TITLE:  Specialty Diving, Inc., B-285939, October 16, 2000
BNUMBER:  B-285939
DATE:  October 16, 2000
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Specialty Diving, Inc., B-285939, October 16, 2000

Decision

Matter of: Specialty Diving, Inc.

File: B-285939

Date: October 16, 2000

Deborah Wallace for the protester.

Andrew C. Saunders, Esq., Department of the Navy, for the agency.

Linda S. Lebowitz, Esq., and Michael R. Golden, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.

DIGEST

Agency decision to continue to procure underwater hull cleaning and
surveying services as an integrated package is reasonable and legally
unobjectionable where the agency determines that this approach--providing
cleaning and surveying services in tandem--is necessary in order to
accurately assess a hull's underwater condition and to minimize the
disruption to a vessel's ability to be deployed.

DECISION

Specialty Diving, Inc. (SDI) protests the terms of request for proposals
(RFP) No. N00024-00-R-4091, issued by the Department of the Navy for
worldwide hull cleaning and related services, including underwater hull
surveys, of Navy, Coast Guard, Army, and Military Sealift Command ships and
craft.

We deny the protest.

The RFP, issued on an unrestricted basis on May 18, 2000, contemplates the
award of an indefinite-quantity, fixed-priced contract for the base period
and four 1-year option periods. [1] RFP at 32, 84.

As relevant here, the RFP defines an underwater hull survey as follows:

a quantitative inspection and digital record of the condition of a
vessel[']s underwater hull and appendages. The survey shall consist[] of a
series of measurements of the hull plate thickness, hull coating thickness,
and hull electro-potential. A minimum of one measurement per square foot of
wetted surface area surveyed shall be taken for each of the data categories.
Data readings shall be evenly distributed across the surveyed surface and
each reading shall be correlated to its relative hull position [with an
accuracy no less than +/- 6--inches]. The survey shall also include video of
the surveyed surfaces and digital still images of all damage discovered.

Id. at 8, 19.

Item No. 0001 in the RFP describes the requirements for full hull cleaning
(i.e., the removal of all marine fouling from the entire underwater hull and
appendages). Id. at 12. Item No. 0014 describes the requirements for an
underwater hull survey, in accordance with the above-quoted definition. Id.
at 18-19.

In addition, the RFP requires an offeror to describe its proposed operations
facilities for the performance of hull cleaning and related services, such
as hull surveys, in Zones A and B, as appropriate. For each facility
proposed, the offeror is to specifically identify its location, size, and
capabilities, and whether the facility is currently owned by the offeror. If
the offeror intends to obtain a facility after contract award, the RFP
requires the offeror to provide a letter of commitment from the facility
source, clearly identifying the number of days after contract award when the
facility will become available for purchase or lease to the offeror. Id. at
95-96. [2] The RFP includes a sample letter of commitment for facilities.
Id., attach. 5.

SDI filed this protest on July 27. Four firms, including SDI, submitted
proposals by the closing time on August 9.

SDI objects to the agency's decision to procure underwater hull surveying
services in conjunction with underwater hull cleaning services. While noting
that the agency has historically procured these services together, SDI
contends that the agency should now satisfy its needs by separately
procuring each of these services. [3]

The Competition in Contracting Act of 1984 requires that agencies specify
their needs and solicit offers in a manner designed to achieve full and open
competition, so that all responsible sources are permitted to compete. 10
U.S.C. sect. 2305(a)(1)(A)(i) (1994). The determination of a contracting
agency's needs and the best method for accommodating them are matters
primarily within the agency's discretion. Northrop Grumman Corp., B-285386,
Aug. 1, 2000, 2000 CPD para. 38 at 4.

For over 16 years, the agency has contracted for underwater hull cleaning
and surveying services by conducting a single procurement for these
services, including the last procurement for which a contract was awarded in
1995. Agency Report (AR) at 8. The agency explains that underwater hull
cleaning and surveying services must be performed in close succession. AR at
9. More specifically, the agency requires the underwater portions of a hull
to be cleaned shortly before a survey is performed so that these areas are
free of marine slime, grasses, and barnacles which, if present, would
preclude an accurate assessment of the hull's underwater condition. Id. In
addition, when hull cleaning and surveying services are done in conjunction
with each other, the potential disruption to the agency's ability to deploy
a vessel is minimized. Id. at 10. The protester, in fact, "acknowledges that
hull surveys can and should be performed in ‘close succession' with
hull cleaning." Comments at 2. On this record, the agency's decision to
continue to procure services for underwater hull cleaning and surveying in
an integrated package is reasonable and legally unobjectionable where the
agency has determined, and the protester has failed to demonstrate
otherwise, that this approach is necessary in order to obtain accurate
underwater assessments and to minimize deployment disruptions. See, e.g.,
LaQue Ctr. for Corrosion Tech., Inc., B-245296, Dec. 23, 1991, 91-2 CPD para.
577 at 3-4; The Great Lakes Towing Co., B-235023, June 16, 1989, 89-1 CPD para.
570 at 2-3.

SDI also complains that "[t]he new specificity of the underwater hull survey
component . . . is now so restrictive so as to now preclude the use of all
former diver based systems in favor of a remotely operated vehicle (ROV)
based inspection system. . . . [and] it creates a performance criterion
peculiar to only one source [which] SDI believes . . . to be Imetrix[,
Inc.]." Comments at 1.

With respect to the type of technology used to conduct surveys, the agency
explains that in the past, hull surveys primarily were performed by divers
with hand-held sensors. As a result of technological advances, these surveys
now can be performed not only by divers, but with ROVs equipped to carry the
sensors. The agency states that the necessity for coordinating underwater
hull cleaning and surveying services is the same whether divers or ROVs are
used. AR at 2, 7.

With respect to the RFP's performance-based specifications, nowhere do these
specifications preclude the use of divers or require the use of an ROV, let
alone an Imetrix ROV. Rather, in accordance with the terms of the RFP, an
offeror, like SDI, is required to "provide men and equipment to conduct a
hull survey." RFP at 18-19. Thus, it is within the business judgment of an
offeror to propose the particular methodology (divers, ROVs, or a
combination thereof) for performing hull surveys which the firm believes
will enable it to satisfy the terms of the RFP. We point out that SDI, in
fact, states that "[n]ew hull survey ROV's are currently being constructed
and [SDI] acknowledge[s] that the results they provide are vastly superior
to those available from older diver based processes," and that "[w]e are not
questioning the wisdom of [the agency] in choosing to utilize this
technology [the use of ROVs] which provides improved data in less time."
Comments at 3. On this record, we conclude that SDI has failed to articulate
a valid basis for protest.

SDI further contends that Imetrix has a competitive advantage in this
procurement because it has developed a commercially available ROV. Whether
Imetrix has a competitive advantage or not, SDI has not demonstrated how it
is prejudiced because Imetrix did not submit a proposal as a
prime contractor. To the extent SDI may propose Imetrix as a subcontractor,
this would further suggest that Imetrix's advantage will not prejudice SDI.
[4]

Finally, SDI complains about the RFP requirement that an offeror provide
letters of commitment for each facility proposed, identifying the location,
size, and capabilities of each facility and the number of days after
contract award when the facility will become available for purchase or lease
to the offeror. In response, the agency explains that it must be able to
evaluate whether an offeror will have facilities available in order to
satisfy the RFP's 24-hour response time requirement, a requirement which the
protester does not challenge. Supplemental AR at 8.

We believe that requiring an offeror to furnish letters of commitment for
proposed facilities provides a reasonable basis for the agency to evaluate
whether the offeror will be able to timely comply with the RFP's 24-hour
response time requirement. Although SDI believes that it is burdensome in
terms of costs and time to identify proposed facilities prior to award, the
alleged burden associated with preparing a proposal responsive to the
agency's needs does not make the agency's requirement in this regard
unreasonable. We point out that with respect to the letters of commitment,
an offeror is not required to lease or own a facility prior to award, but
rather to simply identify by location, size, and capabilities a facility
which will be available to it within a particular time after award. On this
record, SDI has provided no basis to question the reasonableness of the
requirement that it furnish with its proposal letters of commitment for
facilities.

The protest is denied.

Anthony H. Gamboa

Acting General Counsel

Notes

1. The agency will award either one worldwide contract or two contracts--one
for the East Coast and related areas (Zone A--Atlantic waters--inland waters
along the East Coast of the United States, the entire North and South
Atlantic, Gulf of Mexico, European Coast, Mediterranean Sea, and Arabian
Gulf), and one for the West Coast and related areas (Zone B--Pacific and
Indian waters--inland waters along the West Coast of the United States, the
entire North and South Pacific, and Indian Ocean, and Persian Gulf). Id. at
4-5.

2. Under the RFP's facilities evaluation subfactor, an offeror's facilities
will be evaluated on the basis of their location, size, and general adequacy
to support the operations to be performed under the contract. Id. at 113-14.

3. In making this argument, SDI acknowledges that the circumstances here do
not satisfy the regulatory definition of "bundling." See Federal Acquisition
Regulation (FAR) sect. 2.101. Supplemental Comments at 4. In this respect, the
agency is not "[c]onsolidating two or more requirements for . . . services,
previously . . . performed under separate smaller contracts, into a
solicitation for a single contract." FAR sect. 2.101. Rather, as SDI recognizes,
the agency historically has procured underwater hull cleaning and surveying
services in tandem. The regulatory coverage simply is inapplicable.

4. Along this same line, SDI also speculated that "Imetrix has provided hull
survey pricing to more than one offeror, and there is no assurance that the
conditions of [Imetrix's] offer are exactly equal to all competitors." Id.
at 1. After being told in a conference call that this issue amounted to
nothing more than a dispute between private parties concerning whether a
subcontractor offered the same pricing terms to various prime contractors,
SDI finally conceded that "[w]hether or not Imetrix gave everyone the same
terms and conditions is irrelevant." Supplemental Comments at 1.