BNUMBER:  B-271877; B-271878
DATE:  August 6, 1996
TITLE:  Barton ATC, Inc.

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Matter of:Barton ATC, Inc.

File:     B-271877; B-271878

Date:August 6, 1996

Travis L. Pierson for the protester.
Col. Nicholas P. Retson, and Maj. Michael J. O'Farrell, Jr., 
Department of the Army, for the agency.
Sylvia Schatz, Esq., David A. Ashen, Esq., and John M. Melody, Esq., 
Office of the General Counsel, GAO, participated in the preparation of 
the decision.

DIGEST

Protest against agency determination that proposals were technically 
unacceptable is denied where the agency reasonably determined that the 
proposals failed to indicate an acceptance of, and a clear, 
unambiguous and unconditional commitment to perform in accordance 
with, the solicitation provisions regarding (1) the necessity for 
contracting officer approval before the contractor can be compensated 
for furnishing additional meteorological services outside the normal 
hours of operation specified in the solicitations and (2) the required 
personnel qualifications.

DECISION

Barton ATC, Inc. protests the proposed award of contracts to Weather 
Data Services, Inc. under requests for proposals (RFP) Nos. 
DAHA90-95-R-0049 and DAHA90-95-R-0048, issued by the National Guard 
Bureau (NGB) for meteorological services for Selfridge Air National 
Guard Base in Selfridge, Michigan (RFP -0049) and Buckley Air National 
Guard Base in Denver, Colorado (RFP -0048).  Barton, the incumbent for 
both contracts, primarily challenges NGB's determination that its 
technical proposals under both solicitations were unacceptable.

We deny the protests.

The solicitations provided for the contractor to furnish 
meteorological services such as weather watch, surface weather 
observations, aircrew weather briefings, meteorological watch, weather 
warnings and advisories, and terminal forecasting from facilities at 
the bases.  The evaluation schemes in both RFPs were identical; both 
contemplated the award of a fixed-price contract for a base year and 4 
option years to the offeror whose proposal best satisfies the 
government's requirements based on consideration of two factors, 
technical and price, with technical being significantly more important 
than price.

NGB found Barton's technical proposals to contain numerous statements 
that were either ambiguous or conflicted with the terms of the RFPs.  
Although NGB considered Barton's proposals unacceptable, it included 
them in the competitive range for discussion purposes.  During the 
ensuing discussions, the agency advised Barton in writing of the areas 
in its proposals that were ambiguous or in conflict with specific 
paragraphs in the solicitations.  The agency then requested best and 
final offers (BAFO).  NGB found that although Barton's subsequent 
BAFOs addressed some of the agency's concerns, the proposals failed to 
resolve a number of the identified concerns and as a result remained 
technically unacceptable.  Upon learning of the resulting elimination 
of its proposals from the competitive range in both procurements, 
Barton filed these protests with our Office.  (NGB has informed our 
Office that it intends to make award to Weather Data Services, Inc. 
under both RFPs.)

Barton challenges NGB's determination that its BAFOs were technically 
unacceptable, arguing that its BAFOs did not contain any statements 
that were ambiguous or in conflict with RFP requirements. 

The procuring agency has the primary responsibility for evaluating the 
technical information supplied by an offeror and determining the 
technical acceptability of the offeror's proposal; we will not disturb 
a determination with respect to technical acceptability unless it is 
shown to be unreasonable.  See Intelligent Env'ts, B-256170.2, Nov. 
28, 1994, 94-2 CPD  para.  210.  A protester's mere disagreement with the 
agency's technical judgment does not establish that it was 
unreasonable.  See Diversified Technical Consultants, Ltd., B-250986, 
Feb. 22, 1993, 93-1 CPD  para.  161.

We find that the agency reasonably determined that Barton's BAFOs were 
technically unacceptable on the basis that they failed to indicate a 
clear, unambiguous acceptance of, and commitment to perform in 
accordance with, the solicitation requirements.  

For example, the solicitations provided for the possibility that the 
contractor might receive requests for weather support outside the 
normal hours of operation specified in the solicitations, and 
requested unit prices for furnishing estimated numbers of such 
contingency hours.  The statements of work (SOW) cited as examples of 
emergencies or special events requiring such contingency support such 
situations as exercises, surge requirements, disasters, accident and 
rescue operations, deployments, nighttime flying, and severe weather.  
The SOWs provided that requests for emergency or special event support 
must be approved in advance, whenever possible, by the contracting 
officer, but that "[i]f advance approval is not practical, the 
contractor is still required to respond within 1 hour of notification 
and provide the appropriate support services."  (At the same time, 
however, the contractor apparently was expected to exercise some 
discretion in determining "the appropriate support services," since 
the SOWs added with respect to "No Notice Requests" that the 
contractor's base weather station supervisor "will use [his] best 
judgment in providing any necessary support services.")  In the event 
that "coordination with the contracting officer is not practicable," 
the SOWs required the contractor's base weather station supervisor to 
submit not later than the next regular work day "Request for 
Contingency Support" and "Certification of Contingency Hours Worked" 
forms to contracting officials.  According to the SOWs, the 
contracting officer then "will either approve or disapprove" the 
request, and the contractor "shall invoice for approved emergency or 
special event support services on a monthly basis."

Thus, the solicitations clearly reserved to the contracting officer 
the right to "either approve or disapprove" the contractor's request 
for after-the-fact approval of "no notice" contingency hours, thereby 
imposing on the contractor the risk that it would not be paid for 
hours worked which the contracting officer believed, in the reasonable 
exercise of his discretion, were not appropriate.  However, while 
Barton in its initial proposals responded with a "Noted" to these 
provisions, it added that "[w]e assume . . . that if 
approval/disapproval is not received by the [weather] station, the 
requested support is to be provided . . . and that the contractor will 
be compensated for the support provided."  In response to the agency's 
notice during discussions that these sections of its proposals 
conflicted with the provisions of the solicitation, Barton responded 
in its BAFOs by asserting that "[w]e see no conflict" (RFP -0049) and 
"[n]o conflict is intended" (RFP -0048).  Barton stated that:  

        "[instances] are expected to arise, as they have in the past, 
        in which support may be requested on Saturday, for support 
        early on Monday.  In such case, it will be impossible to 
        obtain approval from the contracting officer prior to 
        providing the service.  We merely indicate that we expect, in 
        such cases, that we must provide the requested support and 
        that we will be compensated for the additional services."  
        (Emphasis added.) 

While Barton maintains that its use of the word "noted" in its initial 
proposal signified its acceptance of the solicitation requirements, we 
believe that its continued assertion of an expectation of payment for 
any "no notice" hours worked even after being advised of the agency's 
view that this conflicted with the provisions of the SOWs reasonably 
led the agency to conclude that Barton was conditioning its agreement 
to the terms of the solicitations on a right to payment for any and 
all such hours.  Again, this conflicted with the solicitation 
provisions that clearly reserved to the contracting officer the right 
to disapprove the contractor's request for after-the-fact approval of 
"no notice" contingency hours on the basis that they were not 
appropriate.

Likewise, we believe that the agency reasonably concluded that 
Barton's BAFOs also did not indicate a clear, unambiguous commitment 
to perform in accordance with the solicitation requirements regarding 
personnel qualifications.  The SOWs specified a number of labor 
categories--such as contract manager, weather supervisor, forecaster, 
and weather observer--and established minimum experience, training 
and/or physical condition requirements for each category.  In 
addition, the SOWs required submission of resumes for all weather 
supervisors, forecasters, and weather observers; generally reserved to 
the contracting officer the right to review and approve all resumes 
prior to the contractor's final commitment of the employees for 
assignment; and specifically required contracting officer approval 
before an intended forecaster hire can receive the required 
certification or an intended observer hire can be scheduled for or 
take the required government-administered qualification test.

In its initial proposals, Barton advised the government that "[i]n the 
event of serious personnel loss or . . . greatly increased 
requirements, it may become necessary to temporarily detail personnel 
from another location in order to meet the needs of the moment."  
Barton requested that in such a case the agency waive "certification 
requirements" on a one-time basis, adding that it anticipated that any 
personnel temporarily detailed to the location would be "from a 
similar station" and would be "fully qualified on the equipment and 
duty requirements."  Elsewhere in its proposals, however, Barton 
stated that "personnel might be detailed from corporate headquarters 
or from other facilities to lend necessary temporary support."

While NGB believed that personnel detailed from "similar" weather 
stations might be acceptable, it was concerned that Barton elsewhere 
in its proposals was proposing detailing personnel "from corporate 
headquarters or from other facilities"; it noted that the resumes for 
Barton's corporate headquarters personnel indicated that only one 
individual had any weather observer training, with no indication of 
proficiency in the use of the weather equipment at the agency 
facilities, and it questioned whether personnel from "other 
facilities," such as air traffic control personnel, would be qualified 
to perform weather observing and forecasting duties.  In response to 
the agency's notice during discussions that it viewed these two 
sections of Barton's proposals to be in conflict, Barton denied in its 
BAFOs that any conflict existed, asserting that its proposals "merely 
state that we will utilize all available personnel, in the most 
efficient and expeditious manner possible, to prevent any disruption 
of service which may result from some contingency."

The agency, however, concluded that Barton's response did not resolve 
its concern that Barton's proposed approach could result in 
unqualified personnel being detailed to perform weather services at 
the base weather stations.  Although Barton argues that these 
provisions of its proposals did not qualify its commitment to comply 
with the personnel qualifications in the SOWs, we find that Barton's 
proposal to detail personnel from corporate headquarters or from other 
unspecified facilities (and not merely from similar weather stations), 
when considered in conjunction with Barton's request for the waiver of 
"certification requirements" in such event and its failure to offer 
any assurances as to the qualifications of personnel detailed from 
corporate headquarters or from other unspecified facilities, 
reasonably led the agency to question Barton's commitment to staffing 
the contracts at all times with personnel meeting the SOWs' personnel 
qualifications requirements.

Given NGB's reasonable determination that Barton's proposals failed to 
indicate an acceptance of, and a clear, unambiguous and unconditional 
commitment to perform in accordance with, the solicitation provisions 
regarding the necessity for contracting officer approval before the 
contractor can be compensated for furnishing additional meteorological 
services outside the normal hours of operation specified in the 
solicitations and the required personnel qualifications, we conclude 
that the agency reasonably determined that Barton's BAFOs were 
unacceptable.[1]

The protests are denied.

Comptroller General
of the United States

1. Although Barton argues that the agency did not hold meaningful 
discussions with the firm, because it failed to specifically identify 
the matters raised as "deficiencies," there was no requirement that 
the agency do so; rather, by reasonably leading Barton into the areas 
of its proposals that, unless corrected, would prevent an offeror from 
having a reasonable chance for award, the agency satisfied the 
requirement that the discussions be meaningful.  See SeaSpace Corp., 
B-252476.2,   June 14, 1993, 93-1 CPD  para.  462.