TITLE:  Ballast Ham Dredging BV, B-291728;  B-291728.2, April 4,  2003
BNUMBER:  B-291728;  B-291728.2
DATE:  April 4,  2003
**********************************************************************
Ballast Ham Dredging BV, B-291728; B-291728.2, April 4, 2003

   Decision
    
    
Matter of:   Ballast Ham Dredging BV
    
File:            B-291848
    
Date:              April 4, 2003
    
Simon Boon for the protester.
Joseph A. Gonzales, Esq., Department of the Army, for the agency.
John L. Formica, Esq., and James A. Spangenberg, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
    
Agency's evaluation of the protester's proposal as marginal under certain
evaluation factors and selection of the awardee's higher-rated, slightly
higher-priced proposal for the award of a contract for dredging were
reasonable and consistent with the terms of the solicitation.
DECISION
    
Ballast Ham Dredging BV protests the award of a contract to Van Oord ACZ
Marine Contractors BV, under request for proposals (RFP) No.
DACW01-02-R-0067, issued by the Army Corps of Engineers, for maintenance
dredging of the access channel to the Port of Guayaquil, Ecuador.  Ballast
Ham argues that the agency's evaluation of its proposal, and the selection
of Van Oord's higher-priced proposal for award, were unreasonable.
    
We deny the protest.
    
The RFP provided for the award of a fixed-price contract for the dredging
to be completed within 540 days.  The successful contractor will provide
all equipment, materials, and personnel to complete the dredging and
dispose of the dredged materials in accordance with the terms of the RFP. 
The solicitation stated that award would be made to the offeror whose
proposal represented the best value, considering price and the following
evaluation factors listed (with one exception) in descending order of
importance:  specialized experience on similar type work; dredging
equipment; dredging approach; key personnel experience and qualifications;
organization; and preliminary project schedule.[1]  The RFP advised that
to determine the *best value* proposal for award, the agency would
consider all evaluation factors combined (other than price) equal in
importance to price. 
    
The RFP included detailed instructions for the preparation of proposals,
and requested that proposals include separate sections addressing each of
the stated evaluation factors.  The solicitation added that the agency
intended to award a contract without conducting discussions and therefore
offerors' initial proposals should contain their best terms with regard to
both price and technical submissions. 
    
The agency received six proposals by the closing date.  The proposals were
reviewed, and clarification questions were provided to the offerors.  Van
Oord's proposal was evaluated as *above average,* with an identified
*advantage,* under both the specialized experience on similar type work
and dredging equipment factors, and *satisfactory* under the dredging
approach, key personnel experience and qualifications, organization, and
preliminary project schedule factors, at a price of $13,245,597.[2] 
Ballast Ham's proposal was also evaluated as *above average,* with an
identified *advantage,* under both the specialized experience on similar
type work and dredging equipment factors, and *satisfactory* under the key
personnel experience and qualifications and organization factors; however,
this proposal was rated *marginal,* with one *significant weakness,* under
the dredging approach factor and *marginal,* with two *deficiencies,*
under the preliminary project schedule factor, at a price of $12,872,087. 
AR, Tab I, Source Selection Evaluation Board (SSEB) Report, Dec. 5, 2002,
at 1-3; attachs., Revised Consensus Evaluation Sheets, Van Oord's and
Ballast Ham's Proposals. 
    
In considering the evaluation results, the source selection authority
(SSA) and SSEB noted that the proposals submitted by Van Oord and two
other offerors were technically acceptable or better as initially
submitted, while the proposals of Ballast Ham and the remaining two
offerors had deficiencies and/or weaknesses, such that *discussions would
be necessary to allow them to bring their offers into compliance with the
Solicitation.*  The SSA also noted that Van Oord's proposal was evaluated
as above average with advantages under the two most important evaluation
factors (specialized experience and dredging equipment), and that it had
offered a *highly competitive* price (only 3 percent higher than Ballast
Ham's price).  With regard to Ballast Ham's proposal, the SSA found that
while it was the lowest-priced proposal, and like Van Oord's proposal had
received *above average* ratings under the two most important evaluation
factors, the proposal contained one significant weakness and two
deficiencies that would need to be addressed through discussions.  The SSA
ultimately concluded that because of Van Oord's initial proposal's highly
competitive price, *above average* ratings under the two most important
technical evaluation factors, and lack of any weaknesses or deficiencies,
award should be made to Van Oord without discussions as the offeror
submitting the proposal representing the best value.  AR, Tab H, Source
Selection Decision, at 1-3. 
    
Ballast Ham protests that the agency's evaluation of its proposal as
containing a significant weakness under the dredging approach factor and
two deficiencies under the preliminary project schedule factor was
unreasonable, and that given its proposal's low price and *above average*
ratings under the two most important evaluation factors, it should have
been selected for award as representing the best value. 
    
In reviewing an agency's evaluation of proposals, we will not reevaluate
them, but instead will examine the agency's evaluation to ensure that it
was reasonable and consistent with the solicitation's stated evaluation
factors and applicable statutes and regulations.  J.A. Jones/IBC Joint
Venture; Black Constr. Co., B-285627, B‑285627.2, Sept. 18, 2000,
2000 CPD P: 161 at 3.
    
With regard to dredging approach, the RFP requested that each offeror's
proposal provide *a narrative describing your approach to dredging,* to
include, for example, descriptions of *the resources available and to be
utilized to perform the work.*  RFP at 00110-1, P: 2.2.l.  The RFP
informed offerors that proposals would be evaluated to determine *the
extent and adequacy of their understanding of the Solicitation
requirements,* including *the approach to carrying out the required
maintenance dredging activities in an efficient and timely manner.*  RFP
at 00120-2, P: 3.2.1. 
    
In the dredging approach section of its proposal, Ballast Ham stated that
*[t]he available information from site investigations indicates that the
soil to be dredged is ranging from medium to fine sands up till very soft
clay, with specific gravity ranging from between 1.3t/m3 and
1.9t/m3*--that is, the material to be dredged weighs between 1.3 and 1.9
tons per cubic meter.  The protester's proposal continued here by stating
that *[t]he selected dredging equipment shall be capable of dredging these
types of soil and within the time limits stipulated in the Contract
Documents.*  AR, Tab S, Ballast Ham's Proposal, at 38. 
    
In evaluating Ballast Ham's proposal, the agency referred to the
above-quoted statements, and determined that, before it could receive
award, Ballast Ham would have to *explain the accuracy of the information*
regarding the materials to be dredged, as well as *the expected impact on
the contract if the materials fall outside these limits.*  AR, Tab I, SSEB
Report, Dec. 5, 2002, attach., Revised Consensus Evaluation Sheet, Ballast
Ham's Proposal, at 1.  The agency explains that it was concerned that
Ballast Ham's reference to the materials that firm believed were to be
dredged, and the indication that it had selected its equipment and
dredging approach based upon this belief, constituted an impermissible
*limitation* on its equipment's *capabilities . . . qualifying the type of
dredge material that the offeror would agree to remove, and establishing
grounds for a potential claim.*  AR at 4.  Because of this, the agency
evaluated Ballast Ham's proposal under the *dredging approach* factor as
*marginal* with a *significant weakness.*  AR, Tab I, SSEB Report, Dec. 5,
2002, attach., Revised Consensus Evaluation Sheet, Ballast Ham's Proposal,
at 1. 
    
Ballast Ham asserts that the agency's concern here is unreasonable, and
that the notation was merely a *summation of the soil information . . .
contained in the Bid documentation.*  Protest at 2.  The protester
explains in this regard that it had *extrapolated the physical
characteristics of the material* to be dredged from the information
included in the solicitation, and had used that data in preparing its
proposal.  Ballast Ham points out that in any event its proposed dredge is
capable of removing materials *up to 2.1t/m3.*  Protester's Comments at
2. 
    
In our view, the agency reasonably determined that the references in
Ballast Ham's proposal to the materials to be dredged by metric ton (which
was not included in the solicitation), and the statement that its
equipment and approach would allow it to remove *these types of soil and
within the time limits stipulated in the Contract,* could reasonably be
construed to be a limitation on what the contractor was capable of
performing or bound to perform within the scope of the contract.  Although
the protester's assertion that its dredge is capable of performing the
contract appears accurate, and it contends that the references in its
proposal were not meant as limitations but were simply informational
references, the fact remains that this assertion and explanation were not
included in the protester's proposal.  As such, we do not object to the
agency's evaluation of Ballast Ham's proposal as *marginal* with a
*significant weakness* under the dredging approach factor.
    
With regard to the preliminary project schedule section, the RFP
instructed offerors  to include a *narrative, describing [their]
scheduling capability and planning organization.*  RFP at 00110-4, P:
2.3.4.1.  Offerors were also instructed to address how they planned to
maintain, update and use their schedules, and to *[d]escribe the equipment
and software/hardware* that they intended to use for scheduling.  Id. 
Offerors were also requested to *[s]ubmit a preliminary schedule for
dredging.*  RFP at 00110-4, P: 2.3.4.2.  In this regard, the solicitation
identified five *reaches* (or sections) of the channel to be dredged, and
specifically requested that the submitted schedules *[s]how the dredging
time for each of the reaches identified.*  RFP amend. 1, at 00110-4, P:
2.3.4.2.2 (emphasis deleted).  With regard to the evaluation of proposals,
the solicitation provided, among other things, that *[t]he Offeror must
submit the requested information* and *demonstrate an effective
understanding of the schedule logic, activities, and constraints necessary
to complete dredging, within the required performance period.*  RFP at
00120-3, P: 3.2.6. 
    
The preliminary project schedule section of Ballast Ham's proposal
consisted of only a one-page *PRELIMINARY TIMESCHEDULE* chart, depicting
seven tasks and the number of days scheduled to complete each task
described.  For example, the schedule included the tasks of *mobilisation*
and *dredging works,* and scheduled 42 and 182 days, respectively, for the
completion of these tasks.  AR, Tab S, Ballast Ham's Proposal, at 142. 
    
As mentioned previously, the agency evaluated Ballast Ham's proposal as
*marginal* with two deficiencies under the preliminary project schedule
factor, specifically noting that the proposal *failed to address* the
requirement for a narrative describing Ballast Ham's scheduling
capability, planning organization, and the equipment and software/hardware
it intended to use, and that the schedule *failed to show the time for
dredging each of the Reaches identified* in the solicitation for dredging
as required.  AR, Tab I, SSEB Report, Dec. 5, 2002, attach., Revised
Consensus Evaluation Sheet, Ballast Ham's Proposal, at 3.
    
While conceding that nowhere in its proposal does it describe the
equipment and software/hardware that it intended to use for scheduling,
the protester asserts that the narrative sought by the agency with regard
to scheduling was provided in other sections of its proposal.  In support
of this assertion, the protester points to the *dredging approach* section
of its proposal, which provides in part that after notice of award *[t]he
project staff will start making final planning's, work preparations and
work plans,* and the *organization* section of its proposal, which
provides in part that Ballast Ham's proposed *works manager* will be
involved in *[p]lanning and progress control.*  Protester's Comments at
2-3; AR, Tab S, Ballast Ham's Proposal, at 40, 62.  Similarly, the
protester, while conceding that its proposal did not *[s]how the dredging
time for each of the reaches identified* in the solicitation as required,
asserts that the *dredging approach* section of its proposal effectively
met this requirement with regard to 98 percent of this work by stating
that *the actual dredging will start from the Oceanside of the channel,
working towards the port* and that *[t]he total channel will be dredged in
sections about two-kilometer[s] length.*  AR, Tab S, Ballast Ham's
Proposal, at 43.
    
The agency explains that it was aware that Ballast Ham had included
information bearing on its preliminary project schedule in other sections
of its proposal, but that in its view, this information was insufficient. 
The agency adds that the Ballast Ham's proposal does not, in any section,
address the equipment and software Ballast Ham intends to use for
scheduling, nor does it explain how Ballast Ham would maintain, update, or
use the schedule as required by the solicitation.  AR at 5. 
    
As described above, the record demonstrates that Ballast Ham's proposal
omitted  required information with regard to the preliminary project
schedule.  Additionally, the information actually provided was sparse and
was not presented in a manner consistent with the RFP's instructions.  As
such, the agency's evaluation of Ballast Ham's proposal under the
*preliminary project schedule* evaluation factor as marginal with two
deficiencies was reasonable.[3]
Based upon its contention that its proposal was unreasonably evaluated,
Ballast Ham finally challenges the agency's award determination.  As
explained above, we believe that the agency's evaluation of Ballast Ham's
proposal was reasonable.  Because the agency in its source selection
document reasonably explained why Van Oord's slightly higher-priced,
higher-rated proposal represented the best value, Ballast Ham's
contentions here provide no basis for overturning the award
determination.  Matrix Int'l Logisitics, Inc., B-277208, B-277208.2, Sept.
15, 1997, 97-2 CPD P: 94 at 14.
    
The protest is denied.
    
Anthony H. Gamboa
General Counsel
    
    

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

   [1] The dredging equipment and dredging approach factors were equal in
importance.
[2] In accordance with the solicitation, the proposals were evaluated
under the evaluation factors as outstanding, above average, satisfactory,
marginal, or unsatisfactory.
[3] Ballast Ham argues for the first time in its comments that the agency
*should have sought further clarification before awarding the Contract.* 
Protester's Comments at 1.  The agency's written debriefing of December
18, 2002, included the agency's consensus evaluation sheets for Ballast
Ham's proposal.  Ballast Ham was thus aware of the precise ratings,
weaknesses, and deficiencies identified by the agency in its evaluation of
Ballast Ham's proposal at that time, and should have raised its argument
regarding *further clarifications* in its initial protest to our Office. 
Ballast Ham's protest on this basis, raised for the first time in its
February 19, 2003 comments on the agency report, is therefore untimely.  4
C.F.R. S: 21.2(a)(2) (2003); Wilderness Mountain Catering, B-280767.2,
Dec. 28, 1998, 99-1 CPD P: 4 at 7.  In any event, the record indicates
that Ballast would have had to provide additional information (such as its
approach to project scheduling and the equipment and hardware/software it
would use) in order to address the agency's evaluated concerns.  Allowing
Ballast to so revise its proposal or provide additional information to
address these concerns could not have been accomplished through
clarifications, but rather, would have constituted discussions.  J.A.
Jones/IBC Joint Venture; Black Constr. Co., supra, at 5.