BNUMBER: B-274436
DATE: December 12, 1996
TITLE: SEAIR Transport Services, Inc.
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Matter of:SEAIR Transport Services, Inc.
File: B-274436
Date:December 12, 1996
Ronald H. Uscher, Esq., Bastianelli, Brown, Touhey & Kelley, for the
protester.
Rachel A. Sens, Esq., and G. Matthew Koehl, Esq., Seyfarth, Shaw,
Fairweather & Geraldson, for Eagle Aviation Services & Technology, an
intervenor.
Marian E. Sullivan, Esq., Michael Farr, Esq., and John Lariccia, Esq.,
Department of the Air Force, for the agency.
Christina Sklarew, Esq., and Michael R. Golden, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
1. Protest based on disagreement with agency's evaluation of certain
features in the protester's proposal, alleging that credit should have
been given under one evaluation criterion rather than another, is
denied where the record shows that the agency evaluated in accordance
with the criteria announced in the solicitation, and the record
reasonably supports the evaluators' conclusions.
2. Protest against agency's performance risk assessment of awardee's
proposal is denied where the agency's evaluation and conclusions
reached were reasonable and supported by the record.
DECISION
SEAIR Transport Services, Inc. protests the Department of the Air
Force's award of a contract to Eagle Aviation Services & Technology,
Inc. ("EAST") under request for proposals (RFP) No. F34650-96-R-0059
for the performance of fuels operations services at Tinker Air Force
Base, Oklahoma. SEAIR contends that the Air Force's evaluation of
competing proposals and resulting award decision were flawed in a
number of ways.
We deny the protest.
The RFP was issued as a total small business set-aside, and
contemplated the award of a firm, fixed-price contract for a 1-year
base period, plus 4 option years. The solicitation provided that the
source selection would be conducted in accordance with the Streamlined
Source Selection Procedures of Air Force Federal Acquisition
Regulation Supplement Appendix BB. The RFP listed the following
specific criteria against which proposals would be evaluated:
management, production, quality, and cost. The technical areas were
to be of primary importance and would be considered equal in value,
with cost/price having substantial but secondary importance. The RFP
also provided the following assessment criteria against which the
technical areas would be evaluated: understanding/compliance with the
requirements and soundness of approach. Each of the technical areas
was to be rated in three different ways: by a color rating, used to
reflect how well the proposal meets the evaluation standards and RFP
requirements; by a proposal risk factor, used to assess any risks
associated with the offeror's proposed approach; and by a performance
risk factor, used to reflect any risks associated with the offeror's
present and past work record. Cost was to be evaluated for
completeness, realism and reasonableness, and would be evaluated
against the government's 'most probable cost' estimate. Award was to
be made to the offeror presenting the best value to the government.
Eleven firms submitted timely initial offers. After these were
evaluated, the agency determined that only seven offers, including
SEAIR's and EAST's, should remain in the competitive range. The
competitive range offerors were then permitted to present oral
proposals, as the RFP had described. Following the oral
presentations, members of the Air Force technical evaluation team
asked any questions required for clarification. Discussions were then
conducted with each offeror by telephone, followed by the submission
of best and final offers (BAFOs). The BAFOs that were submitted by
EAST and SEAIR were rated as superior to the other remaining offerors.
The two firms received identical technical ratings, with each firm's
proposal rated blue ("exceptional") under the management and
production factors and green ("acceptable") under the quality factor,
with low risk ratings. EAST's proposed price of $11,547,388 was
approximately $450,000 lower than SEAIR's price. The source selection
authority determined that EAST's offer represented the best value to
the government, and EAST was selected for award. SEAIR requested and
received a debriefing, and this protest followed.
SEAIR protests that the Air Force failed to award proper evaluation
credit for certain aspects of SEAIR's proposal. The protester asserts
that its proposal should have received a "blue" rating for quality,
instead of "green," because it included additional features that
improved the quality of its level of performance. SEAIR cites the
inclusion in its proposal of an additional clerk in order to reduce
the contract manager's administrative duties and permit the manager to
spend more time in the field, and the inclusion of a plan to divert 25
percent of the contract profits to an employee incentive plan that
would award incentive bonuses to employees for excellent/safe
performance. The protester asserts that the Air Force failed to
consider these additional features.
The evaluation of proposals is primarily a matter within the agency's
discretion since it is responsible for defining its needs and for
deciding on the best methods for accommodating them. SEAIR Transport
Servs., Inc., B-252266, June 14, 1993,
93-1 CPD para. 458. Therefore, our Office will question the evaluation
only if the record demonstrates that it was unreasonable or
inconsistent with the RFP's evaluation criteria. Id.
Here, the record shows that the Air Force, in fact, considered the
features to which SEAIR refers to and recognized them as strengths but
did so under the production criterion rather than the quality
criterion. For the production area, offerors were instructed to
discuss such matters as each element of the production function to be
performed, to include operations and maintenance services for all
shifts; the planned method of compliance with the performance work
statement (PWS); staffing that will be used to perform the contract;
supervisory assignments and responsibility, and so on. Under the
quality factor, offerors were advised to discuss quality control and
inspection organization; quality control and inspection procedures;
quality control plan; production flow path and inspection points; and
ratio of inspection to production personnel. Since these additional
features of SEAIR's proposal involved staffing and a staff incentive
plan, both of which reflect a particular approach to performance, we
think the Air Force could reasonably determine that these features
were most closely related to the production area which covered
staffing, supervision, and the planned approach to meeting the PWS.[1]
We therefore find no merit to this aspect of the protest.
SEAIR also alleges that the Air Force failed to conduct meaningful
discussions by not specifically identifying any weaknesses in the
quality area of its proposal. According to SEAIR, had it been allowed
to address these weaknesses, its revised proposal would have received
a blue/excellent rating for quality and its overall score would have
been higher than EAST's, and it would be entitled to the contract
award. SEAIR also asserts that had it known of Air Force concerns
about the cost of its proposed additional features, it would have
eliminated them and lowered its price, thus placing it in line for
award.
Generally, agencies are required to conduct discussions with all
competitive range offerors and this mandate is satisfied only when
discussions are meaningful. The Faxon Co., 67 Comp. Gen. 39 (1987),
87-2 CPD para. 425. However, agencies are not obligated to afford
offerors all-encompassing discussions. Department of the
Navy--Recon., 72 Comp. Gen. 221 (1993), 93-1 CPD para. 422. Where a
proposal is considered to be acceptable and in the competitive range,
an agency is not required to discuss every aspect of the proposal
receiving less than the maximum rating. Fairchild Space and Defense
Corp., B-243716; B-243716.2, Aug. 23, 1991, 91-2 CPD para. 190. Here,
SEAIR's proposal was rated equal to EAST's, and the two were
considered superior to all of the other proposals in the competitive
range. In view of its overall high score and an evaluation record
that demonstrates that SEAIR's proposal was not viewed as having any
meaningful weaknesses, SEAIR was not entitled to discussions which
would essentially have been conducted solely to permit it to achieve a
perfect score in all areas. Further, the record does not support
SEAIR's premise that the agency had "concerns about the cost of
SEAIR's proposed additional features."
SEAIR also protests that the Air Force's evaluation was inconsistent
with the RFP's terms because it failed to give the three technical
areas equal weight, as required by the solicitation. The protester
notes that the memorandum of law in the agency report once refers to
the management and production areas as "the two most important
technical areas," and once characterizes the quality factor as "the
third and least important technical evaluation area."
As SEAIR correctly points out, once offerors are informed of the
criteria against which their proposals will be evaluated, the agency
must adhere to those criteria or inform all offerors of any
significant changes made in the evaluation scheme. Greenebaum and
Rose Assocs., B-227807, Aug. 31, 1987, 87-2 CPD para. 212. Here, however,
we find no discrepancy between the evaluation method established in
the RFP and the evaluation that was performed. Although the report
makes the statements that SEAIR quotes, the agency explains that these
statements were made in error and the records supports the agency's
position. There is no indication in the contemporaneous evaluation
record and contracting officer's statement of facts that any unequal
weighting formula was applied to the three areas. Moreover, since the
proposals were rated equal and the color rankings for each of these
areas were identical for the protester's and the awardee's proposals
(which color ratings we have found to be consistent with the RFP, as
discussed above), no competitive prejudice would result even if the
agency had failed to weight the three areas equally. Optimum
Technology, Inc., B-266339.2, Apr. 16, 1996, 96-1 CPD para. 188.
SEAIR protests that the Air Force should not have rated EAST's
performance risk as low. "Performance risk" was described in the RFP
as relating to "the assessment of an offeror's present and past work
record to assess confidence in the offeror's ability to successfully
perform as proposed." The protester alleges that the awardee has no
current contracts requiring performance of fuels operations and
previously performed only one fuels-related contract for 2 years.
In reviewing an evaluation of an offeror's performance risk, we will
examine it to ensure that it was reasonable and consistent with the
stated evaluation criteria, since the relative merit of competing
proposals is primarily a matter of agency discretion. See CTA Inc.,
B-253654, Oct. 12, 1993, 93-2 CPD para. 218; Instrument Control Serv.,
Inc., B-247286, Apr. 30, 1992, 92-1 CPD para. 407. We find that the
record here supports the Air Force's conclusion that EAST's proposal
presented a low performance risk. First, the protester's allegations
are not supported by the record, which shows that EAST is currently
performing subcontracts under Department of State and Air Force
contracts that involve aviation fueling and management requirements
which are similar to the services required under this contract. EAST
submitted information about five fuels and fuels-related service
contracts that the performance risk analysis group (PRAG) considered
relevant when it evaluated EAST's past performance, and seven relevant
contracts under which EAST performed as subcontractor. Although it is
true that only one of the relevant contracts, for fuels operations
services at Columbus Air Force Base in Mississippi, was specifically
for fuels operations services, that contract was virtually identical
in size and scope of work to the contract at issue here. The
performance of that contract earned EAST the "Black Gold" award as the
best fuels operation in the Air Education and Training Command (AETC)
for 2 years in a row, in 1992 and 1993. EAST was the first civilian
contractor ever to win this award, and its fuels officer under that
contract received AETC's "Best in the Command" award. Moreover, the
performance assessment questionnaire that the agency received in
connection with that contract reported the highest satisfaction with
EAST's past performance.
Second, the PRAG was to consider the past performance information for
the purpose of assessing the potential risks associated with each
offeror's performance of the contract, and not for the purpose of
evaluating that past performance itself. The PRAG's definition of
"low risk" in this context was, "little doubt exists, based on the
offeror's performance record, that the offeror can satisfactorily
perform the proposed effort." Contrary to SEAIR's contention, the
solicitation did not require the agency to perform a comparative
evaluation, rating competing proposals on a scale relative to each
other, neither do we find support for SEAIR's premise that only
contracts that were strictly for fuel could be considered relevant, or
even that the number of contracts completed was relevant here. In
short, we find on this record that the Air Force reasonably determined
that EAST posed a low performance risk. See Lockheed Aircraft Serv.
Co., B-255305; B-255305.2, Feb. 22, 1994, 94-1 CPD para. 205.
SEAIR also challenges the agency's affirmative determination of EAST's
responsibility, alleging that it was made in bad faith. Our Office
will not review affirmative determinations of responsibility by the
contracting officer absent a showing of possible bad faith on the part
of the government procurement officials or that definitive
responsibility criteria in the solicitation were not met. Mitel,
Inc., B-270138, Jan. 17, 1996, 96-1 CPD para. 36. Here, the only basis
that SEAIR asserts for its allegation that the agency's determination
that EAST is a responsible contractor involved "bad faith" is its own
belief that the responsibility determination cannot be accurate. That
does not meet the requirement for a showing of possible bad faith.
While SEAIR also alleges generally that the responsibility
determination is invalid because EAST failed to meet definitive
responsibility criteria, the protester does not identify any such
criterion that the awardee allegedly failed to meet, nor do we find
any in the RFP.
SEAIR challenges the agency's documentation of its award decision,
characterizing the record as "devoid of any real rationale for the
decision to award the contract to EAST," and alleging that the source
selection decision does not address the relative differences between
SEAIR's and EAST's proposals. While the selection official's judgment
must be documented in sufficient detail to show it is not arbitrary,
KMS Fusion, Inc., B-242529, May 8, 1991, 91-1 CPD para. 447, a source
selection official's failure to specifically discuss every detail
regarding the relative merit of the proposals in the selection
decision document does not affect the validity of the decision if the
record shows that the agency's award decision was reasonable. See
McShade Gov't Contracting Servs., B-232977, Feb. 6, 1989, 89-1 CPD para.
118. Here, the record documents the evaluation process, the color
coding, and the risk assessments, concluding with the agency's
determination that SEAIR's and EAST's proposals were essentially equal
technically. The source selection document refers to this
determination and concludes that, taking price into consideration,
EAST's lower-priced offer represented the best overall value to the
government. We see no basis to object to the source selection
document, which very clearly sets forth the basis for the agency's
award decision.
SEAIR protests that the Air Force improperly engaged in technical
leveling and technical transfusion, alleging that evaluation team
members told EAST during the oral presentation that the firm should
consider employing the incumbent's personnel. SEAIR notes that EAST
proposed to employ a different project manager and operations
supervisor in its initial proposal than it did in its BAFO, and
alleges that EAST was coached during its oral presentation to make
that change. First, we find that the record refutes this allegation.
EAST's initial proposal states the firm's intention to "hire as many
incumbent employees as possible who are qualified," and states that
the firm would contact the incumbent personnel for hiring purposes as
soon as EAST received notification of contract award. Not having
commitments from the incumbent personnel, however, EAST provided names
of alternate personnel choices that it would employ if the incumbents
declined EAST's offer of employment. The agency has supplied a
videotape of the EAST's oral presentation, which refutes the
protester's allegation that the agency improperly coached EAST.
Second, the substitution of personnel in EAST's BAFO did not affect
its rating in any event; both the initial proposal and BAFO were rated
"blue" in the management area; the substitution had no impact on the
evaluation.
The protest is denied.
Comptroller General
of the United States
1. In its comments on the agency report, SEAIR raised additional
reasons why it believes its proposal should have received a higher
score for the quality area. However, these arguments are untimely
raised and will not be considered. SEAIR received the agency report
on October 4 and was required, under our revised Bid Protest
Regulations, 61 Fed. Reg. 39039, 39047 (1996) (to be codified at 4
C.F.R. Part 21) to file any additional grounds of protest based on
information first received in the report within 10 days of that date.
SEAIR did, in fact, file supplemental protest grounds separately on
October 15. The new arguments raised in its protest comments on
October 18, however, are untimely.