial rating was
based on its extensive discussions, consideration of the SSEB's
additional information, and the technical expertise of its members and
their familiarity with the issues surrounding this debate. Based on
our review of the record, including the agency's explanation in
response to the protester's allegation, we think that the SSAC
reasonably could conclude that the protester's twin-engine design was
not inherently safer than a single-engine aircraft, and that Cessna's
proposal did not warrant a "blue" rating under this factor. The
protester's contention, that the SSAC's decision to change the SSEB's
initial rating under this factor was arbitrary, is not supported by
the record. While Cessna disagrees with the SSAC's conclusions, that
disagreement does not make the SSAC's final rating unreasonable.
Calspan Corp., B-258441, Jan. 19, 1995, 95-1 CPD para. 28.
The protester also contends that the agency's rating of Beech's
proposal under this factor was unreasonable because Beech's proposal
failed to comply with an RFP provision requiring that the proposed
aircraft be fail-safe, "such that no single point failure, or
combination of failures with a failure rate greater than 1 X 10-7 per
flight can cause critical or catastrophic mishap. . . ." In this
connection, offerors were required to submit a preliminary analysis
for all hazards with failure rate probabilities greater than 1 X 10-7.
The agency states that the purpose of that analysis was to identify
safety-critical areas, provide an initial evaluation of any hazards,
and identify follow-up corrective actions to be taken to either
eliminate, control, or otherwise mitigate the hazards to acceptable
levels. In accordance with this RFP provision, Beech submitted a
preliminary hazards analysis and proposed corrections.
The record shows that the agency evaluated Beech's analysis, including
proposed corrective actions, and Beech's proposed system safety
program to eliminate or mitigate any hazards in its aircraft. The
evaluators concluded that the scope and depth of Beech's preliminary
analysis adequately addressed all potential safety and environmental
risks, and that Beech's proposed safety program would mitigate
identified hazards to acceptable levels. Based on our review of the
record, we have no basis to question the agency's conclusions in this
regard.[11]
Operational Capability
A team of Air Force and Navy pilots and engineers evaluated Cessna's
aircraft as part of the flight evaluation under this factor.[12] The
flight evaluation team flew 13 "sorties" of the Cessna aircraft
totaling almost 27 flight hours. The team identified several
deficiencies with the aircraft, and issued clarification requests (CR)
and deficiency reports (DR) to Cessna. The three most significant
items that remained unresolved following discussions are briefly
described below.
Two DRs and a CR concerned deficiencies with flying qualities of
Cessna's aircraft. [DELETED] informed Cessna that the evaluators had
found it difficult to [DELETED]. That DR also stated that the
[DELETED].
In [DELETED], the agency informed Cessna that [DELETED]. The DR also
informed Cessna of a problem resulting from [DELETED].
In its responses to these items, Cessna proposed various changes
either to the aircraft's external structural configuration or flying
speeds. According to Cessna, [DELETED].
After receipt of responses to the discussion items, the Air Force
issued amendment No. 0002 to the RFP. As relevant to this aspect of
the protest, the contracting officer's cover letter to the amendment
stated in part:
"Amendment 0002 provides a number of changes to the solicitation.
Offerors are reminded, however, that additional aircraft [f]light
[e]valuations will not be conducted. Proposed changes by
[o]fferors that may affect the flying qualities of their proposed
production aircraft (e.g., responses to [DRs], responses to
solicitation amendments, [BAFOs] etc.) will not change the
results of the [g]overnment's [f]light [e]valuation. However,
any proposed changes that may affect flying qualities may affect
the [g]overnment's integrated evaluation. The [g]overnment will
assess the potential of proposed changes to either enhance or
degrade aircraft performance or flying qualities. . . ."
Subsequently, the agency issued amendment No. 0003. Although the
protester submitted a revised proposal in response to these
amendments, Cessna did not revise the modifications to the aircraft it
had proposed earlier. The agency evaluated Cessna's responses and
concluded with respect to [DELETED] that while the probability was
high that Cessna's proposed change would correct the [DELETED]
deficiency, the effects of the [DELETED] on other flying qualities of
the aircraft could not be assessed without another flight
evaluation.[13]
With respect to DR [DELETED] the evaluators concluded that Cessna's
proposal to [DELETED]. With respect to the CR, the evaluators
concluded that Cessna's limited [DELETED] did not allow for an
adequate evaluation of the aircraft's flying qualities [DELETED] which
is essential to maintaining safe primary student operations. Based on
the evaluators' conclusions, Cessna's proposal received a final rating
of "yellow" with "moderate" proposal risk under the "operational
capability" factor. The protester argues that the Air Force
improperly evaluated its proposed changes in response to these
deficiencies.[14]
The record shows that the SSEB reviewed Cessna's proposed changes and
concluded that the impact of the solutions either could not be fully
assessed without another flight evaluation, or that the changes
significantly affected the flying qualities of the aircraft.
Regarding DR [DELETED], the agency explains that because the aircraft
[DELETED]. The evaluators found that Cessna's solution [DELETED]
significantly affected some of the flying qualities and aerodynamic
performance of the aircraft demonstrated during the initial flight
evaluation. The evaluators concluded that, while the proposed
[DELETED] changes "may" correct the deficiency, the aircraft would
have to be reflown to fully assess the effect of the [DELETED] on
other flying qualities of the aircraft.
With respect to DR [DELETED] the evaluators found that while Cessna
had committed to performing tasks after award that would improve the
[DELETED], Cessna's proposed changes would affect some of the flying
qualities and performance characteristics demonstrated and assessed
during the flight evaluation. For example, as a solution to this
deficiency, Cessna proposed [DELETED]. The evaluators noted, however,
that the aircraft was flight-tested based on [DELETED], and that the
evaluation pilots noted deficiencies due to the [DELETED]. In the
evaluators' opinion, [DELETED], as Cessna proposed, could magnify
those deficiencies.[15] Since Cessna's aircraft had not been
evaluated at the proposed [DELETED], the evaluators concluded that the
aircraft would have to be reflown to fully assess the proposed
solutions and their impact on other flying qualities of the aircraft.
The evaluators noted that although Cessna may have flight-tested its
proposed solutions to the deficiencies, Cessna subsequently stated
during oral discussions that the data provided in its responses to the
CR and DRs were based on qualitative or analytical predictions, not on
data collected from an instrumented aircraft.[16] Cessna did not
present any new quantitative data with its proposed solutions.
According to the evaluators, even though the protester's proposed
changes affect only a portion of the flight envelope, those changes
were of such significance--[DELETED]--that in order to verify whether
the proposed solutions corrected the deficiencies, the aircraft would
have to be reflown. As explained in the contracting officer's cover
letter to amendment No. 0002, quoted above, additional flight tests
would not be conducted.
The protester argues that the Air Force failed to acknowledge that the
proposed solutions to the DRs and the CR corrected the respective
deficiencies, even without additional flight testing. This argument
is without merit. The record shows that the evaluators carefully
considered Cessna's proposed solutions and concluded that some of the
problems identified during discussions remained unresolved.
Specifically, the evaluators concluded that the problems related to
the [DELETED] remained unresolved. The evaluators also concluded that
given the nature of the proposed solutions, in order to verify whether
the deficiencies were corrected, Cessna's aircraft would have to be
reflown--an additional step in the evaluation process that offerors
were warned was not contemplated by the RFP, and would not be
undertaken to verify the effectiveness or impact of the proposed
solutions. The fact that the initial rating of "yellow" assigned to
Cessna's proposal under this factor remained unchanged following
discussions does not compel a conclusion that the SSEB failed to
recognize that Cessna's proposed solutions corrected the noted
deficiencies.[17] Rather, the final rating under this factor reflects
the evaluators' reasonable conclusions based on their assessment of
Cessna's responses to the DRs and the CR that certain deficiencies
remained "open" or unresolved.
Unequal Evaluation
The protester also argues that the Air Force evaluated Cessna's and
Beech's corrective actions in response to the discussion items in a
disparate manner. For instance, Cessna asserts that Beech's initial
rating under the "operational capability" factor improved from
"yellow" with "moderate" performance risk to "green" with "low"
performance risk following discussions based on Beech's allegedly
inadequate responses, while the Air Force did not raise Cessna's
rating under this factor even though the protester provided adequate
solutions.
Beech's initial proposal was downgraded under the "operational
capability" factor primarily because the flight evaluation team was
unable to assess the aircraft's [DELETED]. [DELETED]. The agency
issued a DR to Beech identifying this deficiency.
In response to the [DELETED] DR, Beech submitted additional data which
showed that its aircraft was [DELETED]. Specifically, Beech included
a detailed table [DELETED]. The record shows that the agency analyzed
Beech's response and concluded that the additional data satisfied the
evaluators' concerns in this regard. The evaluators further concluded
that Beech's response did not affect any of the previously rated
flying qualities. In short, the record shows that the Air Force
analyzed Beech's supplemental flight test data submissions addressing
this particular deficiency and found that the data satisfied the
evaluators' concerns.[18] Accordingly, we think that the improved
rating assigned to Beech's proposal under the "operational capability"
factor reasonably reflects the SSEB's conclusion that the additional
data Beech had provided satisfied the evaluators' initial concerns.
The fact that Cessna's rating under the "operational capability"
factor did not improve following discussions does not show that the
agency treated offerors differently, or that the agency's evaluation
was unreasonable. Rather, the final ratings reflect the fact that
several of Cessna's responses did not reasonably convince the
evaluators that the proposed fixes would not place at risk other
flying qualities of the aircraft.[19]
Crew Accommodations
Section M of the RFP stated as follows:
"The evaluation of this factor will be based on an assessment of the
offeror's [cockpit] mock-up. . . . The anthropometric range
accommodated by each aircraft will be determined on the mock-up using
multivariate anthropometric measurement techniques. The
[g]overnment's goal is to open flying careers to the widest possible
range of qualified applicants . . . . Therefore, the JPATS
production aircraft shall accommodate not less than 80 [percent] of
the population of eligible women (Cases[20] 1-6 contained in the
"Systems Requirement Document"), and it is highly desired that the
JPATS production aircraft accommodate equal percentages of the
eligible population of men and women commensurate with appropriate
flight control forces and safe ejection capabilities . . . . "
Cessna argues that the Air Force improperly evaluated Beech's proposal
under this factor because [DELETED]. The protester also contends that
Beech failed to provide a functional ejection seat.
Following the initial evaluation, the SSEB concluded that [DELETED].
As a result of these weaknesses, Beech's proposal received a rating of
"yellow" (marginal) with moderate proposal risk under this factor.
The agency issued a DR to Beech pointing out these deficiencies.
In its response to the DR, Beech explained that based on its own
assessment, the Air Force's measurements were not accurate [DELETED].
The Air Force remeasured Beech's cockpit and concluded that all of the
weaknesses and risks identified at the initial evaluation with respect
to [DELETED] had been resolved. In its final factor summary, the SSEB
listed each of the weaknesses and risks noted at the initial
measurement of Beech's cockpit and explained how each was resolved to
its satisfaction following discussions. For example, the SSEB noted
that the problem with respect to [DELETED]. The evaluators
specifically concluded that "[Beech's] cockpit will accommodate the
desired population range (cases 1-7) to fly the aircraft (97 [percent]
of eligible female pilot candidates which is essentially equal
accommodation of both males and females) as measured in the cockpit
mock-up."
Beech's final rating under this factor did not improve from the
initial evaluation, however, primarily because of weaknesses and risks
related to Beech's ejection seat. In this connection, the evaluators
found that Beech's proposed seat design [DELETED]. Beech was made
aware of these problems throughout discussions, and the SSEB concluded
that the problems with the seat essentially were weaknesses that could
be overcome with close government monitoring.
Cessna's argument that Beech did not provide a functional ejection
seat is not supported by the record. What the record shows is that
the evaluators considered Beech's ejection seat design to present some
weaknesses and proposal risks, and downgraded Beech's proposal
accordingly. As a result of these remaining weaknesses and risks,
Beech's initial rating of "yelllow" (marginal) with "moderate" risk
remained unchanged following remeasurement of the cockpit mock-up.[21]
Although Cessna argues that Beech's proposal deserved the lower "red"
(unacceptable) rating under this factor, given the SSEB's
conclusions--that the noted problems could be easily resolved--a
rating of unacceptable was not warranted. In our view, the SSEB's
rating of Beech's proposal under this factor was reasonably based.
EARLY OPERATIONAL ASSESSMENT
A Department of Defense Acquisition Board conducted a separate review
of the JPATS procurement concurrent with the JPATS source evaluation
and selection process. The agency states that this separate review is
the process by which the Secretary of Defense authorizes the military
services to initiate and continue major acquisition programs such as
the JPATS procurement. As part of this review process, the Air Force
was required to submit an early operational assessment (EOA) to the
Secretary of Defense. The EOA at issue here was conducted by the Air
Force's Operational Test and Evaluation Center (AFOTEC).
In addition to submitting the results of the AFOTEC's EOA to the
Secretary of Defense, the Air Force decided that the SSA should also
consider the results of the EOA in her source selection decision.
Accordingly, section M of the initial RFP stated as follows:
"The [g]overnment will conduct an [EOA]. This [EOA] is independent
of the Operation[al] Utility/Technical evaluation and will be
conducted concurrently with the Flight Evaluation. The results of
the [EOA] of each aircraft will be presented to the [SSA] to be
considered as part of the source selection decision."
Subsequently, the agency amended this provision as follows:
"The [g]overnment will conduct an independent [EOA]. In conducting
this assessment all relevant proposal information concerning
technical suitability and performance characteristics submitted by
the offerors, generated during the source selection process, and
received through discussions with offerors may be considered. The
results of the [EOA] of each aircraft will be presented through the
[SSAC] to the [SSA] to be considered as part of the source selection
decision."
Cessna argues that the Air Force improperly compromised the role of
the AFOTEC as an independent evaluation entity. The protester relies
on Department of Defense Directive 5000.1 (Feb. 23, 1991) to argue
that the AFOTEC was designed to be an independent evaluation activity,
separate from the procuring agency, as established in the initial RFP.
Cessna maintains that the Air Force improperly altered the role of the
AFOTEC in this procurement; prevented the AFOTEC from presenting its
findings directly to the SSA; and improperly required the AFOTEC to
change its initial conclusions. As explained in greater detail below,
we conclude that Cessna's allegations regarding the role of the AFOTEC
in this procurement are untimely.
Our Bid Protest Regulations require that protests based upon alleged
improprieties in a solicitation which are apparent prior to the
closing time for receipt of proposals must be filed prior to the
closing time. 4 C.F.R. sec. 21.2(a)(1) (1995). This rule includes
challenges to alleged improprieties which did not exist in the initial
solicitation but which are subsequently incorporated into the
solicitation. In such cases, the solicitation must be protested not
later than the next closing time for receipt of proposals following
the incorporation. NASCO Aircraft Brake, Inc., B-237860, Mar. 26,
1990, 90-1 CPD para. 330.
Here, the amendment clearly announced two important changes to the
manner in which the AFOTEC would conduct the EOA, which are central to
the protester's complaint. First, the amendment announced that the
results would be presented through the SSAC, rather than directly to
the SSA. The amendment also informed offerors that in conducting the
EOA, the AFOTEC would consider all relevant information submitted by
the offerors, including proposed corrective actions generated during
discussions. Thus, since the RFP, as amended, announced that the
AFOTEC could consider additional information including proposal
modifications, and the results of discussions, Cessna either knew or
should have known that the AFOTEC's final EOA could differ from its
initial assessment, especially if the weaknesses and deficiencies
initially noted were corrected following discussions. If Cessna
believed that the agency's approach as announced in the amendment
"compromised" the role of the AFOTEC or its independence, or that the
AFOTEC should not have reevaluated proposals based on new information
provided during discussions, for instance, Cessna was required to
raise these concerns prior to the time on March 10 established by the
amendment for receipt of revised proposals. Since Cessna did not do
so, this aspect of the protest is untimely and will not be
considered.[22] See Stanford Telecomm., Inc., B-258622, Feb. 7, 1995,
95-1 CPD para. 50.
PAST PERFORMANCE EVALUATIONS
Cessna argues that the Air Force erred in assessing Beech's and
Cessna's performance risk. With respect to Beech, the protester
argues that the agency failed to consider a recent guilty plea Beech
entered in connection with disclosure violations related to a contract
for the sale of aircraft to a foreign government. With respect to its
own proposal, the protester argues that the agency failed to update
Cessna's past performance record to take into account a recent
decision by the Armed Services Board of Contract Appeals (ASBCA)
favorable to Cessna.
We will review an evaluation of an offeror's performance risk to
ensure that it was reasonable and consistent with the stated
evaluation criteria, since the relative merit of competing proposals
is primarily a matter of agency discretion. See Dragon Servs., Inc.,
B-255354, Feb. 25, 1994, 94-1 CPD para. 151. An agency's evaluation of
past performance may be based on its reasonable perception of
inadequate prior performance, even where the contractor disputes the
agency's interpretation of the facts. See Pannesma Co. Ltd.,
B-251688, Apr. 19, 1993, 93-1 CPD para. 333. Here, we have reviewed the
record in light of the protester's arguments and find that it
reasonably supports the Air Force's assessment of the protester's and
Beech's past performance.
Performance Evaluation: Beech
Cessna argues that the Air Force erred in assessing Beech's past
performance because the agency ignored Beech's recent guilty plea
arising from a foreign military sales (FMS) contract with the
government of Egypt. That plea stemmed from Beech's failure to
certify to the government a subcontractor's payment of a contingent
fee to a foreign company.[23] The protester maintains that had the
Air Force properly considered the plea agreement in its evaluation,
Beech's performance risk scores would have been downgraded under
several evaluation factors. Cessna also contends that Beech misled
the Air Force in its certification.
The RFP contained the clause entitled "Certification Regarding
Debarment, Suspension, Proposed Debarment, and other Responsibility
Matters," Federal Acquisition Regulation (FAR) sec. 52.209-5.[24] In
pertinent part, that clause states as follows:
"(a)(1) The Offeror certifies, to the best of its knowledge and
belief, that--
"(i) The Offeror and/or its Principals--
. . . . .
"(B) Have [ ] have not [ ], within a [3]year period preceding this
offer, been convicted of or had a civil judgment rendered against
them for: commission of fraud or a criminal offense in connection
with obtaining, attempting to obtain, or performing a public
(Federal, state, or local) contract or subcontract; violation of
Federal or state antitrust statutes relating to the submission of
offers; or commission of embezzlement, theft, forgery, bribery,
falsification or destruction of records, making false statements, or
receiving stolen property. . . ."
The record shows that Beech properly completed the certification in
the affirmative and that Beech also provided a brief explanation of
the circumstances surrounding the plea agreement. The contracting
officer referred the certification to the Air Force's Office of
General Counsel, Contractor Responsibility Office (CRO). The CRO
reviewed Beech's certification and concluded that "[t]here are no
issues of contractor integrity or responsibility that would affect the
JPATS procurement process." The record further shows that the SSA was
fully briefed with respect to Beech's (and several other offerors')
certification, and the conclusions reached by the CRO concerning
Beech's eligibility for award.
Beech specifically disclosed the plea agreement in its proposal and
briefly explained the circumstances leading to the plea; nothing on
the face of the information Beech submitted to the agency called into
question the correctness or sufficiency of the certification. Thus,
the record shows that the SSA had before her sufficient information
concerning Beech's certification to permit her to incorporate that
information and the CRO's conclusions in her integrated assessment of
the merit of proposals, and ultimately to consider that information in
her selection decision.
To the extent that Cessna alleges that Beech lacks business integrity,
that is a challenge to an affirmative determination of responsibility
which our Office will not review in the absence of a showing of
possible fraud or bad faith on the part of contracting officials or a
failure to apply definitive responsibility criteria. John C. Holland
Enters., B-216250, Sept. 24, 1984, 84-2 CPD para. 336. Neither exception
applies here. Further, contrary to Cessna's suggestion, the
information Beech submitted concerning the plea agreement did not
render the firm ineligible for award. See, e.g., Pearl Properties;
DNL Properties, Inc., B-253614.6; B-253614.7, May 23, 1994, 94-1 CPD para.
357; Universal Technologies, Inc.; Spacecraft, Inc., B-248808.2 et
al., Sept. 28, 1992, 92-2 CPD para. 212.
Performance Evaluation: Cessna
The performance risk assessment group (PRAG) gave Cessna's proposal a
performance risk rating of "moderate" under the "aircraft
missionization" factor. That rating was based primarily on
unfavorable performance reports obtained from the Navy showing that
Cessna had experienced several problems during its recent performance
of a Navy contract, referred to as the Undergraduate Naval Flight
Officer (UNFO) services contract.
The agency states that although nominally a services contract, the
UNFO contract required some engineering development of off-the-shelf
air-to-air ground radar equipment. In its response to the Air Force's
past performance questionnaire, the Navy reported that Cessna had
experienced problems in meeting [DELETED] requirements and that
contract specifications were changed so as to permit Cessna to meet
those requirements. The Navy also indicated that Cessna had
difficulties in acquiring appropriate [DELETED] and had experienced
problems in the areas of [DELETED]. The information obtained from the
Navy showed that Cessna had been rated [DELETED] in most areas under
the UNFO contract. Based on its review of that information, the PRAG
rated Cessna's performance risk under "aircraft missionization" as
"moderate." Cessna contends that the agency erred in this regard in
view of the fact that the ASBCA[25] found that the performance
problems and cost overruns reported under the UNFO contract were the
result of the Navy's actions.
The protester argues that the evaluators had a duty to use the most
current information available, and, thus, should have been aware of
the ASBCA decisions. We are aware of no requirement, however (and the
protester does not cite to any) that a contracting agency search for
information that contradicts or mitigates accurate, but unfavorable,
past performance information. Further, there is nothing to suggest
that the reports the Navy provided to the Air Force concerning
Cessna's performance problems under the UNFO contract were inaccurate
or incomplete.[26]
In addition, the record shows that in two separate CRs issued to
Cessna, the Air Force specifically raised the performance problems the
Navy reported on the UNFO contract.[27] In its response, Cessna
informed the Air Force that "Cessna's claims to recover the Navy
responsible costs [under the UNFO contract] are currently in
litigation." The record shows, however, that the first ASBCA decision
(No. 37726) on Cessna's UNFO contract claim had been issued 11 days
prior to Cessna's response to the CRs; the second (No. 48118) was
issued several weeks before oral discussions and nearly 3 months
before BAFOs were due. We think that it was incumbent upon Cessna to
update its responses to the CRs concerning the UNFO contract, since,
as the protester contends, the ASBCA decisions were favorable to
Cessna, and the ASBCA decisions had been issued during the course of
the evaluation process. Although the protester was afforded several
opportunities to do so, Cessna failed to inform the agency of the
ASBCA decisions in its favor. Accordingly, we have no basis to
disagree with the PRAG's assessment that based on the Navy's
unfavorable reports, Cessna's proposal posed a "moderate" performance
risk under "aircraft missionization."
MOST PROBABLE LIFE-CYCLE COST
Cessna takes issue with virtually every aspect of the Air Force's cost
evaluation. For example, Cessna contends that the Air Force
misevaluated the costs associated with the number of times aircraft
would be "stripped and repainted" and the frequency of required engine
maintenance and overhauls. Cessna also argues that the agency
improperly disregarded its BAFO price reductions. The protester also
contends that the agency failed to take into account certain costs
(such as different attrition rates); improperly adjusted labor costs
for Cessna; and improperly included various other costs (such as the
costs of inventory) in the evaluation. In connection with these
allegations, Cessna has presented its own analyses allegedly showing
that either the assumptions underlying each of the agency's
calculations are flawed, or that the agency applied incorrect figures.
According to the protester, had the agency conducted a proper
evaluation, it should have concluded that both of Cessna's proposals
(i.e., the basic proposal and its "commercial" alternate) were lower
in cost/price than Beech's proposal. Specifically, according to
Cessna's calculations, the agency should have found that its basic
proposal was approximately [DELETED] lower in cost than Beech's
proposal.[28]
In conducting a life-cycle cost analysis, procurement officials must
make informed judgments as to the extent to which proposed prices
represent a reasonable estimation of future costs. Dynamic Energy
Corp., B-235761, Oct. 6, 1989, 89-2 CPD para. 325. Such informed
judgments are properly within the administrative discretion of the
procuring agency, and its judgment is entitled to great weight since
the agency is in the best position to assess the impact of various
factors on future costs and must bear the impact of any difficulties
or expenses that may result from a flawed cost analysis. See Dynamic
Energy Corp., supra. Our review of the agency's cost analysis is
limited to a determination of whether the evaluation was reasonable
and consistent with the terms of the RFP. See Corporate Air Servs.
Inc., B-215053, Oct. 18, 1984, 84-2 CPD para. 417.
In response to Cessna's numerous allegations, the agency has provided
a detailed explanation of its calculations, including the assumptions
underlying the cost panel's calculations in support of the MPLCC
developed for Cessna, and the net impact of applying the protester's
approach to the calculations. The agency explains that, for the most
part, even if it were to accept the protester's figures and
assumptions, the impact on Cessna's MPLCC would be insignificant given
the disparity of more than [DELETED] billion between Cessna's and
Beech's MPLCC, and would not have affected the source selection
decision.
We have reviewed the record in light of each of the protester's
allegations, and agree with the agency that the protester's
contentions lack merit. To illustrate our conclusion, we briefly
discuss two aspects of the agency's analysis with which the protester
finds fault: (1) "stripping and repainting" the aircraft; and (2)
adjustments to Cessna's proposed BAFO reductions.
With respect to "stripping and repainting," Cessna asserts that the
agency should have used a different number of aircraft as a basis to
calculate the costs of these events. The protester maintains that the
Air Force based the estimated number of these events on the total
anticipated fleet of aircraft (711), rather than the number of
"primary aircraft authorized" (575). The agency explains, however,
that stripping and repainting, which is necessary to prevent corrosion
and maintain uniform physical appearance, is a cost associated with
the entire fleet, and not just with the 575 primary aircraft. That
is, the government intends to use all 711 aircraft contemplated under
the contract in order to maintain a primary operational fleet of 575
aircraft. Thus, since all aircraft in the fleet would eventually
undergo "stripping and repainting," we think that the agency
reasonably used as a basis the total number of aircraft in the fleet.
With respect to adjustments to Cessna's BAFO, the protester alleges
that the agency unreasonably determined that Cessna had failed to
adequately support its BAFO cost reductions. Specifically, Cessna
alleges that the agency arbitrarily determined that its reductions in
[DELETED] for instance, were not adequately supported. According to
the protester's calculations these errors resulted in overestimating
its MPLCC by nearly [DELETED].
The RFP placed the burden of adequately documenting BAFO cost or price
reductions on the offerors. In this connection, several RFP
provisions reminded offerors of the requirement to present "adequate
supporting documentation to ensure that the cost/price proposal" was
understood by the cost panel. The RFP also reminded offerors to
provide a description of the scope, limitations, and qualifications of
the acquisition and CLS cost proposals, so as to allow the cost panel
to adequately identify and analyze the offerors' costing methods. In
particular, section L of the RFP stated that offerors' "budgetary
estimates for the acquisition contract outyears were to include
assumptions, ground rules, methodology, and substantiating data." In
addition to these specific RFP instructions, the contracting officer's
letter requesting BAFOs warned offerors that "[a]ny change
incorporated in your BAFO must be fully explained, substantiated, and
tracked to your previous proposal." That letter went on to say that
unsupported BAFOs or cost/price changes that were not adequately
explained or lacked traceability to technical proposals "may not be
considered credible in the final evaluation."
The record shows that while Cessna reduced its BAFO prices by what the
agency considered to be a significant amount [DELETED], the cost panel
concluded that contrary to the RFP's specific instructions, Cessna had
not adequately supported its reductions. Specifically, the evaluators
concluded that rather than providing any explanatory rationale, Cessna
had only provided cursory, conclusory statements for its BAFO
reductions, which made it virtually impossible for the cost panel to
trace the basis for the reductions.
For example, in its BAFO Cessna reduced its proposed [DELETED].
The cost panel concluded that while Cessna's statements might
summarize the basis for its reductions, those statements, without more
detailed documentation, were virtually meaningless in view of the
magnitude of the reductions. Specifically, the panel concluded that
BAFO reductions based only on Cessna's [DELETED] statements did not
provide the level of detail necessary for the government to develop an
accurate MPLCC for Cessna.
The protester's argument that the agency's actions in this regard were
unreasonable is without merit. The record shows that in developing
Cessna's MPLCC, the cost panel thoroughly reviewed Cessna's BAFO
reductions and concluded that, given the lack of substantiation,
Cessna's BAFO prices could not form the basis for predicting outyear
life-cycle costs. Rather than relying on Cessna's BAFO, the panel
relied on what it had considered to be adequately substantiated,
accurate data--Cessna's pre-BAFO prices.
As already explained, the RFP contained specific instructions for
offerors to provide detailed explanations with their BAFO to allow the
cost panel to fully assess the basis of any price reductions. The
agency's letter requesting BAFOs also warned offerors of the
consequences of their failure to adequately substantiate BAFO price
reductions. We have reviewed the information Cessna submitted with
its BAFO and agree with the agency's position that in several
respects, Cessna simply failed to provide sufficiently detailed
explanations to allow the agency's cost panel to "trace" Cessna's BAFO
reductions, or accurately forecast life-cycle costs for Cessna.
Accordingly, we think that the cost panel's decision to rely on
Cessna's pre-BAFO pricing information in developing certain aspects of
the protester's MPLCC was reasonable. See AmerInd, Inc., B-248324,
Aug. 6, 1992, 92-2 CPD para. 85.
The protest is denied.
Comptroller General
of the United States
1. Offerors were required to submit proposals for supporting two
approaches for CLS--(1) a combination of partial CLS for the Air Force
and total CLS for the Navy; and (2) total CLS for the Air Force and
the Navy. The RFP stated that although the Air Force would evaluate
both approaches, award would be based on only one approach. The
proposed award to Beech was based on the partial CLS approach.
2. Within the "operational utility/technical" area, the "operational
capability" and "crew accommodations" factors were of equal
importance, with each one of those two factors being more important
than the remaining factors within this area. The factors within each
of the other areas were of equal importance.
3. The color/adjectival ratings were blue (exceptional); green
(acceptable); yellow (marginal) and red (unacceptable). Risk ratings
were high, moderate, or low.
4. Beech's proposal received a proposal risk rating of "moderate" with
"low" performance risk under the "crew accommodations" factor.
5. Cessna submitted two proposals, identified in the record as
alternates "1" (the basic proposal) and "2," both of which were
evaluated by the SSEB. Cessna's basic proposal retained all of the
model contract clauses included in the RFP; in its alternate "2"
(which the protester refers to as its "commercial" proposal), Cessna
proposed changes to several model contract clauses. Cessna's
"commercial" proposal received "moderate" proposal risk ratings under
"aircraft missionization" and "aircraft management." Both proposals
received identical ratings in every other respect.
6. The MPLCC developed for Cessna's "commercial" proposal was
[DELETED] billion, slightly less than the MPLCC developed for Cessna's
basic proposal.
7. The Secretary of the Air Force was the SSA for this procurement.
8. The Rockwell International Corporation, another unsuccessful
offeror, also filed protests in our Office challenging the award to
Beech. In our decision, Rockwell Int'l Corp., B-261953.2; B-261953.6,
Nov. 22, 1995, 96-1 CPD para. , we denied Rockwell's protests.
9. In its initial protest, Cessna also challenged the evaluation of
its proposal under the "certification/qualification," "aircraft
missionization," and "manufacturing" factors. In its comments on the
agency report, Cessna expressly stated that it was not pursuing these
specific issues.
10. Beech also asserts that Cessna's theory that twin-engine aircraft
are inherently safer than single-engine aircraft trivializes a very
complex issue involving several factors, of which the number of
engines is but one. Some of those factors include operational
environment, adequacy of training and supervision, reliability and
worthiness of aircraft structure and engines, flying characteristics,
and other design features which interact to determine the relative
safety of any aircraft. The record indicates that there is
considerable debate in the industry concerning this issue.
11. Cessna also contends that the Air Force improperly "coached" Beech
throughout discussions and held unequal discussions with Beech and
Cessna. We have reviewed the voluminous record in these protests,
particularly regarding written and oral discussions, and conclude that
there is no evidence that the Air Force "coached" or otherwise treated
offerors unequally during the discussions. Cessna's arguments in this
regard are simply without any support in the record.
12. Section M of the RFP described the purpose of the evaluation under
this factor as follows:
"Operational capability. Evaluates the performance, flying
qualities, and training mission accomplishment of the proposed
production aircraft. The evaluation will integrate the
results of the [f]light [e]valuation with the results of the
evaluation of the written proposal for the production
aircraft. The operational capability assessment will be a
quantitative and qualitative evaluation conducted by
[g]overnment personnel to assess the offeror's aircraft's
suitability to perform a 65-sortie, 89-flying hour primary
training syllabus given an entry level student pilot with no
previous flying experience."
13. The evaluators noted that the change to performance or flying
qualities was [DELETED].
14. Cessna argues that the Air Force used an unstated evaluation
criterion in its evaluation of proposals under the "operational
capability" factor, and that in so doing, the Air Force deprived
Cessna of a meaningful opportunity to correct deficiencies. Cessna
also contends that the Air Force improperly "compressed" all technical
color/adjectival scores into the "green" (acceptable) range, thus
making it virtually impossible to distinguish between proposals of
different technical merit. Rockwell also raised these issues in its
protests, and they were addressed and disposed of in our decision in
Rockwell Int'l Corp., supra.
15. The evaluators also noted that [DELETED].
16. Cessna had apparently removed flight test instrumentation and
recorders from its evaluation aircraft after the flight evaluation.
17. In fact, the record shows that based on the SSEB's initial
evaluation, the agency identified several weaknesses and risks
associated with the aircraft's [DELETED]. The record shows that the
agency identified these problems during discussions with Cessna, and
the protester's solutions resolved these problems to the SSEB's
satisfaction. The protester's argument that the agency failed to
consider or recognize that its proposed solutions corrected
deficiencies in its proposal, is without merit.
18. In addition [DELETED].
19. Cessna also challenges the agency's evaluation of its "commercial"
or alternate "2" proposal. In this connection, Cessna argues that the
Air Force improperly downgraded the risk ratings the agency assigned
to its alternate proposal and failed to consider the cost advantages
associated with that proposal. Cessna's arguments notwithstanding,
the RFP did not encourage or favor "commercial" proposals. Rather,
the RFP merely permitted offerors to propose exceptions and deviations
to the terms and conditions of the JPATS RFP and required offerors to
provide a detailed rationale in support of the alternate proposal. We
have reviewed the record, including Cessna's alternate "2" proposal,
the agency's evaluation materials, and the protester's submissions in
this regard. The record shows that the evaluators were not convinced
by Cessna's rationale for the changes Cessna made in its alternate
proposal. Based on our review, we find no basis to question the
agency's downgrading of Cessna's alternate "2" proposal under two risk
factors. Cessna's mere disagreement with the agency evaluators does
not render the evaluation of its alternate proposal unreasonable.
Allied-Signal Aerospace Co., B-250822; B-250822.2, Feb. 19, 1993, 93-1
CPD para. 201.
20. Each of these "cases" is a group of nine body dimensions used to
describe the threshold population required to be accommodated. The
agency states that accommodation of a seventh case was a desired goal,
but not an RFP requirement.
21. The remeasurement of the cockpit mock-up also allowed Cessna to
correct several weaknesses in its cockpit, resulting in an improvement
of the rating assigned Cessna's proposal under this factor from
[DELETED].
22. To the extent that Cessna argues that the AFOTEC's evaluation was
unreasonable, we have reviewed the record in this regard and find no
basis to question the AFOTEC's final EOA report. The record shows
that each instance in which the AFOTEC changed Cessna's or Beech's
initial ratings was the result of the AFOTEC's assessment of the
offerors' responses to CRs and DRs. Specifically, with respect to the
protester's proposal, the record shows that the AFOTEC found that
Cessna's proposed changes to its aircraft required additional testing,
and reasonable downgraded the proposal accordingly. Cessna's mere
disagreement with the AFOTEC's judgment do not render the final EOA
unreasonable. See Mentor Technologies, Inc., B-258009, Nov. 17, 1994,
94-2 CPD para. 195.
23. The contract in question was for the sale of six Beech aircraft to
Egypt. Beech was required under the FMS program to file
certifications with the Defense Security Assistance Agency (DSSA)
identifying any foreign components or services used in fulfilling the
contract as well as any contingent fees paid in connection with the
foreign sale. Motorola, a subcontractor to Beech on the FMS contract,
paid a contingent fee to an Egyptian firm in connection with the
contract. In its certifications to DSSA, however, Beech failed to
identify that services had been procured from the Egyptian firm or
that a contingent fee had been paid to that company in connection with
the contract. Beech was charged with furnishing a false certificate
to DSSA. The record shows that in May 1995, Beech entered a plea of
guilty to one misdemeanor count resulting in fines and sanctions
totaling more than $1 million.
24. The purpose of this certificate is to assist the contracting
officer in determining an offeror's responsibility. FAR sec. 9.408. Even
if that Cessna were correct that Beech's certification was deficient,
the failure to properly complete the certification would not require
the rejection of its proposal. See Universal Technologies, Inc.;
Spacecraft, Inc., B-248808.2 et al., Sept. 28, 1992, 92-2 CPD para. 212;
see also Intermountain Elec., Inc., B-236953.2, Jan. 31, 1990, 90-1
CPD para. 143.
25. The decisions, Cessna Aircraft Co., ASBCA No. 37726, Dec. 12,
1994, 95-1 BCA para. 27,373, and Cessna Aircraft Co., ASBCA No. 48118,
Mar. 6, 1995, 95-1 BCA para. 27,560, involved claims for equitable
adjustments based upon constructive changes to contract
specifications. The agency points out that none of the disputes in
decision No. 48118 involved technical issues that would bear on
Cessna's performance risk assessment. The agency also states that the
Navy has appealed decision No. 48118 to the United States Court of
Appeals for the Federal Circuit.
26. Further, the agency challenges Cessna's position that Cessna was
not at fault, arguing that the Board left open the question of the
degree of fault between the Navy and Cessna. The agency states that
the allocation of missionization risk/fault to Cessna alone could
reasonably support a "moderate" performance risk assessment even if
the PRAG had been made aware of the ASBCA decision.
27. Cessna also argues that the Air Force failed to conduct meaningful
discussions with the firm because the agency did not give Cessna any
notice that it believed that Cessna had failed to meet original
[DELETED] with respect to the UNFO contract. Contrary to the
protester's assertions, the record shows that the Air Force informed
Cessna during discussions of the performance problems the Navy
reported under the UNFO contract.
28. Cessna also states that under a proper evaluation, its
"commercial" alternate proposal would have been approximately
[DELETED] lower in cost/price than Beech's proposal.