BNUMBER:  B-274385; B-274385.2; B-274385.3
DATE:  December 6, 1996
TITLE:  Learjet, Inc.

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Matter of:Learjet, Inc.

File:     B-274385; B-274385.2; B-274385.3

Date:December 6, 1996

Lars E. Anderson, Esq., and J. Scott Hommer III, Esq., Venable, 
Baetjer and Howard, LLP, for the protester.
L. Graeme Bell III, Esq., Crowell & Moring, LLP, for Tracor Flight 
Systems, Inc., the intervenor.
Major Jeffrey W. Watson, Michael J. Mullin, Esq., John Laricca, Esq., 
and Gregory H. Petkoff, Esq., Department of the Air Force, for the 
agency.
Robert C. Arsenoff, Esq., and Paul I. Lieberman, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

1.  Protest allegations based on a disagreement with the agency over 
the interpretation of solicitation requirements are untimely since 
they were not raised within 10 days after the protester was informed 
in writing during discussions of the agency's interpretation of the 
solicitation.

2.  Agency properly considered technical data contained in protester's 
proposal which called into question the proposal's acceptability while 
not requesting similar data from awardee where the solicitation did 
not require the submission of such data.

3.  Protester's mere disagreement with agency evaluation does not 
provide a basis for disturbing that evaluation.

4.  Protest challenging a cost/technical tradeoff decision is denied 
where:  (1) no tradeoff was required because:  protester's proposal 
was technically unacceptable and could not form the basis for an 
award; and (2) the decision was reached in accordance with the 
solicitation's method of award provisions.

DECISION

BACKGROUND

Learjet, Inc. protests the award of a contract to Tracor Flight 
Systems, Inc. under request for proposals (RFP) No. F33657-95-R-0082, 
issued by the Department of the Air Force for C-21A replacement 
aircraft and related contractor logistics support (CLS).[1]  Learjet 
alleges that proposals were improperly evaluated and that the 
cost/technical tradeoff decision resulting in the award to Tracor was 
flawed.

We deny the protest.
                    
The RFP, issued on March 21, 1996, with a May 7 closing date for 
initial proposals, contemplated the award of two contracts to a single 
offeror--for two replacement aircraft (with an option to purchase two 
more aircraft) and for CLS services.  Award was to be made to the 
offeror whose proposal was determined to present the best value to the 
government considering integrated management framework (IMF) and most 
probable life cycle cost (MPLCC).  IMF was subdivided into two equally 
weighted factors--technical and CLS.  The IMF factors were to be 
assigned three ratings: a color/adjectival rating based upon how well 
the proposal met the solicitation requirements; a proposal risk rating 
based upon the perceived risk of the offeror's proposed approach to 
accomplish the RFP requirements; and a performance risk rating based 
on past and present performance.  Although a total of four aircraft 
could be purchased, the RFP provided that the MPLCC was to be 
calculated using the basic quantity of two aircraft.

Proposals were received from Learjet and Tracor.  Following an 
objective oral presentation (OOP) by each offeror, the source 
selection evaluation team (SSET) evaluated Learjet's proposal as "red" 
(unacceptable) with moderate proposal risk in the technical area and 
"yellow" (marginal) with low proposal risk in the CLS area.  Tracor's 
proposal was rated as "yellow" with moderate proposal risk in both 
areas.

Learjet's proposal received an unacceptable technical rating because 
the SSET found that both the proposal and the OOP identified problems 
in complying with two RFP technical requirements set forth in the 
Operational Requirements Document (ORD)--aircraft range and cabin 
noise.  With respect to the range requirement, the ORD specified that 
the aircraft had to be capable of completing a flight profile from 
Andrews Air Force Base, Maryland to a destination airport at San 
Francisco with a missed approach and diversion to an alternate airport 
120 nautical miles away; upon completion of the profile, the aircraft 
had to have reserve fuel as stated in Air Force Instruction (AFI) 
11-206.  Learjet identified a problem at the OOP with meeting this 
requirement, specifying that it could meet the standard under certain 
wind conditions if fuel reserves were calculated by Learjet's 
particular reading of AFI 11-206 which in effect would double count 
Learjet's reserves by giving it credit for each leg of the flight 
profile.  Two deficiency reports (DR) were issued to Learjet 
concerning the matter, outlining the Air Force's position; in 
telephonic discussions Learjet conceded that it could not meet the 
requirement under the agency's interpretation of the reserve 
requirement.

The ORD also specified that the preferred speech interference level 
(PSIL) for the cabin interior shall not exceed 65 dB at maximum 
operating velocity and maximum operating Mach number and at any given 
altitude, with a desired level of not more than 60 dB.  At the OOP 
Learjet indicated that it could not meet the 60 dB standard and had a 
problem meeting the 65 dB level.  Although not required by the RFP, 
Learjet submitted technical data relating to the cabin noise level in 
its proposed aircraft; this data was evaluated by the agency and found 
to support a conclusion that Learjet's proposal was unacceptable.  
This resulted in the issuance of another DR to which Learjet responded 
that it could not comply with the 65 dB level requirement without a 
significant design and development program.

Best and final offers (BAFO) were received on August 5; Learjet's 
proposal remained unchanged with respect to the two identified 
technical deficiencies.  On final evaluation, Learjet's proposal was 
rated red with low proposal risk in the technical area and "green" 
(acceptable) with similar risk in the CLS area.  Tracor received a 
"blue" (exceptional) rating with low proposal risk in both areas.  
Both offerors were rated as having low performance risk for IMF.

Tracor's proposal was found to have met all cost criteria.  Learjet's 
proposed cost was found to be unrealistic and unreasonable.  From the 
initial proposal to the BAFO, Learjet's CLS overhead was reduced by 
146 percent; while Learjet explained this reduction by stating it was 
accomplished through management reductions and a reduction of on-site 
inventory, the agency found that the latter was contradicted by 
information contained in the BAFO.  The MPLCC over 20 years was 
calculated at $57.6 million for Tracor and $53.5 million for Learjet.  
The source selection authority (SSA) concluded that, notwithstanding 
this differential, Tracor's proposal represented the best overall 
value to the government given the technical deficiencies in Learjet's 
BAFO and considering Tracor's technical superiority and higher merit.  
Award was made on August 22, Learjet was debriefed on August 28, and 
this protest was filed on August 29.

PROTEST AND ANALYSIS

First, the protester argues that the agency improperly rated its 
proposed aircraft unacceptable for failure to meet the fuel reserve 
requirements and improperly rated Tracor's aircraft acceptable under 
the same requirements.  Learjet alleges that the agency misinterpreted 
the RFP fuel reserve formula and reasserts the interpretation it 
advanced during discussions--effectively giving credit for each leg of 
the prescribed flight profile rather than computing a single fuel 
reserve at the final destination after a missed landing in San 
Francisco.  In the alternative, the protester argues that the agency 
failed to consider exceptions taken to the fuel reserve requirements 
in its BAFO as a "tradeoff" required by the RFP as amended.

These allegations are predicated on a disagreement over how fuel 
reserves are to be computed pursuant to the RFP.  Under Learjet's 
interpretation, its aircraft is compliant with the RFP and Tracor's is 
not; under the Air Force's interpretation, the reverse is true.  
Learjet was informed, as early as the May 23 issuance of a DR 
indicating the Air Force's method of computing fuel reserves, that its 
proposal was unacceptable due to an inadequate fuel reserve.  Nothing 
changed throughout the remainder of discussions, further evaluation 
and the submission of BAFOs.  Since Learjet did not dispute the 
agency's known interpretation of the full reserve requirement until it 
filed this protest on August 29, the issue is untimely raised and we 
will not consider it further.  Bid Protest Regulations, section 
21.2(a)(2), 61 Fed. Reg. 39039, 39043 (1996) (to be codified at 4 
C.F.R.  sec.  21.2(a)(2)) (requiring filing within 10 days after the basis 
of a protest is known or should have been known), amending 4 C.F.R.  sec.  
21.2(a)(2) (1996) (which, for protests filed prior to August 8, 1996, 
required filing within 14 days after the basis of the protest was 
known or should have been known); Securiguard, Inc. et al., B-254392.8 
et al., Feb. 9, 1994,
94-1 CPD  para.  92 (basis of protest on interpretation of RFP provisions is 
known when agency gives offeror notice of its interpretation).[2]

Next, Learjet complains that the agency treated offerors unequally in 
evaluating the technical information relating to cabin noise level 
contained in its proposal while not requiring Tracor to submit similar 
information for evaluation.  The RFP did not require the submission of 
data to establish compliance with the requirement.  Since, unlike 
Learjet, Tracor did not take exception to the requirement, we find 
nothing improper in the agency's considering the data contained in 
Learjet's proposal while not requesting similar data from Tracor.  
Rather than treating offerors unequally, the agency evaluated each 
proposal based on what it contained.[3]

Learjet further alleges that the agency improperly credited Tracor for 
technical advantages involving such matters as its proposed cooling 
system, flight control system, and choice of aircraft batteries.  
Learjet asserts that its aircraft is equal or superior to Tracor's in 
each regard.  

The evaluation of technical proposals is the function of the 
contracting agency; our review is therefore limited to determining 
whether the evaluation was reasonable and consistent with the RFP 
evaluation criteria.  Mere disagreement with the agency's evaluation 
does not render the evaluation unreasonable.  Research Assocs. of 
Syracuse, Inc., B-259470, Mar. 28, 1995, 95-1 CPD  para.  169.  

With regard to cooling systems, Tracor proposed an air cycle machine 
with only ducts to distribute the air which the agency found 
preferable to Learjet's proposed vapor cycle refrigeration system 
which required aircraft disassembly to maintain on a routine basis.  
Learjet states that it is "well-known" in the industry that air cycle 
machines present no distinct advantages to refrigeration systems and 
are "quite possibly" less efficient.  Similarly, the agency found 
Tracor's flight control system to require less maintenance.  Noting 
some, but not complete, similarity between each offeror's control 
system, Learjet simply asserts that Tracor's system has no relevant 
advantages over the protester's.  Finally, with respect to batteries, 
Tracor proposed what the solicitation indicated was the preferable 
battery--nickel cadmium in lieu of lead acid--which Learjet proposed; 
Learjet disputes that the nickel cadmium batteries are preferable.  
Learjet's positions on these matters simply articulate its subjective 
qualitative assessments and represent, at best, a disagreement with 
the agency's evaluation; they provide no basis for us to conclude that 
the agency's evaluation was  unreasonable.  Accordingly, they provide 
no basis for disturbing that evaluation. 

Finally, with respect to the technical evaluation, in its comments 
filed on      October 15, Learjet raised objections to the acceptance 
of Tracor's proposal, arguing that the proposal was noncompliant with 
specifications relating to minimum cabin height, operations in 
specified weather conditions, thrust deficiency and training 
requirements.  The basis for these allegations is Learjet's reading of 
Tracor's contract which was provided to the protester at the August 28 
debriefing.  Since the objections were not raised within 10 days after 
that date, they are untimely.  Bid Protest Regulations, section 
21.2(a)(2), 61 Fed. Reg. 39039, 39043, supra.

Regarding the cost evaluation and the resulting cost/technical 
tradeoff, Learjet principally argues that the agency failed to 
consider its offer of a $2.0 million trade-in credit for each of two 
optional aircraft.  Assuming that Tracor offered no trade-in 
credit,[4] the protester alleges that the selection decision failed to 
consider that Learjet's proposal offered an additional savings of $4.0 
million, which, when added to the difference between competing MPLCCs, 
meant that Learjet's proposal was $8.1 million less expensive than 
Tracor's. 

As indicated above, Learjet's proposal was properly rated as 
technically unacceptable, and, therefore, could not form the basis for 
an award, Household Data Servs., Inc., B-259238.2, Apr. 26, 1995, 95-1 
CPD  para.  281; nonetheless, the agency went through a tradeoff exercise.  
The record shows that the SSA's decision was based on the $4.1 million 
difference in the MPLCC of the two competing proposals which was 
calculated without considering the option aircraft trade-ins.  Since 
the solicitation specifically excluded option aircraft from the 
calculation of the MPLCC and provided that the best value analysis 
would use the MPLCC, Learjet's position that the agency acted 
unreasonably in its selection decision is based on a mistaken premise 
and is without merit.

The protest is denied.

Comptroller General
of the United States

1. Tracor was awarded a contract for the aircraft and a separate 
contract for CLS services.  For convenience, this decision refers to 
these two awards in the singular.

2. Learjet's challenge to the rejection of its offer for failure to 
meet the cabin noise level requirements is also untimely because the 
protester was notified on May 23 of the unacceptability of its 
proposal in this regard.

3. Also, Learjet alleged that its proposal should have been given 
credit for superior past performance and that Tracor's proposal should 
have been downgraded for an alleged problem during the demonstration 
of its aircraft.  These matters were fully addressed in the agency 
report and the agency's explanations were not rebutted by Learjet in 
its comments.  Accordingly, the issues are abandoned and not for 
further consideration.  Battelle Memorial Inst., B-259571.3, Dec. 8, 
1995, 95-2 CPD  para.  284.

4. The assumption is incorrect.  The record establishes that, when he 
asked the SSET about option aircraft, the SSA was properly advised 
that Tracor offered a               $1,422,500 trade-in credit for 
each of the option aircraft and further advised that this credit 
declined in value every 90 days as provided in the RFP.