BNUMBER:  B-274122
DATE:  November 1, 1996
TITLE:  Dynamic Aviation--Helicopters

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Matter of:Dynamic Aviation--Helicopters

File:     B-274122

Date:November 1, 1996

Sam Z. Gdanski, Esq., for the protester.
James L. Weiner, Esq., and Sherry Kaswell, Esq., Department of the 
Interior, for the agency.
Guy R. Pietrovito, Esq., and James A. Spangenberg, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

1.  Where an agency uses traditional responsibility factors, such as 
experience or past performance, as technical evaluation factors, the 
comparative evaluation of proposals under such factors does not 
involve a matter of responsibility subject to the Small Business 
Administration certificate of competency procedures.

2.  In a negotiated, best value procurement, an agency may select a 
higher technically rated, higher-priced offer for award, where the 
agency reasonably determines in accordance with the stated evaluation 
criteria that the technical superiority of the higher-rated proposal 
outweighs the price advantage of the lower technically rated proposal.

3.  Allegations of bias on the part of government officials in the 
evaluation of proposals must be supported by credible evidence clearly 
demonstrating a bias against the protester or in favor of the awardee, 
and that the agency's bias translated into action that unfairly 
affected the protester's competitive position; bias is not established 
by inference or supposition.

DECISION

Dynamic Aviation--Helicopters protests the award of a contract to 
Timberline Helicopters under request for proposal (RFP) No. 8096-09, 
issued by the Office of Aircraft Services, Department of the Interior, 
for helicopter services.

We deny the protest.

The RFP, which was issued as a total small business set-aside, sought 
fixed-priced proposals for flight services, consisting of one 
helicopter to be flown, maintained, and fuel serviced by the 
contractor, for a base year with 4 option years.  The RFP provided 
that, among other things, the contractor would transport personnel and 
cargo in support of fire suppression; assist in search and rescue 
operations; and perform wild horse and burro gathering, herding, 
capturing, and counting.

Offerors were informed that award would be made on a best value basis, 
determined pursuant to the following technical evaluation factors in 
descending order of importance:

     1.  Past Performance

        a.  Quality of Service
        b.  Timeliness and responsiveness of performance
        c.  Commitment to customer satisfaction
        d.  Quality awards/certifications
        e.  Problems
        f.  Cost Control

     2.  Technical

        a.  Safety
        b.  Maintenance
        c.  Personnel
        d.  Aircraft
        e.  Certification

The RFP did not state the relative weight of technical vis-a-vis price 
in the evaluation of proposals; thus, price and the technical factors 
were of approximately equal weight.  See Jack Faucett Assocs., 
B-233224, Feb. 3, 1989, 89-1 CPD  para.  115.

Proposals were received from Timberline--the incumbent contractor--and 
Dynamic in response to the RFP.  Discussions were conducted, and best 
and final offers (BAFO) received.  Dynamic proposed a total price of 
$481,600, and Timberline proposed a total price of $511,250.  The 
agency's final evaluation was that Timberline's BAFO was superior to 
Dynamic's under the past performance factor and under the technical 
factor's safety, maintenance, and personnel subfactors.  In the 
contracting officer's judgment, Timberline's proposal represented the 
best value to the government.  Award was made to Timberline, and this 
protest followed.

Dynamic challenges the evaluation of its proposal, asserting that the 
evaluation of its past performance concerns a matter of its 
responsibility, which Dynamic, as a small business concern, has a 
right to have reviewed by the Small Business Administration (SBA) 
under the certificate of competency (COC) procedures.  Dynamic also 
argues that it is entitled to award as the lowest-priced offeror.

We disagree with Dynamic that the evaluation of its past performance 
under this RFP was a matter of responsibility subject to COC 
procedures.  An agency may use traditional responsibility factors, 
such as experience or past performance, as technical evaluation 
factors, where, as here, a comparative evaluation of those areas is to 
be made.  Advanced Resources Int'l, Inc.--Recon., B-249679.2, Apr. 29, 
1993, 93-1 CPD  para.  348.  A comparative evaluation means that competing 
proposals will be rated on a scale relative to each other as opposed 
to a pass/fail basis.  Id.  Where a proposal is determined to be 
deficient pursuant to such an evaluation, the matter is one of 
relative technical merit, not nonresponsibility, as would require a 
referral to the SBA.  Id.; Aerospace Design, Inc., B-247793, July 9, 
1992, 92-2 CPD  para.  11.

With regard to Dynamic's protest objection that it is the 
lowest-priced offeror, the government in a negotiated procurement is 
not required to make award to the lowest-priced, technically 
acceptable offeror unless the RFP specifies that price will be 
determinative.  Miltope Corp.; Aydin Corp., B-258554.4 et al., June 6, 
1995, 95-1 CPD  para.  285. 

Here, the RFP provided for a cost/technical tradeoff in the selection 
of the most advantageous offer to the government, and the record 
supports the contracting officer's decision to select Timberline's 
proposal for award on the basis of Timberline's reasonably evaluated 
technical superiority, notwithstanding Dynamic's price advantage.  
Specifically, under the past performance factor, the agency's 
evaluators found that, despite specific discussion questions, Dynamic 
had not demonstrated relevant experience in horse/burro herding or in 
fire suppression; Timberline, on the other hand, demonstrated 
extensive relevant and high quality experience in wild horse and fire 
suppression missions.  Under the technical factor's safety subfactor, 
the evaluators found that in 1991 Dynamic had a single safety incident 
(which did not result in injuries),[1] while Timberline had no 
reported accidents or safety incidents.  Under the technical factor's 
maintenance subfactor, the evaluators found that Dynamic offered only 
a minimal quality assurance program, consisting of a "system design of 
cards requiring a calculation to determine when overhaul of components 
would be required," while Timberline offered "an excellent 
computerized aircraft records system" to facilitate tracking of 
overhaul components under its quality assurance program and, unlike 
Dynamic's proposal, an on-site mechanic other than the pilot.  The 
evaluators concluded that Timberline offered a superior proposal, 
based upon its extensive related experience, excellent past 
performance, safety record, and maintenance system.  The contracting 
officer agreed, as follows:

     "The greatest advantage in the Timberline proposal over the 
     Dynamic proposal is the demonstrated and supported level of 
     related past experience, safety record, quality assurance program 
     and maintenance support.  Timberline's proposal contained a high 
     level of information to support sustained high quality 
     performance relative to responsiveness to the customer's program 
     and mission satisfaction.

                    .     .     .     .     .

     "I have determined that Timberline's superior past performance, 
     experience, maintenance approach and safety record are 
     significant and should result in more effective and timely 
     contract performance in support of the Bureau of Land Management 
     wild horse missions.  I believe that these differences overcome 
     Dynamic's slight price advantage and that an award to Timberline 
     would be the most advantageous to the Government in accordance 
     with the evaluation factors stated in the solicitation and 
     represents the best value to the Government."

Dynamic does not show that the evaluation of its proposal, or the 
contracting officer's cost/technical tradeoff, was unreasonable.  
Instead, the protester contends that the evaluation was motivated by 
bias against Dynamic and in favor of Timberline.  Specifically, the 
protester alleges that the United States District Court for the 
District of Columbia in an unrelated case found that the agency's 
chief of the Office of Aircraft Services' Acquisition Management 
Division was biased against Dynamic Aviation.  Dynamic contends that 
this alleged bias affected the evaluation of its proposal.

Because government officials are presumed to act in good faith, we do 
not attribute unfair or prejudicial motives to them on the basis of 
inference or supposition.  Ameriko Maintenance Co., B-253274; 
B-253274.2, Aug. 25, 1993, 93-2 CPD  para.  121.  Thus, where a protester 
alleges bias on the part of government officials, the protester must 
provide credible evidence clearly demonstrating a bias against the 
protester or for the awardee and that the agency's bias translated 
into action that unfairly affected the protester's competitive 
position.  Advanced Sciences, Inc., B-259569.3, July 3, 1995, 95-2 CPD  para.  
52; E.J. Richardson Assocs., Inc., B-250951, Mar. 1, 1993, 93-1 CPD  para.  
185.

Here, there is no credible evidence of bias.  Contrary to Dynamic's 
arguments, the District Court did not find, in response to Dynamic's 
complaint of de facto debarment, that the agency or its chief of the 
Office of Aircraft Services' Acquisition Management Division was 
biased against Dynamic Aviation; rather, our review of the court's 
file shows that the court merely denied the government's motion for 
summary judgment based upon the court's finding that there were 
material facts in dispute.  The parties subsequently settled Dynamic's 
de facto debarment claim, and no decision was issued on the merits of 
Dynamic's complaint.

Furthermore, the protest record here does not evidence any bias 
against Dynamic or in favor of Timberline.  The record shows that only 
involvement with this procurement of the Acquisition Management 
Division chief[2] was to provide past performance information 
concerning Dynamic and Timberline.  Despite having access to this 
information under the protective order, the protester has not shown 
this information to be inaccurate or unreasonable.  Given Dynamic's 
failure to show that the agency's evaluation conclusions were 
inaccurate or unreasonable, as well as the lack of any credible 
evidence of bias, there is no basis to find that the agency's 
evaluation or source selection was motivated by bias.

The protest is denied.

Comptroller General
of the United States

1. Although Dynamic objected during discussions that there was no 
actual safety incident, the evaluators noted that the government 
contract involved was terminated for default as a result of this 
incident.

2. This official did not otherwise participate in the procurement; he 
was not a member of the technical evaluation panel, nor did he advise 
the contracting officer regarding the selection of a contractor in 
this procurement.