TITLE:  Maritime Berthing, Inc., B-284123.3, April 27, 2000
BNUMBER:  B-284123.3
DATE:  April 27, 2000
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Maritime Berthing, Inc., B-284123.3, April 27, 2000

Decision

Matter of: Maritime Berthing, Inc.

File: B-284123.3

Date: April 27, 2000

Wm. Craig Dubishar, Esq., William L. Walsh, Jr., Esq., and Lars E. Anderson,
Esq., Venable, Baetjer & Howard, for the protester.

Harry R. Silver, Esq., Ober, Kaler, Grimes & Shriver, for Violet Dock Port,
Inc., an intervenor.

David G. Ranowsky, Esq., and George N. Brezna, Esq., Department of the Navy,
for the agency.

Charles W. Morrow, Esq., and James A. Spangenberg, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

On a solicitation for ship layberth services to be awarded to the offeror
submitting the low-priced, technically acceptable proposal, the agency's
determination that the awardee's proposal met a requirement limiting
allowable ship motions to 7 feet was unreasonable, even though the proposal
on its face provided evidence that it did meet that requirement, where prior
to completing the evaluation the agency's evaluators were apprised of
significant countervailing evidence that should have given them reason to
doubt whether the proposal complied with that requirement, that is, a report
from the agency's on-site representative that the awardee's facility did not
meet this requirement on an on-going contract, and where the record now
demonstrates that the proposal contained insufficient information to
determine compliance.

DECISION

Maritime Berthing, Inc. protests the award of a contract to Violet Dock
Port, Inc. under Lot 1 of request for proposals (RFP) No. N00033-99-R-5303,
issued by the Department of the Navy, Military Sealift Command (MSC), for
layberth services. Maritime contends that Violet's facility cannot meet the
RFP's minimum surge requirements and that MSC unreasonably determined that
Violet's proposal was acceptable in this regard.

We sustain the protest.

BACKGROUND

The RFP, issued as a partial small business set-aside, was to procure a
layberth facility and services [1] for four Large, Medium Speed,
Roll-on/Roll-off ships (LMSR) on a fixed-priced rate basis for 3 years with
two 1-year options. RFP sect.sect. C-1, F-1. Lot 1 of the RFP, which was restricted
to small businesses, sought layberth services for two of the LMSR ships in
the Gulf Coast and the Atlantic South Region. RFP sect. C-1.

The RFP provided for award to the responsible offeror with the
lowest-priced, technically acceptable offer, and listed technical, price,
and past performance as the evaluation factors. RFP sect. M-2.1. The RFP
identified various technical subfactors and sub-subfactors and advised that
they would be evaluated on a "pass/fail" basis. RFP sect. M-2.2. The RFP further
advised that "[an] unacceptable evaluation in any sub-subfactor, subfactor,
or factor will result in an overall unacceptable rating of an offeror's
proposal" and that "[t]he overall safety of the ship and facilities is a key
consideration when evaluating the technical proposals." RFP sect. M-2.1.

Section C-5.3 of the RFP stated:

If the ships are berthed in or adjacent to a channel, 150 feet (at minimum
water depths) will be considered a safe working area. In no event will the
ships be berthed less than 200 feet from the limits of a transit channel in
which passing traffic may be proceeding at speeds of five (5) knots or
greater.

Section C.6.1.2 of the RFP stated:

Contractor must ensure that the ships are moored in accordance with the
approved mooring plan. If the ships are not moored in accordance with an
approved plan, the Contracting Officer or [Contracting Officer's
Representative] must be notified in writing as soon as the discrepancy is
discovered. Mooring line arrangements shall be of sufficient strength and
number to minimize the magnitude of ship motions and positioned so as to not
to result in excessively steep mooring line angles. . . . The pier and
mooring arrangement must provide proper restraint for forces and moments
generated from ships passing the layberth. The allowable ship motions will
be plus or minus seven (7) feet in surge [2] and sway directions. [3]

Among other things, the RFP required the offeror's technical proposal to
contain a mooring plan for berthing the LMSR vessels. Specifically, section
L-7.2A2 of the RFP stated:

a. Mooring Plan. The Offeror should provide a mooring plan which should
include the following at a minimum: a) detailed engineering design drawings
(conceptual sketches are not acceptable); b) mooring line direction and
loads (i.e. breast lines, spring lines, bow and stern lines); and c) mooring
line fittings and hardware location and safe working load. . . . In this
section, the Offeror should provide a brief description of the
meteorological profile for the port region, including: a) maximum winds
normally encountered (including hurricanes); b) primary wind directions
(seasonal); c) tidal range at berth; d) speed and direction of currents and
tides at the layberth; e) waves and seiche; and f) ice characteristics, if
any. Additionally, the offeror will submit calculations which approximate
the wind and current and any other applicable forces that may be exerted
against the ship at the proposed layberth.

Section L-7.2A4 of the RFP stated:

a. Hazards. The Offeror should identify and describe any building located
within 200 feet of the ship. Additionally, the offeror should describe any
potential hazards that would adversely impact the ship, such as, a) surge
caused by passing ships; b) open seas; c) current; d) waves and seiche; e)
underwater obstructions; f) overhead obstructions; g) solid and/or drift ice
in water; h) corrosive waste in water and/or air; i) airborne sand, dust, or
grit; or j) any other hazardous condition, including fire. The offeror
should propose methods to minimize the risk of hazards.

By the August 10, 1999 closing date, MSC had received [DELETED] proposals
for Lot 1 of the RFP, including Maritime's and Violet's. Agency Report, Tab
41, Abstract. Maritime proposed to berth the LMSRs at a layberth facility
located on the Gulf Coast at Corpus Christi, Texas, and Violet proposed to
berth the LMSRs at pier 1 of its layberth facility located on the
Mississippi River at Violet, Louisiana, just below New Orleans, Louisiana.

Violet's proposal contained a mooring plan, which among other things
provided details as to how the LMSRs should be moored and included
calculations that indicated that surge at the facility was less than 7 feet.
Agency Report, Tab 20, Violet Technical Proposal, attachs. 5, 7. The
proposal also contained a letter from the president of the Crescent River
Port Pilots' Association stating:

The speed limit in this area of the Mississippi River is governed by Rule 6
of the Inland Rules of the road which requires all vessels to travel at a
safe speed which is appropriate to the prevailing circumstances and
conditions. . . .

Vessels, when passing piers and docks, have an affirmative duty to proceed
carefully and prudently so as to avoid creating excessive swells or suction
which could damage vessels which are properly moored. Vessels navigating the
Mississippi River, in the vicinity of the Violet Dock Port, take into
consideration the vessels berthed at the location in determining an
appropriate speed. Normally vessels pass the Violet Dock Port as near to mid
channel as possible which is approximately 600 feet.

Agency Report, Tab 20, Violet Proposal, attach. 3.

On September 9, after evaluating proposals, the technical evaluation
committee (TEC) determined [DELETED] proposals, including Violet's and
Maritime's, were in the competitive range. Discussions were conducted with
the competitive range offerors in October, although no discussions were
apparently conducted with Violet regarding the ability of its berthing
facility to meet the surge requirements. Agency Report at 4-6.

Meanwhile, by letter dated October 6, Maritime requested that MSC perform
site inspections, particularly of those layberth sites located on the
Mississippi River, because Maritime believed that such facilities could not
meet the RFP's passing traffic and surge and sway requirements. Agency
Report, Tab 42, Maritime Letter to MSC (Oct. 6, 1999). [4] On November 30,
MSC responded:

Contrary to your assertion . . . the solicitation does not entirely
eliminate the possibility of a layberth site on the Mississippi River. The
responsibility is on the offeror to prove that a proposed Mississippi River
facility is capable of meeting the requirements of the solicitation. The
government's responsibility is to accurately evaluate whether or not the
offeror has satisfactorily addressed those requirements and submitted a
viable proposal.

Agency Report, Tab 46, MSC Letter to Maritime (Nov. 30, 1999).

Previously, in August, MSC had awarded another contract to Violet for
layberth services for two Fast Sealift Ships (FSS) at an adjacent pier
(pier 5) of the same facility proposed for the LMSR layberth. Tr. at 70.
This contract also contained the requirements that the ships could not be
berthed less than 200 feet from traffic passing at 5 knots or greater and
that allowable ship motions for moored ships not exceed 7 feet in surge and
sway directions. See Tr. at 150, 160; Protester's Comments, attach. 4,
Declaration of C. Allan Hubler, at 3-4.

On October 13, after the initial evaluation on this protested award but
prior to the submission of best and final offers (BAFO), the MSC marine
transportation specialist responsible for monitoring compliance with the
requirements of this contract sent the Chairman of the TEC the following
e-mail message:

Whoaaaa Nellie::: Algol [the FSS vessel docked at pier 5 of Violet's
facility] is in the move again!!! She is surging up to 20 ft (witnessed by
me) and more according to the Master and crew. The Algol is right across
from the anchorage and very large vessels are passing between them and the
Algol. . . . REMEMBER, this is the same dock that almost killed two people
ten years ago and left their bodies ravaged. . . . During the RFP's for
layberth you asked me about problems down there. I voiced my concerns about
the past surging problem and you assured me that was taken care of or not a
problem.

Agency Report, Tab 65, E-Mail Message (Oct 13, 1999).

Although MSC initiated a review of the incident, it did not consider this
information in evaluating Violet's proposal for the LMSR procurement. See
Tr. at 129-36, 143-44, 156.

MSC received BAFOs by November 30. Violet's BAFO proposed the lowest total
evaluated price and Maritime proposed the next lowest total evaluated price.
Agency Report, Tabs 18 and 24, Maritime's and Violet's Amended Proposals.
The TEC completed its final evaluation on December 2 and determined that
both Maritime's and Violet's proposals were acceptable. Agency Report, Tab
40, Memorandum (Dec. 2, 1999). MSC awarded Violet the contract on December
28. This protest from Maritime followed.

CONTESTED ADMISSION OF COUNSEL TO GAO'S PROTECTIVE ORDER

During the protest, we admitted to a protective order issued in connection
with this protest an attorney retained by Maritime, notwithstanding the
agency's objection to the attorney's admission. [5] MSC had objected to this
individual's admission because the attorney was listed as an "authorized
negotiator" for another company that had received award on another lot of
the RFP, which is owned by the same group of principals as own Maritime, and
had been listed as "authorized negotiator" for other companies owned by
these principals in prior MSC procurements. MSC maintained that the
designation as an authorized negotiator in itself should result in the
denial of the attorney's admission.

After consideration of MSC's objection, we nonetheless admitted the attorney
to the protective order because he had established (and MSC had produced no
contradicting evidence) that he had performed no activities in this
capacity, he agreed to withdraw as the contract negotiator under the
contract, and he further agreed not to serve as or be designated as an
authorized negotiator for the companies owned by these principals in the
future. We do not agree with MSC that designation as an authorized
negotiator automatically disqualifies an applicant from admission to a
protective order. While we think that this designation should cause an
application for admission to a protective order to receive closer scrutiny,
the question to be resolved on a case-by-case basis is whether the
individual's activities constitute competitive decision-making for the
client, such that release of protected materials will results in an
unacceptable risk of inadvertent disclosure of the information. See
Matsushita Elec. Indus. Co., Ltd. v. U.S., 929 F.2d 1577, 1579
(Fed. Cir. 1991).

MERITS OF THE PROTEST

Maritime protests that Violet's facility cannot comply with the RFP
requirements concerning the minimum distance from passing traffic and surge
and sway. [6] Maritime contends that MSC's evaluation of Violet's proposal
in this respect was unreasonable because it did not inspect Violet's
facility nor perform sufficient mathematical calculations to verify that
Violet's facility would meet these requirements. Maritime contends that MSC
should have performed a comprehensive analysis of Violet's proposed mooring
plan, particularly Violet's ability to meet the 7-foot minimum surge
requirement, because Violet's facility is commonly known to have surge
problems given its particular location on the Mississippi River, and because
of the reported observations of the MSC representative of surge that greatly
exceeded 7 feet at Violet's facility. [7] Maritime also contends that the
conditions near Violet's facility make it impossible for Maritime to develop
an acceptable mooring plan to meet the passing traffic and surge
requirements, since extremely large vessels regularly pass too close to
Violet's facility in excess of 5 knots, which cause the surge and sway
problems. Maritime has also submitted a detailed analysis from a registered
professional engineer with mooring analysis experience that concludes that
the analysis contained in Violet's proposal showing compliance with the
surge requirement is flawed and based on invalid assumptions. [8]
Protester's Comments, attach. 4, Declaration of C. Allan Hubler, at 7-12.
The engineer also submitted calculations to show that Violet's mooring
arrangement would not meet the agency's requirement. Id. at 12-24.

The evaluation of proposals is a matter within the discretion of the
contracting agency since the agency is responsible for defining its needs
and the best method of accommodating them. Marine Animal Prods. Int'l, Inc.,
B-247150.2, July 13, 1992, 92-2 CPD para. 16 at 5. In reviewing an agency's
evaluation, we will not reevaluate proposals, but instead will examine the
agency's evaluation to ensure that it was reasonable and consistent with the
solicitation's stated evaluation criteria.
MAR Inc., B-246889, Apr. 14, 1992, 92-1 CPD para. 367 at 4.

MSC asserts that, in determining that Violet's mooring plan satisfied the
minimum surge and passing traffic requirements and was acceptable, it
reasonably reviewed and relied upon the representations and calculations
contained in Violet's proposal, including the letter from the pilots'
association. Agency Report at 11-17. At the hearing, the MSC evaluator, who
determined that Violet's mooring plan and surge calculations met the RFP
requirements, testified that he accepted the proposal representations "at
face value" and made no independent analysis of Violet's proposed mooring
plan and surge calculations during his evaluation. [9] Tr. at 208-10,
220-21, 245-46. He further testified that he only examined the proposal to
ensure mathematical accuracy and use of the proper surge analysis equations,
and did not question any of the variables of the surge analysis, such as the
size of the vessel selected [10] or the mooring plan depicted in Violet's
drawing. [11] Tr. at 184-90, 208-10.

In determining the technical acceptability of a proposal, an agency may not
accept at face value a proposal's promise to meet a material requirement,
where there is significant countervailing evidence reasonably known to the
agency evaluators that should create doubt whether the offeror will or can
comply with that requirement. See Koehring Cranes & Excavators; Komatsu
Dresser Co., B-254731.2, B-245731.3, Nov. 23, 1992, 92-2 CPD para. 362, at 8;
Telemetrics, Inc.; Techniarts Eng'g, B-242957.7, Apr. 3, 1992, 92-2 CPD
para. 168 at 4-6; Mine Safety Appliances Co.; Interspiro, Inc., B-247919.5,
B-247919.6, Sept 3, 1992, 92-2 CPD para. 150 at 3, recon. denied, National
Draeger, Inc.--Recon., B-247919.7, Nov. 6, 1992, 92-2 CPD para. 325 at 3; see
also International Bus. Sys., Inc., B-275554, Mar. 3, 1997, 97-1 CPD para. 114
at 5 (agency in evaluating past performance may not ignore highly relevant
"close at hand" experience, even if the requested reference form was not
received).

Here, months before it completed its evaluation and made award to Violet,
MSC was presented with significant countervailing evidence indicating that
Violet's facility had experienced surge problems that should have caused a
closer review of Violet's proposal to ensure that it clearly met the stated
surge requirements. As indicated above, MSC's TEC Chairman was specifically
advised in October 1999 by MSC's on-site representative that Violet's
facility was experiencing surge problems on a nearby pier in the same
facility which was serving as a layberth for another MSC vessel under a
contract with the same surge requirement. In addition, as noted above, the
protester had noted various concerns about surge at Mississippi River
facilities, in response to which the agency stated that it was the agency's
responsibility to determine whether the offeror properly addressed the RFP
requirements and submitted a viable proposal.

Notwithstanding the report of its on-site representative, MSC's TEC Chairman
did not seek a more detailed analysis of Violet's proposal promises
concerning its ability to meet the surge requirements. Tr. at 156. The
Chairman of the TEC testified that the letter from Maritime and the e-mail
message from MSC's on-site representative were received after the initial
evaluation had concluded that Violet's proposed layberth met RFP
requirements, and that he did not cause Violet's proposal to be reevaluated
because the protester's letter did not present any new information and
because the incident related in the MSC's on-site representative's e-mail
message was being investigated. Tr. at 129-36, 143-44.

Given that the surge problem was reported at a pier in Violet's facility, we
think that, absent some reasonable explanation, it was unreasonable for MSC
to simply accept Violet's assurances that its facility could meet the
requirements without performing a more detailed analysis of Violet's
proposed mooring plan, including its surge calculations. MSC had adequate
time to investigate the matter, conduct discussions with Violet, and
reevaluate Violet's proposal in this respect, because the MSC contract
monitor's report was made months prior to MSC completing the final
evaluation. While MSC now asserts that it had no reason to doubt Violet's
ability to meet the surge requirement because the surge problems were
experienced at pier 5, not pier 1, MSC has stated no reason why pier 1
should be less susceptible to surge problems than pier 5 and none seems
apparent given the close proximity of the piers to one another. While MSC
also now claims that FSS ship operator error, slack mooring lines, and the
capstan and winch arrangement on the FSS ships were primarily responsible
for the particular surge incident, Tr. at 133-34, 160-61, 165-69, the
on-site representative's contemporaneous record stated that "all [including
Violet] agreed in principle that the extreme surging is caused by vessels
passing too close to the [moored vessel]." [12] Agency Report, Tab 66,
E-Mail from MSC On-Site Representative (Nov. 3, 1999). Thus, the agency
should have more closely reviewed and/or conducted discussions concerning
Violet's proposal to determine if it could meet the RFP's surge
requirements.

After the protester's comments had been filed and our Office scheduled a
hearing, the MSC evaluator attempted to verify from Violet's proposal
whether the proposed pier could comply with the surge requirement, but
concluded that there was insufficient information in the proposal for MSC to
independently confirm that Violet's mooring plan and calculations met the
requirement. Tr. at 195-96. Specifically, the evaluator testified that
coordinates relative to the centerline of the moored ship in Violet's
mooring plan and the lengths of the chains and sizes of the chains were
necessary to complete an analysis of Violet's mooring plan, and that this
information was not included in Violet's mooring plan. Tr. at 196. He then
requested Violet to provide additional information and Violet submitted a
revised mooring plan, which the agency admits was significantly different
from that included in Violet's proposal, so the MSC evaluator could
independently determine whether Violet could meet the surge requirements.
Tr. at 196, 200-01, 205-08, 216, 224-27, 237, 262. Thus, the record
evidences that Violet's proposal contained insufficient information to
determine that it met the surge requirements, so that the agency could not
reasonably conclude that Violet's proposal was acceptable based on its
contents, in view of the countervailing evidence that indicated that
Violet's pier may not comply with the surge requirements. Under such
circumstances, the agency should have conducted discussions with Violet on
this point.

MSC and Violet nevertheless argue that the evaluation was reasonable based
upon the various new calculations that were prepared during the course of
the protest that purportedly show that Violet's layberth site can comply
with the surge requirements. Specifically, the MSC evaluator's pre-hearing
calculations, based on information Violet provided in February, conclude
Violet's layberth site can meet MSC's surge requirements. Agency Submission
(Mar. 25, 2000). In addition, MSC submitted with its post-hearing comments a
second set of calculations it prepared with the Optimoor program and the
AQWA mooring analysis program that also purportedly show that Violet's
layberth site can meet the surge requirement. See Site Specific Report,
Mooring Calculations For Two T-AKR-296 Ships (Mar. 2000). Moreover, Violet
in its comments submitted a mooring plan and the calculations of a
professional engineer that conclude that its facility can meet the agency's
surge requirements. Maritime has disputed in detail each of the analyses
provided and continues to assert that Violet's facility cannot meet the
surge requirement.

We accord less weight to evaluation documents prepared to defend a protest
than to the contemporaneous source selection record. The lesser weight
reflects our concern that these reevaluations prepared in the heat of an
adversarial process may not represent the fair and considered judgment of
the agency, which is a prerequisite of a rational evaluation and source
selection process. See Boeing Sikorsky Aircraft Support, B-277263.2,
B-277263.3, Sept. 29, 1997, 97-2 CPD para. 91 at 15. From our review, we cannot
conclude that these disputed analyses demonstrate that Violet's proposed
pier complies with the surge requirements. In any case, even accepting that
these post hoc calculations may show that Violet's pier can meet the surge
requirements, the record indicates that they were not based on the offeror's
proposed mooring plan, but on subsequent revisions to that plan that could
only have been properly provided if discussions had been conducted. See Tr.
at 195-200. Thus, the record does not evidence that Violet's submitted
proposal met the surge requirements.

We sustain the protest.

Given that Violet may be able to submit an acceptable mooring plan,
including compliance with the surge requirements, we recommend that MSC
reopen discussions with Violet, Maritime, and the other competitive range
offerors, request revised proposals, and then make a new award decision. If
an offeror other than Violet is selected, Violet's contract should be
terminated. In addition, we recommend that Maritime be reimbursed the cost
of filing and pursuing its protest,

including reasonable attorneys' fees. 4 C.F.R. sect. 21.8(d)(1). 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 of receiving this decision.

Comptroller General
of the United States

Notes

1. These services include, for example, electrical shore power, potable
water, telephone service, roving guard service, additional soundings, and
steam. RFP sect.sect. C-7.3, C-9

2. Surge occurs when the ship moves forward or backward while moored to the
pier. See Hearing Transcript (Tr.) at 94.

3. The RFP advised that the Optimoor mooring analysis software program was
acceptable to perform mooring calculations. RFP sect. C-6.1.1(a). This program
allows users to calculate the impact of wind- and current-generated forces
on mooring lines. Protester's Comments, attach. 4, app. 4, Description of
the Optimoor and Dynamoor Mooring Analysis Programs.

4. Maritime identified several alleged problems inherent to mooring large
vessels on the Mississippi River that would cause the vessels to be subject
to large bow line forces and very large vessel motions forward and aft, that
is, surge and sway, because of the river current, the size and speed of
vessels traveling the river, and the fact that many facilities utilize
mooring buoy systems in lieu of fixed structures. Maritime requested that
MSC perform "sufficient analysis . . . to demonstrate conclusively that a
proposed facility fully satisfies the technical specifications." Maritime
further stated that should "MSC decide to waive or reduce the technical
specifications . . . we request that the solicitation be reopened to permit
us to offer sites along the Mississippi River." Agency Report, Tab 42,
Maritime Letter to MSC (Oct. 6, 1999).

5. Pursuant to 4 C.F.R. sect. 21.4(a) (2000), our Office may issue a protective
order in a protest, as we did here, limiting the release of certain
nonpublic documents (or portions of documents) to individuals who have been
admitted to the protective order.

6. MSC initially argues that the protest is untimely because Maritime is
challenging the agency's decision to accept layberth sites located on the
Mississippi River. MSC contends that Maritime was required to protest this
issue after receiving the agency's November 30 letter, in which MSC advised
Maritime that facilities located on the Mississippi River would be evaluated
and considered for award. We think that MSC has mischaracterized Maritime's
protest, particularly given MSC's assurances that it would evaluate
proposals' compliance with the RFP requirements. Maritime's protest
challenges MSC's evaluation of Violet's proposal, not whether MSC could
accept layberth sites located on the Mississippi River.

7. Maritime states that the maximum allowable surge requirement contained in
the RFP was developed by MSC after a 1988 accident at the Violet facility,
where two people sustained serious personal injuries because a vessel had
surged. Protester's Comments, attach. 1, Accident Report.

8. For example, the engineer notes that the proposal did not document why it
chose a relatively small vessel as the hypothetical passing ship for the
analysis, given that the New Orleans Board of Trade record shows that much
larger vessels travel this section of the river. Protester's Comments,
attach. 4, Declaration of C. Allan Hubler, at 8, 11; see Tr. at 46. The
engineer argues that a more accurate surge analysis would have considered
the largest vessels traveling the river, since the surge requirements had to
be met at all times, which would have caused the calculation to show surge
in excess of the RFP requirement. Protester's Comments, attach. 4,
Declaration of C. Allan Hubler, at 8, 11. Also, the engineer notes that
Violet made calculations as if the mooring lines were attached to rigid
structures rather than the multiple buoy mooring system it proposed. Id. at
11-12. The engineer also states that Violet's mooring plan and surge
analysis lacked sufficient information for MSC to properly determine that
Violet met the surge requirements. Protester's Comments, attach. 4,
Declaration of C. Allan Hubler, at 19.

9. The MSC evaluator also testified that he lacked the capability to do an
Optimoor analysis because he was not provided a copy of this program. Tr. at
181, 183-84.

10. The MSC evaluator testified that if a larger vessel had been selected as
the passing ship, there would have been a larger surge force than reflected
in Violet's analysis as included in its proposal. Tr. at 189.

11. There are no contemporaneous documents of this individual's evaluation
of Violet's proposed mooring plan.

12. The contract monitor testified that large ships were passing anywhere
from 200 to 300 feet from the FSS vessel moored at Violet dock's pier 5. Tr.
at 104. The president of the Crescent River Port Pilots' Association, whose
letter concerning river traffic was included in Violet's proposal, testified
that there were no laws or regulations that prohibit transiting vessels from
passing less than 200 feet from moored vessels and no speed limits on
passing vessels. Tr. at 39, 46-47. In January 2000, MSC commissioned a study
to evaluate surging at pier 5, which recommended that various measures be
taken as to how vessels are moored to address the extreme surging of the FSS
ships, but concluded that "it is difficult to confirm by review" whether
Violet's facility could meet the surge requirements. See ABS Group Violet
Layberth (Feb. 15, 2000). Subsequent observations by ABS noted surge in
excess of 7 feet when a number of large ships passed the moored FSS ship in
Violet's facility, even after a new mooring plan had been implemented. ABS
Draft Study of Mississippi River Traffic Violet Dock (Mar. 25, 2000).