TITLE: B-299175; B-299175.2, Geo-Seis Helicopters, Inc., March 5, 2007
BNUMBER: B-299175; B-299175.2
DATE: March 5, 2007
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B-299175; B-299175.2, Geo-Seis Helicopters, Inc., March 5, 2007

   DOCUMENT FOR PUBLIC RELEASE
   The decision issued on the date below was subject to a GAO Protective
   Order. This redacted version has been approved for public release.

   Decision

   Matter of: Geo-Seis Helicopters, Inc.

   File: B-299175; B-299175.2

   Date: March 5, 2007

   Robert K. Stewart, Jr., Esq., Davis Wright Tremaine LLP, for the
   protester.

   John E. McCarthy, Jr., Esq., David Hammond, Esq., and Adelicia Cliffe
   Taylor, Esq., Crowell & Moring LLP, for Presidential Airways, Inc., an
   intervenor.

   Robert M. Elwell, Esq., and Michelle L. Salter, Esq., Military Sealift
   Command, 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.      Where awardee's final proposal revision (FPR) was received after
   closing time, it was unobjectionable for contracting officer to extend
   closing time to provide awardee another opportunity to timely submit its
   FPR; agency properly may extend closing time under these circumstances
   where extension is intended to enhance competition.

   2.      Price/technical tradeoff was reasonable where record demonstrates
   that, based on consideration of evaluation documents, source selection
   authority concluded that awardee's and protester's proposals were
   technically equal, and that protester's superior past performance was not
   sufficient to offset awardee's lower price.

   DECISION

   Geo-Seis Helicopters, Inc. protests the award of a contract to
   Presidential Airways, Inc. for commercial helicopter vertical
   replenishment (VERTREP) services under request for proposals (RFP) No.
   N00033-05-R-1004, issued by the Department of the Navy, Military Sealift
   Command. Geo-Seis principally argues that MSC improperly selected
   Presidential's proposal for award.

   We deny the protest.

   The RFP, as amended, provided for award on a "best value" basis,
   considering (in descending order of importance) technical
   factors--detachment specifications (with equally-weighted subfactors for
   airframe specifications and mission capability), and support concept and
   experience (with equally-weighted subfactors for maintenance plan,
   logistics plan, personnel plan, casualty plan, quality plan, and safety
   plan)--price, and past performance. Regarding past performance, offerors
   were required to provide questionnaires from references for at least three
   prior contracts. Offerors were also required to submit aircraft casualty
   and personnel fatality information for each of the three contracts and to
   explain the reasons for any casualty or fatality and steps taken to
   prevent a recurrence.

   The agency received six proposals, which were evaluated by a source
   selection evaluation board (SSEB),[1] established a competitive range,
   held four rounds of discussions, and requested two rounds of final
   proposal revisions (FPR). Following the evaluation of the second FPRs,
   both Geo-Seis's and Presidential's proposals were rated "exceeds
   satisfactory" for each technical evaluation subfactor, while Geo-Seis was
   rated "exceptional" and Presidential "neutral" for past performance.
   Presidential's proposed price was $92,977,882, and Geo-Seis's was
   $100,376,241. The agency performed a best value analysis and determined
   that Presidential's and Geo-Seis's proposals were equal technically, and
   that Geo-Seis's higher past performance rating was not sufficient to
   offset Presidential's lower price. The agency therefore made award to
   Presidential. Geo-Seis challenges the award decision.

   In reviewing a protest against an 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 statutes and
   regulations. Philips Med. Sys. of North Am., B-293945.2, June 17, 2004,
   2004 CPD para. 129 at 2. We have reviewed the record and find Geo-Seis's
   arguments to be without merit. We discuss several of those arguments
   below.

   EVALUATION

   Past Performance

   Geo-Seis asserts that MSC improperly assigned Presidential a neutral past
   performance rating. In this regard, the protester maintains that this
   rating fails to account for the fact that Presidential had experienced an
   aircraft casualty that resulted in aircraft damage and personnel
   fatalities and that, had this information been properly considered,
   Presidential would have received a negative past performance rating.

   This argument is without merit. The record shows that Presidential
   disclosed the crash in its proposal, Agency Report (AR) at 12, and that
   the agency was fully aware of the crash during the evaluation. The agency
   ultimately assigned Presidential a neutral past performance rating because
   the firm provided references for only two contracts, and was found to have
   only limited relevant past performance; the solicitation specifically
   provided that if an offeror provided references for fewer than three
   contracts it would receive a neutral rating. RFP at 78, 83. The agency
   also determined that the crash warranted assigning Presidential a neutral
   rating because the contract under which the crash occurred was not
   terminated and the reference for that contract rated Presidential's
   performance favorably, notwithstanding the crash.[2] AR at 8-9. Given that
   MSC considered the impact of the crash, but found that it was mitigated by
   the favorable information provided by Presidential's references, MSC's
   assigning Presidential a neutral past performance rating was
   reasonable.[3]

   Key Personnel

   Geo-Seis argues that the agency should have downgraded Presidential's
   proposal under the key personnel subfactor because the letters of intent
   Presidential submitted for proposed key personnel indicated that they
   would perform as independent contractors, not as Presidential employees.
   This argument is without merit since, as the agency points out, the
   solicitation neither prohibited offerors from using independent
   contractors to perform the contract, nor indicated a preference that
   personnel be employed directly by the offeror. In any case, Presidential's
   second FPR stated that all personnel employed on the contract would be
   full-time Presidential employees. Presidential Revised Proposal at 49.

   Geo-Seis asserts that Presidential's proposal should have been downgraded
   because, during discussions, MSC asked Presidential whether it had
   discussed compensation with its key personnel, and Presidential never
   submitted documentation showing it had done so. This argument, too, is
   without merit. The contracting officer did ask Presidential (and three of
   the other four offerors in the competitive range) whether compensation had
   been discussed, in order to assess whether there was substance behind the
   prices and resumes submitted. AR at 13. In response, Presidential stated
   that compensation had been discussed, which satisfied the contracting
   officer. Id. The RFP did not require offerors to provide documentation
   showing that compensation had been discussed with proposed key personnel,
   and the contracting officer was satisfied with Presidential's statement
   that compensation had been discussed. Under these circumstances, there was
   no requirement that the agency downgrade Presidential's proposal.

   Geo-Seis argues that, in evaluating Presidential's personnel plan, MSC
   failed to consider that Presidential planned to "raid" the staff of
   Evergreen, the current contractor for the ongoing Atlantic VERTREP
   Program, and Geo-Seis's teaming partner under the solicitation here.
   Supplemental Protest at 11. We agree with MSC that it was not required to
   consider whether Presidential intended to use Evergreen's personnel to
   perform. In this regard, as Geo-Seis acknowledges in its protest, it is
   not uncommon, and not illegal, for contractors to hire employees from
   other contractors.[4] Anjon Corp., B-249115, B-249115.3, Oct. 20, 1992,
   92-1 CPD para. 261 at 6.

   Geo-Seis argues that the agency improperly evaluated Presidential's
   personnel plan. This argument is based on Geo-Seis's assessment of the
   proposed program manager and chief test pilot, both of whom previously
   were employed by Geo-Seis. According to the protester, the program manager
   did not perform a number of required duties while employed by Geo-Seis,
   and the chief test pilot lacks necessary experience regarding shipboard
   helicopter operations. However, Geo-Seis's argument based on its own
   self-serving assessment of the two employees' performance as Geo-Seis
   employees does not provide a basis for questioning the evaluation.[5]
   MSC's evaluation was based not on Geo-Seis's assessment, but on its own
   evaluation of the resumes submitted with Presidential's proposal, which
   showed that the employees had experience other than that obtained while
   employed by Geo-Seis. Further, MSC was not required to downgrade
   Presidential's personnel plan based on its proposed test pilot's alleged
   lack of experience regarding shipboard helicopter operations, since the
   RFP did not require that the key personnel have any specific experience.

   EXTENSION OF CLOSING TIME

   During the course of the procurement, the agency twice extended the
   deadline for FPRs in order that Presidential's FPR could be considered. In
   this regard, initial FPR's were due on March 22, 2006, at 2 p.m. EST, but
   Presidential's FPR was not received until 2:33 p.m. At 2:36 p.m., the
   contracting officer extended the deadline to March 23 at 11 a.m. A second
   round of FPR's was due August 15 at 2 p.m., and Presidential's FPR was
   received at 2:30 p.m. At 2:29 p.m., after becoming aware that Presidential
   would miss the deadline, the contracting officer issued an amendment
   changing the deadline to 4 p.m. Geo-Seis argues that extending the closing
   times was improper and that MSC instead should have rejected the FPRs and
   eliminated Presidential from the competition.

   This argument is without merit. The record shows that the agency's
   motivation in extending the deadlines was to enhance competition by
   keeping Presidential's proposal in the competition. There is no
   prohibition against a procuring agency issuing an amendment to extend the
   closing time for receipt of proposals after that time has passed in order
   to accommodate even one offeror, where the motivation for the extension is
   enhanced competition. Varicon Int'l, Inc.; MVM, Inc., B-255808,
   B-255808.2, Apr. 6, 1994, 94-1 CPD para. 240 at 4. Geo-Seis attempts to
   distinguish our prior decisions from the case here on the facts. However,
   we find that the essential facts from our prior cases are present
   here--the agency issued an amendment extending the closing time after the
   expiration of the original closing time in order to keep an offeror in the
   competition, and thereby enhance competition. Again, extending the closing
   time for this purpose is unobjectionable. See Institute for Advanced
   Safety Studies--Recon., B-221330.2, July 25, 1986, 86-2 CPD para. 110 at 2
   (it was not improper for agency to issue an amendment extending the
   closing time 3 days after expiration of the original closing time); Fort
   Biscuit Co., B-247319, May 12, 1992, 92-1 CPD para. 440 at 4 (it was not
   improper for agency to extend closing time to permit one of four offerors
   more time to submit its best and final offer).[6]

   PRICE/TECHNICAL TRADEOFF

   Geo-Seis maintains that the agency's tradeoff improperly failed to reflect
   differences in the firms' past performance and technical proposals that
   warranted finding its proposal to be the best value. For example, Geo-Seis
   argues that the agency ignored the fact that Presidential has no
   organizational experience in providing the types of services being
   procured, while Geo-Seis has performed virtually identical services. As
   another example, Geo-Seis notes that, although the SSA found that
   Geo-Seis's proposal had advantages over Presidential's under the
   detachment specifications subfactor (greater lift capacity, higher
   endurance) and certain support concepts and experience subfactors (e.g.,
   Presidential proposed the minimum number of pilots and mechanics, while
   Geo-Seis proposed a larger pool), he did not specifically discuss these
   differences in making the source selection decision.[7]

   An agency properly may select a lower-priced, lower technically rated
   proposal for award if it determines that the price premium involved in
   selecting the higher-rated, higher-priced offer is not justified given the
   level of technical competence available at the lower cost. The
   determinative consideration is not the difference in technical merit per
   se, but the contracting agency's judgement concerning the significance of
   the difference. The SSA has broad discretion in making this determination,
   and the extent to which technical merit may be traded off against price is
   limited only by the requirement that the tradeoff decision be reasonable
   in light of the established evaluation and source selection criteria.
   MD Helicopters, Inc.; AgustaWestland, Inc., B-298502 et al., Oct. 23,
   2006, 2006 CPD para. 164. While the SSA must document any tradeoff, that
   explanation can be given in the award decision or evidenced from the
   documents on which the source selection decision is based. TRW, Inc.,
   B-260788.2, Aug. 2, 1995, 96-1 CPD para. 11 at 4.

   Here, in making the source selection decision, the SSA relied on the
   technical, past performance, and price evaluations provided by the SSEB.
   SSD at 2. In this regard, and contrary to Geo-Seis's position, he did not
   summarily determine that Presidential's proposal provided the best value
   to the government, ignoring Geo-Seis's superior experience. Rather, the
   SSA recognized that Geo-Seis was rated exceptional for past performance
   based on relevant experience and good references, and that Presidential
   was rated neutral based on its lack of relevant experience. SSD at 4-5.
   The SSA found that this was a significant discriminator between the
   proposals when considering the non-price factors but, in the final
   analysis, determined that Geo-Seis's superiority in this area was not
   sufficient to offset Presidential's $7.3 million lower price. SDD at 4, 5.
   We find no basis for questioning this determination.

   With respect to the second example above, the record shows that the SSA
   specifically considered that Geo-Seis offered equipment with higher
   ratings under the detachment specifications subfactor, but concluded that
   the ratings were not significantly higher than those for Presidential's
   equipment, and did not represent a meaningful technical advantage. SSD at
   5. Similarly, the record reflects that the SSA reviewed the proposals'
   ratings under the support concepts and experience subfactor and found no
   significant differences between the proposals. SSD at 5. Geo-Seis has not
   established that the agency's conclusion was unreasonable; its
   disagreement with those conclusions does not demonstrate that the
   evaluation was unreasonable. Weber Cafeteria Servs., Inc., B-290085.2,
   June 17, 2002, 2002 CPD para. 99 at 4.

   The protest is denied.

   Gary L. Kepplinger
   General Counsel

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

   [1] Proposals were assigned adjectival ratings of unsatisfactory,
   satisfactory, or exceeds satisfactory under the technical evaluation
   subfactors. Past performance was evaluated as unsatisfactory, marginal,
   satisfactory, very good, exceptional, or neutral.

   [2] Geo-Seis asserts that our Office should not consider the agency's
   explanation of the past performance evaluation because that explanation is
   not part of the contemporaneous evaluation record. See Boeing Sikorsky
   Aircraft Support, B-277263.2, B-277263.3, Sept. 29, 1997, 97-2 CPD para.
   91 at 15. While we accord greater weight to contemporaneous source
   selection materials, we will nonetheless consider the entire record,
   including statements and arguments made in response to a protest, in
   considering whether an agency's source selection decision is supportable.
   Id. Post-protest explanations that provide a more detailed rationale for
   contemporaneous conclusions may, as is the case here, simply fill in
   previously unrecorded details, and will generally be considered in our
   review of the rationality of the selection decision, so long as those
   explanations are credible and consistent with the contemporaneous record.
   Jason Assocs. Corp., B-278689 et al., Mar. 2, 1998, 98-1 CPD para. 67 at
   6.

   [3] We note that Geo-Seis was rated exceptional for past performance,
   despite having had three accidents over the past 5 years, one of which
   resulted in a fatality, and another that occurred while Geo-Seis was
   performing the same services being procured here.

   [4]Geo-Seis asserts that Presidential may use Evergreen's training plan in
   performing the contract; this would be improper, according to the
   protester, because the plan is propriety. Even assuming that this is the
   case, this argument concerns a dispute between private parties; we will
   not consider such disputes where, as here, there is no evidence of
   government involvement. LLH & Assocs., LLC, B-297804, Mar. 6, 2006, 2006
   CPD para. 52 at 5.

   [5] The agency notes that, despite Geo-Seis's denigration of the program
   manager's and test pilot's prior performance, both were employed by
   Geo-Seis for a number of years on its VERTREP contract, which expired in
   2004.

   [6] This is true notwithstanding the otherwise applicable late bid and
   proposal rules. See Systems 4, Inc., B-270543, Dec. 21, 1995, 95-2 CPD
   para. 281 at 3-4.

   [7] The RFP required the awardee to maintain approval by the Commercial
   Airlift Review Board (CARB). Offerors were required to obtain this
   approval within 12 months of receiving the award, but were given
   evaluation credit if they already had approval or provided a realistic
   plan to receive approval within 6 months following the award. Geo-Seis
   argues that MSC did not reasonably evaluate Presidential's plan to obtain
   approval within 6 months of award because approval is not feasible in 6
   months. However, Geo-Seis has provided no conclusive evidence that
   approval cannot be obtained within 6 months. Since MSC also reports that
   Presidential does in fact now have CARB approval, and obtained it within
   the 6-month time frame, this argument provides no basis for questioning
   the evaluation.