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.