BNUMBER: B-281872; B-281872.2; B-281872.3; B-281872.4
DATE: April 22, 1999
TITLE: Metro Machine Corporation, B-281872; B-281872.2; B-281872.3;
B-281872.4, April 22, 1999
**********************************************************************
DOCUMENT FOR PUBLIC RELEASE
The decision issued on the date below was subject to a GAO Protective
Order. This redacted version has been approved for public release.
Matter of:Metro Machine Corporation
File: B-281872; B-281872.2; B-281872.3; B-281872.4
Date:April 22, 1999
Frederick W. Claybrook, Jr., Esq., James J. Regan, Esq., John E.
McCarthy, Jr., Esq., and Daniel R. Forman, Esq., Crowell & Moring, for
the protester.
James A. Kelly, Esq., Donald A. Tobin, Esq., and Lori Ann T. Lange,
Esq., Bastianelli, Brown & Kelley, for Atlantic Dry Dock Corporation,
an intervenor.
Susan P. Raps, Esq., Craig L. Kemmerer, Esq., Stephen P. Anderson,
Esq., Catherine Rubino, Esq., Lisa L. Hare, Esq., Frank A. Putzu,
Esq., and Jannika E. Cannon, Esq., Department of the Navy, for the
agency.
Glenn G. Wolcott, Esq., and Paul I. Lieberman, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Where source selection authority considered protester's proposed
approach to perform production shop work at a remote location to be
unacceptable, and believed that the solicitation requirements
established that only a proposal to perform production shop work
on-site would be acceptable, agency misled protester during
discussions by effectively communicating that modifications or
enhancements to the protester's proposal to perform production shop
work at the remote location would be sufficient to make proposal of
that location acceptable.
DECISION
Metro Machine Corporation protests the Department of the Navy's award
of a contract to Atlantic Dry Dock Corporation (ADD) under request for
proposals (RFP) No. N62678-98-R-0025 for drydocking operations and
ship repair work for four classes of Navy ships homeported at the
Mayport Naval Station in the Jacksonville, Florida area. Metro raises
a number of protest issues, most significantly that the agency failed
to conduct meaningful discussions.
We sustain the protest.
BACKGROUND
On March 4, 1998, the Navy issued the RFP at issue for drydocking
facilities and repair services for four classes of Navy ships over a
5-year period. The solicitation provided that offerors could propose
to use, as government-furnished property, a Navy floating drydock with
the designation "AFDM-7" and the name Sustain which is currently in
the Navy's inactive fleet, or alternatively, a contractor-furnished
drydock. The RFP contained multiple contract line item numbers
(CLIN), each of which specified certain contract requirements. CLIN
0001 called for preparing the site, towing, setting up the dry dock,
and obtaining certification. CLIN 0002 (and corresponding option year
CLINs) called for operation and normal maintenance of the proposed dry
dock. CLIN 0003 (and corresponding option year CLINs), which was
applicable only to offerors proposing to use the Sustain, called for
repairs to the Sustain which exceeded the normal maintenance
contemplated under CLIN 0002. CLINs 0004 through 0007 (and
corresponding option year CLINs) called for specific work to be
performed on each of the four different classes of Navy ships to be
serviced at the dry dock.[1] RFP attachment J-5 listed 22 ships which
the Navy contemplated would be drydocked and repaired under this
procurement, stating:
Twenty-two (22) ships make up this requirement. Currently, there
are twelve (12) CNO drydocking availabilities scheduled for FY-99
[fiscal year 1999] thru FY-03 [fiscal year 2003]. All of these
vessels are subject to unscheduled, emergent drydockings.
Section M of the RFP provided that proposals would be evaluated on the
basis of six non-price evaluation factors which, taken together, were
significantly more important than price. RFP sec. M.1.B. The RFP
provided that two of the non-price evaluation factors--facility site
requirements and contractor-furnished drydock requirement--would be
evaluated on a pass/fail basis.[2] Id. sec. M.2.1, M.2.2. The four
remaining non-price evaluation factors, listed in descending order of
importance, were: technical;[3] earliest date able to commence
drydock operations; environmental impact; and past performance. RFP sec.
M.1.C.
Regarding evaluation under the most important "technical" factor, RFP
section M.2.3 stated:
Technical (Organization and Management, Manpower, and Facilities)
will be evaluated to determine the offeror's overall risk in
being able to perform the requirements of this contract relative
to operating and maintaining the dry dock and performing the
required dry dock repairs to applicable ships.
Regarding evaluation of price proposals, RFP section M.3 provided that
proposals would be evaluated by adding the total prices proposed for
all CLINs, except CLIN 0003 (and corresponding option year CLINs),[4]
and that price proposals "will be reviewed for . . . cost to the
Government to accomplish the requirements of the solicitation."
Metro and ADD submitted proposals by the May 15, 1998 closing date.
ADD proposed to use the government-furnished dry dock, Sustain, at
ADD's facility in Jacksonville. Metro proposed to use its own dry
dock, the Old Dominion, at a site to be leased from the Jacksonville
Port Authority (JPA). Metro also proposed to perform required
production shop work[5] at its facility in Norfolk, VA.[6]
In evaluating Metro's proposal, the technical proposal evaluation team
(TPET) expressed concern regarding Metro's proposed performance of
production shop work in Norfolk, stating:
[deleted]
TPET Summary Report, July 15, 1998 at 9.
On July 17, written discussion questions were sent to both offerors.
Only one of the 14 agency questions addressing Metro's technical
proposal referenced Metro's proposed use of its Norfolk production
shop facilities. That question stated:
It is noted that you expect to heavily utilize Norfolk facilities
and resources. What actions do you propose to mitigate the
problems associated with the physical distance between
Jacksonville and Norfolk?
Letter from the Contracting Officer to Metro Machine Corp. enclosure
1, at 3
(July 17, 1998).
Final revised proposals were submitted by Metro and ADD on September
1. In response to the agency question quoted above, Metro specified
the proposed actions that it believed would mitigate the potential
problems posed by its proposal to perform production shop work in
Norfolk, stating:
[deleted]
Metro Final Revised Proposal, Responses to Q&A, at 20-21.
The agency's contemporaneous evaluation documentation shows that the
agency found Metro's final revised proposal to be unacceptable.
Specifically, the source selection document states:
[deleted]
Business Clearance Memorandum, Dec. 21, 1998, at 9-10.
In part because the agency's documentation regarding its determination
that Metro's proposal was unacceptable incorporated several different
factors, GAO conducted a hearing to clarify the specific basis for the
agency's determination that Metro's proposal was unacceptable.[7] At
that hearing, the source selection authority (SSA) testified as
follows:
Q. [D]id the Navy know, at the time the discussion questions
were sent, did the Navy believe at that time that [Metro's]
proposing production facilities in Norfolk failed to meet the RFP
requirements?
A. Yes.
. . . . .
Q. It's my recollection that you testified earlier that you
believed . . . Metro's proposal with regard to the production
shop facilities in Norfolk made it -- from that you concluded
that the proposal failed to meet certain RFP criteria, am I
correct?
A. Yes.
Q. In your mind, as of the final evaluation, in your mind, did
the proposal fail to meet the RFP requirements?
A. Yes.
Hearing Transcript (Tr.) at 167, 384-85.
The SSA also testified:
Q. Can you think of an example of something they [Metro] could
have done which would have continued to have them propose to do
the production work in Norfolk and would have made their proposal
acceptable?
A. No. The answer is no to that . . . .
Q. No. In other words, it was the Navy's view that proposing to
do the production work in Norfolk made the proposal unacceptable?
A. Yes.
Tr. at 168-69.
Notwithstanding the SSA's testimony, the TPET chair--who was
responsible for preparing the technical discussion
questions--testified as follows:
Q. Did you view [Metro's] proposal of a production shop in
Norfolk as failing to meet the RFP criteria? Or failing to meet
the RFP requirements, I'm sorry.
A. I'll have to say no.
Tr. at 253.
ADD's final evaluated price was $238,494,739--[deleted] Metro's
evaluated price of [deleted]. Nonetheless, the agency selected ADD's
proposal for award, noting, as discussed above, that Metro's proposal
was unacceptable. Apparently because of the agency's determination
that Metro's proposal was unacceptable, there was no trade-off between
the relative technical merits of ADD's and Metro's proposals and the
costs to the government.
The contract was awarded to ADD on December 29. This protest
followed.
DISCUSSION
Metro contends that the agency conducted materially misleading
discussions regarding Metro's proposal to perform production shop work
in Norfolk. We agree.
It is a fundamental precept of negotiated procurement that
discussions, when conducted, must be meaningful and must not
prejudicially mislead offerors. SRS Techs., B-254425.2, Sept. 14,
1994, 94-2 CPD para. 125 at 6; Ranor, Inc., B-255904,
Apr. 14, 1994, 94-1 CPD para. 258 at 4. Specifically, an agency may not
mislead an offeror--through the framing of a discussion question or a
response to a question--into responding in a manner that does not
address the agency's concerns; misinform the offeror concerning a
problem with its proposal; or misinform the offeror about the
government's requirements. Price Waterhouse, B-254492.2,
Feb. 16, 1994, 94-1 CPD para. 168 at 9-11; DTH Management Group,
B-252879.2, B-252879.3, Oct. 15, 1993, 93-2 CPD para. 227 at 4. More
specifically, when an agency asks a general question indicating
concern regarding a perceived weakness in an offeror's proposal, then
subsequently rejects the proposal as technically unacceptable on the
basis of this concern, a question which could not reasonably be
construed as putting the offeror on notice of the agency's actual
concern regarding the acceptability of its proposal does not
constitute adequate discussions. Data Preparation, Inc., B-233569,
Mar. 24, 1989, 89-1 CPD 300 at 5-6.
Here, as noted above, it was the SSA's perception that Metro's
proposal to perform production shop work in Norfolk was inconsistent
with a material solicitation requirement, thereby rendering the
proposal unacceptable.[8] In explaining the basis for her conclusion
regarding the solicitation requirements, the SSA referred to the
provisions under CLIN 0001 in RFP sec. C, which state:
The contractor will prepare and provide an operating basin and
mooring site acceptable to the Government and will provide
necessary supporting facilities to accommodate the AFDM-7 or a
contractor-furnished dry dock. The proposed mooring location for
the dry dock must be within a 75-mile radius and a 90-minute
commute of the Mayport Naval Station.
. . . . .
The proposed facility will have pier facilities, utilities,
production facilities, and support facilities to accommodate the
dry dock and the ships to be docked as required to accomplish the
repairs to be furnished under the contract.
RFP sec. C, at 144, 146; Tr. at 162-64.
In fact, there is nothing in the above RFP provisions that necessarily
precludes an offeror's use of a Norfolk production shop. Clearly, the
75-mile radius and 90-minute commute requirements apply to the
"mooring location for the dry dock." The subsequent requirements for
"pier facilities, utilities, production facilities, and support
facilities" are not limited by geographic location, but rather may
reasonably be interpreted as imposing limitations on location only to
the extent that such facilities must be provided, "as required to
accomplish the repairs."
The agency's assertion that the RFP provisions "clearly" required that
production facilities, as well as pier facilities, support facilities,
and utilities, were to be located at or relatively near the proposed
site," see Agency Post Hearing Brief at 47, is inconsistent with the
TPET Chair's own testimony that he did not view the RFP requirements
as precluding Metro's proposed use of its Norfolk production shop.
Tr. at 253. In addition, the agency's assertion that the 75-mile
radius and 90-minute commute requirements apply to all support
facilities appears inconsistent with the provisions of RFP sec. L.2-7
which states:
If the company has offices or plants in other areas outside the
geographical cognizance of SupShip Jacksonville, the
organizational chart must clearly show those involved in this
effort.
RFP sec. L.2-7, at 206.
In any event, even if the agency had reasonably viewed the RFP as
mandating the provision of production facilities within the geographic
limitation applicable to the mooring location, it would have been
misleading for the agency to suggest during discussions that Metro
could propose actions to "mitigate the problems associated with the
physical distance between Jacksonville and Norfolk." Rather, if the
SSA's stated views regarding the RFP requirement for production
facilities to be located near Jacksonville were correct, that fact
should have been communicated to Metro.[9]
Although the SSA testified that it was her belief, at the time the
discussion questions were sent to Metro, that Metro's proposal failed
to comply with the solicitation requirements, see Tr. at 167, this
issue was apparently never discussed with the TPET chair, who was
responsible for preparing the technical discussion questions.[10] The
SSA also acknowledged that, during subsequent face-to-face discussions
with Metro, the agency did not indicate that Metro's proposed use of
its Norfolk production shop facilities rendered its proposal
unacceptable. Tr. at 160-66. Nonetheless, as noted above, the SSA
did not believe there was any acceptable response that Metro could
have provided other than to propose to perform the production shop
work in the Jacksonville area. Tr. at 168-169. In short, the
agency's discussions effectively communicated to Metro that its
proposal to perform production shop work in Norfolk was acceptable,
though in need of enhancements or modifications to mitigate problems
associated with distance, when, in fact, only a proposal to perform
the production shop work in the Jacksonville area would have been
considered acceptable.
Under these circumstances, in order for the discussions to be
meaningful, the agency was required to convey to Metro that its
proposed approach to performing production shop work would have to be
fundamentally altered--not merely explained or enhanced. Accordingly,
on the record here, the agency failed to conduct meaningful
discussions with Metro.
The agency argues that, even if its discussions with Metro were
inadequate, the protest should be denied for lack of prejudice because
there were other factors affecting the agency's determination. The
agency contends that any defect in its discussions could not have
prejudiced Metro because Metro's proposal would not have been selected
in any event.
Competitive prejudice is an essential element of a viable protest; GAO
will not sustain a protest where no prejudice is evident.
Microeconomic Applications, Inc., B-258633.2, Feb. 14, 1995, 95-1 CPD para.
82 at 10. Nonetheless, to establish prejudice, a protester is not
required to show that, but for the alleged error, the protester would
have been awarded the contract. Management HealthCare Prods. &
Servs., B-251503.2, Dec. 15, 1993, 93-2 CPD para. 320 at 4; Manekin Corp.,
B-249040, Oct. 19, 1992, 92-2 CPD para. 250 at 5. Rather, it is enough
that the record contain evidence reflecting a reasonable possibility
that, but for the agency's actions, the protester would have had a
substantial chance of receiving the award. McDonald-Bradley,
B-270126, Feb. 8, 1996, 96-1 CPD para. 54 at 3; see Statistica, Inc. v.
Christopher, 102 F.3d 1577 (Fed. Cir. 1996).
Here, we find that, but for the agency's failure to conduct meaningful
discussions, there was a substantial chance that Metro would have been
selected for award. Our conclusion in this regard is significantly
affected by the [deleted] difference in the evaluated prices of the
two proposals. As noted above, applying the price evaluation
methodology which the agency established in the solicitation, ADD's
price of $238,494,739 was [deleted] more than Metro's price of
[deleted].[11]
The agency first argues that, although Metro's proposed prices for the
actual ship repair work (CLINs 0004 through 0007) were considerably
lower than ADD's corresponding prices, Metro's proposal would not have
been selected for award in any event because Metro's price proposal
was unbalanced. The agency's assertions regarding unbalancing are
based on the fact that Metro's prices for CLINs 0001 and 0002 were
considerably higher than ADD's CLIN 0001 and 0002 prices.[12] The
agency asserts that there was some risk that ship repair work under
CLINs 0004 through 0007 would not "materialize," Agency Report at 26,
and expresses concern about paying Metro's higher CLIN 0001 and CLIN
0002 prices "regardless of whether any ship repair work was ordered
under the [CLINs 0004 through 0007] IDIQ line items." Agency Post
Hearing Brief at 84.
A critical element to determining whether unbalancing exists between
line items is the accuracy of the government projections regarding the
quantities of work to be obtained under each line item.[13] Sanford
Cooling, B-242423, Apr. 15, 1991, 91-1 CPD para. 376 at 4. Estimates must
be based on the most current information available and be reasonably
accurate representations of the government's anticipated actual needs.
Duramed Homecare, B-245766, Jan. 30, 1992, 92-1 CPD para. 126 at 6. Where
the agency concludes that the estimates in the solicitation do not
have a reasonable probability of being accurate, the solicitation
should be cancelled. Food Servs., Inc., B-243173, B-243173.2, July
10, 1991, 91-2 CPD para. 39 at 5.[14] If the solicitation estimates are
accurate, there can be no material unbalancing. Landscape Builders
Contractors, B-225808.3, May, 21, 1987, 87-1 CPD para. 533 at 2.
As noted above, RFP attachment J-5 listed twenty-two ships that, at
the time the solicitation was issued, the agency intended to drydock
and service under this procurement. In asserting that it was
concerned that the originally projected drydock and repair work might
not "materialize," the agency has not suggested that it plans to
drydock and repair any of the twenty-two vessels elsewhere,[15] nor
has it identified any other specific factor which suggests that its
initial projections were inaccurate.[16] Because of the lack of any
reasoned analysis which raises a serious question whether the number
of ships estimated at the time the solicitation was issued will be
substantially diminished, there is no reasonable basis for the
agency's concern that Metro's proposal is materially unbalanced.
Finally, the agency argues that, notwithstanding the inadequate
discussions, Metro's protest should be denied for lack of prejudice on
the basis that Metro's site lease with JPA does not comply with the
solicitation requirements. In this regard, the agency relies on RFP
section H-9 which provides: "The contract maximum amount shall be
defined as 200% of the total amount of CLINs 0003 through 0007 for the
base year." Because each of the four ship repair CLINs contain
requirements for a single ship, the agency concluded that offerors
must be able to drydock a maximum of eight ships per year.
In its initial proposal, Metro provided a copy of its lease with JPA,
which the Navy viewed as limiting Metro to five ship dockings per
year. During discussions the agency advised Metro of its concern. In
response, Metro provided the agency with a letter from JPA stating:
"Use of the layberth for dockings in excess of 5 drydockings per year
allowed as part of the lease agreement is available to Metro." Letter
from JPA to the President, Metro Machine Corp. (July 22, 1998).
Metro's final revised proposal further explained that it was not
limited to five dockings per year, but that, "[f]or emergency
drydockings and whenever the number of scheduled drydockings exceeds
five, Metro will be required to pay to JPA its published tariff . . .
. The Navy will see no additional charges for any such eventualities
covered by this contract." Metro Final Revised Proposal, Responses to
Q&A, at 17-18.
Following submission of Metro's final revised proposal, the agency's
best value advisory committee (BVAC) acknowledged that the lease did
not limit Metro to five drydockings per year, stating: "As a result
of discussions, [JPA] issued a letter allowing Metro, as well as
others, use of the layberth area in excess of five drydockings per
year." Memorandum from the BVAC to the Contracting Officer at 5 (Dec.
14, 1998). Similarly, at the hearing, both the SSA and TPET Chair
acknowledged that Metro's proposal was not limited to 5 drydockings
per year. Tr. at 100-101; 258.
Based on this record, it is clear that Metro's proposal does not take
any exception to the solicitation requirement establishing the maximum
quantity of eight ships that may be required to be drydocked in a
given year.[17]
The protest is sustained.
RECOMMENDATION
We recommend that the agency reopen negotiations, conduct meaningful
discussions with both offerors, request best and final offers, and
evaluate those proposals consistent with the solicitation's stated
requirements. In the event that the RFP does not reflect the agency's
actual requirements, the solicitation should be modified.[18] If, as
a result of this reevaluation, Metro's proposal is selected for award,
the agency should terminate ADD's contract for the convenience of the
government and make award to Metro. We also recommend that Metro be
reimbursed the reasonable costs of filing and pursuing the protest,
including attorneys' fees. 4 C.F.R. sec. 21.8(d)(1) (1998). The
protester should submit its certified claim for such costs, detailing
the time expended and the costs incurred, directly to the contracting
agency within 60 days after receipt of this decision.
Comptroller General
of the United States
1. CLIN 0004 contemplated work on FFG-class vessels; CLIN 0005
contemplated work on DDG-class vessels; CLIN 0006 contemplated work on
CG-class vessels; and CLIN 0007 contemplated work on DD-class vessels.
For each of these CLINs, the RFP contained an extensive list of
possible work to be performed. Offerors were required to submit fixed
prices for each listed item, and the RFP contemplated issuance of
delivery orders specifying the particular work to be performed for
each drydocked vessel.
2. With regard to the facility site requirements evaluation factor,
section M.2.1 stated: "[t]he site proposed for the dry dock must meet
all distance, commute time, water depth, and access requirements
stated in Section C of the solicitation." With regard to
contractor-furnished dry dock requirements evaluation factor, section
M.2.2 stated: "the proposed dry dock must have the capacity and size
requirements to dry dock the ships as stated in Section C of the
solicitation."
3. The technical evaluation factor contained three subfactors:
organization and management, manpower, and facilities. RFP sec. L.2.7,
at 206-07.
4. Section M provided that, for evaluation purposes, $650,000 would be
added as an evaluation factor for CLIN 0003 and each corresponding
option year CLIN for proposals offering to use the Sustain. RFP sec.
M.3.
5. Production shop work generally includes machine shop work, pipe
shop work, electrical shop work, steel and aluminum fabrication, and
sheet metal work.
6. The Navy was aware that Metro had previously used its Norfolk
production shop to successfully perform drydocking and repair of Navy
ships at remote locations. In evaluating Metro's past performance,
the agency stated: [deleted].
7. As discussed below, in arguing that the protest should be denied
for lack of prejudice, the agency maintains that each of the factors
on which the agency relied in finding Metro's proposal unacceptable
constituted an independent basis for rejecting Metro's proposal.
8. The agency categorically states: "[t]he Navy's requirement for
on-site production facilities was a material requirement." Agency
Post Hearing Brief at 51. Accordingly, if the agency properly
believed that Metro's proposal failed to comply with a material
solicitation requirement, the proposal should have been considered
technically unacceptable. International Sales Ltd., B-253646, Sept.
7, 1993, 93-2 CPD para. 146 at 2.
9.[deleted].
10. The TPET chair testified:
Q. Did you ever discuss this issue in terms of the RFP
requirements in the context of Metro's proposal of the
production shop facility in Norfolk with [the SSA]?
A. I can't remember. I don't think so.
Tr. at 253.
11. The agency suggests that the difference in evaluated prices is not
a valid measurement of the actual costs of contract performance,
noting that the prices reflect a summation of all possible tasks that
could be performed on each of the four classes of ships to be
serviced. While it is true that not all tasks priced and evaluated
will be ordered for any given availability, it is also true that each
CLIN reflects the pricing for only a single ship, while the agency
asserts that as many as eight ships may be drydocked and serviced in
any given year.
12. The agency acknowledges that it did not develop a government cost
estimate for CLINs 0001 and 0002 (and corresponding option year CLINs)
"[b]ecause the scope of work for CLINs 0001 and 0002 could vary among
offerors." Agency Report at 24.
13. Although unbalancing in connection with quantity estimates usually
arises in the context of requirements contracts, we believe that it
could arise in the context of a single-award, task-order contract such
as this one.
14. Our Office has previously cautioned the Navy that, in issuing
solicitations, the agency has an affirmative duty to use the best
quantity estimates available. Sanford Cooling, B-242423, Apr. 15,
1991, 91-1 CPD para. 376 at 8.
15. In responding to Metro's protest, the agency explained the
rationale underlying this procurement, as follows:
The establishment of a dry dock capability in the
Jacksonville homeport area has been a matter of deep
importance to the Navy. Presently, Navy vessels
homeported in the Jacksonville area must be sent outside
the homeport for dry dock-related repair work. Requiring
the dry dockings to take place outside of the Jacksonville
area adversely impacts the quality of life for the ships'
crews and their families. There is significant concern
within the Navy that the reduced quality of life produced
by extended maintenance periods out of the homeport area
will adversely affect crew morale, retention, and
readiness.
Agency Report at 7-8.
16. Rather, the Navy asserts, generally, that its "uncertainty"
regarding the amount of ship repair work that will actually be
required under this contract is based on "downsizing within the DoD
and the Navy, ships being decommissioned, or dry dock maintenance
cycles being lengthened." Agency Report at 26.
17. To the extent the agency was concerned that, in performing the
contract, Metro [deleted], such concern does not constitute a failure
to comply with the solicitation requirements.
18. Metro also protests that the agency failed to properly assess the
relative risks associated with ADD's proposed use of the Sustain, as
required by RFP sec. M.2.3, which, as noted above, advised offerors that
proposals "will be evaluated to determine the offeror's overall risk
in being able to perform the requirements of this contract relative to
operating and maintaining the dry dock and performing the required dry
dock repairs to applicable ships." The agency acknowledges that it
"did not qualitatively assess [ADD's] proposed use of Sustain,"
arguing that, despite the express language of RFP sec. M.2.3, "It would
be patently unfair . . . to . . . subject the offerors proposing to
use Sustain to a comparative assessment against any privately owned
dry dock that might be offered." Agency Post Hearing Brief at 34, 37.
In light of our decision regarding the agency's inadequate
discussions, we do not reach the merits of Metro's protest regarding
the agency's evaluation of proposals pursuant to the provision in RFP sec.
M.2.3 quoted above. Nonetheless, we recommend that, concomitant with
reopening negotiations, the agency consider whether this section of
the RFP should be revised to clearly reflect the manner in which the
agency intends to evaluate the revised proposals.
Finally, Metro has raised various other protest allegations, including
the assertions that the agency improperly evaluated the costs
associated with ADD's proposal to use the government-furnished
drydock, that the agency erred in its evaluation of Metro's proposed
CAPE (compliant all-position enclosure) system, and that the agency
improperly evaluated proposals under the past performance factor, the
environmental factor, and the start-up schedule factor. We have
considered these other protest allegations and found they provide no
basis for sustaining the protest.