TITLE:  Gulf Copper Ship Repair, Inc., B-292431, August 27, 2003
BNUMBER:  B-292431
DATE:  August 27, 2003
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Gulf Copper Ship Repair, Inc., B-292431, August 27, 2003

   Decision
    
    
Matter of:    Gulf Copper Ship Repair, Inc.
    
File:             B-292431
    
Date:              August 27, 2003
    
William L. Mercer for the protester.
John R. Tolle, Esq., and William T. Welch, Esq., Barton, Baker, McMahon &
Tolle, for the intervenor.
John B. Dale, Esq., and Susan S. Grooms, Esq., Naval Sea Systems Command,
for the agency.
Sharon L. Larkin, Esq., Guy R. Pietrovito, Esq., and James A. Spangenberg,
Esq., Office of the General Counsel, GAO, participated in the preparation
of the decision.
DIGEST
    
1.  Agency's selection of proposal that failed to conform to a minimum
water depth specification is an unobjectionable waiver of the solicitation
requirement, where deviation is negligible and does not result in
prejudice to the protester.
    
2.  Under a solicitation with two evaluation factors, past performance and
price, that contemplates a *best value* award, agency reasonably selected
lower priced proposal from firm whose past performance was reasonably
rated neutral instead of higher priced proposal of protester whose past
performance was rated very good.
DECISION
    
Gulf Copper Ship Repair, Inc. protests the award to Anteon Corp. by the
Department of the Navy under request for proposals (RFP) No.
N62678-03-R-0049 for ship maintenance and repair.  Gulf challenges the
acceptability of Anteon's proposal, the agency's methodology in evaluating
past performance, and the source selection decision.
    

   We deny the protest.
    
The RFP provides for award of a fixed-price contract for the *phased
maintenance* of the USS Heron.  RFP at B-1.  Award was to be made on a
*best value* basis, considering past performance and price, with past
performance being *approximately equal to . . .[, but] more important
than* price.  RFP at M-2, 3.  The solicitation specified that the past
performance data considered by the agency would include Contractor
Performance Assessment Reporting System (CPARS) reports and *other
relevant past performance information* from other sources.  RFP at L-6. 
Offerors were instructed that the agency might select other than the
lowest priced offer, or other than the offer with the highest evaluation
rating.  RFP at M-3.
    
Among other requirements, offerors were to submit berthing plans and
sketches to show that the proposed navigation route from the navigation
channel to the berthing position satisfied certain minimum water depth
requirements.  Specifically, a water depth of 2 feet more than the minimum
vessel clearance at the mean low water  (MLW)[1] was required by the
specifications.  RFP at L-9; Agency Report (AR), Tab 14, Standard Item
009-101, at 1; Tab 15, Drawing 845-668699, at 4.  Vessel clearance was
stated to be 10 feet, 1 inch, which thus required a minimum water depth of
12 feet, 1 inch at MLW throughout the navigation route.  AR at 11.
    
Offers were received from Gulf and Anteon in response to the RFP.  The
Past Performance Evaluation Team (PPET) evaluated Gulf's past performance
as very good and Anteon's as marginal, based upon the PPET's review of the
CPARS reports where available, past performance questionnaires, and other
data.  Gulf's very good rating was based upon the CPARS reports from nine
contracts, which the PPET determined to be *very relevant* to the
procurement.[2]  The PPET found that Anteon's four referenced contracts
were not relevant, and thus rated Anteon marginal *based solely on a lack
of relevance and not significant weaknesses or deficiencies in the
contractor's past performance record.*  AR, Tab 4, PPET Memorandum at 2-3,
6‑8.   
    
The Best Value Advisory Committee (BVAC) reviewed the findings of the PPET
and, although it agreed with the PPET's rating for Gulf, it disagreed with
the rating for Anteon.  The BVAC determined that the PPET's findings
concerning Anteon were
inconsistent with the definition of *marginal* past performance set forth
in the source selection plan.[3]  A marginal rating, the BVAC noted, was
warranted where *serious [performance] problems* or *quality* issues arose
in connection with the performance of *relevant contract(s) that are
similar to the subject availability,* which was not the case here. 
Rather, the PPET's findings were based solely on the lack of relevant past
performance, which the BVAC found warranted only a neutral rating. 
Accordingly, the BVAC adopted a neutral rating for Anteon.
    
The BVAC also considered the firms' proposed prices, noting that Anteon's
price was lower than Gulf's.  The BVAC recommended award to Anteon,
stating that, in light of Anteon's neutral past performance rating, the
BVAC
    
[did] not consider the risk of performance if award goes to Anteon to
justify paying the additional [cost] for this availability.  In the
absence of any information to indicate that Anteon is a bad performer, the
BVAC considers Anteon to be the better value. 
AR, Tab 5, BVAC Memorandum, at 2-4. 
    
The source selection authority (SSA) concurred with the BVAC's findings
and recommended award to Anteon.  Specifically, the SSA stated
    
I agree with the BVAC that Anteon's past performance history does not
warrant a marginal rating.  The information available does not indicate
significant weaknesses, deficiencies, or consistently mediocre work on the
part of Anteon. While the few jobs performed by Anteon in Ingleside,
[Texas] have consisted of low contract values, minimal complexity, and
have been performed outside of the contractor's plant,
the contractor has successfully completed these jobs without significant
weaknesses or deficiencies.  Further, the work performed by Anteon in the
Norfolk, [Virginia] area, while still representing minimal complexity and
performed outside the contractor's plant, has been performed
successfully.  I do not have any information available to me that
indicates Anteon would not be capable of successful performance if awarded
the subject availability.  My independent risk analysis agrees with the
BVAC and does not justify paying the price differential necessary to award
to Gulf Copper. . . .  Based on the above, award is directed to Anteon.
AR, Tab 6, Source Selection Assessment, at 1.  Award was made to Anteon
and this protest followed.
    
Gulf complains that Anteon's proposal does not conform to the RFP's water
depth requirements, which mandate a minimum water depth of 12 feet, 1 inch
at MLW for the navigable route.  Indeed, Anteon's berthing plan and
sketches submitted with its proposal show that, while the water depth in
the berthing area is 16 feet at MLW, the water depth in two places in the
navigation channel leading to the berthing area is only 12 feet at MLW,
which is less than the 12 feet, 1 inch required by the RFP.  AR at 11. 
The Navy, however, considered the 1-inch shortfall to be *negligible* and
thus concluded that the water depth at Anteon's facility was
*satisfactory.*  AR at 11 n.5; Tab 17, Navy Discussions Re: Water Depth,
at 3. 
    
It is true that Anteon's proposal did not satisfy the minimum water depth
requirement so that the agency essentially waived the requirement when it
concluded that the 1-inch shortfall was acceptable.  Nevertheless, we find
no prejudice to the protester in the agency's actions, as the water depth
shortfall was reasonably determined to be *negligible* and the protester
has not shown how it would have altered its proposal to improve its
competitive standing had it been given an opportunity to respond to the
relaxed requirements.  Absent prejudice to the protester, we deny this
ground of protest.  See 4-D Neuroimaging, B-286155.2, B‑286155.3,
Oct. 10, 2001, 2001 CPD P: 183 at 10-11; see also Magnaflux Corp.,
B‑211914, Dec. 20, 1983, 84-1 CPD P: 4 at 3-4 (agency permitted to
waive deviation from specification which was minor and did not result in
prejudice).   
    
Gulf objects to the agency's use of past performance questionnaires as
opposed to the CPARS reports to evaluate Anteon's past performance.  Gulf
argues that Anteon should not have been selected for award because it
lacked relevant past performance. 
    
Because the evaluation of proposals is a matter within the discretion of
the contracting agency, we will not reevaluate proposals, but will examine
the agency's evaluation to ensure that it was reasonable and consistent
with the solicitation's
stated evaluation criteria and in accordance with applicable procurement
laws and regulations.  Hughes Georgia, Inc., B-272526, Oct. 21, 1996, 96-2
CPD P: 151 at 4.
    
As noted above, the RFP contemplates that the agency would consider
sources of past performance data other than the CPARS reports, RFP at L-6,
and these sources, in our view, reasonably include the use of past
performance questionnaires.  In any event, given that the use of
questionnaires resulted only in a neutral rating for Anteon and had no
effect on the evaluation of Gulf's past performance, we fail to see, and
Gulf has not shown, how Gulf was prejudiced as a result of the agency's
methodology in evaluating past performance.
    
We also find reasonable the Navy's decision to award the contract to
Anteon despite the lack of relevant past performance, which the agency
reasonably determined warranted a neutral rating.[4]  The RFP specifically
provided that a neutral rating for past performance *will be evaluated
neither favorably nor unfavorably,* RFP at M-02, see also FAR S:
15.305(a)(2)(iv), and also cautioned that award could be made to other
than the highest technically rated offeror.  Since the RFP provided that
the Navy could select an offeror for award whose proposal was not the
highest technically rated, but was nevertheless deemed to provide the best
value to the government, the SSA was required to determine whether Gulf's
past performance rating was worth the higher price associated with its
proposal.  Hughes Georgia, Inc., supra, at 8.  Here, the SSA determined
that Anteon's referenced contracts, while not relevant, did not indicate
performance deficiencies or cause the Navy to doubt Anteon's capability to
successfully perform this contract, and thus concluded that Gulf's very
good past performance rating did not justify paying the higher cost.  This
determination was within the sound discretion of the SSA, id., and apart
from
disagreeing with the SSA's decision, Gulf has provided us with no basis to
find that the determination was unreasonable.  
    
The protest is denied.
    
Anthony H. Gamboa
General Counsel
    

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

   [1] The MLW is the average of all low tides over a particular period of
time.  Canaveral Maritime, Inc., B-231857.4, B-231857.5, May 22, 1989,
89-1 CPD P: 484 at 7.
[2] The PPET determined that three other contracts for ship repair were
not *as significantly relevant* and therefore the past performance
information from these contracts did not affect Gulf's ratings.  AR, Tab
4, PPET Memorandum, at 3.
[3] A marginal rating is defined as:
The offeror's performance of previously awarded relevant contract(s) that
are similar in respect to the subject availability did not meet some
contractual requirements.  The prior performance being assessed reflected
some serious problems, for which the contractor either failed to identify
or implement corrective actions in a timely manner, or for
which the corrective actions implemented or proposed to be implemented
were, or are expected to be, only partially effective.  Performance over
completed contracts was consistently of mediocre quality or exhibited a
trend of becoming so.  The offeror's past performance record leads to an
expectation that the successful performance might be difficult to achieve
or that it can occur only with increased levels of [agency] management and
oversight.
A neutral rating is defined as:
The offeror lacks a record of relevant or available past performance
history.  There is no expectation of either successful or unsuccessful
performance based on the offeror's past performance. 
AR, Tab 3, Source Selection Plan, at 9.
[4] Gulf challenges the qualifications of the PPET members to perform the
past performance evaluation.  The selection of individuals to serve as
proposal evaluators is a matter within the discretion of the agency; we
will not appraise the qualifications of such individuals absent a showing
of possible fraud, conflict of interest, or actual bias on the part of the
evaluators, which has not been alleged here.  Emmert Int'l,
B‑280478, B-280478.2, Oct. 7, 1998, 98-2 CPD P: 112 at 8.  In any
event, Gulf does not challenge the PPET's ratings of its own past
performance, and the PPET's ratings  of Anteon were rejected by both the
BVAC and SSA, so the qualifications of the PPET appear to be irrelevant. 
Although Gulf does not challenge the findings of the BVAC or SSA, we find
that the SSA's determination to reject the PPET's rating of marginal for
Anteon and assess a rating of neutral to be reasonable and consistent with
the rating definitions set forth in the source selection plan, and within
the SSA's discretion.  See SAM El Segundo, LLC, B‑291620,
B-291620.2, Feb. 3, 2003, 2003 CPD P: 44 at 17-18.