BNUMBER:  B-275419.4 
DATE:  February 24, 1998
TITLE: Dominion Aviation, Inc.--Reconsideration, B-275419.4,
February 24, 1998
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Matter of:Dominion Aviation, Inc.--Reconsideration

File:     B-275419.4

Date:February 24, 1998

John R. Thompson, for Dominion Aviation, Inc., the protester.
Maj. Michael J. O'Farrell, Department of the Army, for the agency.
David A. Ashen, Esq., and John M. Melody, Esq., Office of the General 
Counsel, GAO, participated in the preparation of the decision.

DIGEST

Protest grounds first raised by pro se protester in request for 
reconsideration and based on detailed information concerning awardee's 
proposal and its evaluation as revealed in GAO decision are untimely 
where information was available at least 2 months earlier under a 
protective order issued by GAO.

DECISION

Dominion Aviation, Inc. requests that we reconsider our decision, Doss 
Aviation, Inc.; Dominion Aviation, Inc., B-275419 et al., Feb. 20, 
1997, 97-1 CPD  para.  117, in which we denied its protest against the 
Department of the Army's award of a contract to UNC Aviation Services, 
under request for proposals No. DABT01-96-R-0001, for rotary wing 
(helicopter) flight training services at Fort Rucker.

We deny the request.

As noted in our decision, the Army determined that Dominion's proposal 
offered moderate performance risk as a result of inadequate staffing 
with respect to instructor pilots, a limited ability to absorb within 
its proposed contract price the likely cost increases it would 
encounter in performing the contract, and a marginal past performance 
record.  In contrast, the agency determined that UNC had submitted a 
technically superior proposal which was based on adequate staffing 
with experienced personnel and offered advantages in a number of 
areas, including quality control and management, and that UNC had an 
excellent performance record as the incumbent contractor, 
demonstrating its ability to successfully and safely perform the 
required work at its stated fixed price, such that UNC's proposal 
overall offered the agency a significantly higher likelihood of the 
successful performance of vital, safety-related services.  Given the 
evaluated superiority of UNC's proposal under the most important 
evaluation factor (technical), its excellent performance record as the 
incumbent contractor, the greater realism of its proposed cost/price, 
the fact that price was the least important of four evaluation 
factors, and the fact that UNC's price was only 5.1 percent higher 
than Dominion's  price, we found no basis to question the agency's 
position that UNC's proposal offered the best value under the stated 
evaluation criteria.

In its request for reconsideration, Dominion challenges the Army's 
evaluation that its proposal offered moderate performance risk.  As an 
initial matter, Dominion notes that the solicitation provided for the 
government to "conduct a performance risk assessment based on the 
offeror's present and past performance as it relates to the 
probability of successfully accomplishing the proposed effort."  
According to the protester, since this provision did not provide for 
consideration of anything other than past performance, it was improper 
for the agency to consider Dominion's evaluated inadequate staffing in 
the determination of performance risk.  

Dominion's position ignores the fact that Dominion's overall moderate 
risk rating was based on both a proposal risk assessment, which found 
that Dominion's inadequate staffing and limited ability to absorb 
within its proposed contract price likely cost increases warranted a 
moderate performance risk assessment, and a separate past performance 
risk assessment, which found that Dominion's performance history 
warranted a moderate risk assessment.  Specifically, the source 
selection evaluation board (SSEB) reported that on the only prior 
contract on which the agency had received reports with respect to the 
performance of Dominion itself (rather than its employees), which was 
one of only two government contracts on which Dominion, a newly formed 
company, was performing, Dominion had encountered significant 
performance problems; although contracting officials were advised by 
the assigned Defense Contract Management Center that Dominion's 
performance on this contract had improved such that it was now 
marginal, but satisfactory, the SSEB concluded that this level of past 
performance itself created a moderate risk.  Further, even where a 
solicitation includes as part of the evaluation the consideration of 
risk based on an offeror's past and present performance, and does not 
otherwise enumerate risk as an evaluation factor, the agency is not 
precluded from also considering any risk arising from the offeror's 
approach; as we have previously recognized, consideration of the risk 
involved with respect to an offeror's proposal and approach is 
inherent in the evaluation of technical proposals.  Communications 
Int'l Inc., B-246076, Feb. 18, 1992, 92-1 CPD  para.  194 at 6.  

Dominion also questions the determination that its performance history 
was marginal, but this challenge does not provide a basis for 
reconsidering the matter since it was untimely raised during the 
protest.  The record indicates that Dominion was first advised during 
negotiations that its performance on the contract for which the agency 
was able to obtain a reference was unsatisfactory/marginal, leading to 
a high risk evaluation/no award recommendation, and was later advised 
(in the post-award debriefing on November 7, 1996) that improved, 
"marginal, but satisfactory" performance on that contract had resulted 
in an upgrade in its past performance rating to "medium risk."  
Dominion did not challenge its performance history evaluation until it 
filed its comments on the agency report on December 30, which was more 
than 10 days after the debriefing and therefore untimely.  4 C.F.R.  sec.  
21.2(a)(2) (1997).  

In addition, Dominion reiterates its argument that, had the agency 
accepted its proposed reduction in the setback rates--that is, the 
percentage of student pilots held back for additional 
training--relative to the historical setback rates for the past 12 
months (which were set forth in the solicitation), the evaluated 
five-instructor pilot deficit relative to the independent government 
estimate of staffing would have been reduced to a one-instructor 
deficit.  As we noted in our decision, however, Dominion offered no 
detailed explanation in its proposal as to how it would accomplish a 
reduction in the historical setback.  The mere fact that, as pointed 
out by Dominion, its vice president had previously reduced setback 
rates when managing flight training for another contractor at Fort 
Rucker from 1986 to 1988, provides no basis to question the agency's 
position that Dominion's essentially unsupported claim that it would 
be able to reduce the current historical rates would not justify 
evaluating its staffing based on this hope.

Dominion also challenges the assignment of strengths to UNC's 
proposal.  In this regard, as we noted in our decision, the SSEB 
awarded UNC's proposal evaluation credit based on such strengths as 
having a favorable safety record while the incumbent contractor at 
Fort Rucker and offering quality assurance instructor training at no 
cost to the government.  Dominion questions the assignment of a 
strength to UNC for its safety record on the basis that the safety 
record was the result of the cumulative effort of the existing, 
in-place work force; according to the protestor, "[s]aid safety record 
was started under the umbrella of another contractor and has carried 
over into UNC's performance period."  Dominion questions the 
assignment of evaluation credit to UNC for the proposed no-cost 
quality assurance instructor training on the basis that it too 
proposed a similar approach.

Dominion's challenge to the evaluation of UNC's proposal is untimely.  
Our Bid Protest Regulations contain strict rules for the timely 
submission of protests and additional protest grounds.  Under these 
rules, a protest ground based on other than alleged improprieties in a 
solicitation generally must be filed not later than 10 calendar days 
after the protester knew, or should have known, of the basis for   
protest, whichever is earlier.  Bid Protest Regulations, 4 C.F.R.  sec.  
21.2(a)(2).  Further, a protester may not passively await the receipt 
of information providing a basis for protest; rather, the protester 
has an affirmative obligation to diligently pursue information which 
may form a basis for protest.  See Automated Medical Prods. Corp., 
B-275835, Feb. 3, 1997, 97-1 CPD  para.  52 at 2.  These timeliness rules 
reflect the dual requirements of giving parties a fair opportunity to 
present their cases and resolving protests expeditiously without 
unduly disrupting or delaying the procurement process.  Air 
Inc.--Recon., B-238220.2, Jan. 29, 1990, 90-1 CPD       para.  129 at 2. 

A protective order was issued by our Office in this matter to protect 
proposal and detailed evaluation information that might afford a 
competitive advantage in the event our decision led to a reopening of 
negotiations or a recompetition.  Dominion did not retain counsel and, 
as a result, did not avail itself of the opportunity under our 
Regulations to obtain during the pendency of its protest access to all 
relevant information concerning UNC's proposal and its evaluation.  4 
C.F.R.  sec.  21.4(c).  Now, 2 months after the relevant information was 
made available in the protected agency report, Dominion has raised 
arguments concerning UNC's evaluation, apparently based on information 
first learned from the publicly available copy of our decision (which 
reflected the redaction of protected material from the decision as 
issued to parties admitted to the protective order).  However, having 
made the business decision not to retain counsel and obtain access to 
information under the protective order, Dominion cannot at this late 
date raise protest grounds based on the information it essentially 
opted not to receive earlier.  Considering these grounds to be timely 
raised would be inconsistent with our goal of resolving protests 
expeditiously, without unduly disrupting or delaying the agency's 
procurement process.  See Automated Medical Prods. Corp., supra, at 
3-4 (protest based on information received approximately 4 months 
after award pursuant to Freedom of Information Act request is untimely 
because protester did not diligently pursue basis of protest where 
same information could have been obtained earlier had it requested 
post-award debriefing); Adrian Supply Co.--Recon., B-242819.4, 
B-242819.5, Oct. 9, 1991, 91-2  para.  321 at 2-4 (protest based on 
information received pursuant to Freedom of Information Act request is 
untimely because protester did not diligently pursue basis of protest 
where same information could have been obtained 2 months earlier under 
document request provisions of Bid Protest Regulations).

In any case, we find Dominion's arguments unpersuasive.  Although the 
work force inherited by UNC may have contributed to the positive 
safety record achieved by that contractor at Fort Rucker, we find 
nothing unreasonable in the agency's concluding that UNC itself also 
deserved credit for effectively managing that work force so as to 
assure a positive safety record.  Certainly, in our view, the agency 
could consider the demonstrated effective management record of the 
incumbent contractor to be a relative strength when compared to the 
record of a company without similar corporate experience managing 
flight training.  As for the assignment of evaluation credit to UNC 
for the proposed no-cost quality assurance instructor training, the 
record indicates that the Army in fact evaluated Dominion's proposal 
of no-cost quality assurance instructor training as an advantage, but 
concluded, notwithstanding this advantage, that UNC's proposal overall 
was superior.  

The request for reconsideration is denied.

Comptroller General
of the United States