TITLE:  SeaArk Marine, Inc., B-292195, May 28, 2003
BNUMBER:  B-292195
DATE:  May 28, 2003
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SeaArk Marine, Inc., B-292195, May 28, 2003

   Decision
    
    
Matter of:    SeaArk Marine, Inc.
    
File:             B-292195
    
Date:              May 28, 2003
    
John McClendon for the protester.
B. J. Braun, Esq., Department of Homeland Security, for the agency.
Sharon L. Larkin, Esq., and Guy R. Pietrovito, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
    
1.  Agency need not hold discussions with offerors concerning product
demonstration test results in order to permit design changes, where the
solicitation provides that remediation will not be permitted and agency
provided results only to ensure that testing was properly performed.
    
2.  Awardee did not receive unfair competitive advantage from prior
contract experience where there was no evidence of unfair or preferential
treatment, improper discussions, or involvement in developing
solicitation. 
DECISION
    
SeaArk Marine, Inc., protests the award of a contract to SAFE Boats
International, LLC under request for proposals (RFP) No.
DTCG23-02-R-DNQ131, issued by the Department of Homeland Security, for
small commercial boats modified to U.S. Coast Guard specifications. 
SeaArk contends that the agency failed to conduct meaningful discussions
and provided SAFE with an unfair competitive advantage.
    

   We deny the protest.
    
The solicitation, issued under the commercial item procedures in Federal
Acquisition Regulation Part 12, provided for award of a 7-year fixed-price
indefinite-delivery/indefinite-quantity (ID/IQ) contract with an economic
price adjustment.  RFP at 5.  Award was to be made to the offeror whose
proposal provided the *overall best value* to the government, based upon
the following factors:  vessel operational capabilities and physical
characteristics, production capability, quality assurance and management,
warranty, construction data rights and technical support, past
performance, and price.  Vessel operational capabilities and physical
characteristics was *significantly more important than all other factors,*
and all of the technical factors combined with past performance were
*significantly more important than price.*  RFP at 40-42.
    
Offerors were informed that the agency intended to evaluate proposals and
make awards without conducting discussions.  Evaluation was conducted in
two phases.  Phase one involved evaluation of proposals and resulted in
the selection of three offerors (including SeaArk and SAFE) to deliver one
boat each to the agency for further testing.  Phase two involved *hands
on, boat in the water* testing and evaluation of the delivered boats and
selection of one of the three offerors to receive production orders for up
to 700 boats.  RFP at 41-42; Contracting Officer's Statement at 3.   With
respect to the phase two testing, the RFP stated that test and evaluation
results would be provided, but not for the purpose of discussions and that
proposal revisions would not be permitted.
    
Phase two testing was performed over a 3-week period by *a diversely
qualified* technical evaluation team (TET), which tested the offerors'
boats under similar conditions to validate each boat's performance under
the vessel operational capabilities and physical characteristics factor. 
The test results were then used to re-evaluate this factor and the final
standing for award.  Contracting Officer's Statement at 3.
    
After completing testing, the agency rated SAFE blue (superior) with low
risk for the operational capabilities and physical characteristics factor,
and SeaArk yellow (marginal) with high risk.  The agency found that
SeaArk's boat presented
3 significant performance weaknesses relating to *seakeeping* and
*maneuvering* issues that the agency determined would involve significant
redesign, 22 mission effectiveness weaknesses involving *transportability*
issues that also required redesign, and 17 *service life* and
*reliability* issues relating to construction quality.  In contrast,
SAFE's boat was found to meet or exceed the RFP's requirements and
presented only minor weaknesses, which the agency determined to be
*insignificant.*  Agency Report (AR), Tab H, TET Report, at 2.  The agency
found that SAFE's boat provided exceptional maneuverability, better
stability, and superior construction quality to SeaArk's.  AR, Tab I,
Source Selection Authority Decision, at 1. 
    
The agency determined that SAFE's evaluated price was approximately $132
million and SeaArk's evaluated price was approximately $125 million, based
on a maximum ordering quantity of 700 boats.[1]  However, given the
technical superiority of SAFE's boat, the agency found that this 5%
differential (or approximately $7 million) did not outweigh SAFE's
technical superiority.  The agency awarded the contract to SAFE, and this
protest followed.
    
SeaArk contends that that the agency failed to provide it *meaningful
feedback* regarding unfavorable test results and that, had it received
such feedback, it could have remedied many of the boat's weaknesses
through *simple redesign.*  In this regard, the RFP specifies that phase
two test and evaluation findings *will be provided to the [offerors] by
electronic mail, who will then respond in a timely manner.*
    
Although it is true that the RFP informed offerors that they would be
informed of the test results, the solicitation also provided that *[t]he
purpose of the test and evaluation is NOT to reveal deficiencies or
significant weaknesses for possible remediation through discussions,* and
that *[n]o part  of a Contractor's proposal will be changed as a result.* 
RFP at 41-42.  As the agency explains, test results were to be provided to
offerors for the sole purpose of ensuring that the boats were being
operated properly during testing.[2]  Contracting Officer's Statement at
3.  Given the RFP's warning that remediation would not be permitted, we
find no basis to question the agency's decision not to conduct discussions
with SeaArk or to permit the firm to redesign its boat or to otherwise
remedy the weaknesses identified in testing.
    
SeaArk next contends that SAFE benefited from an unfair competitive
advantage because SAFE is currently manufacturing an *almost identical*
boat under a separate contract with the agency.  According to SeaArk, SAFE
may have been able to use this position to obtain *feedback* from the
agency and knowledge of the agency's *preferences* regarding style,
design, and other boat features, which was information that SeaArk could
not receive .[3]  Protest at 3.
    
Even if it is true that SAFE received an advantage due to its prior
contract experience, similar to an advantage of incumbency, there is no
evidence in the record of unfair or preferential treatment.  As the agency
explains, it did not tailor the specifications to accommodate SAFE's boat
features, SAFE did not assist the agency with drafting the RFP, and the
agency did not have communications with SAFE concerning this procurement
outside the procurement.  Contracting Officer's Statement at 2.  Given
that there is no evidence of preferential or improper conduct, any
advantage that SAFE may have received from the firm's prior contractual
performance need not be equalized.  Crofton Driving Corp., B‑289271,
Jan. 30, 2002, 2002 CPD P: 32 at 6; Pacific Consol. Indus., B-250136.5,
Mar. 22, 1994, 94-1 CPD P: 206 at 4.         
    
We deny the protest.
    
Anthony H. Gamboa
General Counsel
    

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

   [1] Each SeaArk boat was $14,176.98 less expensive than SAFE's.  Protest,
attach. 5, Phase One Post-Award Conference Meeting Minutes, at 4.
[2] In this regard, the agency contacted SeaArk to discuss a heeling
problem (i.e., maneuverability issue) with SeaArk's boat, and SeaArk
provided the agency with instructions on how to trim the boat to ensure
proper handling.  Contracting Officer's Statement at 3-4.  The remaining
weaknesses identified in SeaArk's boat, however, were found to be
*endemic* to the boat and did not involve issues of whether a particular
test was properly performed.  Legal Memorandum at 4.      
[3] Additionally, SeaArk also alleges that SAFE benefited from
congressional influence on homeland security projects.  There is no
evidence in the record to support this allegation.