TITLE:  InterOcean Systems, Inc., B-290916, October 8, 2002
BNUMBER:  B-290916
DATE:  October 8, 2002
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InterOcean Systems, Inc., B-290916, October 8, 2002

   Decision
    
    
Matter of:   InterOcean Systems, Inc.
    
File:            B-290916
    
Date:              October 8, 2002
    
Michael Pearlman, InterOcean Systems, Inc., for the protester.
Terry Hart Lee, Esq., National Oceanic and Atmospheric Administration, 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 evaluation of protester's product design under negotiated
commercial item acquisition is unobjectionable where record establishes
that the evaluation was reasonably based on assessment of how well the
proposed product met the agency's stated requirements.
DECISION
    
InterOcean Systems, Inc. protests the award of a contract for certain
oceanographic monitoring stations (OMS) to Sound Ocean Systems, Inc.
(SOSI) under request for proposals (RFP) No. AB1330-02-RP-0073, issued by
the United States Department of Commerce, National Oceanic and Atmospheric
Administration (NOAA).  InterOcean contends that its proposal was
misevaluated and that under a proper evaluation, InterOcean rather than
SOSI would have been in line for award of the contract.
    
We deny the protest.
    
The RFP, issued on May 31, 2002, as a negotiated commercial item
acquisition under Part 12 of the Federal Acquisition Regulation (FAR),
with an amended June 7 closing time, sought proposals for four different
types of oceanographic instruments to provide support for the Coral Reef
Ecosystem Investigation program run by the Honolulu laboratory of NOAA's
Marine Fisheries Service.  The solicitation contemplated the award of
individual indefinite-delivery/indefinite-quantity contracts for each type
of instrument under separate contract line items (CLIN), with individual
vendors eligible for award of more than one CLIN; only the award of CLIN
No. 0001 for OMS's is at issue here.[1]  The RFP provided for a minimum
base order of four OMS units for delivery by September 2002, and options
consisting of a maximum of 11 additional OMS's during the years 2003 to
2005, plus the refurbishment of previously delivered units, an alternate
to deliver units that use a newer satellite voice and data service that is
currently in the process of being phased in by NOAA, plus various add-on
features and shipping and training.  Agency Report (AR) at 1.  The RFP
provided for award on a best-value basis considering technical capability,
past performance and price, with the combination of the first two factors
substantially more important than price, and stated that price would be
calculated on the basis of the total price for all options plus the total
price for the basic requirement.  RFP S: 14.  
    
The agency received five proposals for CLIN No. 0001 by the closing time. 
Based on an evaluation by the source evaluation board (SEB), only the
InterOcean and SOSI  proposals were included in the competitive range. 
After the conduct of discussions, the last final proposal revisions were
submitted on June 26.  SOSI's final evaluated price was $1,222,713, which
was slightly lower than InterOcean's price of $1,235,158; SOSI's proposal
received a final technical and past performance evaluation score of 59.8
(out of a possible maximum of 80 points), which was slightly higher than
InterOcean's score of 55.5. [2]  AR, Tab 19, SEB Final Evaluation Results
Memo, at 1.    The SEB rollup narrative and the scoring of the proposals
reflect that under both the technical and past performance factors,
InterOcean's proposal was evaluated by all of the evaluators as very good
or excellent, while SOSI's proposal received evaluations of good, very
good or excellent. 
    
The SEB recommendation, which was adopted by the contracting officer, was
that award be made to SOSI as representing the best value because *the
SOSI product [was rated] slightly higher and . . . the SOSI package is . .
. less expensive.*  AR, Tab 23, SEB Recommendation Memorandum, at 3.  In
particular, the SEB found that: *The benefits and features of the systems
proposed by SOSI and [InterOcean] are very comparable and the close
technical evaluation scores reflect this.  Both products share many
similar design features . . ..* Id. at 2.  The SEB stated that it *was
particularly concerned about the [InterOcean} 3-strut bridle* with respect
to the difficulties associated with attaching the bridle just prior to
deployment, or with transporting the unit if it was assembled prior to
loading the buoys on board for initial transport.  In contrast, *the SOSI
product is delivered ready-to-deploy . . . on a special pallet designed to
help secure the buoy on the deck of the ship during transit to the
deployment site.*  Id. at 2-3.  The SEB further noted that there is *no
overriding reason to award the contract to [InterOcean] and to assume the
additional risks associated with requiring the field team to assemble part
of the buoy just prior to deployment.*  Id. at 3.  After receiving a
debriefing, InterOcean filed this protest.
    
The crux of InterOcean's protest is that its proposal was improperly
downgraded on the basis of its proposed use of a three-strut mooring
bridle as part of its buoy design.  InterOcean both disagrees with the
agency's evaluation of the bridle, and contends that this design feature
should not have been considered in the evaluation because it was not
identified in the RFP as an evaluation factor or subfactor.    InterOcean
further contends that if this inappropriate technical downgrading were
eliminated, its proposal would receive the highest technical and total
score, and would be in line for award.[3]  In our view InterOcean's
proposed mooring bridle design was properly considered in the context of
this commercial item acquisition, and there is no basis to object to the
reasonableness of the agency's evaluation or the resulting award
determination.
    
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.  Symtech Corp., B-285358, Aug
21, 2000, 2000 CPD P: 143 at 4.  Where an evaluation is challenged, our
Office will not reevaluate proposals but instead will examine the record
to determine whether the agency's judgment was reasonable and consistent
with applicable evaluation criteria, procurement statutes and
regulations.  The fact that the protester disagrees with the agency's
judgment does not render the evaluation unreasonable.  Crofton Diving
Corp., B‑289271, Jan. 30, 2002, 2002 CPD P: 32 at 10.
    
InterOcean cites the requirements under FAR Part 15 that a solicitation
identify all factors and subfactors that will affect contract award, and
that proposals be evaluated only on the factors and subfactors in the
solicitation.  InterOcean asserts that the RFP at issue contains nine
listed evaluation factors under the technical evaluation criteria, none of
which identify buoy design.  Therefore, InterOcean objects that evaluation
of its three-strut bridle buoy design was improper because it was not set
forth as a factor or subfactor under the solicitation evaluation
criteria.  InterOcean's objection is misplaced.
    
For a negotiated commercial item acquisition such as that at issue here,
the FAR provides the following streamlined evaluation procedures:
    
Offers shall be evaluated in accordance with the criteria contained in the
solicitation.  For many commercial items, the criteria need not be more
detailed than technical (capability of the item offered to meet the agency
need), price and past performance.  Technical capability may be evaluated
by how well the proposed products meet the Government requirement instead
of predetermined subfactors.  Solicitations for commercial items do not
have to contain subfactors for technical capability when the solicitation
adequately describes the item's intended use.  A technical evaluation
would normally include examination of such things as product literature,
product samples (if requested), technical features and warranty
provisions.
FAR S: 12.602(b). 
    
Here, the RFP technical evaluation criterion required offerors to provide
*a technical description of the items being offered in sufficient detail
to evaluate compliance with the requirements in the solicitation.*  This
is the specific streamlined language that FAR Part 12 references for use
as the technical evaluation criterion in a negotiated solicitation for a
commercial item.  FAR S: 12.301(b)(1).  Consistent with FAR S: 12.602(b),
the RFP evaluation provision at issue here does not specify predetermined
evaluation subfactors; the nine items which the protester posits as the
evaluation subfactors are a list of the data that offerors were required
to submit, as applicable, in conjunction with their technical
descriptions, to enable the agency to perform a technical evaluation.  In
this regard, the first such required data item was *[c]oncept drawings of
buoy, anchoring, and platform systems showing major components and their
configuration.*  RFP S: 14(a)(1). 
    
The solicitation describes the item's intended use in detail.  The
statement of work includes the government's performance requirements for
the OMS, among which are: *The systems shall be small and light enough to
be easily towed from the ship into atoll lagoons and deployed with the use
of small boats (5-7m).  Offerors are encouraged to design systems that are
as small and unobtrusive as possible. . . . The vendor shall incorporate
structural components and provide any associated packaging, bracing and/or
apparatus necessary to safely handle each monitoring station and anchor
assembly during dockside operations, ship loading/unloading, transit to
remote [P]acific islands, and towing to the final mooring location.* 
RFP attach. 1, at 3,6.  The RFP further states that:  *Offerors are
encouraged to implement hardware appropriate for the conditions that the
instruments are expected to encounter.  Ease of deployment by field
personnel should also be considered.*  RFP amend. 1, at 2.  
    
The agency evaluated InterOcean's proposed 3-strut mooring bridle and
downgraded the proposal on the basis that there were deployment
difficulties associated with the design.  The deployment conditions and
requirements are clearly delineated and described as part of the item's
intended use, as is the need for ease of deployment by field personnel. 
Accordingly, InterOcean's mooring bridle design was an appropriate area
for evaluation here, and one for which technical information in the form
of configuration drawings was required by the RFP, and was provided by
protester in its proposal. 
    
As to the reasonableness of the agency's evaluation, it is clear from the
protester's proposal and its technical drawings that InterOcean's OMS buoy
includes a rigidly mounted device denominated as a mooring bridle which is
shown as three struts attached to the outer edge of the bottom of the
buoy, extending into the water below the buoy.  The bridle is diagrammed
in InterOcean's proposal as extending to a depth of one meter below the
buoy water line, where the struts are affixed to each other at a mooring
bracket, at a point directly below the center of the buoy.  The protester
contends that it has previously provided numerous buoys of this design to
NOAA, and explains that:  *Buoys can be designed with or without rigid
bridles*. [and while] many buoys do not have rigid bridles . . . the use
of a rigid bridle is an easy, reliable and lightweight way to increase
buoy stability insuring stability and survival.  It is for this reason
that we proposed a 3 leg bridle.*  Protester's Comments at 2-3. 
    
The SOSI proposal was for a buoy design that did not include a bridle. 
InterOcean's proposed bridle design was the subject of repeated questions
by the agency. InterOcean was initially asked:  *Has the 3-strut mooring
bridle been utilized in previous buoy deployments?  Please provide a
customer reference who is familiar with this design.*  AR, Tab 8, Request
for Information.  During oral discussions conducted on June 17, InterOcean
described the buoy deployment procedure as including attachment of the
3-strut mooring bridle to the underside of the buoy while it was suspended
by a crane from the ship's deck.  InterOcean was then asked a number of
questions about other methods of attaching the bridle, and InterOcean
suggested the possibility of having a person grab the buoy mast and tilt
the buoy on its side on the shipdeck, which would allow another person to
attach the bridle to the underside of the buoy.  AR, Tab 31, Conference
Call with InterOcean, at 1.  In its request to InterOcean for a final
proposal revision (FPR), the agency asked InterOcean the following
question:  *During transit, the body of your proposed buoy is separate
from the 3-strut mooring bridle.  Just prior to deployment, the bridle
must be attached to the buoy.  The technical review board is particularly
interested in any procedures/fixtures/modifications that would simplify
this field operation.*  AR, Tab 15, Request for InterOcean FPR.  In its
FPR, InterOcean responded by noting that:  *The mooring bridle can be
attached before the platform is loaded onto the deployment vessel in
Hawaii, but may also easily be attached on the deck of the vessel just
prior to deployment.*  AR Tab 18, InterOcean FPR at 4. 
    
Thus, the record evidences that the agency plainly conveyed its concerns
with the difficulties associated with assembling and attaching
InterOcean's bridle as part of the buoy deployment process.  InterOcean
never satisfactorily addressed these concerns.  In its final evaluation,
the SEB concluded the procedures suggested by InterOcean for on-ship
assembly just prior to deployment presented problems because the vessel
likely to be used would not have sufficient stability or available deck
space to perform them, and the need to lay the buoy on its side on the
deck of a moving ship would increase the opportunity for damage to the
buoy and its instruments, and to personnel as well.  With respect to
InterOcean's suggestion that the bridle could be attached before the buoy
was initially loaded on ship, the SEB noted that this would require
additional fixtures to store the assembled buoy, which InterOcean did not
propose, and that storing the buoys with the bridles attached during ship
transit would present challenges and complicate field operations.  AR, Tab
23, SEB Recommendation Memo, at 2. 
    
The protester disagrees with this assessment, pointing out that it has
expertise and experience in this area, that its bridle design was the
result of the recommendation of its consultant who is a world recognized
expert, and that *the 3-strut bridle offered by InterOcean offers no risks
to this program since good seamanship has allowed more than 1000 buoys
with similar bridles to be deployed successfully in the oceans of the
world.*  Protester's Comments at 6.   While the protester may be correct
that this buoy design has been deployed in numerous undescribed
situations, this does not call into question the reasonableness of the
agency's determination that the design would present problems in the
context of the particular deployment circumstances associated with the
agency's intended use here.  In essence, the protester is simply
expressing his disagreement with the agency's concerns about the
deployment problems associated with the three-strut bridle design here,
and asserting that the agency should be expected to exercise whatever
skills are necessary to assure safe deployment.  This does not provide a
basis to question the
reasonableness of the agency's evaluation of InterOcean's proposal,
particularly in view of the agency's repeated statements of these concerns
to the protester during discussions.[4]
    
In short, the agency evaluation is unobjectionable, as is the
determination to award to the higher technically rated, lower priced
offeror. 
    
The protest is denied
    
Anthony H. Gamboa
General Counsel  
    

   ------------------------

   [1] The OMS is comprised of a buoy with a mooring system, to which
necessary components including hardware, data logger, battery/power
system, and transmitter are affixed. 
[2] InterOcean has questioned the agency's price calculations.  During the
course of its debriefing, InterOcean advised the agency that it had
calculated its total price at a higher amount than the agency.  In
preparing the agency report, the agency became aware that it had
inadvertently failed to include certain shipping costs in evaluating the
total price for both proposals, as a result of which SOSI's total price
was adjusted to $1,233,889, and InterOcean's price was adjusted to
$1,245,333.  AR at 8 n.2.  This correction had no effect on the
competition since the SOSI price remained low, and award was made to SOSI
on the basis that it offered the highest rated technical proposal at the
lowest price. 
[3] As part of this argument InterOcean also asserts that the agency also
improperly downgraded the protester's proposal on the basis of
InterOcean's failure to provide information about, or a resume for, a key
personnel member.  While the agency mentioned this omission during
InterOcean's debriefing as a minor concern, this is of no consequence
because the record establishes that the omission did not have any effect
on the evaluation of InterOcean's proposal.  During discussions,
InterOcean had been asked to provide qualification information about its
key personnel.  InterOcean did so for some of its key personnel, but did
not provide such information about its software programmer.  While the
agency apparently noted this omission, it was not considered a weakness,
and is not mentioned as a basis to downgrade InterOcean's proposal in any
of the SEB evaluation material.  Rather, the only evaluated weakness is
the three-strut mooring bridle.  
[4] The protester also contends that the evaluation reflects bias on the
part of one of the evaluators, whose scores for InterOcean's proposal were
slightly lower than the scores of the other two evaluators.  Because
government officials are presumed to act in good faith, we do not
attribute unfair or prejudicial motives to them on the basis of inference
or supposition. Therefore, where a protester alleges bias on the part of
government officials, the protester must provide credible evidence clearly
demonstrating a bias against the protester or for the awardee and that the
agency's bias translated into action that unfairly affected the
protester's competitive position.  Dynamic Aviation-Helicopters, B-274122,
Nov. 1, 1996, 96-2 CPD P: 166 at 4.  Variations in scoring between
evaluators are commonplace, and do not provide any evidence of bias on the
part of a particular evaluator.  Accordingly, this allegation is
unfounded.  The protester has also raised a number of collateral issues
which we have considered and find without merit.