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.