BNUMBER:  B-279393 
DATE:  June 9, 1998
TITLE: Marlen C. Robb & Son, Boatyard & Marina, Inc., B-279393, June
9, 1998
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Matter of:Marlen C. Robb & Son, Boatyard & Marina, Inc.

File:     B-279393

Date:June 9, 1998

Marlen C. Robb, Jr. for the protester.
Col. Nicholas P. Retson, Capt. James A. Lewis, and Susan A. Bivins, 
Esq., Department of the Army, for the agency.
Sylvia Schatz, Esq., and John M. Melody, Esq., Office of the General 
Counsel, GAO, participated in the preparation of the decision.

DIGEST

1.  Sixty-calendar-day performance period is not arbitrarily short, 
and is  unobjectionable, where agency needs vessel returned to service 
as soon as possible, there is significant expense to agency in keeping 
the vessel at the contractor's yard, and vessel is considered to be of 
relatively low complexity for repair and modification purposes.

2.  Solicitation estimate of 10,000 pounds of steel for plate renewal 
is not excessive or otherwise unreasonable--notwithstanding that it 
may result in offerors having to propose lower unit prices, and 
increased contractor risk in the event that less plating work is 
required--where record shows that agency's estimate properly was based 
on the amount of steel actually ordered for plate renewal under recent 
prior contracts for modification and repair of similar vessels.

3.  Evaluation scheme which accords greater weight to definite item 
prices than to indefinite item prices is unobjectionable; it 
represents a reasonable means of preventing deliberate unbalancing of 
prices between definite and indefinite items, a problem previously 
encountered by agency under similar prior contracts. 

DECISION

Marlen C. Robb & Son, Boatyard & Marina, Inc. (Robb) protests certain 
provisions of Department of the Army request for proposals (RFP) No. 
DABT57-98-R-0008, for the repair and modification of U.S. Army Reserve 
Vessel LCM-8289, stationed at Fort Belvoir, Virginia.

We deny the protest.

The RFP contemplates the award of a fixed-price contract for all 
labor, materials, equipment and appropriate plant site to accomplish 
the programmed drydocking, cleaning, painting, and repairs.  The RFP 
states that award will be made to the responsible offeror whose offer 
conforms to the solicitation and is the best value to the government, 
based on two evaluation factors--past performance (more important) and 
price.  RFP section M.2.  The RFP's pricing schedule contains both 
definite and indefinite contract line items (CLIN) that require 
submission of unit and extended prices.  All services are required to 
be completed no later than 60 calendar days after commencement of the 
performance period.  RFP section F.5(c).  With regard to the 
performance period, the RFP further provides as follows:

     The performance period includes time to perform both the Definite 
and Indefinite Items.  It is estimated that 65% of the performance 
period is required to perform the Indefinite Items.  No additional 
time will be granted for new items or items performed in lieu of 
Definite or Indefinite Items unless the time required to perform the 
additional work exceeds the time required to perform the Indefinite 
Items. 

RFP section F.5(c).  With regard to price, the RFP provides as 
follows:

     The Government will evaluate definite and indefinite items by 
adding a weighted amount to the offeror's total for indefinite items.  
A significantly higher weighted amount will be added to the offeror's 
total price for definite items.  Since the prices submitted for known 
definite items are considered significantly more important than prices 
submitted for [in]definite items, it is imperative that the offeror 
submit a reasonable price for the definite items in order to be 
competitive.

RFP section L.9, II.B.  

SIXTY-CALENDAR-DAY PERFORMANCE PERIOD 

Robb argues that the RFP's 60-calendar-day duration for completing all 
the required work is improper because it was set arbitrarily, without 
consideration of the amount of tasks to be performed on the vessel.  

Procuring agencies are responsible for defining and determining how 
best to meet their needs.  See CardioMetrix, B-270701, Mar. 13, 1996, 
96-1 CPD  para.  149 at 3.  We will review such determinations only to 
ensure that they are reasonable.  G.H. Harlow Co., Inc., B-254839, 
Jan. 21, 1994, 94-1 CPD  para.  29 at 3.

The 60-day performance period is reasonable.  The Army reports that 
the LCM-8289 is a small, low complexity vessel, and that most 
contractors questioned in a 1996 market survey stated they had no 
difficulty completing work on this type of vessel within a 60-day time 
frame; in fact, the Army reports, 2 of 12 recently completed contracts 
for vessel repair work were completed ahead of the 60-day schedule.  
The Army further explains that there is significant expense to the 
agency in keeping the vessel at the contractor's yard, since the ship 
surveyor must be present with the vessel while it is being repaired, 
thus requiring the agency to incur hotel, travel and salary costs for 
a contracting officer's representative unavailable to perform his 
normal duties.  Finally, the Army states that the vessel must be 
returned as quickly as possible to Fort Belvoir, since reserve 
training on the vessel is tightly scheduled and the military's 
readiness posture is impaired when the vessel is out of service.  The 
agency's need for 60-day performance clearly is supported by the above 
considerations, and the protester has not brought those considerations 
into question.  There thus is no basis to object to the 60-day 
performance period.

Robb asserts that the RFP should clearly define the time frame for all 
required tasks, rather than merely establish a total 60-day 
performance period.  The Army explains, however, that this approach is 
not feasible for two reasons.  First, the indefinite items which will 
be required will not even be identified until the post-award 
inspection is conducted.  For example, the agency states that the 
amount of steel requiring replacement generally cannot be determined 
until the vessel is in dry dock, or paint and interferences have been 
removed.  Affidavit of Van B. Locklear at 1.  Second, the agency's 
approach in providing only broad performance time parameters is 
intended to take into account offerors' unique scheduling 
considerations based on their differing workforce, subcontract and 
other circumstances.  Contracting Officer's Responsive Statement, 
April 12, 1998, at 2.  The agency's position is reasonable on its 
face, and Robb has not shown otherwise.  
DEFINITE AND INDEFINITE ITEMS

Robb objects to the RFP section F.5(c) provision setting aside 65 
percent of the performance period for the indefinite items, since this 
will leave the contractor with only 35 percent of the performance 
period, or 21 days, to complete the definite quantity items.  
According to Robb, after excluding 4 days for the pickup and return of 
the vessel, 5 days for bad weather, and 8 days for Saturdays, Sundays 
and holidays, the contractor will have only 4 days to complete the 
definite quantity items, which will require "incredible" acceleration 
by the contractor.  Robb also maintains that the Army's activation of 
the indefinite items will cause disruption and delays in the 
contractor's performance of the definite items.   

This argument is without merit.  The protester's position assumes that 
definite and indefinite work will be performed only during the portion 
of the performance period identified for each.  In fact, however, as 
the Army explains, the 65-percent figure indicated for the indefinite 
items is stated as an estimate only.  There is nothing in the RFP 
which precludes the contractor from performing the two types of work 
simultaneously; indeed, the Army contemplates that the contract will 
be performed in this manner.  As for the potential disruption, the 
agency further reports that, since the indefinite work will largely be 
identified and activated early in the performance period, the 
contractor will be aware of this work at the time it develops its 
progress schedule, affording it flexibility as to when during the 
performance period to schedule each task.  It thus does not appear 
that the Army's activation of these items will unduly disrupt the 
contractor's performance or that the 65-percent figure for performance 
of the indefinite items is otherwise objectionable.[1]

PLATE RENEWAL 

Robb objects to indefinite CLIN No. 0008, plate renewal and structural 
repairs, which requires prices for replating in the amount of an 
estimated 10,000 pounds of steel--5,000 pounds each for above and 
below the water line renewal.  Robb maintains that this amount far 
exceeds the amount of replating ever previously ordered for this type 
of vessel, and that the extreme overstatement of the required quantity 
will force it to decrease its unit price, ultimately "unfairly 
enriching" the government when less plate renewal work is ordered 
under the contract.  Protest Letter dated March 3, 1998, at 2.

Where an agency solicits offers on the basis of estimated amounts, the 
estimates must be compiled from the best information available and 
present a reasonably accurate representation of the agency's 
anticipated needs; however, there is no requirement that they be 
absolutely correct.  Custom Envtl. Serv., Inc., B-241052, Jan. 15, 
1991, 91-1 CPD  para.  38 at 3.  

The estimate is unobjectionable.  Although Robb asserts it was advised 
by an Army ship surveyor that no more than 1,000 pounds of steel have 
ever been required, the Army explains that the estimate was based on 
the amount of steel actually ordered for plate renewal under recent 
similar contracts.  Specifically, the Army reports that  (1) in 1991, 
the vessel LCM-8524 required replacement of 11,440 pounds of plate for 
the bow ramp;[2] (2) in 1989, LCM-8599 required replacement of 1,684 
pounds of plate and in 1992 required replacement of an additional 
4,285 pounds of underwater plate; (3) in 1995, LCM-8587 required 
replacement of 4,308 pounds of plating above, and 6,250 pounds below 
the waterline.  Further, while the Army concedes that some vessels 
require only a minimal amount of plate renewal, it notes that the 
LCM-8289, the subject of the current RFP, is an unmodernized reserve 
vessel, increasing the likelihood that substantial plate renewal will 
be required.  We conclude that the Army's judgment was based on 
consideration of its experience under prior similar contracts and the 
characteristics of the vessel under the RFP--the best infomation 
available--and that the estimate therefore is reasonable.

We note that it is apparent from Robb's submissions that its argument 
is based on its view that it must price the steel replacement portion 
of the contract below its cost in order to succeed in the competition, 
and its concern that, if it does so in the face of such a large steel 
estimate (resulting in a low unit price), it may incur an unacceptable 
loss if less steel replacement ultimately is required.  However, an 
offeror's interest in developing a successful pricing strategy is not 
a foundation for a meritorious protest; the fact that uncertainty as 
to the amount of work that actually will be required may make it more 
difficult to formulate a desirable pricing scheme does not render the 
solicitation defective.  Rather, simply put, if Robb cannot accept the 
risk of pricing the steel replacement work low, then it has the choice 
of pricing the work higher.  The Army certainly was not required to 
err in favor of understating the steel replacement work merely to 
reduce the risk inherent in Robb's pricing strategy. 

PRICE EVALUATION 

Robb objects to the addition of a "significantly higher" weighted 
amount to the definite item prices for evaluation purposes, as 
provided for under RFP section L.9.II.B.  It is Robb's view that, 
since 65 percent of the contract is designated for performance of the 
indefinite items, the definite item prices should not be considered 
significantly more important, and thus weighted significantly higher, 
than the indefinite item prices.

Robb's argument misses the point.  The agency reports that it adopted 
this evaluation scheme to discourage offerors from submitting 
unbalanced pricing with understated prices for indefinite items and 
overstated prices for definite items.  The relative importance of the 
definite and indefinite items thus refers, not to the potential 
quantity of work under each type of item, but to the importance of the 
item for purposes of the price evaluation.  The definite items are 
considered significantly more important because those items definitely 
will be performed and paid for, while the indefinite items may not be 
performed.  We find nothing improper or objectionable in this 
evaluation approach.  Robb complains that "if we bid $10 for a 
definite item and $7 for a comparable indefinite item, and the 
government activates the indefinite item, we lose $3."  However, 
Robb's scenario ignores the fact that the weighting is only for 
purposes of the evaluation; Robb and the other offerors are free to 
price each item as they wish, and the contractor ultimately will be 
paid in accordance with its offered prices.  To the extent Robb means 
to argue that the weighting is objectionable because it makes it more 
difficult for offerors to develop a successful pricing strategy, 
again, this simply is not a valid basis for challenging an otherwise 
unobjectionable provision.

The protest is denied.

The Comptroller General
of the United States

1. Robb disputes the Army's position that disruption will be minimized 
by the early activation of the indefinite items, citing one of its 
prior Army contracts under which an indefinite item was not activated 
until after the performance period ended.  However, the agency 
responds that (1) the modification that included activation of the 
cited item actually was executed 1 day prior the end of the 
performance period; (2) the item in question was plate renewal, which 
could not be activated until after completion of the vessel 
inspection, during which holes and pitting in the steel were first 
discovered; and (3) this work could not have been ordered sooner, 
since Robb was far behind schedule on the contract.  In any case, the 
fact that the agency previously may have activated isolated tasks late 
in the performance period in no way invalidates its position that 
indefinite work generally is, and under the contract here will be, 
activated early in the performance period. 

2. Robb asserts that the 11,420 pounds of steel required for the 
LCM-8524 is misleading because the steel was used to repair the bow 
ramp, and bow ramp repairs are normally covered under a separate CLIN.  
The Army responds, however, that, while the prior solicitation did 
contain an indefinite bow ramp repair CLIN, it was under a separate 
CLIN for plate renewal and structural repairs that the agency actually 
activated the 11,440 pounds of steel plating work.  Contracting 
Officer's Responsive Statement, April 21, 1998, at 1.  Robb has not 
refuted this explanation.