TITLE:  Geo-Seis Helicopters, Inc., B-294543, November 22, 2004
BNUMBER:  B-294543
DATE:  November 22, 2004
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   Decision

   Matter of:   Geo-Seis Helicopters, Inc.

   File:            B-294543

   Date: November 22, 2004

   William T. Browder for the protester.

   George N. Brezna, Esq., Department of the Navy, for the agency.

   John L. Formica, Esq., and Guy R. Pietrovito, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   1.  Protest that the contracting agency unreasonably evaluated the
awardee's proposal is denied where the record shows that the agency's
evaluation was reasonable and in accordance with the terms of the
solicitation.

   2.  Protest that the agency improperly waived a solicitation requirement
that offers include proof of ownership or a binding agreement to purchase
or charter the aircraft needed to perform the contract is denied where
neither the protester's nor the awardee's offers included the required
information or documentation, and the record establishes that the
protester was not prejudiced by the agency's effective waiver of the
requirement.

   DECISION

   Geo-Seis Helicopters, Inc. protests the award of a contract to Evergreen
Helicopters of Alaska, Inc. under request for proposals (RFP) No.
N00033-04-R-1000, issued by the Department of the Navy, for a helicopter
detachment (personnel, equipment, and aircraft) to perform air logistics
services.

   We deny the protest.

   The RFP provided for the award of a fixed-price contract, for a base
period of 1 year with four 1-year options, to the offeror submitting the
proposal representing the best value to the government based upon the
following evaluation factors listed in descending order of importance: 
technical quality; price; past performance; and socio-economic
considerations.  RFP S M 2.

   The solicitation provided for the submission of, among other things,
price, technical, and past performance proposals.  RFP S L 4.  Offerors
were informed that their technical proposals must demonstrate an ability
to comply with all requirements covered in the solicitation, and that
[g]eneral statements that the offeror can or will comply with the
requirements . . . will not constitute compliance.
  Id.  For example, the
technical proposals were to include a narrative of the aircraft's
capabilities . . . and any supporting documentation that demonstrates
testing conducted to ensure the aircraft meets the performance
specifications of the solicitation.*  Technical proposals were also to
include proof of [aircraft] ownership by the offeror, or a binding
agreement to purchase/charter the aircraft if awarded the contract.  RFP
SA LA 6.

   The agency received proposals from only Geo-Seis (the incumbent
contractor) and Evergreen by the RFP's closing date.  Agency Report (AR),
Tab 12, Source Selection Decision, at 1.  The proposals were evaluated,
discussions conducted, and final proposal revisions requested and
received.  Geo-Seis's and Evergreen's proposals were each evaluated as
`excellent' under the technical and past performance factors and good
under the socio-economic factor, with Geo-Seis proposing a price of
$88,277,871, and Evergreen a price of $65,536,000.  Given Geoa Seis's
status as a Historically Underutilized Business Zone (HUBZone) firm, the
agency considered Evergreen's price for evaluation purposes as totaling
$72,089,600.[1]  The source selection authority (SSA) determined that
Evergreen's proposal represented the best value to the government, and
award was made to that firm.  AR, Tab 12, Source Selection Decision, at
1-3.

   Geo-Seis argues that the agency should have rejected Evergreen's proposal
under the technical factor, rather than evaluating it as *excellent.*  In
this regard, Geo-Seis argues that Evergreen's proposal failed to
demonstrate certain technical capabilities, specifically that the
helicopters it proposed have instrument flight rules (IFR) certification,
the capability to be hot-fueled using an approved closed-circuit
refueling nozzle, and a rotor blade folding system.  Protest at 5-7;
see RFP SSA C.1.3.9, 4.2.2, 4.3.1, 4.3.4. 

   In reviewing protests against allegedly improper evaluations, it is not
our role to reevaluate proposals.  Rather, our Office examines the record
to determine whether the agency's judgment was reasonable and in
accordance with the terms of the solicitation.  The protester's mere
disagreement with the agency's judgment does not establish that an
evaluation was unreasonable.  Landoll Corp., B-291381 et al., Dec. 23,
2002, 2003 CPD P 40 at 8.

   As pointed out by the agency, the RFP informed offerors that they were
required in their proposals to demonstrate an ability to comply with all
requirements covered in the solicitation.  RFP S L 6.1.  In this regard,
the record reflects that although the agency determined that Evergreen's
proposal demonstrated an ability to comply with the RFP's IFR and blade
folding requirements, the agency during discussions sought additional
information from Evergreen as to the firm's ability to meet the
solicitation's requirements regarding fueling.[2]  Ultimately, the agency
found that Evergreen's proposal demonstrated Evergreen's ability to comply
with the RFP's IFR, blade folding, and fueling requirements.  Based upon
our review of the record, which includes the agency's evaluation and
discussions documentation, as well as the awardee's proposal, we find the
agency's determinations here to be reasonable.

   The protester also asserts that Evergreen's proposal failed to include
proof of [aircraft] ownership by the offeror, or a binding agreement to
purchase/charter the aircraft if awarded the contract as required by the
RFP.  Protest at 8; see RFP S L 6.

   While conceding that the Evergreen proposal included only a letter of
intent executed by the awardee and a vendor to acquire the aircraft
should Evergreen be awarded the contract, the agency points out, and the
record confirms, that Geo-Seis's proposal was similarly deficient.  Given
that the Navy effectively waived this requirement for both offerors, there
is no basis to find that Geo-Seis was prejudiced by the agency's
actions.[3]  Williams Bros. Corp. of Am., B-293352, Feb. 26, 2004, 2004
CPD P 68 at 2; Food Servs., Inc., B-243173, B-243173.2, July 10, 1991,
91-2 CPD PA 39 atA 6 n.2; Mediq Equip. & Maint. Servs., Inc., B-242222,
Mar. 26, 1991, 91-1 CPD PA 328 at 3.  Competitive prejudice is an
essential element of every viable protest, and we will not sustain a
protest where the record does not establish prejudice.  Brown & Root, Inc.
and Perini Corp., a joint venture, B-270505.2, B-270505.3, Sept. 12,
1996, 96a-2 CPD PA 143 at 10.   

   In any event, even were we to find that the agency effectively waived the
proof of ownership/binding agreement requirement set forth in the RFP for
only the awardee, there still would be no reasonable possibility that the
protester was prejudiced by the agency's allegedly improper action.  In
cases such as this, where the protester argues that the agency failed to
ensure compliance thereby waiving a requirement, prejudice does not mean
that, had the agency ensured compliance and not waived the requirement,
the awardee would have been unsuccessful.  Rather, the pertinent question
in such cases as this is whether the protester would have submitted a
different offer that would have had a reasonable possibility for award had
it known that the requirement would be waived.  Brown & Root, Inc. and
Perini Corp., a joint venture, supra, at 11.  Here, there is nothing in
the record that suggests, nor has the protester argued, that the protester
would have submitted a different proposal that would have had a reasonable
possibility of award if it were aware that the agency would waive the
proof of ownership/binding agreement requirement. 

   The protest is denied.

   Anthony H. Gamboa

   General Counsel

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

   [1] The RFP incorporated by reference Federal Acquisition Regulation
SA 52.219a-4, providing for a 10-percent HUBZone price evaluation
preference.

   [2] Because a protective order was not issued in connection with this
case, the language in our decision, which is based in part upon source
selection sensitive and confidential information, is necessarily general.

   [3] After the record closed, Geo-Seis submitted additional information,
complaining that Evergreen still had not finalized arrangements to provide
helicopters under that firm's contract.  Protester's Supplemental
Information, Nov. 3, 2004.  Given the agency's waiver of the requirement
to establish ownership of, or a binding agreement to purchase/charter,
helicopters, these arguments do not provide us with any basis to question
the agency's selection of Evergreen's proposal for award.
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