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.