Link: GAO Opinion
Agency: Department of the Army
Disposition: Protest dismissed in part, denied in part.
1. Protest alleging that awardee’s proposal for aircraft and pilot to support military parachute training was unacceptable is denied where record shows that awardee’s proposal was reasonably evaluated by the agency as meeting the solicitation’s requirements; aircraft certification requirements, which were not preconditions to award, could properly be addressed as a matter of contract administration.
2. Protest that agency’s price evaluation was not consistent with the solicitation is denied where record supports the evaluation as reasonable and consistent.
3. Protest that oral solicitation failed to state how quotations were to be evaluated filed after issuance of purchase order is dismissed as untimely.
General Counsel P.C. Highlight:
Palm Beach Aviation, Inc. (PBA), protests the award of a contract to Rampart Aviation, Inc., under a request for proposals (RFP), issued by the U.S. Special Operations Command Regional Contracting Office Fort Bragg (USSOCOM) for an aircraft and pilot to support military parachute training for military personnel at Pinal Air Park, Marana, Arizona. GAO dismisses the protest in part and denies the protest in part.
PBA first contends that Rampart’s proposed aircraft cannot lift 18 combat equipped jumpers as required by the RFP. PBA maintains that United States Army Special Operations Command (USASOC) Regulation 350-2 limits the number of combat equipped jumpers for the aircraft proposed by Rampart to 12. The RFP clearly stated that the number of jumpers allowed on an aircraft would be determined by the government and that the determination would be based on the proposed aircraft manufacturer’s specifications, lift capacity, and the government’s safety requirements. While the protester disagrees with the agency’s determination that Rampart’s proposed aircraft satisfied the RFP requirements and maintains that the agency’s decision violates the USASOC regulations, GAO affords particular deference to the technical expertise of agency personnel regarding judgments that involve matters of human life and safety. On this record, GAO has no basis to conclude that the agency’s determination with respect to the capacity of the aircraft proposed by Rampart was improper. Moreover, whether or not the agency complied with internal agency regulations or guidelines is not for determination under GAO bid protest jurisdiction. The jurisdiction of GAO is limited to consideration of whether a procurement statute or regulation has been violated and violation of internal agency instructions or directives are not within GAO’s bid protest jurisdiction.
Additionally, PBA argues that award to Rampart was improper because Rampart cannot satisfy the statement of work (SOW) requirement that Rampart acquire and maintain an FAA Part 135 certification. The SOW provided that the contractor must acquire and maintain a FAA Part 135 certification in accordance with USSOCOM Directive 350-8. Contrary to the protester’s assertion that this certification must be obtained prior to award, the language of the RFP does not so provide and, thus, whether or not Rampart satisfies its Part 135 certification requirements is a matter of contract administration and not subject to review by GAO.
PBA next argues that the agency improperly evaluated price by overstating the number of combat equipped jumpers that Rampart’s proposed aircraft could safely lift, while understating the number of combat equipped jumpers that PBA’s proposed aircraft could safely lift. PBA maintains that in accordance with USASOC regulations Rampart’s aircraft can only lift 12 jumpers; at the same time, PBA contends that other indicate that PBA’s proposed aircraft can safely lift 32 combat equipped. With respect to the price evaluation, the RFP provided that the total cost to provide an aircraft with pilot and the total price for fuel consumption would be added together to determine the total operating cost. The total operating cost would then be divided by the number of jumpers the proposed aircraft could safely lift to determine a cost per jumper and the best price for the government. The RFP specifically provided that the number of jumpers allowed on a proposed aircraft would be determined by the government, and that this determination would be based on the aircraft manufacturers’ specifications, lift capacity and the government’s safety requirements. The record shows that the agency made its determination of the number of jumpers based on manufacturers’ specifications; aircraft lift capacity, government safety requirements, and historical training records. Based on this assessment, the agency used 15 jumpers in determining the cost per jumper for Rampart’s aircraft and [DELETED] jumpers for PBA’s aircraft. As a result, Rampart’s cost per jumper was $493.35 and PBA’s was $603.55. While PBA disagrees with the agency’s determination about the number of jumpers that can be safely carried on these aircraft, GAO has seen nothing in the record that shows the agency’s decisions were unreasonable or inconsistent with the RFP.
PBA argues that the issuance of the purchase order to Rampart was improper because: the agency was required to award to PBA as only PBA is an approved commercial operator with an air carrier’s certificate; the agency’s oral solicitation did not specify how the evaluation would be conducted; PBA submitted the lowest evaluated price when offers are evaluated on an equal basis; and PBA’s price was reasonable. PBA also argues that since award to Rampart reduces the number of deliverables under the RFP at issue in protests B-401450 and B-401450.2, the agency engaged in a de facto override of the Competition in Contracting Act of 1984 (CICA) stay provisions applicable to PBA’s primary protest. GAO states that in order to satisfy its current needs pending resolution of protests B-401450 and B-401450.2, on June 11, 2009, the agency issued an oral request for proposals (RFQ), seeking quotes for these services for the interim period of June 15 through September 30. The contracting officer (CO) states that he only solicited Rampart and PBA, and that he advised the vendors that award would be based on an hourly rate, which should include the cost of fuel. Vendors were advised that the government would pay for actual hours used and would guarantee a minimum of 300 hours, but not more than 600 hours. Rampart and PBA submitted quotes by the June 11 due date. Rampart’s quote for 600 hours was $930,000 and PBA’s was [DELETED]. On June 12, a purchase order was issued to Rampart, and this protest followed. GAO dismisses the arguments.
Additionally, to the extent the protester argues that the agency’s oral solicitation did not specify how the evaluation would be conducted or that the award would not be made on a cost per jumper basis, the protest involves a solicitation impropriety and is untimely filed. Under Bid Protest Regulations, protests based upon alleged improprieties in a solicitation which are apparent prior to the closing time for receipt of proposals must be filed prior to that time. Since PBA submitted a quote and did not file its protest until after it was notified of nonselection, its protest challenging what are, essentially, the ground rules of the procurement is not timely and will not be considered. The protest is dismissed in part and denied in part.