TITLE:  Diamond Aircraft Industries, Inc., B-289309, February 4, 2002
BNUMBER:  B-289309
DATE:  February 4, 2002
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Decision

Matter of: Diamond Aircraft Industries, Inc.

File: B-289309

Date: February 4, 2002

Peter Maurer for the protester.

Jon W. van Horne, Esq., Greenberg Traurig, for Ximango U.S., Inc., an
intervenor.

Maj. Russell K. Pippin, Department of the Air Force, for the agency.

Mary G. Curcio, Esq., and John M. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.

DIGEST

1. Protest that agency misled protester into offering an unacceptable item
is denied where protester relied on agency official's informal advice in
response to protester's request for clarification of solicitation; offerors
rely on such informal advice at their own risk.

2. Protest that agency misevaluated protester's proposal is denied where
proposal offered to comply with solicitation requirements, but did not
provide any information to support its statements of compliance.

DECISION

Diamond Aircraft Industries, Inc. protests the award of a contract to
Ximango U.S., Inc. under request for proposals (RFP) No. F33657-01-R-0016,
issued by the Department of the Air Force for dual motorgliders (aircraft),
spare parts, and support equipment. Diamond complains that the Air Force
misled it into offering an unacceptable product and misevaluated its
proposal.

We deny the protest.

The solicitation, issued as a commercial item acquisition, provided for
selection of the low-cost, technically acceptable proposal. With respect to
technical acceptability, the motorgliders were to be evaluated on a
pass/fail basis for the demonstrated capability to meet 14 specified minimum
requirements, and for the ability to produce and deliver all requested
gliders, support equipment and spare parts by the required dates. RFP at K-4
and Attach. 2. Award was to be made without discussions. Id. at K-3.

Diamond and Ximango submitted proposals. In evaluating Diamond's proposal,
the agency determined that the offered HK36T aircraft, with a 100-horsepower
(hp) engine, did not meet five of the minimum technical requirements. The
Air Force therefore rejected Diamond's offer and made award to Ximango based
on its technically acceptable proposal.

AGENCY ADVICE

Diamond asserts that it was misled by the Air Force into submitting an
unacceptable proposal. Specifically, Diamond explains that it currently
produces the HK36T with an 81-hp engine, and that this model meets all the
technical requirements of the solicitation. However, at the time the
proposals were due, it was in the process of completing a model upgrade to
the HK36T to add a 100-hp engine; Diamond expected this upgraded version to
be certified in time to meet the agency's delivery requirements. Because the
solicitation stated that the commercial item offered must have demonstrated
capability to meet all minimum requirements, and the 100-hp version was not
yet certified or in production, it was unclear to Diamond whether it could
offer the 100-hp version. According to Diamond, it therefore sent an e-mail
to the contracting agency to ask whether an offer of the 100-hp version
would be rejected, and whether it needed to submit two offers (one for the
100-hp version and an alternate for the 81-hp version). Diamond claims that
the Air Force advised that the 100-hp version would be acceptable, and
instructed it to submit only one offer, for the 100-hp version. Diamond
complains that, inconsistent with this advice, its offer of the 100-hp
version was rejected on the basis that it did not meet all of the RFP
requirements. Diamond maintains that it was misled by the agency, to its
detriment, because it would have offered its fully compliant 81-hp version
but for the Air Force's alleged advice. It concludes that it should be given
the opportunity to offer its 81-hp version.

Oral advice that conflicts with the solicitation is not binding on the
government, and an offeror therefore relies on an oral explanation of a
solicitation at its own risk. Input/Output Tech., Inc., B-280585,
B-280585.2, Oct. 21, 1998, 98-2 CPD para. 131 at 5. Here, while the response to
Diamond's questions was provided in the form of an e-mail, rather than
orally, the result is the same. The solicitation put offerors, including
Diamond, on notice that proposals would be evaluated against stated
evaluation factors, and specific requirements; if an offered model did not
satisfy one or more of the RFP requirements, it would be rejected as
unacceptable. No informal advice--oral, or otherwise--could change this
basis for evaluation, since the advice would not amend the solicitation. If
Diamond believed the RFP required clarification, it should have requested
that the agency provide it in the form of an amendment so that all offerors
would be competing on the same basis. We conclude that the agency's alleged
advice provides no basis for questioning the rejection of Diamond's
proposal, or for reopening the competition to permit Diamond to offer a
different item.

In any case, we do not agree with Diamond's interpretation of the agency's
response to its questions. Specifically, whereas Diamond argues that it was
told that its 100-hp version would be technically acceptable, the
communications between it and the agency, on their face, do not support this
claim. We see nothing in Diamond's e-mail that references the technical
acceptability of the 100-hp version; rather, it discussed only whether that
version would be considered to be a commercial item. Likewise, there was
nothing in the Air Force's e-mail response that related at all to technical
acceptability; it addressed only the question Diamond specifically raised
concerning whether the model would be deemed a commercial item, with no
mention of technical acceptability. While the agency's e-mail stated that
"[o]ne bid will be fine," in this context, this meant only that Diamond
would not have to submit a second offer to ensure that it would meet the
commercial item requirement; it did not indicate that the agency would find
the offer technically acceptable. Therefore, the agency's advice did not
support Diamond's assumption that the 100-hp version would be found
technically acceptable.

EVALUATION

Diamond takes issue with the agency's conclusion that its offer failed to
establish compliance with five of the technical requirements--Federal
Aviation Administration (FAA) certification, production status, payload
capability, performance, and technical manuals. In reviewing a protest
against a procuring agency's proposal evaluation, our role is limited to
ensuring that the evaluation was reasonable and consistent with the terms of
the solicitation and applicable procurement statutes and regulations.
National Toxicology Labs., Inc., B-281074.2, Jan. 11, 1999, 99-1 CPD para. 5
at 3. We have reviewed Diamond's arguments and find that the evaluation was
reasonable.

The unacceptability of Diamond's proposal was based largely on its failure
to provide sufficient information to permit the agency to determine whether
the proposed aircraft would meet the RFP requirements. For example, offerors
were required to demonstrate in their proposals their ability to obtain FAA
certification for their proposed aircraft. RFP at 4 and Attach. 2. In its
proposal, Diamond stated that the 100-hp HK36T aircraft would be certified
in spring 2002, before the required delivery date under the RFP. Diamond
also listed aircraft it had previously certified. The Air Force found that
Diamond's proposal did not meet the requirement, and was unacceptable,
because it neither offered a certified airframe/engine combination, nor
included any documentation that demonstrated the ability to obtain the
required certification in time to meet the required delivery schedule.
Contracting Officer's Statement at 9. Diamond maintains that the information
it provided, together with its extensive experience in certifying aircraft
and the minor technical differences between the offered 100-hp and the 81-hp
versions of the aircraft, were sufficient to establish that its proposal
complied with the certification requirement.

The Air Force properly found the proposal deficient. The statements in
Diamond's proposal were not accompanied by any explanation that would
support the claim that certification would be timely obtained, for example,
a schedule for certification, and data or an explanation to support its
position that the 100-hp version was sufficiently similar to the 81-hp model
that it would be certified by spring 2002. Without such supporting
information, Diamond's statements amounted to no more than a blanket offer
of compliance. Such blanket offers are not adequate substitutes for the
detailed and complete information necessary to establish that what the
offeror proposes will meet the agency's needs. Ervin & Assocs., Inc.,
B-280993, Dec. 17, 1998, 98-2 CPD para. 151 at 6. The agency was not required to
accept Diamond's experience as a substitute for the RFP requirement that
compliance be established in the proposal.

As another example, the solicitation required offerors to demonstrate that
the proposed aircraft could meet a payload capacity of 485 pounds total
useful load. RFP at K-4 and Attach. 2. The Air Force found Diamond's
proposal unacceptable in this area because it simply parroted the RFP
requirement and stated that the HK36T series aircraft would have a minimum
useful load of 485 pounds. Diamond states that it analyzed the typical empty
weight of the proposed aircraft, allowed for weight of the required
installed equipment, and verified that the proposed aircraft would exceed
the 485-pound requirement. Diamond states that it reasonably believed that
the agency would make itself aware of available information to corroborate
the statements in Diamond's offer.

While Diamond may have analyzed data to determine that the payload on its
offered aircraft would meet the 485-pound requirement, Diamond did not
include any information in its proposal to demonstrate this. Instead, the
proposal simply stated that the offered aircraft would meet the requirement.
Again, the agency reasonably found these statements by themselves inadequate
to meet the requirement. As for Diamond's belief that the Air Force would
seek information to corroborate the statements in Diamond's proposal, there
was no requirement that the agency do so; it is the obligation of the
offeror to include sufficient information in its proposal for the agency to
determine whether the proposal will meets its needs. Robotic Sys. Tech.,
B-278195.2, Jan. 7, 1998, 98-1 CPD para. 20 at 9.

The protest is denied.

Anthony H. Gamboa

General Counsel