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Law360, Washington (November 4, 2016, 7:08 PM EDT)

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Slydogg27 Member Level  Monday, 07/17/17 07:35:42 PM
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Law360, Washington (November 4, 2016, 7:08 PM EDT) -- The U.S. Department of the Interior let a contractor get away with submitting information for one plane while proposing to use another for a $25 million U.S. Navy electronic warfare testing contract, the Government Accountability Office said in a bid protest decision made public Friday.
The GAO sustained the protest by incumbent contractor Phoenix Air Group Inc., finding both that awardee Tempus Jets Inc. was credited for meeting acceptability criteria even though the plane information didn't match and that Phoenix's own proposal was dinged for criteria it couldn't have known about.

Tempus' $24.7 million bid had been chosen to replace Phoenix — whose own bid for the November 2015 solicitation was priced at $28 million — even though one of the aircraft questionnaire forms Tempus provided did not actually cover the plane intended as its "second on-call" jet, according to the decision.

Interior had argued that only the "make and model" were "integral," and thus the plane Federal Aviation Administration registration number mix-up wouldn't have impacted the award. The GAO said, however, that deeming Tempus acceptable for having provided the information of a different plane was "unreasonable and inconsistent" with the request for proposals, or RFP.

"The RFP expressly required offerors to identify each aircraft by its unique FAA registration number. The RFP also required specific information for each of those aircraft, such as its total hours of service for the airframe and for each engine, the most recent weight and balance test, and all modifications to the aircraft," the GAO said. "Tempus proposal identified a specific aircraft, but then provided information about a different aircraft. As a result, the conclusion that Tempus' proposal was acceptable under the offer acceptability criteria was unreasonable, so we sustain this ground of protest."

Phoenix had contested its rejection once before only for the GAO to dismiss the protest as academic when Interior said it was reevaluating the proposals. Upon that reevaluation, the contract once again went to Tempus, and Phoenix filed the current challenge.

Also sustained in the decision published Friday was Phoenix's protest of its own evaluation on the one- to five-year, indefinite-delivery, indefinite-quantity contract on which only Phoenix and Tempus put in offers. Specifically, Phoenix had argued it was knocked for not providing specific information, even though the need for that information was never laid out in the solicitation.

According to the partially redacted decision, dated Sept. 26, Phoenix thought it merely had to provide general comments on the capabilities of its planes and pilots, only to be judged as having needed to provide "specific comments" on "particular specifications" that were left out. Interior arguments that Phoenix was simply disagreeing with how it was evaluated, and that the evaluation was consistent with the solicitation, were rejected.

"We do not think that a reasonable offeror should have understood from the stated evaluation criteria, or from the information requested in the offeror capability form, that specific responses to each of the specifications in RFP Sections A and B and a property management plan were important proposal elements," the GAO said. "Accordingly, we sustain the protest because the application of these unstated evaluation criteria significantly lowered the assessment of Phoenix's proposal."

Moving forward, the GAO recommended Interior take another look at the proposals, consistent with the evaluation criteria in the solicitation, and tweak the solicitation as needed if the unstated criteria "reflect the intended evaluation." If amended, the bidders should be given a chance to submit revised offers, the GAO said. It also recommended that Phoenix be comped its protest costs.

Phoenix counsel Barbara S. Kinosky of Centre Law and Consulting LLC said Friday that she and her client were excited about the ruling. As for why a Navy contract was solicited through Interior, Kinosky said she didn't know, although she told Law360 this appears to be the first time Interior has ever bought aircraft.

Kinosky also noted that while Phoenix has the physical planes in its possession, Tempus does not, and instead its bid was predicated on buying the jets after the award. Awarding the contract anyway, she said, "was very surprising."

Representatives for Tempus and the DOI did not immediately respond Friday to press inquiries.

Paul N. Wengert and Tania Calhoun with the GAO's Office of the General Counsel worked on preparing the decision.

Phoenix is represented by David R. Warner, Barbara S. Kinosky, Marina Burton Blickley and Wojciech Z. Kornacki with Centre Law and Consulting LLC.

Tempus Jets is represented by Daniel R. Weckstein, Anthony J. Mazzeo and Blake R. Christopher of Vandeventer Black LLP.

Interior is represented by in-house counsel Sherry Kinland Kaswell.

The case is Matter of Phoenix Air Group Inc., case numbers B-412796.2 and B-412796.3, before the Government Accountability Office.

--Editing by Catherine Sum.


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