Comptroller General

of the United States

United States Government Accountability Office

Washington, DC 20548 

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: Helicopter Transport Services LLC 

File: B-400295; B-400295.2 

Date: September 29, 2008

David M. Nadler, Esq., Scott Arnold, Esq., and David Y. Yang, Esq., Dickstein Shapiro 

LLP, for the protester. 

Alan I. Saltman, Esq., Saltman & Stevens, PC, for Erickson Air-Crane, Inc., the 

intervenor. 

Elin M. Dugan, Esq., Department of Agriculture, for the agency. 

Kenneth Kilgour, Esq., and Christine S. Melody, Esq., Office of the General Counsel, 

GAO, participated in the preparation of the decision. 

DIGEST 

1. Protest that agency improperly evaluated proposals under one of four technical 

factors on a pass/fail basis is sustained where the solicitation, by stating that the four 

technical factors were listed in descending order of importance and calling for a 

price/technical tradeoff, contemplated that each technical factor would be evaluated 

qualitatively. 

2. Protest that agency improperly evaluated protester’s past performance is 

sustained where the record contains no contemporaneous documentation of the oral

discussion that the agency states provided the basis for the evaluation, and the 

evaluators relied on unidentified written documents. 

DECISION 

Helicopter Transport Services LLC (HTS) protests the award of contracts to

Erickson Air-Crane, Inc. and Columbia Helicopters, Inc. under request for proposals

(RFP) No. AG-024B-S-08-9003, issued by the U.S. Forest Service, National 

Interagency Fire Center, Boise, Idaho, for fire support helicopter services. HTS 

alleges that the agency: improperly evaluated proposals under the most important
technical evaluation factor on a pass/fail basis; improperly evaluated the protester’s 

past performance; and failed to conduct an adequate price/technical tradeoff.1

We sustain the protest.

BACKGROUND 

On March 3, 2008, the Forest Service solicited offers for exclusive use of heavy or 

medium helicopters for firefighting service at 34 locations, each of which would be 

the home base for one helicopter. The agency designated each location a separate 

contract line item number (CLIN). Each offeror could submit an offer for any or all 

of the 34 CLINs, propose as many helicopters as it chose for each CLIN, and propose 

the same helicopter for multiples CLINs. 

The solicitation identified four technical factors, listed in descending order of

importance: aircraft technical capability, safety/risk management, past performance, 

and organizational experience.2

 These four non-price factors, when combined, were

significantly more important than price. RFP at 189. Past performance included four

subfactors of equal weight, described as follows:

a) that you [the offeror] were capable, efficient, and effective 

b) that your performance conformed to the terms and conditions of

your contract 

c) that you were reasonable and cooperative during performance 

d) and that you were committed to customer satisfaction. 

 1

 In its comments on the agency report (AR), the protester abandons one ground of

protest, that the agency misevaluated HTS’s proposal under the safety/risk 

management factor. 

2

 In its evaluation of proposals, the agency weighted these factors at [DELETED] 

percent, respectively. The protester asserts that where, as here, the solicitation 

states that evaluation factors have been listed in “descending order of importance,” 

the percentage weights assigned to the evaluation factors must form a “reasonable 

downward progression of relative weights,” citing A & W Maint. Servs., Inc., 

B-255711, Jan. 17, 1995, 95-1 CPD ¶ 24, and no offeror could have anticipated that a 

reasonable downward progression of relative weights would result in the narrow 

range of relative weights of the three most important technical factors. Comments

on AR at 13-14. We disagree. The phrase, a “reasonable downward progression of

relative weights,” was not intended to precisely define the range that weights would 

cover. When a solicitation states that the factors are listed in descending order of

importance, that phrase precludes “disproportionate weighing.” See North-East 

Imaging, Inc., B-256281, June 1, 1994, 94-1 CPD ¶ 332 at 2. The protester has not 

asserted that the factor weighting in this evaluation was disproportionate. 

Page 2 B-400295; B-400295.2 
RFP at 189. The RFP specified that the agency’s evaluation of past performance 

would include the offeror’s contract performance for the years of 2005-2007. In 

preparing their proposals, offerors were instructed to utilize Form E-6, “Offeror’s

Past Performance and Organizational Experience,” included in the RFP. Awards

were to be made to the offerors whose proposals were technically acceptable and 

“whose technical/price relationships [were] the most advantageous to the 

Government.” Id. at 190. 

Thirty-four offerors submitted proposals, offering 88 helicopters.

3

 The agency scored

the proposals under the technical factors using a scale of one to five points--best to

worst--corresponding to the adjectival ratings of exceptional, acceptable, neutral, 

marginal, and unacceptable. The agency provided no further definitions for the 

ratings. As explained further below, under the most important technical factor, 

aircraft technical capability, proposals could receive one of only two possible scores, 

two points (acceptable) or five points (unacceptable). Because of the complicated 

calculations required to make 34 simultaneous awards, where CLINs received 

multiple offers and aircraft were offered for multiple sites, the agency employed a 

computer program, called the Optimization Model, to assist it in making 

price/technical tradeoffs. CO’s Supplemental Statement of Facts at ¶ 3. 

The protester’s proposal contained the requested Form E-6, which listed four Forest

Service contracts, one from 2007 and three from 2005, as past performance 

references. The references contained only the contract number and not the required

contact information. The protester’s past performance documentation also included 

certificates of appreciation from 2007, a letter of appreciation from 2002, and an 

undated Forest Service evaluation report.

HTS’s proposal received the following technical scores: aircraft technical capability, 

[DELETED]; safety/risk management, [DELETED]; past performance, [DELETED]; 

and organizational performance, [DELETED]. Multiplying those point scores by the 

assigned weighted averages, HTS’s proposal received an overall technical score of

2.56. The technical evaluation team’s (TET) summary comments on the protester’s

proposal stated, in full: 

[DELETED]

 

AR, Tab 5, Memorandum from TET to Contracting Officer (CO), May 24, 2008, at 5. 

 3

 The agency found eight helicopters unacceptable; consequently, only 32 vendors

offering a total of 80 helicopters had their proposals evaluated beyond factor 1, as 

explained below. 

Page 3 B-400295; B-400295.2 
The source selection authority adopted the recommendations of the TET without

comment, awards were made, including four to HTS,4

 and this protest followed. 

Performance of the contested contracts has been stayed. 

DISCUSSION 

The protester challenges the award of Item Nos. 3, 7, and 8 to Erickson, and Item

No. 6 to Columbia.5 HTS argues that the agency failed to follow the evaluation 

criteria announced in the solicitation when it evaluated factor 1 on a go/no-go basis, 

and that it conducted an improper evaluation of HTS’s past performance. HTS 

alleges that for each contested award the agency selected a higher-priced, 

higher-rated offer but failed to document a price/technical tradeoff. 

Factor 1--Aircraft Technical Capability 

HTS contends that the agency improperly failed to qualitatively evaluate the offerors’ 

proposals under technical factor 1, aircraft technical capability, even though the RFP 

identified it as the most important technical evaluation factor. The agency asserts 

that the RFP provided that aircraft technical capability would be evaluated on a 

pass/fail basis, and that it was reasonable to assign all proposals that were rated 

acceptable or better the same score of two points (acceptable). 

Where a dispute exists as to the meaning of solicitation language, we will resolve the 

matter by reading the solicitation as a whole and in a manner that gives effect to all 

provisions of the solicitation. See Honeywell Regelsysteme GmbH, B-237248, 

Feb. 2, 1990, 90-1 CPD ¶ 149 at 5. To be reasonable, an interpretation must be 

consistent with the solicitation when read as a whole and in a reasonable manner. 

 4

 HTS offered a total of [DELETED] helicopters and was awarded four contracts. Of

the other [DELETED] helicopters that were offered, one was disqualified from

further competition after being rated unacceptable under factor 1 for failure to

submit complete documentation. The protester challenges that disqualification in its

comments on the supplemental agency report. The protester states that the 

disqualified helicopter was proposed for the CLINs that are the subject of this

protest. The agency report contained listings of all of the helicopters considered for 

award for each of those CLINs. The unacceptable helicopter was not on any of those 

lists, and thus the protester should have known that it had been found unacceptable. 

Because this ground of protest was filed more than 10 days after the protester 

received the agency report, it is untimely. See Bid Protest Regulations, 4 C.F.R. 

§ 21.2(a)(2) (2008). 

5

 Following receipt of the agency report, the protester withdrew its challenge to the 

award of Item No. 18. 

Page 4 B-400295; B-400295.2 
Id. Here, we conclude that, when taken as a whole, the RFP contemplates the 

qualitative evaluation of all the technical factors, including factor 1. 

As noted above, the solicitation listed all four technical factors and stated that, 

“when combined, [they were] significantly more important than price.” RFP at 189. 

The solicitation also stated that those four factors were “listed in descending order 

of importance.” Id. The RFP language here is similar to the language at issue in 

Lithos Restoration, Ltd., B-247003.2, Apr. 22, 1992, 92-1 CPD ¶ 379. In that case, the 

RFP provided that the “combined weight of the technical factors” was more 

important than price, Lithos Restoration, Ltd., supra at 4, and set forth the technical 

evaluation factors in descending order of importance. Id. As in Lithos Restoration, 

Ltd., we think that the RFP here, by listing the four technical factors in descending 

order of importance and calling for a price/technical trade-off that considered all 

four factors, clearly contemplated a qualitative evaluation of the technical factors, 

balanced against price, to determine the offers that are most advantageous to the 

government. Evaluating proposals under factor 1 on a go/no-go basis, as the agency 

did, is inconsistent with this announced evaluation scheme because it effectively 

gives no weight to factor 1 in the trade-off decision and makes the three less 

important factors the determining factors for award. 

The agency argues that making factor 1 a go/no-go criterion does not diminish its 

importance in the evaluation scheme. We disagree. Assigning all technically 

acceptable offers the same score for the primary technical factor has essentially the 

same effect on the evaluation ratings as not ranking the most important factor at all, 

an action we found improper in Lithos Restoration, Ltd.. Assigning a score of two 

points to all technically acceptable offers created an evaluation rating floor; all 

offers would start off with the same points for that factor. This evaluation scheme 

effectively neutralized the influence of the most important factor and, as noted 

above, made the evaluation discriminators the three less important technical factors 

the determining factors for award.6

Past Performance 

 6

 Prejudice is an essential element of a viable protest. Lithos Restoration, Ltd., supra

at 5. The protester has asserted that, but for the agency’s failure to qualitatively 

evaluate proposals under factor 1, the aircraft offered by HTS would have been 

scored as superior to other aircraft, thus making HTS’s proposal more competitive. 

On the record, we think there is a reasonable possibility that the agency’s adherence 

to the evaluation scheme announced in the solicitation would have resulted in 

additional awards to the protester. See id. at 5-6 (noting that a “reasonable 

possibility of prejudice is sufficient basis for sustaining a protest”). While the 

intervenor asserts that our Office should impose a higher standard of proof of

prejudice as a prerequisite for sustaining this protest, we disagree. 

Page 5 B-400295; B-400295.2 
The protester alleges that the agency improperly focused its evaluation on the final 

year of the 3 years of past performance that should have been considered, and that

the agency has not produced the necessary contemporaneous documentation to 

support the score [DELETED] given the protester. As a general matter, the 

evaluation of an offeror’s past performance is a matter within the discretion of the 

contracting agency, and we will not substitute our judgment for reasonably based 

past performance ratings. In determining whether a particular evaluation conclusion

is reasonable, we examine the record to determine whether the judgment was

reasonable and in accord with the evaluation criteria listed in the solicitation. Abt 

Assocs., Inc., B-237060.2, Feb. 26, 1990, 90-1 CPD ¶ 223 at 4. Implicit in that 

examination is that the evaluation must be documented in sufficient detail to show 

that it was not arbitrary. Federal Acquisition Regulation (FAR) §§ 15.305(a), 15.308; 

Quality Elevator Co. Inc., B-276750, July 23, 1997, 97-2 CPD ¶ 28 at 3. 

According to the agency, the TET members relied primarily on an oral discussion of 

their individual experiences with HTS in arriving at the past performance rating 

of [DELETED]. Supplemental AR at xviii. There is no contemporaneous

documentation of that discussion. In an evaluation that takes into account the 

agency’s own knowledge of offerors’ performance, the fundamental requirement that

evaluation judgments be documented in sufficient detail to show that they are 

reasonable and not arbitrary must still be met. Omega World Travel, Inc., 

B-271262.2, July 25, 1996, 96-2 CPD ¶ 44 at 4. 

The agency argues that evidence of HTS’s past performance, first introduced into the 

record as part of the agency report on the protest, supports the reasonableness of

the evaluation, citing Omega World Travel, Inc..

7

 In that case, however, the record 

showed that the agency evaluators relied in their deliberations on specific evaluation

material subsequently produced in the protest record. Here, there is no 

contemporaneous account of the discussion of HTS’s past performance, let alone 

one that references the evaluators’ reliance on any of the written documentation the 

agency supplied in response to the protest. The TET chair asserts that the team 

based its evaluation of the protester’s past performance on “the written evaluations 

 7

 In support of the evaluation, the agency report contains the following past

performance documentation: correspondence regarding a [DELETED] that began in 

2005; a 2005 evaluation where the protester scored [DELETED] points out of a 

possible 50; an undated summary of [DELETED] that occurred in 2007; and various

evaluations of contract performance from 2007. AR, Tab 6, Past Performance 

Documentation at 47-80. It is not clear from the record whether the evaluation from 

2005 is for one of the contracts included in the protester’s proposal. It is also not

clear whether any of these documents were among those considered by the TET. 

Finally, it is unclear on the record whether the [DELETED] should properly be 

considered in the agency’s past performance evaluation. 

Page 6 B-400295; B-400295.2 
that it had,” Declaration of TET Chair at ¶15, but fails to identify any specific 

document or to state whether the evaluators considered any of the contracts listed 

in the protester’s proposal. In contrast, the TET chair goes into considerable detail, 

in response to the protest, recounting the personal experiences of the TET members

that contributed to the rating. Id. at ¶¶ 6-14. The documents produced in the agency 

report may or may not be part of the written evaluations that the TET asserts it

relied on, but the TET chair’s recollection of the evaluation process indicates that 

greater weight was given to the undocumented team discussion of past performance. 

As discussed above, evaluations must be documented in sufficient detail to show 

that they were not arbitrary. FAR §§ 15.305(a), 15.308. Here, without any 

contemporaneous documentation of that oral evaluation, and with no record, 

contemporaneous or otherwise, of what contract performance information was

considered and how much relevance the information was accorded, we have no 

basis on which to conclude that the past performance evaluation was reasonable.8

PRICE/TECHNICAL TRADEOFF 

Because we are sustaining the protester’s challenges to the agency’s evaluation of 

proposals under factor 1 on a go/no-go basis and the evaluation of HTS’s past

performance, we need not address the protester’s challenge to the agency’s 

price/technical trade-off. In this regard, we recognize that the agency, faced with 

evaluating a substantial number of proposals from multiple offerors, decided to use 

a computer program to assist in the evaluation and selection decisions. Under these 

circumstances, an agency’s reasonable attempts to simplify the source selection 

process are not objectionable. Apex Marine Ship Mgmt. Co., LLC; American V-Ships

Marine, Ltd., B-278276.25; B-278276.28; Sept. 25, 2000, 2000 CPD ¶ 164 at 21. 

Moreover, when numeric scores are reasonable and supported by the

contemporaneous narrative record, an agency may use the results of the numeric 

scoring as indicative of whether evaluated technical superiority is worth the 

associated cost premium. Id. Nevertheless, as was the case here for a number of the 

award decisions, when a price/technical tradeoff is made, the source selection 

decision must be documented, and the documentation must include the rationale for 

any tradeoffs made, including the benefits associated with additional costs. FAR 

§ 15.308. 

RECOMMENDATION 

 8

 The protester supplied two favorable evaluations that it asserts should have been

included in the agency’s past performance evaluation but were not. Both of those 

documents, however, are dated after the time that the agency conducted its technical 

evaluations. See Comments on the Supplemental AR, Exhs. A & B.

Page 7 B-400295; B-400295.2 
For the four contested awards, we recommend that the agency either qualitatively 

evaluate the eligible aircraft under technical factor 1, or revise the solicitation to

state that it will evaluate factor 1 on a no/no-go basis and solicit revised proposals 

for the challenged CLINs. In any event, we also recommend that the agency 

reevaluate HTS’s past performance. We recommend that the agency then conduct 

and document a new source selection decision for those four CLINs and make award 

to the offeror(s) whose proposal(s) are found to represent the best value to the 

government. We also recommend that the protester be reimbursed its costs of filing 

and pursuing its protest, including reasonable attorneys’ fees. 

The protest is sustained. 

Gary L. Kepplinger 

General Counsel 

Page 8 B-400295; B-400295.2