BNUMBER:  B-271510
DATE:  July 15, 1996
TITLE:  Avondale Industries, Inc.

**********************************************************************

Matter of:Avondale Industries, Inc.

File:     B-271510

Date:July 15, 1996

Theodore M. Bailey, Esq., for the protester.
Alan W. Mendelsohn, Esq., and Charles A. Johnson, Esq., Department of 
the Navy, for the agency.
Katherine I. Riback, Esq., and Paul Lieberman, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

1.  Agency conducted meaningful discussions regarding proposed 
noncompliance with a safe working area requirement in the solicitation 
through discussion questions which explicitly advised the protester of 
the agency's concern in this respect.    

2.  Agency evaluation of the protester's proposal and subsequent 
decision not to grant the protester a waiver of a safe working area 
requirement was unobjectionable where the waiver determination was 
entirely a matter of agency discretion and there were other offerors, 
including the awardee, that met the requirement.

DECISION

Avondale Industries, Inc. protests the Department of the Navy's award 
of a contract to Diversified Group, Inc., under request for proposals 
(RFP) No. N62387-95-R-4007.  The protester alleges that the Navy 
failed to conduct meaningful discussions and that its proposal was 
improperly evaluated. 

We deny the protest.

The Department of the Navy, Military Sealift Command (MSC) issued the 
RFP on July 25, 1995, seeking proposals for a firm, fixed-price 
contract for a 3-year base period with 2 option years, to provide 
layberth facilities for two Fast Sealift Ships (FSS).[1]  

The RFP provided that the technical factors were more important than 
price, but that price would increase in importance as the difference 
in the technical scores of the highest-rated offerors decreased.  The 
technical factors were, in descending order of importance:  (1) 
"Layberth Safety"; (2) "Layberth Location"; (3) "Facility Services"; 
and (4) "Past Performance."  

The RFP contained a statement of work (SOW) which listed the 
requirements for the layberth facilities and the services to be 
provided under this contract.  Section C-5.3. of the SOW, entitled 
"Safe Working Area," provided that:

     "A safe working area of one hundred feet (100) at 34' MLLW fore, 
     aft, and outboard of the moored ships shall be provided.  The 
     berth or slip must be of sufficient width to facilitate safe 
     docking and undocking without interference to other shipping and 
     adequate to permit safe working of and training room for 
     tugboats, barges, lighters, and floating cranes."

The RFP provided that the agency could permit deviations from the SOW 
at the government's sole discretion so long as the deviations "(1) 
provide the same level of safety and security, and (2) such 
deviation(s) is accepted at the time of contract award."  

MSC received four proposals.  The technical evaluation panel (TEP) 
evaluated the initial proposals, conducted a site survey of each 
proposed site, and established a competitive range of three proposals, 
including Avondale's.  MSC then held discussions with the competitive 
range offerors and received best and final offers (BAFO).  Avondale's 
proposal received a technical rating of red (unacceptable) based on 
the failure to offer an acceptable safe working area.  Award was made 
to Diversified after the agency determined that Diversified's proposal 
was the most advantageous to the government. 

Avondale first argues that the agency did not conduct meaningful 
discussions in that it did not adequately explain that the 100-foot 
safe working area requirement was a minimum, mandatory requirement. 

The requirement for meaningful discussions with offerors is satisfied 
by pointing out weaknesses that, unless corrected, would prevent an 
offeror from having a reasonable chance for award, Department of the 
Navy--Recon., 72 Comp. Gen. 221 (1993), 93-1 CPD  para.  422, and an agency 
need only lead offerors generally into the areas of their proposals 
that require improvement.  TM Sys., Inc., B-228220, Dec. 10, 1987, 
87-2 CPD  para.  573.  Under this standard, the discussions with Avondale 
concerning its proposed safe working areas were meaningful.  
Avondale's initial proposal provided a safe working area of under 50 
feet and its alternate layberthing plan appeared to provide a safe 
working area of only a few feet.  The record reflects that the agency 
pointed out during discussions that in each instance Avondale's 
layberthing facilities failed to meet the solicitation's safe working 
area requirement of 100 feet and asked Avondale, "[h]ow do you plan to 
rectify this deficiency?"  This question clearly conveyed the agency's 
concerns with the inadequate safe working areas proposed by the 
protester, and afforded the protester a reasonable opportunity to 
satisfy the government's requirements through the submission of a 
revised proposal.  To the extent that Avondale believes that it should 
have been given additional opportunities to revise its proposal after 
its BAFO, with an expanded safe working area of 77 feet, was also 
determined to be inadequate, there simply is no requirement that 
agencies notify offerors of deficiencies remaining in BAFOs or conduct 
successive rounds of discussions until such deficiencies are 
corrected.  See Honeywell Regelsysteme GmbH, B-237248, Feb. 2, 1990, 
90-1 CPD  para.  149.  

Next, Avondale protests the agency's evaluation of its proposal 
regarding the safe working areas.  Avondale argues that the agency 
unreasonably failed to grant it a waiver of the 100-foot safe working 
area requirement for the expanded 77-foot safe working area proposed 
in its BAFO.  Avondale notes that the Navy has waived this requirement 
in other procurements. 

The protester was made aware by the express terms of the RFP that the 
required safe working area was 100 feet.  To the extent that Avondale 
is actually arguing that the 100-foot safe working area requirement is 
unreasonably restrictive, it was required to protest this requirement 
prior to the closing time set for receipt of proposals.  4 C.F.R.  sec.  
21.2(a)(1) (1996).  An offeror may not participate in a procurement 
and then wait until after it is not selected for award to protest 
alleged improprieties fully disclosed in the solicitation.  With 
respect to the agency's decision not to waive the 100-foot safe 
working area requirement for Avondale, the agency was under no 
obligation to grant Avondale a waiver from this SOW requirement.  The 
waiver language in the RFP was permissive and left the determination 
entirely to the agency's discretion; hence, the protester had no 
entitlement to a waiver.  See Aerospace Design, Inc., B-247938, July 
21, 1992, 92-2 CPD  para.  33.  Here, where there were other acceptable 
reasonably priced offers, including the awardee's, that met the safe 
working area requirement, we see no reason why the agency was required 
to consider granting a waiver to Avondale.   

The fact that the Navy may have permitted deviations from the 100-foot 
safe working area requirement in other procurements, as the protester 
asserts, does not require the agency to permit the deviation in this 
instance; each procurement action is a separate transaction, and the 
action taken under one is not relevant to the propriety of the action 
taken under another procurement for the purposes of a bid protest.  
Komatsu Dresser Co., B-251944, May 5, 1993, 93-1 CPD  para.  369.  

The protest is denied.

Comptroller General
of the United States

1. The FSS transports equipment to support Army divisions during 
worldwide military operations.  A FSS in full operational status 
transports equipment, such as vehicles and aircraft, by rapid 
point-to-point sealift.  When not in operational status, the FSS 
remains at the layberth sites in a reduced operating status, except 
for brief periods for testing and repairs.