TITLE:  Crescent Helicopters, B-283469.2, November 30, 1999
BNUMBER:  B-283469.2
DATE:  November 30, 1999
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Crescent Helicopters, B-283469.2, November 30, 1999

Decision

                    Matter of:Crescent Helicopters

File:B-283469.2

Date:November 30, 1999

Dean H. Shealy for the protester.

Sherry Kinland Kaswell, Esq., Department of the Interior, for the agency.

Wm. David Hasfurther, Esq., and Michael R. Golden, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Agency selection of offeror whose helicopter provided significantly greater
payload capacity than the protester?s slightly lower priced helicopter was
reasonable and consistent with solicitation.

DECISION

Crescent Helicopters protests the award made to Biscayne Helicopters by the
Office of Aircraft Services (OAS), Department of the Interior, under request
for proposals (RFP) No. 8099-20. The awardee will provide helicopter
services to the National Park Service, Everglades National Park. Crescent
contends that as the firm offering the lowest-priced proposal, it should
have received the award.

We deny the protest.

The RFP, issued pursuant to Federal Acquisition Regulation (FAR) Part
12--Acquisition of Commercial Items, and FAR Subpart 13.5--Test Program for
Certain Commercial Items, required offerors to submit hourly prices for 400
guaranteed hours per year of flight services (one light helicopter and a
pilot and a relief pilot) for purposes of transporting personnel and/or
cargo in support of natural resource missions. A contract was to be awarded
for a base year and 2 option years. The RFP required the offered helicopter
to meet enumerated minimum requirements, and section A of the RFP set out a
target requirement that the helicopter be able to carry an internal payload
of 800 pounds under defined circumstances. The RFP stated that "[a] BH
206BIII [helicopter] should typically fulfill the above requirements";
however, offerors were to submit sufficient information with their proposals
to demonstrate that the helicopter they offered would comply with these
requirements. RFP Cover Letter; RFP at 4-5. This information was to be
included in the RFP?s "Aircraft Questionnaire." The information used to
determine the payload on the "Questionnaire" was to be included on the
"Standard Interagency Load Calculation Method and Form." RFP at 19. Based on
the questionnaire response, the agency would evaluate the proposed aircraft
to determine to what extent the aircraft would meet or exceed the target
payload requirement and would meet the mandatory requirements. This aircraft
information, including the payload, was to be part of the proposal and the
awardee would be bound to provide an aircraft that met the proposed
performance requirements. RFP Cover Letter; RFP at 41, 45. Offerors were
also required to submit an organizational experience and past performance
statement with references to cover the previous 3-year period. RFP at 40-46.

An offeror?s proposal was to be evaluated on the basis of the merits of the
proposal (whether it promised to comply with all RFP requirements and the
extent to which it met or exceeded the target payload requirement), the
offeror?s capability (organizational experience and past performance), and
the offered 3-year total price. Evaluation of past performance included
assessing, among other things, whether the firm?s performance conformed to
contract terms, whether the firm was "reasonable" and cooperative during
performance, and whether the firm was "committed to customer satisfaction."
RFP at 41. The RFP stated that offerors would be ranked by comparing the
differences in nonprice factors and the total price between offerors. The
RFP also provided that award could be made to a firm with a proposal that
did not offer the low price if the firm was rated so much higher than the
low-priced proposal on the nonprice factors as to be determined to offer the
government better value than the low-priced proposal. RFP at 40-41.

Twelve proposals were received by the July 29 closing time. Crescent and
Biscayne proposed to furnish a Bell 206B3 helicopter. Crescent?s 3-year
total price was $636,000; Biscayne?s price was $660,000. Agency Report, Tab
F, Abstract of Offers. Crescent offered a payload of 579.4 pounds; Biscayne
offered a payload of 844 pounds. Agency Report, Tab G, Crescent Bid, at 45,
and Tab H, Biscayne Bid, at 45. The agency advises that a variance in
payloads for the same make and model of aircraft is not unusual, since the
payload depends on how the aircraft is equipped. Agency Report at 3.
Further, a larger payload is useful because it allows the government to
carry that "much additional cargo, passengers, and or fuel in performing
helicopter missions." Contracting Officer?s Statement, at 2.

Based upon the questionnaire and information submitted by the offerors, the
agency adjusted the proposed payloads for purposes of the evaluation. This
led to Crescent?s payload being increased to 702 pounds and Biscayne?s being
decreased to 810 pounds. Agency Report, Tab I, Technical Evaluation of
Offerors? Aircraft. The agency determined that because Biscayne offered a
greater payload, which met the target requirement, and Biscayne?s contract
performance for the previous 3 years had been rated highly satisfactory or
very satisfactory, the government would receive the best value by making
award to Biscayne even at its slightly higher price (3.7 percent higher).
The agency noted that in addition to offering less payload, Crescent,
although it had received satisfactory ratings on some prior contracts, had
had some performance problems on another contract. Agency Report, Tab L,
Award Decision Memorandum, at 1-3. Subsequent to this determination, the
agency advised Biscayne that it had calculated a revised payload of 810
pounds for Biscayne?s helicopter, and requested that Biscayne review this
revision and provide a firm payload figure for the purposes of a contract.
Agency Report at 3. Biscayne provided a firm payload figure of 823 pounds.
Agency Report, Tab K, Letter from Awardee to Contracting Officer (Aug. 12,
1999).

Crescent challenges several aspects of the agency?s comparison of payloads,
as well as the price/technical tradeoff that the agency performed; the
protester also alleges bias on the agency?s part.

As a threshold matter, Crescent argues that it was "bogus" for the agency to
find significant difference among offerors? payloads for the same make and
model helicopter. Protester?s Comments at 2-3. Here, the record shows that
the offerors? payloads for the same model Bell helicopter in this
competition ranged, as adjusted by the agency, from 652 to 920 pounds.
Agency Report, Tab I, Technical Evaluation of Offeror?s Aircraft. Since the
protester has provided no substantive response to the agency?s explanation
that such variance is not unusual, we reject as unsupported the argument
that finding a significant difference here was "bogus" or otherwise
improper.

With respect to the specific difference between the protester?s and the
awardee?s payload, we note that Crescent?s proposed payload figure of 579.4
pounds was significantly lower than Biscayne?s payload of 844 pounds. Even
after the agency adjusted Crescent?s payload upward (to 702 pounds) and
Biscayne?s downward (to 810 pounds), the protester?s payload was still
significantly below both the target payload and Biscayne?s evaluated
payload. Crescent does not dispute that neither its proposed nor its
evaluated payload met the target payload, and it has not provided evidence
or argument to call into question the agency?s conclusion that Crescent?s
payload would be significantly less than Biscayne?s.

Crescent does appear to question the reliability of the agency?s calculation
of Biscayne?s payload, although the basis of its challenge in this regard is
not clear. Apparently, Crescent believes that it was not possible to
accurately compute Biscayne?s payload because the helicopter and required
equipment were weighed at different times. Crescent notes that the record
shows that Biscayne?s helicopter was weighed at the end of January, but the
equipment required for this contract was not weighed until April, suggesting
that this somehow invalidates the agency?s payload calculation. Protest at
1. This argument does not explain why the January weight of the empty plane,
when added to the results of the April weighing of the equipment to be
included on the aircraft for purposes of performing this contract, does not
result in a valid total weight for calculating the payload. [1] Further, the
evaluated payload has been confirmed by Biscayne and, as contemplated under
the RFP, is an enforceable part of the contract with Biscayne. Agency
Report, Tab J, Letter from Contracting Officer to Awardee (Aug. 16, 1999);
RFQ at 41. Based on this record, we have no basis to question the agency?s
conclusion that Biscayne offered a significantly greater payload than did
Crescent.

Regarding the agency?s decision not to select Crescent?s low-priced
proposal, we note that in a best value procurement, price is not necessarily
controlling in determining the proposal that represents the best value to
the government. Rather, that determination is made on the basis of whatever
evaluation factors are set forth in the RFP, with the source selection
official often required to make a price/technical tradeoff to determine if
one proposal?s technical superiority is worth the higher cost that may be
associated with that proposal. USA Elecs., B-275389, Feb. 14, 1997, 97-1 CPD
para. 75 at 3. We will uphold an award to an offeror with a higher-priced
proposal where the agency reasonably determines that the price premium was
justified considering the technical superiority of the selected offeror?s
proposal. See Doss Aviation, Inc.; Dominion Aviation, Inc., B-275419 et al.,
Feb. 20, 1997, 97-1 CPD para. 117 at 9. Since the agency was receiving a
significantly greater payload by accepting Biscayne?s offer for only a
slight increase in price, we believe that the source selection official
reasonably concluded that an award based upon Biscayne?s proposal
constituted the best value. [2] The evaluation method set out in the RFP
permitted this type of tradeoff.

With respect to Crescent?s allegation that the agency was biased against it,
we note that, 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 at 5. Thus, where a protester
alleges bias on the part of government officials, the protester must provide
credible evidence 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 at 17; E.J. Richardson Assocs.,
Inc., B-250951, Mar. 1, 1993, 93-1 CPD para. 185 at 6.

Here, as explained above, the agency?s finding that Biscayne offered
significantly greater payload at a price that was only slightly higher than
Crescent?s was fully consistent with the record and the solicitation?s
evaluation criteria. We find that the selection decision was not tainted by
bias, and we therefore deny this protest ground.

The protest is denied.

Comptroller General
of the United States

Notes

1. We note that the record indicates that Crescent?s evaluated payload also
was based on weighing the aircraft and equipment at two different times, so
that the offerors were treated similarly in this regard.

2. The agency also found that Biscayne?s past performance and organization
experience were more favorable, specifically with regard to relevant
experience and commitment to customer satisfaction. Crescent, while not
disputing Biscayne?s higher ratings under past performance and
organizational experience, argues that it was improperly downgraded under
past performance, and that any performance problems under a current OAS
contract were the fault of OAS. Protest at 2; Protester?s Comments at 4-5.
We note that at least in regard to customer satisfaction and
cooperativeness, which were identified as criteria under past performance,
the record shows that, in addition to OAS, which noted that "the company
president can be difficult to work with," another reference from another
agency also expressed the concern that "the company president at times can
be difficult to work with." Agency Report, Tab L, Award Decision Memorandum,
at 3. The protester acknowledges that the president had a disagreement with
OAS inspectors, but argues that "[a] disagreement . . . no matter how vocal
should not find itself intertwined into a contract award process disguised
as a lack of customer satisfaction." Protester?s Comments at 5. Contrary to
the protester?s argument that the disagreement with OAS inspectors should
not have been considered, the past performance criteria identified
cooperation and customer satisfaction as criteria to be evaluated. In our
view, the agency could downgrade Crescent based on these negative comments,
and this information also reasonably was a basis to distinguish between the
two competitors. See Young Enters., Inc., B-256851.2, Aug. 11, 1994, 94-2
CPD para. 159 at 6-7.