TITLE:  Fishermen's Boat Shop, Inc., B-287592, July 11, 2001
BNUMBER:  B-287592
DATE:  July 11, 2001
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Fishermen's Boat Shop, Inc., B-287592, July 11, 2001

Decision

Matter of: Fishermen's Boat Shop, Inc.

File: B-287592

Date: July 11, 2001

Kevin W. Quigley for the protester.

John J. Ralston, Esq., United States Coast Guard, for the agency.

Paul I. Lieberman, Esq., and Michael R. Golden, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.

DIGEST

Agency's downgrading of protester's technical proposal is unobjectionable
where the record establishes that the evaluation is reasonable and
consistent with the stated evaluation criteria; protester's disagreement
with the agency's conclusions does not render the evaluation unreasonable.

DECISION

Fishermen's Boat Shop, Inc. (FBS) protests the award of a contract to
Bellingham Bay Shipyard (BBS) under request for proposals (RFP) No.
DTCG85-01-R-625178, issued by the United States Coast Guard, Department of
Transportation. FBS asserts that its proposal was improperly downgraded and
that the Coast Guard applied inequitable evaluation standards in retaliation
for a prior successful FBS protest.

We deny the protest.

The RFP, issued on January 12, 2001, with an amended closing date of
February 14, calls for dry-docking and repairs for two vessels, the United
States Coast Guard Cutter Bayberry and Barge 60044, lists 36 definite and 11
optional items, and provides that the agency may award a contract without
conducting discussions. Award was to be made on a best value basis, with the
agency reserving the right to award to other than the lowest-priced offeror.
Price and technical were equal in importance, with the RFP specifying four
technical factors listed in descending order of importance: past
performance, understanding scope of work, management control, and
facilities.

The agency received six proposals by the closing time. To evaluate price, as
provided for under the solicitation, the agency totaled the proposed prices
for all of the definite and optional items and added certain other specified
costs. FBS's evaluated price was $352,950.20; BBS's was $387,823.60. Agency
Report at 8. In performing the technical evaluation, the agency assigned
numerical scores under each factor and a cumulative total, with an
associated narrative assessment of excellent, good, satisfactory, marginal
or unsatisfactory, and a performance risk assessment of low, medium or high.
FBS's technical proposal received a total point score of 74 out of 100
possible points, with satisfactory ratings under each of the four factors,
for an overall rating of satisfactory with a moderate performance risk
assessment. Agency Report at 4-5. BBS's proposal received a total point
score of 95, with excellent ratings under the first three factors and a good
rating under the fourth, least important, factor, for an overall rating of
excellent with a low performance risk assessment. Agency Report at 5-6.

The source selection authority (SSA) awarded to BBS as offering the best
value, without conducting discussions, based on a determination that BBS's
excellent, highest rated, technical proposal provided benefits that
outweighed the associated price premium of approximately 10 percent over the
two lowest cost proposals (one of which was FBS's), both of which were
significantly lower rated technically. Agency Report at 9. The SSA also
noted that in light of BBS's excellent past performance, he believed that an
early completion schedule proposed by BBS would result in cost savings to
the government. Id. After receiving a debriefing from the Coast Guard, FBS
filed this protest with our Office.

FBS agrees that the agency was not obligated to conduct discussions before
making the award, and does not question the propriety of the particular
tradeoff determination that award to a higher priced, significantly higher
technically rated offeror was warranted. Protest at 3; Protester's Comments
at 2. Rather, FBS asserts that its proposal was improperly downgraded, and
states that it "is fearful that the [Coast Guard] may have purposely applied
inequitable standards to FBS in retaliation for a prior FBS protest . . .
that was decided in favor of FBS." Protest at 3.

In support of this position, FBS questions every instance in which the Coast
Guard evaluated FBS's proposal as warranting less than the highest possible
evaluation score, asserting that "the [Coast Guard] only identified issues
of form as weaknesses and deficiencies" and that "those requirements as to
form were not identified in the solicitation or logically discernible from
the solicitation." Protest at 3. We have considered all of FBS's objections
and find them without merit. This decision will address representative
examples pertaining to the two most important technical factors.

The evaluation of technical proposals is a matter within the contracting
agency's discretion since the agency is responsible for defining its needs
and the best method of accommodating them. KRA Corp., B-278904, B-278904.5,
Apr. 2, 1998, 98-1 CPD para. 147 at 7. In reviewing an agency's technical
evaluation, we will not reevaluate the proposal, but will examine the record
to ensure that the evaluation was reasonable and in accordance with the
stated evaluation criteria, and not in violation of procurement laws and
regulations. Id. A protester's mere disagreement with the agency's judgment,
standing alone, is not sufficient to establish that the agency acted
unreasonably. Oceaneering Int'l, Inc., B-278126, B-278126.2, Dec. 31, 1997,
98-1 CPD para. 133 at 6-7

Under past performance, FBS's proposal received a numerical score of 30 out
of 40 possible points and a rating of satisfactory. Agency Report, Tab M,
FBS Technical Evaluation Report, at 4. While FBS was given credit for having
satisfactorily performed work on the Bayberry, its past performance rating
was downgraded because of unexplained slippage and extensions and deficiency
reports on the contracts listed by FBS in its proposal, and because the four
listed contracts were not identified as involving similar, that is,
dry-dock, repair services. Agency Report at 4. The solicitation specifies
schedule adherence as a past performance subfactor, RFP sect. M.6.4.1(A)(7), and
requests that offerors submit information explaining "reasons for schedule
slippage/extensions." RFP, attach. J.4, at 1. The solicitation also requests
that offerors "[p]rovide information on problems encountered on the
identified contract[s] and the offeror's corrective actions." Id.

FBS indicated late completion for three of four listed contracts, and
provided as an explanation of the reason for slippages and extensions simply
the notation "new work," which the agency viewed as insufficient. FBS argues
that the solicitation called for concise descriptions (RFP sect. L.8.2.3), and
views its notation as a "concise indication that the failure to deliver on
time was not a result of fault of FBS." Protester's Comments at 2. Section
L.8.2.3, to which FBS refers, is one which advises offerors that
"[e]laborate artwork, expensive paper or bindings, and expensive visual or
other aids are not necessary." The immediately preceding section advises
offerors that "[e]ach technical proposal must be sufficiently specific,
detailed and complete to clearly and fully demonstrate to the government
that the offeror has a thorough knowledge and understanding of the technical
requirements," and explicitly warns offerors to "[i]nclude all information
required by Attachment J.4." RFP sect. L.8.2.2. As noted above, this attachment
specifically calls for offerors to provide reasons for schedule slippage and
extensions. In these circumstances, the agency reasonably expected a more
detailed explanation for FBS's listed failures to meet contract schedule
requirements, beyond the peremptory notation included by FBS, and therefore
reasonably downgraded FBS's proposal in this regard.

In addition, FBS indicated that it had received deficiency reports under two
of the listed contracts, without providing an explanation of the problems
encountered or its corrective actions. In its comments, FBS explains that
one of the deficiencies was minor and objects that this shortcoming was not
identified by the agency at FBS's debriefing, and is therefore "suspect."
Protester's Comments at 2-3. However, FBS does not dispute that it listed
the deficiency reports without appropriate explanation in its proposal, and
the record establishes that the agency reasonably evaluated the unexplained
deficiencies as one of the bases for downgrading FBS's past performance. The
agency's failure to mention this particular weakness during the debriefing
does not provide any basis to question the adequacy of this evaluation,
which is otherwise substantiated by the record. Ideal Elec. Sec. Co., Inc.,
B-283398, Nov. 10, 1999, 99-2 CPD para. 87 at 5-6.

FBS also failed to indicate that the work listed under past performance was
for dry-dock repairs. As the agency points out, attachment J.4 specifies
that, for past performance evaluation, offerors should identify contracts
for efforts similar to the current requirements, which the RFP specifies as
dry-dock repairs (C.1), rather than dockside repairs. The Coast Guard points
to the J.4 request to list "type of availability" as specifically calling
for offerors to indicate the type of repair work. FBS points out that this
term is not defined in the solicitation, and that in response it entered
"fixed price," believing the solicitation sought an indication of contract
type, rather than type of work. Protest at 4. Whether or not this term was
clearly defined, the solicitation otherwise required that offerors provide
evidence of past performance for efforts similar to the current
requirements, that is, contracts for dry-dock repairs. FBS failed to
indicate that the listed contracts were for similar work in this regard, as
a result of which its proposal was reasonably downgraded, consistent with
the evaluation criteria. In sum, the agency's evaluation of FBS's proposal
as warranting only a satisfactory rating under past performance is
unobjectionable, since it is based on a reasonable application of the
solicitation evaluation criteria.

Under the understanding scope of work factor, the solicitation called for
offerors to "[p]rovide a time-phased progress sequencing network, including
milestones for each specification work item that demonstrates an
understanding of the work in the immediate solicitation and the plan to
accomplish that work." RFP attach. J.4, at 2. FBS provided a chart for the
36 definite items only, completely failing to address the 11 optional items
that the RFP identified as part of the evaluation, and FBS's chart simply
repeated the RFP description of the items, adding only start and finish
dates. FBS asserts that this level of planning is sufficient to manage a
project of this nature and that "additional disclosures constitute mere
gilding of the lily by recording steps that shiprepair professionals and
journeymen boilermaker and shipwrights take as second nature." Protester's
Comments at 3. In view of the explicit RFP requirement to demonstrate
understanding of the work and a plan to accomplish the work by providing
milestones for each item, the agency reasonably downgraded FBS's proposal
both for failing to reference the optional items, and for merely parroting
back the solicitation description for the items which it did address. Source
AV, Inc., B-234521, June 20, 1989, 89-1 CPD para. 578 at 4.

Under these, and the other evaluation areas questioned by FBS, the record
reflects that the agency evaluation was reasonable and consistent with the
solicitation criteria; FBS's objections essentially reflect its view that
based on its long and extensive experience, its proposal should have
received the maximum possible score. This self-assessment and FBS's
resulting disagreement with the agency's assessments does not provide a
basis to call into question the agency's evaluation here.

In light of reasonableness of the agency's evaluation of FBS's proposal,
that evaluation does not provide any evidence of bias or retaliation. While
FBS points to instances where it believes BBS's proposal was more favorably
evaluated despite containing what the protester believes are lesser
qualifications, the record establishes otherwise. Thus, for example, in
objecting to its satisfactory evaluation under understanding scope of work,
versus the excellent rating received by BBS, FBS complains that it proposed
a management team with extensive experience, which it believes exceeds the
experience offered by the BBS team. Protester's Comments at 3. In fact, FBS
received credit for this extensive experience under the management control
factor, which is the factor under which offerors were requested to list the
kind and duration of experience for its key personnel. RFP attach. J, at 2.

BBS's proposal received a higher rating for the understanding factor because
it contained a detailed sequencing chart, with item milestones, for all of
the evaluated items, while FBS provided only the cursory and incomplete
chart discussed above. This does not provide any basis to conclude that the
agency applied the evaluation criteria in an inequitable manner. Without
clear evidence of retaliation or bias, and the record here contains none, we
will not attribute prejudicial motives to agency contracting officials on
the basis of inference or supposition. E.L. Hamm & Assocs, Inc., B-280766.5,
Dec. 29, 1999, 2000 CPD para. 13 at 9.

Accordingly, the agency evaluation was reasonable and consistent with the
solicitation, and FBS has not provided any evidence to the contrary.

The protest is denied.

Anthony H. Gamboa

General Counsel