BNUMBER:  B-276694 
DATE:  July 15, 1997
TITLE: Braswell Services Group, Inc., B-276694, July 15, 1997
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Matter of:Braswell Services Group, Inc.

File:     B-276694

Date:July 15, 1997

William A. Scott, Esq., Pedersen & Scott, for the protester.
Daniel L. Martin, North Florida Shipyard, Inc., an intervenor.
Rhonda Russ, Esq., and Capt. J. L. Biliouris, Department of the Navy, 
for the agency.
Linda S. Lebowitz, Esq., and Michael R. Golden, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Solicitation reasonably reflected the agency's minimum needs and 
provided sufficient information for offerors to intelligently prepare 
technical proposals and to submit prices which will take into account 
perceived performance uncertainties and risks.

DECISION

Braswell Services Group, Inc. protests the terms of request for 
proposals (RFP) No. N62670-97-R-0004, issued by the Supervisor of 
Shipbuilding, Conversion and Repair, Department of the Navy, for 
repairs to the USS Philippine Sea, a guided missile cruiser.  The 
protester basically contends that, as drafted, the RFP requirements 
involving staff-days for reserve work and specified personnel 
positions and the RFP evaluation scheme prevent it from intelligently 
preparing a proposal.

We deny the protest.

The RFP, issued on March 5, 1997, contemplated the award of a 3-month 
firm, fixed-price contract to the responsible offeror whose proposal 
was determined most advantageous to the government, past performance 
and price considered.  Concerning the past performance evaluation 
factor, the RFP listed three subfactors--quality of product or 
service, timeliness of performance, and contracting/business 
relations.  Each subfactor contained several elements, for a total of 
18 elements.  Concerning price, the RFP stated that an offeror's price 
would be evaluated for reasonableness and whether it reflected the 
offeror's understanding of the work and the firm's ability to perform 
the contract.  In determining the proposal most advantageous to the 
government, the RFP stated that the "[p]ast performance factor is more 
important than the [p]rice factor."

The protester, a firm experienced in performing ship repairs for the 
government, including work on the USS Philippine Sea under a previous 
contract, filed this protest prior to the closing time for receipt of 
proposals on April 8.

Requirements for Staff-days for Reserve Work and Specified Personnel 
Positions

The RFP specified more than 100 "work items" to be performed by the 
contractor.  For most of these items, an offeror's proposed price was 
to reflect its judgment regarding the staff-days and/or material 
required to perform the basic work under a particular work item.  For 
34 of the work items, however, an offeror was also required to include 
in its proposed price an amount for additional staff-days and/or 
material reserved for work which was unknown prior to award, that is, 
initially unanticipated work which ultimately may be necessary to 
complete the work item.  For the work items which included a reserve 
provision, the RFP provided a number of staff-days and a dollar amount 
for material.  The RFP reserved a total of 1,122 staff-days and 
$104,975 for material.[1]

The protester complains that it is unable to provide staffing 
information, as required by the RFP, for reserve work because the RFP 
includes insufficient detail concerning the reserve work, for example, 
the type of craft required and when the work will be needed.

An agency is responsible for drafting proper specifications to meet 
the government's minimum needs.  In preparing for a procurement, the 
agency must develop specifications in such a manner as is necessary to 
achieve full and open competition in accordance with the nature of the 
property or services to be acquired.  See 10 U.S.C.  sec.  2305(a) (1994).  
A solicitation must contain sufficient information to allow offerors 
to compete intelligently and on an equal basis.  Sunbelt Properties, 
Inc., B-249469 et al., Nov. 17, 1992, 92-2 CPD  para.  353 at 4.  However, 
there is no legal requirement that a competition be based on 
specifications drafted in such detail as to completely eliminate all 
risk or remove every uncertainty from the mind of every prospective 
offeror.  Id.

Contrary to the protester's assertion, the RFP contains sufficient 
information to permit it to submit staffing charts for reserve work.  
Using the example noted above, it is clear that the reserve work 
covers the same services required for the basic work--crane and 
rigging services with operators and riggers loading, unloading, and 
transporting material, supplies, and equipment.  To accomplish this 
reserve work the contractor will need a crane, fork lift, and storage 
container as required for the basic work.  (The RFP describes the 
minimum required features for the equipment.)  The RFP specifies the 
number of staff-days and a dollar amount for this reserve work, and 
provides for an equitable adjustment in the event the additional work 
involves more or less than the specified staff-day and dollar amounts.  
The reserve work will be ordered by the government if determined 
necessary after reviewing what was accomplished during the 
contractor's performance of the basic work.

While there may be some uncertainty and risk in that more or less time 
and material may be necessary for contractor personnel to perform 
specified reserve work, we conclude that the agency could not 
reasonably eliminate all performance uncertainties and risks in 
drafting its requirements.  In this regard, the agency reports that 
historically, the precise need for, and the extent of, any reserve 
work is generally not known until after award and after a basic work 
item is performed; at that time, the agency can reasonably decide if 
any of the reserve work is necessary to complete the work item.  For 
each reserve work provision corresponding to a basic work item, the 
agency has provided its best estimate of staff-days and material 
necessary to complete any reserve work and has mitigated any risks to 
offerors by including an equitable adjustment provision.[2]

Because of the variable nature of shipboard conditions, we do not 
believe the agency could reasonably be expected to do more than it did 
in specifying its requirements.  In fact, we think the agency could 
reasonably expect offerors, like the protester, to use their business 
judgment, including their experience with prior ship repair contracts, 
in preparing their proposals to reflect the risk of being asked to 
perform reserve work which might be required after the performance of 
basic work to address unforeseen additional and necessary repairs.  We 
point out that in A&E Indus., Inc. et al., B-226997 et al., June 19, 
1987, 87-1 CPD  para.  616 at 5, a case involving virtually the identical 
issue, we rejected the argument that a solicitation for ship repair 
services was defective for allegedly lacking detail regarding the 
ordering of reserve work.  We concluded that since the solicitation 
specified the total number of additional hours which may be ordered, 
limited the timing of the additional work over the life of the 
contract, gave estimates by general category of the additional work, 
and specified the required personnel experience levels, the 
solicitation contained sufficient information to enable offerors to 
intelligently prepare their proposals.  We reach the same conclusion 
in this case.

The RFP also contained a management organization plan to ensure that 
contractor personnel were available to ensure timely completion of the 
work.  The RFP listed seven minimum personnel positions for specific 
functional areas and stated that the individual assigned to a 
particular position could not be assigned any other duties during the 
performance of this contract and was limited to performing only one of 
the functional areas.

The protester complains that the management organization prescribed by 
the RFP exceeds the agency's minimum needs and that an offeror, not 
the agency, should be able to determine how to assign and manage its 
contract personnel.[3]

The agency reports that the USS Philippine Sea is a technologically 
complex guided missile cruiser, and in performing the contract, the 
contractor will be required to perform work on, among other things, 
fuel oil tanks, gas turbine generators, combustion air intakes, and 
the vertical launching system.  The RFP provides for a 3-month 
performance period.  The agency estimates that 70 production days and 
15 testing days, involving thousands of staff-days, will be required 
to perform the work items described in the RFP.  The agency expects 
that contractor personnel will be required to work multiple shifts and 
overtime, and the contractor will be required to manage and coordinate 
numerous subcontractors.  Since a contractor's performance of many job 
critical work items is contingent upon the contractor timely starting 
or completing other work items, the agency states that the assignment 
of seven individuals to specific functional areas provides the 
government with reasonable assurances that the contractor's management 
organization will be available to react to problems that arise during 
contract performance and to communicate with the government concerning 
problem resolution.  By requiring the exclusive assignment of 
individuals to particular functional areas for this contract only, the 
agency believes it will minimize the government's exposure to schedule 
delays, increased costs, and risks to the safety of ship personnel, 
any one of which could adversely impact the ship's availability in the 
event of a military crisis.

We believe the agency has reasonably justified its minimum needs.  The 
period of performance for this technologically complex, labor 
intensive effort is a relatively short 3-month period.  Because of the 
government's critical need to have all work completed and the ship 
available at the end of this period, the agency has imposed on all 
potential offerors a minimum management organization plan requiring 
the dedication of seven individuals to this specific contract effort.  
In light of the RFP's compressed performance period, the 
technologically complex nature of the ship and its systems, the large 
number of work items as described in the RFP (more than 100 basic work 
items with 34 reserve work items), and the need to minimize 
potentially adverse effects resulting from schedule delays, increased 
costs, and safety risks, we think the agency has not overstated its 
needs by requiring the contractor to dedicate to this contract effort 
seven individuals who are, in the agency's reasonable view, key to the 
timely and successful completion of this contract.[4]

Evaluation Scheme

The protester also complains that the RFP's evaluation scheme is 
defective because in describing the relative importance of past 
performance to price for purposes of determining the proposal most 
advantageous to the government, the RFP simply states that the "[p]ast 
performance factor is more important than the [p]rice factor."  
(Emphasis added.)  The protester maintains that the agency has failed 
to appropriately state the relative importance of past performance to 
price in accordance with Federal Acquisition Regulation (FAR)  sec.  
15.605(d)(1) (FAC 90-31) which provides that a solicitation "shall 
state whether all evaluation factors other than cost or price, when 
combined, are--(i) [s]ignificantly more important than cost or price; 
(ii) [a]pproximately equal to cost or price; or (iii) [s]ignificantly 
less important than cost or price."  The FAR language tracks the 
statutory language at 10 U.S.C.  sec.  2305(a)(3)(A)(iii).

At a minimum, a solicitation must set forth all significant evaluation 
factors and subfactors and their relative importance.  10 U.S.C.  sec.  
2305(a)(2)(A); FAR  sec.  15.605(d)(1); Israel Aircraft Indus., Ltd., MATA 
Helicopters Div., B-274389 et al., Dec. 6, 1996, 97-1 CPD  para.  41 at 6.   
The basic concern is that offerors know from the RFP what importance 
an agency will place on technical evaluation factors vis-a-vis 
cost/price so that these offerors can compete intelligently and on an 
equal basis.  Serv-Air, Inc., B-194717, Sept. 4, 1979, 79-2 CPD  para.  176 
at 6-7.  While the statutory and regulatory provisions also require an 
RFP to indicate "whether" non-cost/price evaluation factors are 
significantly more or less important than cost/price or approximately 
equal to cost/price, here the agency reports that it considers past 
performance "more important," but not "significantly more important," 
than price for determining the most advantageous proposal.

In such circumstances, we see no reason to object to the RFP 
evaluation scheme.  We have long recognized that an agency, in 
disclosing the relative weights of RFP evaluation factors, properly 
could do so simply by listing the factors in descending order of 
importance, provided that one of the factors was not weighted 
disproportionately to the others.  See Sperry Rand Corp., Univac Div., 
B-179875, Sept. 12, 1974, 74-2 CPD  para.  158 at 11; BDM Servs. Co., 
B-180245, May 9, 1974, 74-1 CPD  para.  237 at 7-8.  We think the statutory 
and regulatory provisions relied on by the protester are consistent 
with those decisions.  In other words, we believe the statement 
required by FAR  sec.  15.605(d)(1) is to be included in solicitations 
where the combined weight of the evaluation factors other than 
cost/price is significantly more or less than (or approximately equal 
to) the weight accorded to cost/price.  Where the combined weight of 
the non-cost/price evaluation factors is not significantly more or 
less important than (but not approximately equal to) cost/price, as 
the agency states is the case in this procurement, the FAR provision 
is satisfied by what the agency did here.

In its comments on the agency report, the protester also takes 
exception to certain descriptive terms/phrases used by the agency for 
eight elements in the past performance evaluation scheme.  For 
example, the protester complains that terms/phrases such as 
"appropriateness of contractor personnel assigned to the contract" and 
"responsiveness to technical direction" are ambiguous, thereby 
precluding offerors from knowing what the agency is evaluating with 
respect to past performance.  However, the protester was aware of all 
aspects of the RFP's past performance evaluation scheme prior to the 
closing time for receipt of initial proposals.  Accordingly, the 
protester was required to raise in its initial protest prior to the 
stated closing time all arguments regarding any alleged defects in the 
terms of the RFP.  Because our bid protest regulations do not 
contemplate the piecemeal development of protest issues, we will not 
consider these new post-closing time issues.  4 C.F.R.  sec.  21.2(a)(1); 
Educational Media Div., Inc., B-193501, Mar. 27, 1979, 79-1 CPD  para.  204 
at 5.[5]

The protest is denied.

Comptroller General
of the United States
                              
1. For example, work item No. 993-11-001, titled "Crane and Rigging 
Services for Alteration Installation Team," required for the basic 
work that the contractor "[p]rovide crane services for one hour per 
day cumulative to 5 hours per week, with operator[s] and riggers for 
loading, unloading, and transporting . . . material, supplies and 
equipment throughout the availability as directed by the 
[government]."  The RFP described minimum features for a crane, 
forklift, and storage container to perform the basic work.  The work 
item also contained a reserve work provision requiring the contractor 
to "[p]rovide 20 [staff-]days of labor and 500 dollars of material for 
support of the . . . work package throughout the availability as 
directed by the [government].  Total cost of support greater or less 
than above [staff-]day and dollar amounts will be the subject of an 
equitable adjustment."

2. In its comments on the agency report, the protester, based on its 
previous experience in performing three ship repair contracts for the 
government, including repairs to the USS Philippine Sea, contends that 
the agency has overstated its minimum needs, that is, the agency has 
overestimated the number of staff-days necessary for the performance 
of reserve work.  To support its contention, the protester provides 
percentages of reserve staff-days ordered by the government under each 
of its contracts.  The protester reports that for each contract, the 
number of staff-days ordered was significantly less than the estimate 
in the particular RFP.  Based on its previous experience, the 
protester argues that the estimates in the current RFP do not 
accurately reflect the agency's minimum needs.  However, we conclude 
that this argument, made for the first time more than a month after 
the April 8 proposal due date in the protester's comments on the 
agency's administrative report, is untimely.  Our Bid Protest 
Regulations require that protests based upon alleged improprieties in 
a solicitation which are apparent prior to the closing time for 
receipt of initial proposals must be filed prior to that closing time.  
4 C.F.R.  sec.  21.2(a)(1) (1997).  Issues regarding the accuracy of a 
government estimate, where contractors, like the protester, are on 
notice of the inherent unpredictability of a particular type of 
estimate because of the firm's incumbency status or experience in the 
field, must be raised prior to the stated closing time.  Allstate Van 
and Storage, Inc., B-270744, Apr. 17, 1996, 96-1 CPD  para.  191 at 3.  

3. For the first time in its comments on the agency report, the 
protester makes specific arguments concerning each of the seven 
personnel positions in the context of arguing that the prescribed 
management organization exceeds the agency's minimum needs.  These 
post-closing time arguments are untimely.  4 C.F.R.  sec.  21.2(a)(1).

4. The agency reports that the protester has been awarded six 
scheduled availability contracts with the management organization 
provision described above.

5. We also point out that, while the protester infers hostile intent 
from what is apparently a history of contract disputes between the 
protester and the agency, the agency is required to evaluate past 
performance in accordance with the terms of the RFP.  Contrary to the 
protester's assertion, there is nothing in the record which indicates 
that the RFP's evaluation scheme is intended to, or is structured to, 
lessen competition by favoring long-established, local contractors.