BNUMBER:  B-272382
DATE:  October 2, 1996
TITLE:  Team One USA, Inc.

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Matter of:Team One USA, Inc.

File:     B-272382

Date:October 2, 1996

James F. Nagle, Esq., and John Lukjanowicz, Esq., Oles Morrison & 
Rinker, for the protester.
Fred F. Fielding, Esq., Matthew S. Simchak, Esq., Paul F. Khoury, 
Esq., and David A. Vogel, Esq., Wiley, Rein & Fielding, for 
Intermarine USA, and Jack B. Hochadel for Willard Marine, Inc., 
intervenors.
Col. Nicholas P. Retson and Maj. Michael J. O'Farrell, Jr., Department 
of the Army, for the agency.
Henry J. Gorczycki, Esq., and James A. Spangenberg, Esq., Office of 
the General Counsel, GAO, participated in the preparation of the 
decision.

DIGEST

Agency properly rejected as technically unacceptable a proposal for a 
special warfare rigid inflatable boat where the proposed boat did not 
satisfy the material minimum design requirements regarding the seating 
location and deck drainage.

DECISION

Team One USA, Inc. protests the rejection of its proposal under 
request for proposals (RFP) No. USZA22-96-R-0003, issued by the United 
States Special Operations Command, MacDill Air Force Base, Florida, 
for development and production of the Naval Special Warfare Rigid 
Inflatable Boat and trailer.

We deny the protest.

The RFP, issued on October 26, 1995, contemplated multiple awards and 
stated that the agency desired a modified nondevelopmental item based 
on existing rigid inflatable boats.  The boat is intended for use in 
rugged, ship-to-shore transport of Special Operations Forces and their 
equipment in a low to medium threat combat environment.[1]  

The RFP statement of work (SOW) set forth both performance and design 
requirements.  Of particular relevance are the requirements concerning 
location of passenger seating (i.e., bolsters) and water drainage from 
the deck area.  For passenger seating the SOW stated:

     "III-3.7 Console[[2]]

     "The console shall be located forward of the passenger bolsters. 
     . . ."

     "III-10.6 Bolsters

     ". . .  Two/three bolsters shall be located aft of the console 
     for the crew and eight/nine additional bolsters shall be provided 
     for the passengers/passengers & engineer.  Bolsters for the 
     passengers shall be located to minimize the effects of vertical 
     accelerations. . . ."[3]

For deck drainage, SOW I-4  stated that the boat "shall be . . . 
self-bailing . . . ."  The SOW further provided:

     "III-9.3 Bilge/Drainage System

     "A minimum of two electric bilge pumps shall be installed to pump 
     out all bilges with the craft at rest with payload. . . .  A 
     manual bilge pump(s), taking suction from the same area as the 
     electric bilge pump(s), shall be installed.  All compartments 
     shall drain to the location of the bilge pump suction area(s).

     "The deck shall be drained through the transom by two large 
     capacity freeing ports sized so as to completely drain the entire 
     deck in the minimum time practicable, and fitted with flapper 
     type closures or elephant trunks.  When craft is at idle or in 
     the reverse mode no water shall be able to pass into the craft."

Prior to the submission of initial proposals, the agency issued 
several amendments to the RFP, including written responses to 
questions from prospective offerors.  On December 20, 1995, amendment 
0005 was issued and stated the following prospective offeror question 
(submitted by Team One) and the agency response:

     "[Question]:  The RFP requires at SOW III-3.7 for the console to 
     be located forward of passenger bolsters, while SOW III-10.6 
     requires passenger bolsters to be located to minimize the effects 
     of vertical accelerations.  Are these requirements intended to 
     force the design away from locating passenger bolsters forward of 
     the console when the latter design may minimize vertical 
     acceleration, as well as provide superior conformance to other 
     requirements?

     "[Response]:  The Government recognizes that the locations of 
     least vertical acceleration on planing craft vary, depending on 
     longitudinal center of gravity (LCG), wetted area, speed, and sea 
     state, and that placing all passengers aft of the console will 
     not result in the least vertical accelerations for all passengers 
     in all conditions.  In our experience, however, a console forward 
     of the passengers is the best combatant craft configuration, 
     yielding best visibility for the crew and ensuring that 
     passengers are not subject to unsustainable accelerations when it 
     becomes necessary for the crew to operate the craft at speed in 
     extreme conditions.  Accordingly, Amendment 0005 changes this 
     requirement.  See paragraph 3.d. of this amendment."

Paragraph 3.d. of amendment 0005 deleted from SOW III-10.6 the 
sentence concerning minimization of vertical accelerations and revised 
the requirement as follows:

     ". . .  Two/three bolsters shall be located aft of the console 
     for the crew and eight/nine additional bolsters shall be provided 
     for the passengers/passengers & engineer.  Bolsters for the 
     passengers should not be located forward of the console. . . ."

The requirement at SOW III-3.7 requiring that the console be located 
forward of the passenger bolsters was not changed.  The RFP stated 
that any offeror proposing exceptions to any SOW requirements shall 
explain each exception and "[f]ull supporting rationale shall be 
provided for each."

The agency received 11 technical proposals by the due date of January 
8, 1996.[4]  Team One's proposal stated that it took exception to the 
requirement for location of passenger seating; it proposed seating in 
front of the console, citing its experience in testing the proposed 
forward seating location during 1,000 hours of testing its parent 
craft (on which the design of the proposed boat is based).  The 
proposal did not include any test data or calculations to support its 
rationale as to why this exception should be accepted.  The proposal 
also provided a description of the proposed bilge pumping system; 
however, it did not describe deck drainage.  

Based on its evaluation of the proposals, the agency determined that 
seven proposals, including Team One's, were in the competitive range.  
In evaluating Team One's proposal, the agency determined that, since 
Team One had not provided any test data from the parent craft or any 
calculations for the proposed craft concerning the proposed location 
of passenger seating, the proposal did not provide adequate support to 
justify deviation from the stated requirement.  The agency also noted 
that, although the proposal did not address deck drainage, the 
proposed design of the boat showed the forward deck would be below the 
waterline, and thus determined that the deck could not drain overboard 
as contemplated by the SOW.

The agency conducted written discussions with the competitive range 
offerors.  By letter dated March 12, the agency advised Team One of 
the evaluated weaknesses and deficiencies in its proposal.  The letter 
stated that Team One's proposal was technically unacceptable, though 
susceptible of being made acceptable.  With regard to the requirement 
regarding passenger seating, the agency advised Team One:

     "The Offeror took exception to the requirement to place the 
     passengers aft of the console.  This is considered unacceptable 
     since it fails to meet a critical requirement, and the Offeror 
     did not provide strong evidence for reconsideration of this 
     critical requirement. . . . Please provide an arrangement which 
     meets the requirement."

As for the deck drainage requirement, the agency advised Team One:

     "The proposal does not adequately describe the auxiliary systems 
     of the craft.  Information provided in the Offeror's proposal is 
     often inconsistent or incorrect:  (I) The drainage system is not 
     discussed.  The forward deck is about 11 [inches] below the 
     designed waterline, which fails to meet the requirement of [SOW] 
     III-9.3 that the deck areas drain overboard.  This is 
     unacceptable.  The bilge pumps are not large enough to drain 
     water from this deck effectively.  [Informational deficiencies 
     concerning other requirements, including the bilge system, were 
     stated.] . . .  Please provide the information requested and 
     correct the noted deficiencies."

The discussion letter to Team One also stated:

     "A CONSIDERABLE AMOUNT OF EFFORT WILL BE REQUIRED IN ORDER TO 
     RESPOND TO THE GOVERNMENT'S CONCERNS AND HAVE A REASONABLE CHANCE 
     OF RECEIVING AN AWARD.  Therefore, YOU ARE ADVISED TO CONSIDER 
     CAREFULLY WHETHER TO EXPEND FURTHER EFFORT AND EXPENSE IN 
     IMPROVING YOUR PROPOSAL. . . .

     ". . .  You are cautioned that this will be your only opportunity 
     to provide clarification to resolve these concerns.  Failure to 
     fully satisfy these concerns could result in the non-selection of 
     your proposal for award."  

Proposal revisions were due by April 16.  Although Team One submitted 
some proposal revisions, its proposal continued to take exception to 
the passenger seating requirement.  Team One further explained this 
exception by specifically identifying the Department of Defense (DOD) 
organizations that participated in the testing of Team One's parent 
craft, claiming that every person who rode in the parent craft was 
pleased with the comfort of the ride.  Team One did not provide any 
statements from the DOD personnel who rode in the parent craft, nor 
did it provide any test data or calculations to support the claims 
about ride comfort.  In response to the deck drainage requirement, 
Team One described in detail its bilge pump system, which included 
dedicated and emergency backup pumps for removing water from the 
forward deck, and stated that water from the forward deck would be 
pumped overboard through this bilge system.  

The agency requested and received best and final offers (BAFO) from 
all of the competitive range offerors by April 30.[5]  Team One's BAFO 
did not propose any further revision to the passenger seating location 
or the deck drainage in its proposed design.  Although the agency 
otherwise evaluated Team One's BAFO as "marginally acceptable," it 
rejected Team's One's proposal from consideration for award because 
the agency considered the proposal technically unacceptable based on 
Team One's boat's failure to meet the "critical" passenger seating 
location and deck drainage requirements.

On June 14, the agency awarded contracts to United States Marine, 
Inc., Willard Marine, Inc., and Intermarine, USA.  Team One requested 
a debriefing, which the agency conducted on June 20; this protest 
followed.

Although Team One acknowledges that its proposal did not meet the 
precise terms of the specifications concerning passenger seating 
location and deck drainage for the forward deck, it alleges that these 
specifications were not minimum requirements, but rather only "design 
preferences."  Team One alleges that its proposal cannot reasonably be 
found technically unacceptable for failing to satisfy such 
preferences. 

To be reasonable, an interpretation of solicitation language must be 
consistent with the solicitation when read as a whole and in a 
reasonable manner.  Lithos Restoration, Ltd., 71 Comp. Gen. 367 
(1992), 92-1 CPD  para.  379; Datacomm Management Sciences, Inc., B-261089, 
Aug. 8, 1995, 95-2 CPD  para.  259.  We find that the protester's 
interpretation of these solicitation terms as design preferences, 
rather than minimum requirements, is unreasonable.

The RFP language addressing the location of passenger seating states 
that the console "shall be located forward" of the passenger seating 
(SOW III-3.7), and that the passenger seating "should not be located 
forward of the console" (SOW III-10.6 as revised by amendment 0005).  
In amending the latter specification provision, the agency essentially 
acknowledged that the original language of this section, which stated 
that the location of passenger seating shall "minimize the effects of 
vertical accelerations," could possibly be interpreted to mean that 
seating in front of the console could be acceptable depending on the 
applicable vertical acceleration.  The agency stated in the amendment 
why it did not want passenger seating in front of the console, deleted 
the language concerning minimizing vertical accelerations, and 
replaced it with a clear statement that passenger seating "should" not 
be located forward of the console.  Also, the amendment referenced SOW 
III-3.7, which clearly requires passenger seating behind the console, 
and this provision was not amended.  Thus, although this amended 
language in SOW III-10.6 used the terminology "should be," which, as 
the protester indicates, in some contexts depicts a desired or 
preferred characteristic rather than a mandatory requirement, compare 
All Star Maintenance, Inc., B-244143, Sept. 26, 1991, 91-2 CPD  para.  294 
("should" considered mandatory term in context of solicitation) with 
Steelcase Inc., B-260781, July 21, 1995, 95-2 CPD  para.  41 ("should" not 
considered mandatory term in context of solicitation), when all of the 
solicitation specifications for location of passenger and crew seating 
are considered together, the RFP clearly requires that passenger 
seating be located behind the console.  To conclude otherwise would 
read SOW III-3.7 completely out of the solicitation.  See ASAP Servs., 
a div. of ACM, Inc., B-260803, July 18, 1995, 95-2 CPD  para.  36.

With regard to the other specification in question, the SOW generally 
requires the boat to be "self-bailing."  The specific language 
addressing deck drainage (SOW paragraph III-9.3) provides 
specifications for the "bilge/drainage system" in two separate 
paragraphs.  The first paragraph addresses bilge pumps and the 
drainage of water from compartments to the bilge pump suction area.  
The second paragraph separately addresses deck drainage, stating that 
the deck "shall be drained through the transom by two large capacity 
freeing ports."  It is apparent that this second paragraph describes a 
requirement for self-bailing of the decks, whereby the decks can drain 
directly overboard.  

Although the protester acknowledges that its boat's forward deck is 
not self-bailing, Team One alleges that it may address deck drainage 
through its proposed bilge pump system.  SOW III-9.3 clearly and 
specifically distinguishes drainage of water on the deck, which must 
drain through ports in the transom (i.e., must drain overboard), from 
the drainage of water in other compartments, which must drain to the 
bilge suction area(s) for removal by bilge pumps.  The SOW does not 
provide for an alternative method of deck drainage through the bilge 
pump system, nor does the SOW language suggest that the specified 
method of deck drainage is only a preference.  Thus, the RFP language 
that the deck "shall" drain in this manner states a mandatory, rather 
than discretionary, requirement for self-bailing decks. 

Team One additionally alleges that the RFP provides that mandatory 
requirements will be denoted only by use of the word "threshold," and 
therefore, since the requirements in question are not stated as 
"threshold" requirements, they cannot be mandatory requirements.  We 
disagree.  SOW III-1 "System Performance" states in pertinent part:

     "General Note:  Throughout this document, 'threshold' refers to 
     maximum or minimum parameters that are absolute requirements, 
     'objective' refers to maximum or minimum parameters that are 
     desired, but not required."

The protester's allegation that requirements stated without using the 
term "threshold" cannot be mandatory requirements is based on a 
selective and incomplete analysis of the terms of the solicitation.  
When considered as whole, the solicitation does not use the terms 
"threshold" or "objective" exclusively to identify required or 
preferred characteristics.  In fact, outside of those performance 
specifications for which the agency has both a minimum need and a 
desire for performance in excess of that actual minimum need,[6] the 
SOW does not generally use the threshold/objective language.  If, as 
the protester asserts, a specification without the term "threshold" 
cannot be an "absolute requirement," then a specification without the 
term "objective" cannot be a "desired, but not required" 
characteristic.  However, since the majority of the specifications 
stated in the SOW do not use either of these terms, the absence of the 
threshold/objective language under this reasoning would render the 
majority of the specifications as neither required nor desired, and 
thus meaningless; such reasoning does not give effect to all of the 
terms of the RFP and is thus unreasonable.[7]  See ASAP Servs., a div. 
of ACM, Inc., supra.

Team One alternatively claims that the requirements in question are 
not material terms of the RFP, for which its proposal could be 
rejected for its failure to meet them.  

In negotiated procurements, any proposal that fails to conform to the 
material terms and conditions of the solicitation is unacceptable and 
may not form the basis for award.  Satellite Transmission Sys., Inc., 
70 Comp. Gen. 624 (1991), 91-2 CPD  para.  60.  Technical requirements that 
are stated in clear and unambiguous terms are presumed to be material 
to the needs of the government.  Id.  

Here, not only were the pertinent technical requirements stated in 
clear and unambiguous terms, their importance to mission capability 
were obvious.  Amendment 0005 specifically stated the agency's needs 
for the specified location of passenger seating under the combat 
mission conditions in which the boat will perform and why it was 
important, and, during discussions, the agency advised Team One that 
this was a "critical requirement."  As for deck drainage, the agency 
persuasively states that self-bailing decks are a critical design 
characteristic because a boat with decks that do not automatically 
drain overboard presents an unacceptable safety risk to personnel in 
the event the boat is disabled in high sea states where waves would 
routinely wash water onto the decks.  It is thus apparent that these 
requirements are material terms of the RFP.  Since the protester's 
proposal did not satisfy these material technical requirements, the 
agency properly determined that Team One's proposal could not 
reasonably form the basis for award and rejected the proposal from 
further consideration.[8]  See id.

Team One nevertheless alleges that the agency must accept Team One's 
proposal because the RFP contemplated the possible waiver of mandatory 
requirements.  It is true that the terms of the RFP contemplate 
offerors proposing exceptions to the requirements, so long as the 
proposal clearly states the exception and provides full supporting 
rationale for the exception.  However, the RFP did not indicate that 
the mere act of proposing exceptions would necessarily result in 
waiver or revision of the stated requirements.  

Here, Team One noted only one exception--the location of passenger 
seating.  During discussions, the agency stated that Team One's 
passenger seating exception was unacceptable and requested revision of 
the proposed seating location so that it "meets the requirement."  
Also, although Team One's proposal did not identify its approach to 
deck drainage as an exception to the requirements, the agency stated 
that the proposal failed to meet the stated requirement and was 
unacceptable, and requested correction of this deficiency.  Therefore, 
since the agency clearly stated during discussions that the proposed 
deviations from the requirements were unacceptable, Team One could not 
reasonably believe at that point that the agency would consider its 
proposal for award without revision to satisfy the identified 
requirements.  

Alternatively, Team One alleges that, since the agency considered its 
proposal unacceptable, the agency improperly included the proposal in 
the competitive range.  While it may be that Team One's proposal could 
have been rejected without discussions, the record reflects that the 
agency thought that there was some possibility that Team One could 
modify its boat to satisfy the agency's requirements.  Federal 
Acquisition Regulation  sec.  15.609 states that when there is doubt as to 
whether a proposal is in the competitive range, the proposal should be 
included.  Moreover, the agency's discussion letter specifically 
advised Team One that its proposal was unacceptable, identified the 
requirements which it would have to satisfy in order to be considered 
acceptable, and commented that "a considerable amount of effort will 
be required" to respond to the agency's concerns sufficiently  and 
that Team One should "consider carefully whether to expend further 
effort and expense in improving [its] proposal."  Team One, however, 
neither withdrew from the competition nor revised its proposal as 
indicated.  Under the circumstances, we find no basis to provide Team 
One any relief for the inclusion of its proposal  in the competitive 
range.  See Deskin Research Group, Inc., B-254487.2, Feb. 22, 1994, 
94-1 CPD  para.  134.

The protest is denied.

Comptroller General
of the United States

1. The boat is classified as LPD-17 ship class with a maximum overall 
length of 36 feet.

2. The console is the structure containing the instrumentation and 
controls from which the crew operates the boat.

3. Vertical acceleration refers to the up and down movements of the 
boat as it travels across the crests and troughs of waves.  As the 
boat planes over the waves, part or all of the hull of boat is thrust 
upward away from the water, followed by the boat hull falling back 
down to hit the water surface.  Vertical acceleration can be 
significant at high speeds on rough water, exposing passengers and 
crew to uncomfortable, physically fatiguing, and possibly hazardous 
gravitational stress on the body.

4. Cost proposals were submitted separately on January 22.

5. One offeror withdrew from the competition.

6. For example, in specifying speed and range requirements, the SOW 
states both preferred and minimum required parameters:

     "The objective top speed is 40 knots, the threshold top speed is 
     34 knots." (SOW III-1.1)

     "The objective cruise speed is 32 knots, the threshold cruise 
     speed is 27 knots." (SOW III-1.2)

     "The objective range is 175 NM [nautical miles], the threshold 
     range is 150 NM." (SOW III-1.3).

7. In any event, the agency specifically stated to Team One during 
discussions that both the passenger seating location and the deck 
drainage specifications were minimum requirements, that Team One's 
proposal failed to satisfy these requirements, and that its proposal 
was unacceptable because of this failure.  Thus, even if Team One was 
not aware of these requirements from the face of RFP, the agency's 
discussion letter clearly stated the agency's actual mandatory 
requirements and that the agency considered Team One's proposal 
unacceptable for failing to meet these requirements. 

8. Team One also protests the agency's evaluation of other elements of 
its proposal.  Since the protester's proposal is technically 
unacceptable under the two requirements discussed in this decision, 
these other protest bases are academic and will not be considered.