TITLE:  Alpha Marine Services, LLC, B-291721; B-291721.3, March 5, 2003
BNUMBER:  B-291721; B-291721.3
DATE:  March 5, 2003
**********************************************************************
Alpha Marine Services, LLC, B-291721; B-291721.3, March 5, 2003

   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.        

   Decision
    
Matter of:   Alpha Marine Services, LLC
    
File:            B-291721; B-291721.3
    
Date:              March 5, 2003
    
O. Kevin Vincent, Esq., Baker Botts, for the protester.
Michael A. Hopkins, Esq., McKenna Long & Aldridge, for Admiral Towing and
Barge Company, an intervenor.
David G. Ranowsky, Esq., and George N. Brezna, Esq., Department of the
Navy, for the agency.
Louis A. Chiarella, Esq., and Christine S. Melody, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
    
1.  Protester's interpretation of solicitation provision as requiring
agency to make award based on lowest overall *cost* (to be determined by
application of various cost-related factors not specified in the
solicitation) is unreasonable when the solicitation is read as a whole and
in a manner giving effect to all of its provisions; the only reasonable
interpretation is that award would be made to the offeror with the lowest
overall price proposed, calculated using only those factors set out in the
solicitation.

   2.  Protest that awardee's proposal for tugboat services should have been
found technically unacceptable in various areas is denied where the record
shows that the agency reasonably concluded that the proposal demonstrated
that the tugboats to be used to perform the services would comply with the
technical requirements in the solicitation and protest essentially
reflects disagreement with the agency's judgment.
DECISION
    
Alpha Marine Services, LLC (AMS) protests the award of a contract to
Admiral Towing and Barge Company under request for proposals (RFP) No.
N00033-02-R-1022, issued by the Military Sealift Command (MSC), Department
of the Navy, for tugboat services.  AMS challenges the agency's evaluation
of proposals.
    

   We deny the protests.
    
The RFP, issued on May 10, 2002, contemplated the award of a fixed-price
contract for 1 year, with four 1-year options, for the time charter of up
to six U.S.-flagged tractor-like tugs for use at the port of San Diego,
California, and surrounding waters to service a variety of naval surface
and subsurface vessels.[1]  Services included towing, mooring, berthing,
docking, undocking, escorting identified naval vessels, providing
emergency support services, and firefighting.
    
The solicitation established three evaluation factors:  price, technical,
and past performance.  RFP at 29.  The RFP stated that price would be
evaluated based on the rates (both daily hire and overtime) and fuel
consumption amounts as submitted by the offeror, as well as the Navy's
estimated schedule of services, or operations tempo (OPTEMPO).  The
solicitation established that fuel would be either government-furnished
or, if contractor-purchased, treated as a direct reimbursable expense,
that is, MSC would reimburse the contractor for its actual fuel costs
without any overhead or other indirect costs.  Id. at 14; Agency Report
(AR), Dec. 27, 2002, at 3-4.  Accordingly, offerors were required to
submit estimated fuel consumption rates (in barrels per hour) for each of
the tugs proposed.  RFP attach. 4, at 3.  The RFP informed offerors that,
for evaluation purposes, *[t]he price of fuel will be based on the
[Defense Energy Supply Center] price of fuels on the day the solicitation
closes or revised offers are due.*  RFP at 29.
    
The RFP also established various minimum performance specifications (i.e.,
*vessel characteristics*) for the tugs proposed, including bollard pull
and configuration.[2]  Specifically, the solicitation stated that one of
the six tugs proposed shall have a minimum 100,000 pounds forward and
astern bollard pull and a minimum 80,000 pounds side bollard pull.[3]  RFP
amend. 1, at 2.  The solicitation also specified the acceptable ways
through which offerors could provide a certification of bollard pull
capability; in addition to an actual test on the offered vessel or a
sister ship with identical machinery and systems, offerors could provide
the calculated bollard pull of the vessel as certified by a professional
engineer in mechanical engineering or naval architecture.  RFP amend. 9,
at 2; AR, Dec. 27, 2002, at 5.  The RFP also required that all proposed
tugs be configured in such a manner (e.g., through the use of non-marking
fendering systems) so as to prevent metal-to-hull contact with both
surface and subsurface vessels.  RFP amend. 1, at 2.
    
The RFP initially informed offerors that the anticipated award date was
August 9, 2002, with a start date (i.e., *canceling date*) of April 12,
2003, thereby creating a delivery period for existing or newly built tugs
of 246 days.  RFP at 4, 30.  The Navy subsequently amended the
solicitation, changing the anticipated award date to November 16, 2002,
and the canceling date to August 30, 2003; this resulted in a revised
delivery period totaling 287 days.  RFP amend. 9, at 2.
    
In addition to demonstrating compliance with the RFP's minimum performance
specifications, each offeror's proposal was also to include a strike
contingency plan, outlining how the required services would be provided if
there was a labor strike.  RFP attach. 4, at 1.   The solicitation did not
establish a required level of detail for an offeror's strike contingency
plan, and the technical evaluation factor stated only that the agency
would review an offeror's proposed vessels and strike contingency plan to
ensure compliance with the RFP's minimum requirements.  RFP at 30.
    
The solicitation also stated that contract award would be made *to that
responsible offeror(s) whose technically acceptable offer(s) conforming to
the solicitation represents the lowest overall cost to the Government with
acceptable past performance.*  Id. at 29.  At no time prior to the closing
date did AMS or any other offeror question the agency about the RFP's
intended basis for contract award.
    
Four offerors, including AMS and Admiral, submitted initial proposals by
the July 15 closing date and final proposal revisions by the October 25
closing date.  Admiral's proposal contemplated the construction of new
tugs to satisfy the solicitation's vessel characteristic requirements.  As
a result, Admiral's proposal included relevant ship drawings and
professional engineer certifications to demonstrate its compliance with
the RFP's minimum performance specifications.  AR, Tab C, Admiral's
Proposal, at 28-33, 45-52, 62-63, 68-69.
    
In its evaluation of proposals, the agency determined that the proposals
of AMS and Admiral met the solicitation's technical requirements, and that
both offerors had acceptable past performance.  AR, Tab J, Agency
Technical Evaluation of Final Proposal Revisions; AR, Tab L, Business
Clearance Memorandum, at 3-4.  The Navy also determined that Admiral's
total evaluated price was $27,613,691.70, while the total evaluated price
of AMS was $31,114,163.44.  AR, Tab K, Agency Price Evaluation of Final
Proposal Revisions, at 1-3.  On November 12 the contracting officer
selected Admiral for award as the responsible offeror with acceptable past
performance whose technically acceptable proposal offered the lowest
cost.  AR, Tab L, Business Clearance Memorandum, at 8-9.  Following a
debriefing, AMS filed this timely protest.
    
AMS first challenges the agency's selection of Admiral's proposal on the
ground that it does not in fact represent the lowest overall cost to the
government.  AMS essentially argues that, although the RFP specified how
each offeror's price would be evaluated (i.e., proposed rates, fuel
consumption, and estimated OPTEMPO), it also stated that contract award
would be based on the proposal representing the *lowest overall cost* to
the government.  In AMS's view, this solicitation language required the
Navy to take into account the technical capabilities of each offeror's
proposal in determining lowest overall cost.  Specifically, AMS contends
that the tractor tug technology it employs provides greater stability and
power when towing vessels as compared to the technology of the tugs
proposed by Admiral.  According to AMS, because the Navy improperly failed
to adjust Admiral's price in various areas so as to reflect its inferior
technology, as well as the transition costs and increased technical risk
associated with the replacement of AMS as the incumbent contractor, the
agency failed to make contract award consistent with the requirements of
the solicitation.  Protest, Nov. 27, 2003, at 4-5.
    
The Navy admits that it intended for the RFP to refer to *lowest overall
price,* instead of *lowest overall cost,* as the basis for its award
decision.  AR, Feb. 7, 2003, at 1.  The agency explains that it used the
word *cost* here because each offeror's total evaluated price also
included the estimated cost of fuel that the agency would incur as a
direct reimbursable expense.  Id.  The agency argues that notwithstanding
the misidentification of *price* as *cost,* the solicitation's enumerated
evaluation factors *leave no doubt* as to the intended basis of the
agency's contract award decision.  AR, Dec. 27, 2002, at 4.  We agree.
    
Solicitation provisions must be sufficiently definite and free from
ambiguity so as to permit competition on a common basis.  Media Funding,
Inc. d/b/a Media Visions, Inc., B-265642, B-265642.2, Oct. 20, 1995, 95-2
CPD P: 185 at 3.  When a dispute arises as to the actual meaning of a
solicitation provision, our Office will resolve the matter by reading the
solicitation as a whole and in a manner that gives effect to all
provisions of the solicitation.  Id.  A solicitation is not ambiguous
unless it is susceptible to two or more reasonable interpretations.  In
our view, the only reasonable interpretation of the solicitation is the
one advocated by the agency--that the award decision would be based on
lowest overall price as calculated using the factors set out in the RFP.
    
As set forth above, the RFP expressly identified three evaluation
factors--price, technical, and past performance--and articulated the
method by which the agency would determine each offeror's price.  By
contrast, the types of cost adjustments that AMS argues the Navy failed to
make to offerors' proposed prices (e.g., the difference in offerors'
overtime amounts as a result of a tug's towing speed) are dependent upon
technical and cost information that the RFP did not require offerors to
provide.  While AMS has gone to great lengths to establish that its tug
technology is superior to that proposed by Admiral, a contention with
which Admiral strongly disagrees, we find that AMS's interpretation of the
solicitation language simply is not consistent with the solicitation when
read as a whole and in a reasonable manner.  See Gelco Servs., Inc.,
B-253376, Sept. 14, 1993, 93-2 CPD P: 163 at 7.  Indeed, we note that none
of the offerors, including AMS, took exception to, or expressed confusion
regarding, the RFP's basis for award.
    
AMS also protests that Admiral's proposal fails to meet certain
performance requirements set forth in the RFP.  Specifically, the
protester contends that:  (1) Admiral's large tugboat does not meet the
80,000-pound side bollard pull requirement of the solicitation; (2)
Admiral's proposed tugboats are not configured to prevent metal-to-hull
contact with subsurface vessels; (3) Admiral's proposal states that it
cannot meet the RFP's delivery schedule; and (4) Admiral's strike
contingency plan is inadequate.
    
In reviewing a protest against an agency's evaluation of proposals, our
Office will not reevaluate proposals, but instead will examine the record
to determine whether the agency's judgment was reasonable and consistent
with the stated evaluation criteria and applicable procurement statutes
and regulations.  See Shumaker Trucking & Excavating Contractors, Inc.,
B-290732, Sept. 25, 2002, 2002 CPD P: 169 at 3.  A protester's mere
disagreement with the agency's judgment does not establish that the
evaluation was unreasonable.  C. Lawrence Constr. Co., Inc., B-287066,
Mar. 30, 2001, 2001 CPD P: 70 at 4.
    
In its final proposal revision, Admiral stated that its large tugboat had
a side bollard pull of 80,423 pounds.  AR, Tab C, Admiral's Proposal, at
68 (Letter from Jensen Maritime, Oct. 24, 2002).  Admiral's proposal also
explained how its side bollard pull was calculated: available thrust was
estimated to fall within a range of approximately 76 - 90 percent of the
tug's forward bollard pull (which it had previously determined to be
105,820 pounds), depending upon the angle of the towline with the
centerline of the tug. [4]  Id.  Admiral's calculations as to both forward
and side bollard pull were certified by a professional engineer, who was
also the director of engineering for the designer of the tugs proposed by
Admiral.  Id.  Based on these calculations, the agency determined that
Admiral's proposal met the RFP's bollard pull requirements.
    
We find the agency's evaluation here reasonable and consistent with the
stated evaluation criteria.  The solicitation required an offeror's large
tugboat to have a side bollard pull of 80,000 pounds, as certified by a
professional engineer.  Admiral's proposal met this performance
requirement and contained the requisite certification.  We see no reason
to conclude that the agency's determination in this regard was
unreasonable or improper.  
    
In its protest AMS does not challenge Admiral's underlying calculation of
the proposed tug's forward bollard pull, but argues that the proper range
for the side bollard pull calculation is 70 - 75 percent of a tug's
forward bollard pull.[5]  In our view, AMS's argument regarding the proper
efficiency factor to be applied in the calculation of a tug's side bollard
pull amounts to mere disagreement with the agency's evaluation of
proposals.  C. Lawrence Constr. Co., Inc., supra.  As there is no
agreed-upon formula to calculate bollard pull, see RFP amend. 7, at 2, nor
did the RFP establish one, we find no basis to find the Navy's evaluation
of Admiral's proposal to be unreasonable.
    
AMS also argues that the tug configuration as proposed by Admiral will not
preclude metal-to-hull contact as required by the RFP.  Admiral's proposal
included drawings and specifications for the newly constructed vessels it
would employ if awarded the contract.  These submissions demonstrated how
the proposed tugs were configured, through the use of fendering systems,
to preclude both surface and subsurface metal-to-hull contact.  The agency
evaluated Admiral's proposal and determined that it met the technical
requirements here.  AR, Tab J, Agency Technical Evaluation of Final
Proposal Revisions, at 1.  In making this determination the agency also
took into account the past performance of similarly configured tugs:  only
in one instance, which was the result of broken fendering, did
metal-to-hull contact occur between a *reserve-tractor-like* tug as
proposed by Admiral and a subsurface vessel.  Contracting Officer's
Statement at 2.  Based on the record here, we find that the agency
reasonably determined that the tugs proposed by Admiral would meet the
configuration requirements.
    
In its protest AMS does not assert that Admiral's tugs cannot meet the
RFP's configuration requirements here; instead, AMS argues that Admiral's
configuration (with, allegedly, approximately 6 inches of clearance
between drive system and naval vessel) has a higher risk of metal-to-hull
contact than AMS's configuration (with, allegedly, more than 12 inches of
clearance between drive system and naval vessel).  Protester's Comments,
Jan. 9, 2003, at 10, exh. 2, Declaration of John W. Waterhouse, at 6.  We
need not resolve whether AMS's configuration is in fact technically
superior because the RFP informed offerors that the agency's evaluation of
proposals and award decision was one of technical acceptability.  As the
agency properly evaluated Admiral's proposal against the RFP's minimum
performance specifications, and reasonably determined that Admiral's
proposal met the relevant configuration requirements, we find no basis to
disturb the agency's evaluation here.
    
AMS also protests that Admiral's proposal states that it cannot meet the
RFP's delivery schedule.[6]   As detailed above, the solicitation
originally established a delivery schedule of 246 days (the time between
the anticipated award date and the canceling date).  During discussions
Admiral informed the agency that it would require a period of 347 days for
the construction and delivery of its proposed tugs.  AR, Tab C, Admiral's
Proposal, at 34 (Fax Transmission, Sept. 4, 2002).  Subsequent
solicitation amendments modified both the anticipated award date and
canceling date, finally resulting in a revised delivery period of 287
days.  RFP amend. 9, at 2.  In its final proposal revision, Admiral stated
that the *proposed vessels will meet all requirements of the solicitation
as amended.*  AR, Tab C, Admiral's Proposal, at 42 (Letter from Admiral,
Sept. 27, 2002).  Admiral also acknowledged every solicitation amendment
that revised the delivery schedule.  Id. at 67 (Letter from Admiral,
Oct. 25, 2002).  In the subsequent evaluation of proposals the Navy
determined that Admiral's proposal agreed to comply with the RFP's
delivery schedule.  AR, Tab L, Business Clearance Memorandum, at 2.
    
We find the agency's evaluation here to be reasonable.  There are no
documents in the record to support a finding that Admiral advised the Navy
that it would not comply with the delivery schedule or that its proposal
was conditional on the agency's acceptance of an alternate canceling
date.  The fact that Admiral had essentially requested a longer delivery
schedule during discussions does not negate the offeror's subsequent
unconditional agreement to comply with the solicitation's delivery
schedule.
    
AMS also challenges Admiral's strike contingency plan as inadequate.  In
outlining how services would be provided without interruption if there
were a labor strike, Admiral stated,
    
[DELETED]. 
    
AR, Tab C, Admiral's Proposal, at 25.  The agency determined that
Admiral's proposal, including its strike contingency plan, was acceptable.
    
AMS argues that Admiral's strike contingency plan is inadequate and fails
to meet the requirements of the solicitation because the plan does not
state when the union contract expires nor does it provide any information
regarding Admiral's plans to ensure continuity of services following
expiration of the pertinent collective bargaining agreement.  Protest,
Jan. 9, 2003, at 12-13.
    
A contracting agency is responsible for evaluating the information
submitted by an offeror and ascertaining if it provides sufficient
information to determine the acceptability of the offeror's proposal; we
will not disturb this technical determination unless it is shown to be
unreasonable.  Thames Towboat Co., Inc.,
B-282982, Sept. 9, 1999, 99-2 CPD P: 100 at 4.  Contrary to AMS's view,
the RFP did not require that offerors submit detailed technical
information, either as to compliance with the solicitation's performance
specifications or as to an offeror's strike contingency plan.  While
Admiral's strike contingency plan could have identified the expiration
date of its collective bargaining agreement, there was no requirement here
that it do so.  Likewise, while the agency's evaluation of Admiral's
strike contingency plan may have considered this information, the failure
to do so does not make the agency's determination here unreasonable.
    
Lastly, AMS argues that the agency improperly evaluated Admiral's proposed
fuel consumption.  As set forth above, the solicitation established that
fuel would be either government-furnished or, if contractor-purchased,
treated as a direct reimbursable expense.  As a result, the RFP required
offerors to submit the estimated fuel consumption amounts for the tugs
proposed.  The determination of an offeror's total evaluated price was a
product of both the daily and overtime rates proposed by an offeror and
the estimated cost of fuel.  While offerors were required to warrant that
fuel consumption when performing harbor work would be at the average
consumption rate identified in their proposals, RFP at 11, the
solicitation generally did not limit the government's liability to pay the
cost of the actual fuel consumed to the rate set forth in an offeror's
proposal.[7]
    
Admiral's proposal set forth a fuel consumption rate of [DELETED] barrels
per hour for both the one large tugboat and the five smaller tugs
proposed.  The agency determined that at the consumption rates proposed,
Admiral's fuel costs totaled $[DELETED] annually, or $[DELETED] for the
total contract period.  AR, Tab K, Agency Price Evaluation of Final
Proposal Revisions, at 2.  AMS argues that Admiral's fuel consumption rate
is significantly understated; the protester contends that a more realistic
fuel consumption rate would be between [DELETED] barrels per hour for
Admiral's high-powered tug, and [DELETED] barrels per hour for the smaller
five tugs.  AMS bases this assertion on the calculations of its consultant
(who considered the particular characteristics of the tugs which Admiral
proposed), historical fuel consumption rates for the work to be performed,
and the fuel consumption rates proposed by other offerors.  AMS argues,
based on its fuel consumption estimates, that Admiral understated its fuel
costs by $[DELETED] annually, or a total of $[DELETED] for the total
contract period.[8]  We need not resolve this issue regarding the
reasonableness of Admiral's fuel consumption rates, however, because the
record demonstrates that the protester could not have been prejudiced as a
result of any alleged error in this regard.
    
Our Office will not sustain a protest unless the protester demonstrates a
reasonable possibility of prejudice that is, unless the protester
demonstrates that, but for the agency's actions, it would have had a
substantial chance of receiving the award. Parmatic Filter Corp.,
B-285288.3, B-285288.4, Mar. 30, 2001, 2001 CPD P: 71 at 11; see
Statistica, Inc. v. Christopher, 102 F.3d 1577, 1581 (Fed. Cir. 1996). 
Here, AMS alleges that the agency's unreasonable evaluation resulted in
the Navy understating Admiral's evaluated price by $[DELETED].  By
contrast, the total evaluated price difference between the proposals of
Admiral and AMS was in excess of $3.5 million. Under these circumstances,
we conclude that AMS could not have been prejudiced since, even assuming
the agency's evaluation of Admiral's fuel consumption costs was
unreasonable and should be adjusted as alleged by AMS, Admiral's proposal
would remain lower priced and thus in line for award under the terms of
the RFP.
    
The protests are denied.
    
Anthony H. Gamboa
General Counsel
    
    

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

   [1] The RFP permitted the use of *true-tractor* tugs, such as those
proposed by AMS, with an adjustable propulsion system fitted at the
forward end of the tug, as well as  *reserve-tractor-like* tugs, such as
those proposed by Admiral, with an adjustable propulsion system fitted at
the aft end of the tug.  See RFP amend. 5, at 2.
[2] Bollard pull is the measure, in pounds, of the strength of a tug's
pulling ability.
[3] The remaining five tugs proposed were to have a minimum 65,000 pounds
forward and astern bollard pull and a minimum 40,000 pounds side bollard
pull.  RFP    amend. 1, at 2.
[4] 105,820 pounds x 76 percent = 80,423.2 pounds.
[5] Using this reduced percentage as argued by AMS results in Admiral's
large tug not meeting the solicitation's side bollard pull requirement
(105,820 pounds x 75 percent = 79,365 pounds).
[6] To the extent AMS also argues that Admiral's proposal should have been
found technically unacceptable because Admiral proposed to use newly built
tugs, we find this ground of protest to be untimely raised.  Our Bid
Protest Regulations require that protests based on other than alleged
solicitation defects be filed within 10 days of when the basis of protest
is known or should have been known.  4 C.F.R. S: 21.5(a) (2002).  Here,
AMS was aware no later than the date it filed its original protest
(November 27, 2002) that Admiral's proposal contemplated the use of tugs
that had yet to be built.  Since AMS did not raise this issue until
January 9, 2003, it is untimely.  
[7] While the agency would not bear the cost of the fuel consumed by the
contractor when the vessel was in an *off-hire status,* RFP at 14, 16, or
the costs of the additional fuel consumed in excess of the rate proposed
if due to mechanical defect, breakdown, casualty, or inefficiency, RFP at
16, the solicitation clearly does not *cap* the government's liability for
the costs of fuel at the consumption rates in an offeror's proposal.
[8] AMS determined this amount by using the same formula employed by the
agency for evaluating fuel consumption costs, but using an aggregate rate
of [DELETED] barrels per hour for all six of Admiral's tugs.  Protester's
Comments, Jan. 9, 2003, at 7.  The protester explains that [DELETED]
barrels per hour is the maximum fuel consumption rate calculated by its
consultant for Admiral's five smaller tugs, and is in the middle of the
range calculated for the large tug.  Id.