BNUMBER: B-277363
DATE: August 28, 1997
TITLE: The Great Lakes Towing Company, B-277363, August 28, 1997
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Matter of:The Great Lakes Towing Company
File: B-277363
Date:August 28, 1997
George L. Sogor for the protester.
Charles A. Johnson, Esq., Military Sealift Command, Department of the
Navy, for the agency.
Glenn G. Wolcott, Esq., and Paul Lieberman, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
1. Protest that contracts were awarded to other than the offeror
proposing the lowest price is denied where agency record clearly
establishes the contrary.
2. Where agency clearly communicated its interpretation of the
solicitation requirements to protester prior to requesting best and
final offers, protester's post-award protest of the solicitation
requirements is untimely.
DECISION
The Great Lakes Towing Company (GLT) protests the Department of the
Navy's award of contracts to provide ship tugboat docking services at
various ports.
We deny the protest.
On May 16, 1997, the Department of the Navy, Military Sealift Command,
issued solicitation No. N00033-97-R-7043, seeking proposals for
tugboat services at 10 ports along the Great Lakes waterways. On May
27, various offerors, including GLT, submitted initial proposals.
GLT's proposal included various pricing options, reflecting different
prices depending on how many of the ports it was awarded. Written
discussion questions, dated June 6, were sent to the offerors. Oral
discussions were conducted on June 9. GLT asserts that during the
oral discussions the Navy's contract specialist advised GLT that its
multi-port pricing was unacceptable and that the RFP required
submission of individual pricing for each port. Thereafter, best and
final offers (BAFO) were submitted. GLT's BAFO contained two types of
pricing: individual pricing for each port and an "all ports" package
containing prices that would be applicable if GLT were awarded
contracts for all ports.
The agency awarded contracts for the various ports on June 18, with
GLT receiving contract award for 5 of the 10 ports. This protest
followed.
GLT's protest contains the following stated grounds of protest:
1. Section M1 [of the RFP, titled] Evaluation Factors for Award
was not followed by MSC because we were verbally advised that our
lowest price offer would not be evaluated since MSC intended to
award individual contracts for each port; yet MSC awarded one (1)
contract to GLT covering five (5) ports;
2. Criteria and specifications other than the ones set forth in
the solicitation were used in the evaluation and award procedure.
MSC's "[d]iscussions" letter . . . dated June 6, 1997[,] asks
"What is the firepump capacity for the tug(s) you are offering?"
The solicitation does not specify a firepump requirement, nor did
GLT offer tugboats equipped with firepumps;
3. Contract award(s) were made to other than to the lowest price
offeror. Amendment 0003 [of the solicitation] . . . dated June
4, 1997[,] reopened the solicitation to "enhance competition."
During telephone discussions with [the MSC contract specialist]
Mr. Romano, he stated that GLT's "All Ports Packaging Pricing"
could not be considered because it would be restricting
competition. MSC is obligated to follow the solicitation's
evaluation criteria and make an award to the lowest price,
responsible offeror(s) which result in the lowest cost to the
Government in accordance with Section M1 of the solicitation;
4. GLT was given incorrect instructions by Mr. Romano during
discussions on June 9, 1997[,] and thereby reduced the number of
pricing options from seven (7) to two (2) based on Mr. Romano's
statement that our option pricing cannot be considered. Our
competitiveness was reduced and the Government did not award a
contract for each port as represented during discussions.
At our request, the Navy submitted the BAFO price sheets which formed
the basis for each of the awarded contracts.[1] These documents show
that the agency awarded contracts to the offeror proposing the lowest
price for each of the ports and, further, that none of the other
awardees submitted proposals with multiple pricing options. Following
submission of these documents, GLT offered no evidence or arguments
that the documents submitted by the Navy were inaccurate.
Accordingly, there is no factual support for GLT's assertion that
contracts were awarded to other than the lowest-priced offeror, or
that GLT was otherwise treated unequally.
The remaining portions of GLT's protest constitute challenges to the
agency's interpretation of the solicitation, which the agency clearly
communicated to GLT prior to GLT's submission of its BAFO. Rather
than then protesting the clearly communicated solicitation
requirements, GLT chose to submit its BAFO.
In procurements where proposals are requested, alleged improprieties
which do not exist or are not apparent in the initial solicitation,
but which are incorporated into the solicitation or become apparent
subsequently must be protested not later than the next closing time
for receipt of proposals. See 4 C.F.R. sec. 21.2(a)(1) (1997). Here,
GLT elected not to protest the clearly established solicitation
requirements prior to submitting its proposal, and its post-award
challenge of those provisions is untimely.
The protest is denied.
Comptroller General
of the United States
1. In its protest, GLT requested that our Office process this protest
under the express option/accelerated schedules provisions of our Bid
Protest Regulations. 4 C.F.R. sec. 21.10 (1997). In an effort to
expedite protest resolution, our Office initiated several conference
calls with the parties' representatives, requesting and obtaining
early production of certain identified documents.