TITLE: B-299720; B-299720.2, Carson Helicopter Services, Inc., July 30, 2007
BNUMBER: B-299720; B-299720.2
DATE: July 30, 2007
*********************************************************************
B-299720; B-299720.2, Carson Helicopter Services, Inc., July 30, 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: Carson Helicopter Services, Inc.

   File: B-299720; B-299720.2

   Date: July 30, 2007

   David M. Nadler, Esq., and Joseph Berger, Esq., Dickstein Shapiro LLP, for
   the protester.

   Major ChristinaLynn E. McCoy, and Roy L. Masengale, Esq., Department of
   the Army, for the agency.

   Katherine I. Riback, Esq., and James A. Spangenberg, Esq., Office of the
   General Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   On a solicitation for aerial wildland fire suppression services to be
   awarded to the offeror submitting the low-priced, technically acceptable
   proposal under which technical proposals showing compliance with
   specifications were required, the agency unreasonably determined that the
   awardee's proposed helicopter met the payload requirements, based upon
   statements in the proposal indicating compliance, where the proposal also
   contained information that should reasonably have created doubt to an
   evaluator familiar with helicopters whether the helicopter in fact
   satisfied the requirements.

   DECISION

   Carson Helicopter Services, Inc., protests the award of a contract to
   Croman Corporation by the Department of the Army pursuant to request for
   proposals (RFP) No. W911S8-07-R-0007 for aerial wildland fire suppression
   services. The protester contends that the agency's evaluation of Croman's
   proposal was unreasonable because its proposed helicopter exceeded the
   manufacturer's allowable payload limitations.

   We sustain the protests.

   Issued on January 17, 2007, the RFP provided for the award of a
   fixed-price contract covering the period of May 15 to September 30, for
   the exclusive use of a rotary wing aircraft capable of delivering a
   minimum of 1,000 gallons of water in a single trip to fight wildland fires
   within the confines of Yakima Training Center, Yakima, Washington, and
   fires that threaten to enter or pass through the training center. The
   rotary wing aircraft was required to be certified under Federal Aviation
   Regulation part 135 to carry passengers for reconnaissance of wildland
   fires. RFP amend. 4, attach. 2, at 6.

   The RFP stated that the Army intended to award the contract without
   discussions to the offeror submitting the lowest-priced, technically
   acceptable proposal and which had satisfactory or neutral past
   performance. RFP, amend. 4, attach. 3, at 20. The RFP stated that the
   agency would determine technical acceptability by evaluating the three
   technical factors--management and staffing plan, type of aircraft and
   delivery system, and response to wildland fires--as "met" or "not met."
   Id. at 20-21.

   With regard to the type of aircraft and delivery system factor, the RFP
   required that the offerors:

     Describe[] the type of aircraft, lifting capability, Federal Aviation
     Regulation Certifications held (e.g. part 133, 135, etc.), and the type
     of water delivery system (e.g. bucket, tank, etc.) to include the amount
     of agent that can be delivered for firefighting support, and agent
     re-fill system (e.g. gravity, suction pump, etc.). Meets all PWS
     specifications and convinces the Government that the contractor can
     adequately meet the requirement.

   Id. at 21. Under the performance work statement (PWS) included in the RFP,
   the "intent" of the contract with regard to the required aircraft is
   stated as follows:

     The aircraft shall have a minimum capacity to deliver 1,000 gallons of
     water by bucket or fixed tank in a single trip. The contractor shall
     operate the aircraft safely and efficiently carrying 1,000 gallons of
     water at 15 degrees Celsius, 29.92 altimeter setting at 1,500 feet above
     sea level, and carry at least 1.5 hours worth of fuel.

   RFP, amend. 4, attach. 2 at 6. Where a water bucket was to be used on the
   helicopter, the PWS provided that the contractor was to determine the
   helicopter's "allowable payload in accordance with the aircraft
   manufacturer's operation and maintenance requirements, assuming 8.35
   pounds per gallon of water." Id. at 11.

   Three proposals were received in response to the RFP. The proposals of
   Carson and Croman each received "acceptable" technical ratings and
   "satisfactory" past performance ratings.[1] The source selection officer
   concluded that Croman, as the offeror with the lowest priced, technically
   acceptable proposal with satisfactory past performance should receive the
   award. AR, Tab 14, Source Selection Decision.

   Carson proposed a Sikorsky S-61N "short body" helicopter with "enhanced
   performance" equipped with a 1,000 gallon externally mounted belly tank
   for the water. Carson's proposal provided information documenting its
   proposed helicopter's allowable payload and that it was capable of
   handling 1,000 gallons of water. AR, Tab 8, Carson's Proposal, at 33-34,
   66-70; Protest at 4.

   Croman proposed a modified Sikorsky S-61N "long body" helicopter, AR, Tab
   9, Croman's Proposal, at 9; Tab 20, Contracting Officer's Verification of
   Information, at 1-2. Croman's proposal described its proposed helicopter
   and compliance with the PWS requirements as follows:

     The S-61N is Type Certificated by the Federal Aviation Administration
     and has "Standard Airworthiness" certificate. The S-61N has a total
     gross weight of 22,000 pounds. The aircraft proposed for this Yakima
     Training Facility has an empty weight of 11,121 pounds which results in
     a total payload of 10,879 pounds. Deducting the weight of the pilots
     (400 pounds), fuel for 1.5 hours for flight time (1,508 pounds), the
     bucket (650 pounds)[2] the allowable payload for water is 8,362 pounds
     (1,001 gallons).

   AR, Tab 9, Croman's Proposal at 9. Croman's proposal also included a "Load
   Calculation Work Sheet" that shows how the actual allowable payload for
   water was calculated; this work sheet shows, among other things, a
   22,000-pound computed maximum gross weight. The proposal also included a
   "Croman Corporation S-61N Performance Chart" to show how the 22,000-pound
   maximum gross weight was calculated; this chart is a marked up page from
   the Sikorsky Aircraft S-61N Flight Manual entitled "S-61N EXTERNAL LOADS
   MAXIMUM GROSS WEIGHT FOR HOVERING IN GROUND EFFECT--10-FOOT WHEEL HEIGHT."
   AR, Tab 9, Croman's Proposal, at 9-10.

   On April 5, Carson submitted an agency-level protest contesting the
   proposed award to Croman because its proposed helicopter assertedly lacked
   the capability to transport 1,000 gallons of water in a single trip in
   accordance with the RFP PWS requirements for a variety of reasons. AR, Tab
   17, Carson's Agency-Level Protest. After investigating this claim, the
   Army denied the protest, finding "there is sufficient documentation" upon
   which the agency reasonably determined Croman's proposal was compliant
   with the PWS requirements. AR, Tab 26, Agency-Level Protest Decision.
   Award was made to Croman on April 13. This protest to our Office followed.
   Because of the protest, the agency suspended contract performance and
   issued a stop work order to Croman. On May 14, however, the Army
   determined that continued performance of this contract "is in the best
   interest of the United States, and urgent and compelling circumstances
   that significantly affect the interest of the United States will not
   permit awaiting the GAO decision," and advised Croman to resume work
   effective May 15.[3] Army Submission (May 14, 2007).

   Carson contends that the allowable payload of Croman's proposed helicopter
   was not calculated in accordance with the manufacturer's requirements as
   required by the PWS. Specifically, Carson contends that Croman improperly
   relied upon Sikorsky's "in ground effect" performance chart for the S-61N
   to calculate the allowable maximum gross weight of the proposed helicopter
   for purposes of showing that it was capable of hauling 1,000 gallons of
   water. Carson argues that Sikorsky's "out of ground" performance chart,
   which reflects a lower maximum gross weight, was the proper source for
   ascertaining Croman's proposed S-61 helicopter's allowable payload.[4]

   The evaluation of proposals is a matter within the discretion of the
   contracting agency since the agency is responsible for defining its needs
   and the best method of accommodating them. Maritime Berthing, Inc.,
   B-284123.3, Apr. 27, 2000, 2000 CPD para. 89 at 8. In reviewing an
   agency's evaluation, we will not reevaluate proposals, but instead will
   examine the agency's evaluation to ensure that it was reasonable and
   consistent with the solicitation's stated evaluation criteria. Id.
   However, in determining the technical acceptability of a proposal, an
   agency may not accept at face value a proposal's promise to meet a
   material requirement, where there is significant countervailing evidence
   that was, or should have been, reasonably known to the agency evaluators
   that should create doubt whether the offeror will or can comply with that
   requirement. SeaBeam Instruments, Inc., B-253129, Aug. 19, 1993, 93-2 CPD
   para. 106 at 6-7; Mine Safety Appliances Co.; Interspiro, Inc.,
   B-247919.5, B-247919.6, Sept. 3, 1992, 92-2 CPD para. 150 at 3-4, recon.
   denied, National Draeger, Inc.--Recon., B-247919.7, Nov. 6, 1992, 92-2 CPD
   para. 325 at 3.

   As stated above, both Croman's and Carson's proposals indicate that their
   proposed helicopters have the ability to transport a payload of 1,000
   gallons of water as required by the RFP.[5] In a hearing held in
   connection with this protest, the agency evaluator, a fire chief,
   testified that in evaluating the proposals of Croman and Carson he
   basically just checked the arithmetic in each proposal to ensure that each
   helicopter provided for a payload of at least 1,000 gallons for the
   proposed helicopters, and determined that the proposals were acceptable in
   this respect. Hearing Transcript (Tr.) at 21-24.

   As pointed out by Carson, however, the problem with Croman's proposal is
   that its calculations, which were included in its proposal, are based on
   Sikorsky's "in ground effect" performance chart. Croman's proposal
   interprets this chart as indicating that its proposed helicopter has
   22,000 pounds of gross weight at the operating parameters identified in
   the RFP PWS, for example, operating at 15 degrees Celsius.[6] Carson
   contends that Sikorsky's "out of ground effect" performance chart should
   have formed the basis for Croman's calculations of its helicopter's
   maximum gross weight.

   The "in ground effect" and "out of ground effect" are important aspects of
   a helicopter's operations. For example, as relevant to this protest, these
   effects must be taken into account to measure a helicopter's load
   capabilities while hovering, depending on which effect is applicable to
   the particular operation of the helicopter. Essentially, a helicopter
   needs less power and can operate more efficiently when operating in ground
   effect because this allows for more vertical lift and less induced drag as
   a result of operating close to the ground. In contrast, more power is
   needed when operating "out of ground." Thus, where the "in ground effect"
   is applicable, a helicopter can generally carry more weight than where
   this effect is not applicable. See Tr. at 76 (testimony of former Sikorsky
   test pilot); see also Westec Air, Inc., B-230724, July 18, 1988, 88-2 CPD
   para. 59 at 2 n.1.

   By its own terms, Sikorsky's "in ground effect" performance chart included
   in Croman's proposal is only applicable when the distance from the bottom
   of the helicopter tires to the ground is 10 feet or less. AR, Tab 9,
   Croman's Proposal, at 11; Tr. at 77-78. That is, if the bottom of the
   helicopter's tires is more than 10 feet off the ground, then the "out of
   ground effect" performance chart applies. Tr. at 80. The agency's
   technical evaluator testified that the cargo bucket proposed by Croman to
   carry the water is approximately 8 feet tall, and is attached to the
   helicopter by a line approximately 150 feet long. Tr. at 54-55. Thus, when
   the helicopter is hovering with the bucket lifted off the ground, the
   helicopter would be approximately 160 to 175 feet off the ground. Tr. at
   56.

   Under such circumstances, the record indicates that Sikorsky's "out of
   ground effect" performance chart, rather than its "in ground effect"
   chart, would be applicable to Croman's proposed helicopter.[7] Tr.
   at 85-86. According to the protester, this "out of ground effect" chart
   indicates a maximum gross weight under the operating parameters described
   in the PWS of 20,000 pounds or less. Protester's Comments at 5; see AR,
   Tab 21, S-61N EXTERNAL LOADS MAXIMUM GROSS WEIGHT FOR HOVERING OUT OF
   GROUND EFFECT. Regardless of the accuracy of the protester's calculations
   here, the record indicates that the calculated maximum gross weight using
   the "out of ground effect" chart would be significantly less than 22,000
   pounds, and Croman's proposed helicopter, which was only claimed by Croman
   to have the capability of transporting a maximum 1,001 gallons of water
   using the "in ground effect" performance chart, would thus not have the
   demonstrated payload capability, consistent with the manufacturer's
   operation and maintenance requirements, of transporting 1,000 pounds of
   water.

   The agency argues that these Sikorsky charts are not controlling or
   necessarily an accurate reflection of the helicopter's true maximum gross
   weight because, as admitted by Carson's witness (the helicopter test
   pilot), they are only a "performance prediction" and the charts "are based
   on zero wind." See Agency's Post-Hearing Comments at 5-6; Tr. at 76, 78,
   97. Moreover, the technical evaluator testified that during contract
   performance Croman's helicopter has successfully carried 1,000 gallons of
   water with sufficient fuel to operate for 1 1/2 hours. Tr. at 26-28;
   Agency Hearing exhs. 23 and 24. However, as indicated above, the RFP
   required technical proposals to demonstrate the proposed helicopter's
   lifting capability and compliance with the PWS requirements, and where, as
   here, a water bucket was to be used on the helicopter, the PWS required
   that the contractor was to determine the helicopter's "allowable payload
   in accordance with the aircraft manufacturer's operation and maintenance
   requirements." RFP, amend. 4, attach. 2, at 11; attach. 3, at 21. Thus,
   even assuming the flights referenced by the technical evaluator satisfied
   all of the parameters stated in the PWS (which has not been shown in this
   record) and that Sikorsky's charts may be conservative and are not
   necessarily reflective of the maximum operational capabilities of a
   particular helicopter because they may relate to the safe operation of the
   helicopter, the fact remains that the agency required in the solicitation
   that proposals show that the helicopters comply with the aircraft
   manufacturer's operation and maintenance requirements in calculating
   allowable payload, and in this case, Croman's proposal did not.[8]

   In sum, the record here reflects that the agency unreasonably determined
   that Croman's helicopter had the required lifting capability and complied
   with the PWS requirements. While Croman's proposal indicated compliance
   with the payload requirements, the calculations included in the proposal
   to demonstrate compliance were inappropriately based on the manufacturer's
   "in ground effect" performance chart as could have been ascertained by a
   reasonable review of the proposal by an evaluator or other individual
   familiar with helicopters, and the record shows that if the "out of ground
   effect" chart applicable here were used, Croman's helicopter would not
   satisfy the RFP's payload requirements. Thus, there was significant
   countervailing evidence that was, or should have been, reasonably known to
   the agency evaluators that should reasonably have created doubt whether
   the offeror could comply with that requirement. Mine Safety Appliances
   Co.; Interspiro, Inc., supra. While we acknowledge that the agency
   evaluators did not recognize this issue during the evaluation because of
   their apparent lack of helicopter expertise,[9] and still did not realize
   the significance of this issue when they investigated Carson's pre-award
   protest of this issue, it appears that a reasonable evaluation of the
   technical proposals by an evaluator familiar with helicopters reasonably
   would have created doubt whether Croman's helicopter in fact satisfied the
   RFP payload requirements, notwithstanding its proposal's indication that
   it did. We therefore sustain the protest on this basis.[10]

   We recommend that the agency terminate Croman's contract, if feasible, in
   which case the agency should make award of the remainder of the contract
   to Carson.[11]

   In the event that termination is not feasible, we recommend that Carson be
   reimbursed its proposal preparation costs. We also recommend that Carson
   be reimbursed its costs of filing and pursuing the protest, including
   reasonable attorney's fee. 4 C.F.R. sect. 21.8(d)(1). In accordance with 4
   C.F.R. sect. 21.8(f)(1), the protester's certified claim for such costs,
   detailing the time expended and costs incurred, must be submitted directly
   to the agency within 60 days after receipt of this decision.

   The protests are sustained.

   Gary L. Kepplinger
   General Counsel

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

   [1] The other offeror's proposal was found unacceptable because it
   proposed to perform the work with two helicopters each carrying 530
   gallons of water. Agency Report (AR), Tab 13, Individual Evaluation
   Summary at 1.

   [2] The bucket is to be used to transport the water in Croman's
   helicopter. The 650-pound figure is a typographical error, and as
   otherwise indicated in Croman's proposal, and by totaling the figures
   reported here, should read 610 pounds. AR, Tab 9, Croman's Proposal, at
   9-10; AR, Tab 19, Croman Letter (Apr. 9, 2007).

   [3] The protester asserts that our Office cannot consider disruption or
   costs in making our recommendation where we sustain a protest and where
   the agency has made only a "best interest" override. See 31 U.S.C. sect.
   3554(b)(2) (2000). However, the agency here also determined that the
   override was necessary because of "urgent and compelling" circumstances,
   and this basis does not constrain what our Office can recommend.

   [4] The Army claims that this issue was untimely raised and that the
   additional arguments raised by Carson on this point represent an
   unwarranted piecemeal presentation of these issues. However, this issue
   was squarely raised in Carson's agency-level protest and timely
   supplemented as further information was provided in the agency report.

   The Army also asserts that our Office should dismiss the protests because
   Carson's post-hearing comments were filed after the July 16, 5:30 p.m.
   deadline (the comments were received at 6:25 p.m. on that date and no GAO
   official extended that deadline). 4 C.F.R. sect. 21.7(g)(2007). While our
   Office will ordinarily dismiss a protest in such circumstances, the
   protester had earlier that day filed a detailed response to an agency
   request for dismissal because of claimed corrective action (discussed
   below), in which response the protester stated in some detail why it
   believed its protest was meritorious and that it should receive the award.
   Protester Submission (July 16, 2007). In light of this filing by the
   established deadline, we decline to dismiss the protests.

   [5] In fact, the calculations in Croman's proposal reflect that its
   helicopter's maximum available payload was 1,001 gallons of water. Thus,
   any adjustment to the calculations could affect its successfully
   demonstrating its compliance with the payload requirement.

   [6] A former Sikorsky helicopter test pilot, who testified on Carson's
   behalf at the hearing, stated that Croman misinterpreted the Sikorsky in
   ground effect chart. His analysis of the chart, which we find reasonable,
   indicates that the proposed helicopter only had the capability of lifting
   a maximum 21,875 pounds of gross weight under the operating parameters
   defined in the PWS. Tr. at 88-90. Thus, it appears that, even using the
   "in ground effect" chart, Croman's helicopter does not satisfy Sikorsky's
   requirements regarding the helicopter's capability of transporting a
   payload of 1,000 gallons of water.

   [7] In investigating Carson's agency-level protest, the agency's
   contracting specialist, among other things, contacted the owner of the
   helicopter proposed by Croman. (Croman did not own this helicopter.) This
   individual indicated that the "in ground effect" chart was appropriate for
   calculating external loads because "it is routine to use a short line
   which puts the aircraft in ground effect anyway." AR, Tab 20, Contracting
   Officer/Specialist Verification of Information, at 2; Tab 21, E-mail from
   Coulson Group to Contract Specialist (Apr. 11, 2007). This advice is
   inconsistent with the bucket configuration used by Croman, as described
   above by the agency's technical evaluator, and thus provides no basis for
   using the "in ground effect" table. The record also shows that the
   contract specialist contacted a Sikorsky employee (whose responsibilities
   have not been identified), who indicated that an S-61N helicopter could
   satisfy the agency's requirements. AR, Tab 20, Contracting
   Officer/Specialist Verification of Information, at 3. (In fact, the record
   evidences that Carson's modified "short body" S-61N apparently complies
   with the payload requirements based upon application of an "out of ground
   effect" table.) However, the agency apparently did not ask Sikorsky about
   the application of the "in ground effect" chart to the helicopter proposed
   by Croman. Id.; see Tr. at 158.

   [8] The protester has provided evidence that where, as here, bucket
   operations are conducted with helicopters, the helicopters "out of ground
   effect" capability is what needs to be measured. Protester's Supplemental
   Comments (June 22, 2007) at 13-14. For example, the National Interagency
   Fire Center's Interagency Helicopter Operations Guide (March 2006)
   provides:

     The following procedures shall be used for all bucket operations:

       Determine allowable payload using the Interagency Load Calculation
       Method, appropriate HOGE [hover out of ground effect] helicopter
       charts and current local temperature and pressure altitude.

   National Interagency Fire Center's Interagency Helicopter Operations Guide
   (March 2006), ch. 7, para. 14. This paragraph also makes it clear that
   this procedure is to address safety concerns in using buckets on
   helicopters that may exceed the allowable payload for the helicopter. Id.

   [9] Even though the RFP requested technical proposals showing the
   helicopter's compliance with the technical requirements, including the
   requirement at issue here, the evaluator that the agency chose to use to
   evaluate proposals for this procurement had no aviation background. Tr. at
   35-36. For example, the evaluator testified that when he was evaluating
   the proposals he never noticed that Croman's proposal used an "in ground
   effect" chart, and that Carson's proposal used an "out of ground effect"
   chart. Tr. at 39. Indeed, when the evaluator was evaluating proposals he
   testified that he did not know the difference between "in ground effect"
   and "out of ground effect." Tr. at 38-39.

   [10] Carson has alleged a number of other errors in Croman's calculation
   of its helicopter's payload capacity (for example, the amount of fuel
   needed for a 1 1/2-hour mission), which issues we need not address in view
   of our determination above that Croman's helicopter was not shown to have
   met this requirement. Carson also maintains that Croman's proposal
   contains material misrepresentations, including that its proposed
   helicopter would be available and fully operational by the contract start
   date of May 15, 2007, and that its helicopter had the appropriate Federal
   Aviation Regulation part 135 certification. While Croman was not able to
   satisfy its contractual obligation to provide a helicopter by May 15 and
   had to obtain a further part 135 certification before it commenced
   contract performance, we find that it is not clear from the record before
   us that Croman's proposal contained intentional misrepresentations on
   these points. That is, the record does not show that Croman knew or should
   have known when it submitted its proposal that it would not comply with
   the start date requirements and the record reflects that Croman's proposal
   accurately reported the Federal Aviation Regulation part 135 certification
   that its aircraft held. See CourtSmart Digital Sys., Inc., B-292995.2,
   B-292995.3, Feb. 13, 2004, 2004 CPD para. 79 at 6-7.

   [11] Besides the fact that Croman's helicopter does not comply with the
   RFP PWS requirements, Croman did not provide the helicopter at the start
   of the contract, primarily because it was in pieces in Australia when
   award was made; and even when the helicopter was delivered to the site it
   had to undergo the required Federal Aviation Regulation part 135
   certification. See Supplemental AR, Tabs 15 and 20, E-mails between
   Evaluator and Contract Administrator. Thus, the contractor instead
   provided several other noncompliant helicopters to perform this contract
   until Croman's helicopter was delivered and made operational. In fact,
   despite being requested, the agency has provided no evidence that Croman
   has yet been compliant with the contract requirements. See Tr. at 138-39.
   Additionally, Carson has represented that it can have the same model
   helicopter that it proposed, which meets all of the PWS requirements, in
   Yakima in 1 day. Declaration of the Vice President of Carson (July 16,
   2007). On the other hand, the agency maintains that terminating Croman's
   contract is not feasible because the requirement is urgent, the contract
   term ends September 30, and a transition period would be required. Agency
   Dismissal Request (July 13, 2007).

   In its dismissal request proposing corrective action, the agency stated
   that it would take the corrective action of reimbursing the protester its
   proposal preparation costs and its costs of pursuing the protests, but
   would not disturb the award for the reasons stated above. Id. In response,
   Carson reiterated that it was entitled to the award and could promptly
   provide a compliant helicopter. Protester Submission (July 16, 2007).
   Under the circumstances, we did not agree with the agency that the protest
   would be rendered academic by the agency's proposed corrective action.