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.