BNUMBER:  B-275332
DATE:  February 10, 1997
TITLE:  Assets Recovery Systems, Inc.

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Matter of:Assets Recovery Systems, Inc.

File:     B-275332

Date:February 10, 1997

James S. Green, Esq., and Richard S. Cobb, Esq., Duane, Morris & 
Heckscher, for the protester.
Jeffrey I. Kessler, Esq., and Tony K. Vollers, Esq., Department of the 
Army, for the agency.
Jennifer D. Westfall-McGrail, Esq., and Christine S. Melody, Esq., 
Office of the General Counsel, GAO, participated in the preparation of 
the decision.

DIGEST

1.  General Accounting Office is authorized to exercise jurisdiction 
over protest against award under solicitation providing for exchange 
of property since an exchange necessarily involves acquisition of 
property by the government.

2.  Where, under solicitation providing for exchange or sale of 
government-owned aircraft and parts for newer aircraft and/or cash, 
protester offered one new plane and possibility of others, contingent 
upon sufficient proceeds being generated via auctioning of the 
government-owned aircraft and parts, agency properly did not consider 
the value of the contingently offered planes in determining the 
overall value of the protester's offer.

DECISION

Assets Recovery Systems, Inc. (ARSI) protests the award of a contract 
to K & K Aircraft under request for proposals (RFP) No. 
DAAJ09-96-R-0681, issued by the Department of the Army Aviation and 
Troop Command for the exchange and/or sale of 124 government-owned 
U-21 aircraft for one or more Beechcraft 1900D aircraft and/or cash.  
The protester contends that it was entitled to award because its 
proposal represented the best value to the government.

We deny the protest.

BACKGROUND

In conducting this procurement, the agency sought to achieve two 
goals:  ridding itself of an inventory of aged aircraft and components 
no longer suitable for the agency's mission and acquiring one or more 
newer aircraft.  To this end, the solicitation provided for the 
exchange[1] or sale of 124 U-21 aircraft and associated components for 
one or more Beechcraft 1900D series aircraft and/or cash.  Offerors 
were instructed that any combination of aircraft and/or cash would be 
acceptable, and that award would be made to the offeror whose proposal 
(taking into account the value of any aircraft offered) represented 
the best value to the government.[2]  To enable the Army to determine 
the value of the particular aircraft offered, offerors were instructed 
to describe in detail how the planes would be equipped and to identify 
the "time between overhaul" status of the major components.

Five offerors submitted proposals by the September 13, 1996 closing 
date.  Of the three offerors other than the awardee and the protester, 
one offered a new aircraft, which the agency valued at $4.4 to $4.6 
million; another offered a new aircraft (valued at $4.4 to $4.6 
million) plus flight training for two pilots and maintenance training 
for one mechanic;[3] and a third offered a used aircraft which it 
valued at $4,947,000, plus $33,274 in cash, for a total offer value of 
$4,980,274.  K & K offered a new aircraft that the agency valued at 
$5.4 million[4] and a cash payment of $782,000, giving its offer an 
overall value of $6,182,000.

ARSI's offer consisted of a four-page "Proposal for Absolute Auction," 
accompanied by the following two-sentence entry in Block 18a[5] of the 
solicitation cover page (Standard Form 1449):

      "Gauranty One Beech 1900D aircraft NEW
      or more . . .  Outfitted Per. Army Request
               See Enclosed." (sic)

In its "Proposal for Absolute Auction," ARSI offered to sell via 
auction the U-21 aircraft and components and use the proceeds, less 
expenses and a commission of
7 percent, to purchase up to four new, standard Beechcraft 1900D 
aircraft for the seller.  In an addendum to the proposal, the 
protester's president opined that his company might "be able to 
retrieve between 15 Million to 35 Million dollars on a worldwide 
scale" for the inventory.  The proposal failed to specify what would 
happen in the event that the auction proceeds were in excess of the 
amount required to purchase one plane, but not enough to purchase two 
(or more than enough to purchase two, but not enough to purchase 
three, etc.).  In other words, the proposal did not provide for the 
payment of any such proceeds to the agency.

Since ARSI's proposal, read as a whole, guaranteed only one 
aircraft--the purchase of others being contingent upon the proceeds of 
the auction--the Army valued it at $4.4-$4.6 million.  On September 
19, the Army awarded a contract to K & K.[6]

JURISDICTION

As a preliminary matter, both parties have requested that our Office 
exercise jurisdiction over this protest, and we see no legal 
impediment to doing so.  To the extent that the solicitation provides 
for an exchange of property, property is necessarily being acquired by 
the government, and our Office is authorized by statute to exercise 
jurisdiction over protests concerning the acquisition of property by 
the government.  Competition in Contracting Act, 31 U.S.C.  sec.  
3551(1)(a) (1994), as amended by Pub. L. No. 104-106,  sec.  4321(d)(1), 
110 Stat. 186, 674 (1996); 31 U.S.C. sec.  3552, as amended by Pub. L. No. 
104-106,  sec.  5603, 110 Stat. 186, 700; Crystal Cruises, Inc.--Request 
for Recon., B-238347.2, June 14, 1990, 90-1 CPD  para.  560.  To the extent 
that the solicitation provides for a sale, we will consider protests 
concerning sales by federal agencies where, as here, the agency has 
agreed to our review.  Bid Protest Regulations  sec.  21.13(a), 61 Fed. 
Reg. 39039, 39047 (1996) (to be codified at 4 C.F.R.  sec.  21.13(a)); 
Resource Recovery Int'l Group, Inc., B-265880, Dec. 19, 1995, 95-2 CPD  para.  
277.

ANALYSIS

The protester contends that its proposal represented the best value to 
the government and that it was therefore entitled to award.  As 
discussed below, we disagree.

ARSI's proposal guaranteed delivery of only one plane, which the 
agency valued at $4.4 to $4.6 million.  Although the protester asserts 
that its offer was worth far more than that, it offered additional 
planes contingent upon sufficient proceeds being generated by the 
auction.  Since these planes were offered on a conditional, as opposed 
to firm, basis, the agency could not properly consider them in 
determining the value of ARSI's offer.  In this regard, where a 
solicitation requests offers for a firm, fixed amount, an offer that 
is not firm cannot be considered for award.  Burroughs Corp., 56 Comp. 
Gen. 142, 150 (1976), 76-2 CPD  para.  472 at 11, aff'd, Honeywell 
Information Sys., Inc., 56 Comp. Gen. 505 (1977), 77-1 CPD  para.  256.

In any event, it is not apparent from the record in this case that it 
can reasonably be anticipated that proceeds sufficient to fund the 
purchase of more than one plane will be generated by the auction.  Not 
only is the protester's estimate of the inventory's value as between 
$15 and $35 million at variance with the agency's estimate--the most 
recent estimate of the Army's Product Manager for Fixed Wing Aircraft 
being $4 million[7]--but it is also out of line with the amounts that 
other offerors offered in exchange for the assets.  Furthermore, the 
agency has demonstrated that the methodology used by the protester to 
prepare its estimate was faulty.  In this regard, the protester relied 
upon blue book values for the Beech King Air 90, which is the 
commercial version of the U-21, in preparing its estimate.  The agency 
explains that resale values for the Beech King Air 90 and the U-21 are 
not equivalent, however, due to significant differences between the 
two aircraft--differences which result in the military planes not 
meeting Federal Aviation Administration standards for certification, 
which means that, unless they are reconfigured, the military planes 
cannot be used for commercial purposes in this country.[8]

The protester also complains that the agency engaged in improper 
post-award discussions with K & K.  The agency explains in response 
that post-award conversations held with K & K concerned taking a part 
of the cash portion of K & K's offer and using it to acquire 
additional modifications to the Beech 1900D.  Discussions occur when 
an offeror is given an opportunity to revise or modify its proposal, 
or to provide information essential to determining the acceptability 
of its proposal.  Federal Acquisition Regulation  sec.  15.601; Aquidneck 
Sys. Int'l, Inc., B-257170.2, Sept. 30, 1994, 94-2 CPD  para.  122.  Since 
the negotiations between the agency and K & K here did not affect the 
acceptability of the proposal and neither increased nor decreased the 
overall value of K & K's offer, they did not constitute discussions.

The protest is denied.

Comptroller General
of the United States

1. The exchange was conducted under a one-time regulatory deviation 
authorized by the General Services Administration.  The deviation was 
because the regulatory authority governing the exchange of 
government-owned personal property excludes certain classes of 
property, including aircraft, from its coverage and requires, with 
certain exceptions not applicable here, one-for-one exchanges.  41 
C.F.R.  sec.  101-46.202(a) and (b)(3) (1996).

2. The solicitation further provided that in the event that an offeror 
proposing cash only were evaluated as providing the government the 
best value, two contracts would be awarded:  the first for the sale of 
the U-21 planes and components, and the second for the purchase of one 
or more Beech 1900D aircraft.

3. The contracting officer did not assign a particular value to the 
training, but concluded that it did not significantly increase the 
value of the offer.

4. The new plane offered by K & K included much of the equipment 
identified by the agency in the solicitation as "desired," whereas the 
new planes offered by the first two offerors included only the 
required equipment; this resulted in K & K's plane receiving a higher 
valuation than the others.

5. This is the block in which, under an ordinary RFP, the agency would 
identify the office making payment.

6. The RFP provided for award without discussions.

7. We recognize that this estimate is at variance with earlier 
estimates prepared by the same office.  The Product Manager explains 
that the change was attributable to a more accurate assessment of the 
state of the inventory, an explanation that we find reasonable.

8. The protester offers other evidence in support of its valuation, 
but we find it unconvincing.   For example, the protester cites an 
advertisement in a trade magazine offering for sale two U-21 engines, 
one for $100,000 and the other for $125,000.  At these prices, the 
protester argues, the inventory's engines alone would be worth $34 to 
$42.5 million.  The protester omits to mention that the advertisement 
also indicates that the engines offered have been flown 1,464 and 26 
hours respectively, i.e., substantially less than the average of 
11,500 hours that the planes in the inventory have been flown.  Since 
the value of the engines can be expected to decrease as the number of 
hours that the planes have been flown increases, we do not think that 
this advertisement offers a realistic comparison for purposes of 
valuing the inventory.

The protester also offers as evidence of the value of the inventory a 
letter from the president of one of its competitors, Turbines, Inc., 
to his Congressman.  In the letter, the president of Turbines opines 
that the U-21 inventory is worth $20.5 million.  We are not inclined 
to give this opinion a great deal of weight given that when Turbines 
had the opportunity to value the assets for purposes of submitting its 
own offer under this solicitation, it offered only a single standard 
Beechcraft 1900D (valued by the agency at $4.4 to $4.6 million) in 
exchange for them.