BNUMBER: B-276529
DATE: June 17, 1997
TITLE: Fishermen's Boat Shop, Inc., B-276529, June 17, 1997
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Matter of:Fishermen's Boat Shop, Inc.
File: B-276529
Date:June 17, 1997
John T. Jozwick, Esq., for the protester.
Richard V. Gonzales, Esq., United States Coast Guard, for the agency.
Christine F. Davis, Esq., and James A. Spangenberg, Esq., Office of
the General Counsel, GAO, participated in the preparation of the
decision.
DIGEST
Agency's application of a "foreseeable cost" evaluation provision to
the protester's otherwise low bid for drydocking and repair of a Coast
Guard cutter was improper, where the provision did not apply if a
bidder's shipyard was less than 50 miles from the cutter's home
moorage, as was the protester's shipyard.
DECISION
Fishermen's Boat Shop, Inc. protests the award of a contract to
Maritime Contractors, Inc. (MCI) under invitation for bids (IFB) No.
DTCG85-97-B-625L68, issued by the Department of Transportation, United
States Coast Guard, for drydocking and repair of the U.S. Coast Guard
Cutter PT. BENNETT. The protester contends that the Coast Guard erred
in applying certain price-related factors to its bid, leading the
agency to incorrectly conclude that the overall cost of its bid was
higher than MCI's.
We sustain the protest.
The PT. BENNETT's home moorage is at Port Townsend, Washington,
located on the western shore of the Puget Sound Waterway. The IFB
contemplated performance at the contractor's shipyard and restricted
competition to bidders with shipyards on the Puget Sound Waterway.
The period of performance was from April 14 through May 23, 1997.
The IFB, as amended, informed bidders that the crew of the PT. BENNETT
would not live aboard the cutter, but would report to the cutter
during contract performance. Crew members were to oversee the
progress of certain work requirements, either by witnessing, testing
or inspecting the work. The IFB stated:
"[c]rew's normal working hours are from 7:30 AM to 4 PM Monday
though Friday, except Federal Holidays. If the contractor
desires to accomplish work, particularly work which requires
inspection or fire watches, outside of normal working hours,
request shall be made to [the contracting officer's technical
representative] at least 24 hours in advance."
The IFB provided for the evaluation of bids on the basis of price and
price-related factors, identified in section M of the IFB as certain
foreseeable costs to the agency "that will vary with the location of
the commercial shipyard to be used by offerors of services under this
solicitation." The foreseeable cost factor accounted for such things
as relocating the cutter and transporting various Coast Guard
personnel to the contractor's shipyard. As relevant here, the IFB
provided for an assessment of the foreseeable costs of messing and
berthing 11 PT. BENNETT crew members during the 40-day performance
period. However, this foreseeable cost was only to be applied if the
location of contract performance was more than "50 geographical road
miles" from the cutter's home moorage of Port Townsend. The IFB
stated that the "50 geographical road miles" would be determined "[i]n
accordance with Rand McNally Road Atlas."
The agency received two bids by the March 4, 1997, bid opening. MCI
submitted the apparent low bid of $83,177 and Fishermen's the next low
bid of $89,826. For the foreseeable cost evaluation, the contracting
officer initially found, using Rand McNally Road Atlas software, that
Port Townsend was 78 miles from MCI's Bellingham, Washington shipyard
and 44 miles from Fishermen's Everett, Washington shipyard. Everett
and Bellingham are on Puget Sound's eastern shore, opposite Port
Townsend. The calculated mileage between these cities was based upon
the use of state-operated ferries departing from Port Townsend to
cross Puget Sound, which represents the most direct route.
In determining whether the foreseeable costs of messing and berthing
applied to the Fishermen's bid, the contracting officer mistakenly
used a figure representing the round-trip mileage between Port
Townsend and Everett, 89 miles. Since this figure exceeded the
50-mile ceiling stated in the RFP, the contracting officer added
$38,680 in messing and berthing costs to the Fishermen's bid; this
amount, plus other foreseeable costs, yielded a total evaluated bid
price of $150,470.12. MCI's evaluated bid price was $143,993.20,
which included $39,600 in messing and berthing costs. On March 7, MCI
received award.
Upon receiving notice of award on March 13, the protester asked the
contracting officer why MCI's evaluated bid price was lower than the
Fishermen's bid, since Fishermen's shipyard was within 50 miles of
Port Townsend and exempt from the application of the foreseeable costs
of messing and berthing, while MCI's shipyard was undeniably more than
50 miles from Port Townsend. The contracting officer then recognized
her error in evaluating the Fishermen's bid and reevaluated each
bidder's foreseeable costs.
During the reevaluation, the contracting officer became acquainted
with the state-operated ferry schedule and realized that the PT.
BENNETT crew would not reach the protester's Everett shipyard before
9:00 a.m. using the ferry. Because the crew's normal reporting time
was 7:30 a.m., the contracting officer decided that, "although
Fisherman was less than 50 miles from the home moorage . . . the use
of the ferry as a method of transportation would not be acceptable for
the performance of this contract."
As a result, the contracting officer recalculated the mileage between
Port Townsend and each bidder's shipyard, using an overland route
which traversed Puget Sound's circumference. To generate the mileage
around the circumference, the Rand McNally Road Atlas software
combined the mileage from two legs of the trip: from Port Townsend to
Tacoma, Washington, and then from Tacoma to Everett or Bellingham.
Based upon this route, Port Townsend was 134 miles from Everett and
194 miles from Bellingham, and the contracting officer applied the
foreseeable costs of messing and berthing to both bids. As
recalculated, the Fishermen's total evaluated bid price was
$139,832.08, including $29,160 in foreseeable messing and berthing
costs, and MCI's total evaluated bid price was $135,828.38, including
$30,640 in foreseeable messing and berthing costs. The contracting
officer thus affirmed the award to MCI.
Fishermen's protests that the foreseeable costs of messing and
berthing were not applicable to its bid under the terms of the
solicitation. Fishermen's maintains that the IFB required the Coast
Guard to determine mileage "[i]n accordance with Rand McNally Road
Atlas," which uses the state-operated ferry system to achieve the most
direct route between cities on opposite shores of Puget Sound. As a
result, the agency could not, according to the protester, determine
mileage by using a "forced route" around the circumference of Puget
Sound.
An agency may not evaluate bids on the basis of price-related factors
which are not identified in the solicitation. Respiratory &
Convalescent Specialties Inc., B-255176, Feb. 14, 1994, 94-1 CPD para. 101
at 3.
Here, the record confirms, and the Coast Guard does not dispute, that
the Rand McNally Road Atlas[1] uses the state-operated ferry system to
achieve the most direct route between points on opposite shores of
Puget Sound, and that Fishermen's shipyard is less than 50 miles from
Port Townsend using this route. Because the IFB evaluation scheme
incorporated the Rand McNally methodology for determining mileage, the
Coast Guard should have excluded the foreseeable costs of messing and
berthing from the Fishermen's bid.
The Coast Guard nevertheless contends that the use of the
state-operated ferry would not allow the PT. BENNETT's crew to arrive
at the protester's shipyard by 7:30 a.m., contrary to the IFB
requirements that the "[c]rew's normal working hours are from 7:30 AM
to 4 PM" and that the contractor must obtain approval "to accomplish
work . . . outside of normal working hours."[2] Interpreting this
provision, the agency argues that the contractor must begin work by
7:30 a.m. in the crew's presence because "[u]nder no circumstances
will the Coast Guard allow contractor personnel aboard a Coast Guard
Cutter of this class without members of the Coast Guard present." The
agency thus argues that bidders should have known that the Coast Guard
would station the crew at the performance location and incur messing
and berthing costs, if the crew could not accomplish the ferry commute
by 7:30 a.m.[3]
While the Coast Guard, during its bid evaluation, may have anticipated
a need for its crew to reside at the performance location rather than
commute by ferry, the IFB did not reasonably express this intent nor
authorize the application of foreseeable messing and berthing costs
under such circumstances. Geographical distance, not commuting time,
was the exclusive basis stated in section M of the IFB for determining
the applicability of foreseeable messing and berthing costs, and the
IFB limitation on working hours did not alter this stated evaluation
basis. Assuming, arguendo, that the working hours provision required
the contractor to begin work each day by 7:30 a.m.--which it did
not--the contractor could fulfill this obligation whether the PT.
BENNETT's crew was present or not. Contrary to the agency's
allegations, nothing in the solicitation required the crew to witness
all, or even most, aspects of the contract work, and the contractor
could satisfy its performance obligations by scheduling inspections
and tests to correspond with the crew's arrival. In short, the
working hours provision did not make performance contingent upon the
crew's arrival by 7:30 a.m. and did not alter the stated evaluation
basis.
Therefore, as written, the evaluation scheme did not permit the Coast
Guard to apply the costs of messing and berthing to the Fishermen's
bid. Had the Coast Guard properly evaluated the Fishermen's bid, the
protester's total evaluated bid price would have been lower than the
awardee's, and it should have received award under the IFB.
While we sustain the protest on this basis, we are unable to recommend
that the award be disturbed because MCI has completed performance.
However, we recommend that the protester be reimbursed its bid
preparation costs and its costs of filing and pursuing the protest,
including reasonable attorneys' fees. 4 C.F.R. sec. 21.8(d) (1997). The
protester should submit its certified claim for costs to the
contracting agency within 60 days of receiving this decision. 4 C.F.R sec.
21.8(f)(1).
The protest is sustained.
Comptroller General
of the United States
1. We reviewed the 1996 Rand McNally Road Atlas, the Rand McNally
Standard Highway Mileage Guide, and computer-generated Rand McNally
Road Atlas software printouts.
2. The agency claims that the Fishermen's bid was nonresponsive to the
working hours requirement. Fishermen's bid took no exception to the
requirement and was thus responsive. To be responsive, a bid must be
an unequivocal offer to perform without exception the exact thing
called for in the solicitation so that acceptance of the bid will bind
the contractor to perform in accordance with all the IFB's material
terms and conditions. Southwest Marine, Inc., B-247639, May 12, 1992,
92-1 CPD para. 442 at 3.
3. The Coast Guard also argues that Fishermen's knew through prior
procurements that the ferry route from Port Townsend to Everett was
unacceptable. Fishermen's denies, and the record does not support,
this charge. First, the Coast Guard relies upon prior solicitations
that differ in relevant part from the one at hand, since they either
do not incorporate the Rand McNally methodology for computing mileage
in the Puget Sound region or involve a home moorage on the same shore
of Puget Sound as the protester's shipyard. Second, the contracting
officer in this case used the ferry route in her initial rendering of
foreseeable costs; while the agency implies that the contracting
officer's use of the ferry route was unintentional, we note that the
bid evaluation worksheets account for the costs of ferry passage.