TITLE:  Government Contract Services Company, B-294367, October 25, 2004
BNUMBER:  B-294367
DATE:  October 25, 2004
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   Decision

   Matter of:   Government Contract Services Company

   File:            B-294367

   Date:              October 25, 2004

   David K. Eary for the protester.

   James P. Flynn for Aviation Enterprises, Inc., an intervenor.

   Joni M. Gibson, Esq., Department of Justice, United States Marshals
Service, for the agency.

   Susan K. McAuliffe, Esq., and Christine S. Melody, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Protest that amendment's alleged relaxation of requirements requires
cancellation of solicitation is denied where amendment does not
substantially alter solicitation terms.

   DECISION

   Government Contract Services Company (GCS) protests an alleged relaxation
of requirements under request for proposals (RFP) No.A MS-04-R-0005,
issued as a small business set-aside by the Department of Justice, United
States Marshals Service (USMS), for the procurement of leased aircraft and
associated aircraft maintenance services.  GCS contends that it did not
compete under the RFP because it believed certain solicitation
requirements were too stringent for it to participate in the procurement. 
GCS alleges that because amendment No.A 4 to the RFP relaxed these terms
after the closing time for the receipt of proposals, the solicitation must
be cancelled and the requirement resolicited to allow GCS an opportunity
to compete under the amended terms.

   We deny the protest.

   The RFP, issued on January 9, 2004, pursuant to the streamlined procedures
of Federal Acquisition Regulation (FAR) part 12 for the acquisition of
commercial items, contemplated contract awards for a base year and 2
option years for the lease of large passenger aircraft (and associated
maintenance services) to move prisoners and illegal aliens for the Bureau
of Prisons, the USMS, and the Bureau of Immigration and Customs
Enforcement.  Three contracts were anticipated; each contractor was to
provide two aircraft at one of the following three sites:  Oklahoma City,
Oklahoma; Mesa, Arizona; and Alexandria, Louisiana.

   The RFP set out three evaluation factors for award:  maintenance
capability (to include identification of the intended maintenance approach
and submission of Federal Aviation Administration certification for the
approach); past performance; and price.  Maintenance capability was to be
evaluated on a pass/fail basis; prospective offerors were advised that
failure to pass this factor would render an offeror ineligible for award. 
Equal weight was to be assigned to past performance and price to determine
which offer presented the "best value" to the agency.  RFP SA V.  Contract
award would not become final, however, until the apparent awardees'
aircraft passed an inspection verifying compliance with RFP requirements. 
RFP S V, P 7.  The RFP advised that offerors would not be given an
opportunity to cure deficiencies found during the award inspection;
rather, award would be made to the offeror next in line for award.  Id.

   Four amendments to the RFP were issued by the agency.  Amendment No. 1,
issued on February 9, provided clarifications to specifications and a
February 26 closing time for the receipt of proposals.  Three offerors
submitted proposals by that time.  GCS did not submit a proposal.[1]  The
agency reports that after a review of the firms' initial proposals under
the maintenance capability factor, it concluded that an amendment to the
RFP should be issued to clarify the pass/fail evaluation basis for the
factor.  Amendment No. 2, issued on March 3, retained the pass/fail terms
of the RFP, but deleted the phrase: "[o]fferors failing to pass the
evaluation of the maintenance capability will not be further evaluated or
considered for award."  Amend. 2, Mar. 3, 2004.   The agency apparently
perceived a need for the amendment to clarify that it intended to consider
proposal revisions in evaluating the proposals under this criterion, after
it noticed that the firms' initial proposals failed to contain sufficient
maintenance certification documentation.[2]  Amendment No. 3, issued on
AprilA 2, advised offerors that discussions had been concluded and final
revised proposals were due by April 9.

   Two apparent awardees were selected by the agency.  The awards were
delayed for several months, however, to allow for the resolution of size
status challenges that had been filed against the firms.  The agency
ultimately withdrew its notice of award for the Louisiana site due to a
determination by the Small Business Administration that the apparent
awardee was other than a small business.  The agency was unable to award
to either of the other acceptable offerors for that site, since the
aircraft previously identified by the firms were no longer available. 
Discussions were reopened to allow the offerors to propose alternate
aircraft.  Amendment No. 4, issued on July 20, requested second final
revised proposals for the Louisiana site.

   The protester contends that amendment No. 4 substantially relaxes
stringent requirements that had kept the firm from competing under the
RFP.  Specifically, the firm contends that while it interpreted the RFP to
require a "lock in" of particular aircraft at the time of initial
proposals, amendment No. 4 allowed offerors to provide different aircraft
than had been identified in their initial proposals; GCS also contends
that the amendment relaxes the RFP prohibition against curing deficiencies
identified during inspection.[3]  In this regard, GCS explains that the
reason it believed such a "lock in" requirement was too stringent is
because, "[i]n the aircraft leasing world, three months is a long time and
[aircraft] availability will often change within even shorter time
periods."  Protest at 3.  Reopening the competition to allow alternative
aircraft from the otherwise acceptable offerors, according to GCS, relaxes
the "lock in" commitment requirement it believed it had to meet.  GCS
essentially contends that, since the initial aircraft identified by both
offerors were unavailable for award, an evaluation deficiency of some sort
should have been noted for each offeror, without any opportunity to cure
it, and that the agency must cancel the RFP rather than allow the
competition to continue under amendment No. 4.[4]

   Under FAR S 15.206(e), where a contracting officer determines that an
amendment to a solicitation requirement after offers have been received is
so substantial as to exceed what prospective offerors reasonably could
have anticipated, so that additional sources likely would have submitted
offers had the substance of the amendment been known to them, the
solicitation must be canceled and all interested firms given an
opportunity to respond to the changed requirement.  See The New Jersey & H
St. Ltd. P'ship, B-288026, Ba**288026.2, July 17, 2001, 2001 CPD P 125 at
3-4.  Our review of the record confirms that the challenged amendment
falls outside of this provision as it is neither substantial nor beyond
that which prospective offerors reasonably could have anticipated.

   As an initial matter, we find unreasonable GCS's interpretation that the
RFP required offerors to "lock in" particular aircraft at the time of
initial proposals.  GCS has not identified, nor has our review of the
solicitation revealed, any "lock in" commitment provision that prohibits
substitution of acceptable aircraft during the procurement.  While GCS
points out that offerors were initially asked to identify aircraft they
intended to provide, the firm fails to cite any restriction against
alternate aircraft being provided for the award inspection and for
performance of the contract after an award inspection.  As stated above,
the RFP's evaluation factors for award did not include a "lock in" or even
a technical review of proposed aircraft prior to the agency's selection of
the apparent awardees.  As for the award inspection for aircraft to be
provided for contract performance, our review of the RFP also confirms
that the essence of the inspection is to confirm compliance with RFP
technical requirements, and simply does not include consideration of
whether the aircraft is the same as that identified in the firm's initial
proposal.

   We also find unpersuasive GCS's contention that the challenged amendment's
reopening of the competition, to allow offerors to provide prices for
alternative aircraft different from those initially identified by the
offerors under the RFP, is so substantial that prospective offerors could
not have anticipated it.  As stated above, GSC itself concedes that the
unavailability of aircraft at the time of award should have been
anticipated by prospective offerors, as it was anticipated by GCS, due to
the expected passage of time between initial proposal submission and the
award of the contracts.  In fact, all parties to the protest agree with
GCS that the ultimate availability of any aircraft is uncertain in the
aircraft leasing industry, even after the passage of just a few months. 
Accordingly, we believe prospective offerors reasonably could have
anticipated that any delay in the procurement (as was experienced here due
to the time involved in the resolution of size status challenges) might
reasonably necessitate the issuance of an amendment (here, amendment
No. 4) to allow revised proposals for alternate aircraft when all of the
acceptable offerors' previously identified aircraft became unavailable due
to the delay.[5]  Since the protester has not demonstrated that the
challenged amendment was so substantial as to exceed what prospective
offerors reasonably could have anticipated, so that additional sources
likely would have submitted offers had the substance of the amendment been
known to them, we see no support in this record for GCS's allegations of
impropriety or contention that cancellation of the RFP is warranted here.

   The protest is denied.

   Anthony H. Gamboa

   General Counsel

   ------------------------

   [1] The agency reports that the protester neither submitted questions
about the solicitation nor expressed any interest in the solicitation
until it filed the current protest 5 months after the closing time; by
that time, the agency had already awarded two of the anticipated three
contracts.

   [2] In its comments responding to the agency report, GCS suggests for the
first time that amendment No. 2 substantially changed the terms of the
competition.  The allegation is untimely, since, not only was it first
raised several months after the challenged amendment was published and the
next closing time passed, the protester also does not show why it should
not have known of the basis for the challenge when it initially filed its
protest (of amendment No. 4) with our Office.  4A C.F.R. S 21.2(a)(1), (2)
(2004).  In any event, our review of the solicitation confirms that the
amendment had no material effect on the terms of the evaluation, since
nothing in the RFP prevented the agency from doing what GCS contends
amendment No. 4 allows--i.e., for the agency to continue its evaluation to
make a final determination of the offerors' maintenance capability after
reviewing revised proposals, rather than at an earlier point in the
evaluation process.

   [3] GCS also contends that it believes the agency substantially relaxed
the RFP's inspection terms regarding the review of aircraft
documentation.  In this regard, GCS, which is not represented by an
attorney admitted to a protective order, and thus has not had access to
the source selection sensitive evaluation record, generally alleges that
not all of the records listed in an award inspection worksheet were
reviewed by the evaluators at the time of the award inspections.  The
agency responds, however, and our review confirms, that the worksheet
advises that not all of the documents listed are specifically required by
the RFP.  Additionally, the agency points out, the RFP's statement of work
allowed offerors to provide substantial documentation after award at the
time of delivery of the aircraft at the operational site.  In this regard,
to the extent the RFP sets out opposing documentation deadlines, it is, at
most, ambiguous, a matter that would have had to been protested prior to
the closing date for the receipt of proposals.  4 C.F.R. SA 21.2(a)(1). 
In any event, the agency reports that all required aircraft documentation
has been inspected; the agency also points out that despite its
identification of the documentation reviewed, GCS has not shown that
additional documentation was required for an offeror to pass the award
inspection, or that a particular offeror's lack of certain documentation
must be considered a deficiency under the RFP.  Consequently, we have no
basis to consider this allegation further.

   [4] GCS also contends that the agency relaxed the RFP's inspection
requirements by allowing one offeror to borrow parts from its inspected
aircraft for use in its other aircraft for that aircraft's award
inspection.  As the agency points out, however, routine maintenance, to
include the replacement of the parts in question, was contemplated by the
agency for all aircraft after the award inspection until (and after) the
time of award; the agency reports therefore that the removal of the parts,
which the agency describes as minor parts, is not a major alteration to
the aircraft or a violation of the RFP's terms.  Rather, the agency
explains that the parts were borrowed from the already inspected aircraft,
in accordance with customary industry practices, merely because new parts,
which had been timely ordered, had not yet been delivered to the offeror
in time for the scheduled testing of its other aircraft.  The minor nature
of the parts in question is further illustrated by the agency's
explanation that the technical specifications and aircraft airworthiness
were not affected; the parts will be replaced as part of routine
maintenance procedures; and inspection without the parts in question would
not necessarily have resulted in an inspection deficiency.  The allegation
thus provides no basis for us to question the propriety of the agency's
actions.

   [5] In light of our decision above, concluding that amendment No. 4's
continuation of competition among the remaining acceptable offerors is
unobjectionable, we need not consider GCS's alternative contention that
the amendment improperly limits competition to only two offerors.