TITLE: B-295087, DOER Marine, December 21, 2004
BNUMBER: B-295087
DATE: December 21, 2004
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B-295087, DOER Marine, December 21, 2004

   Decision

   Matter of: DOER Marine

   File: B-295087

   Date: December 21, 2004

   John P. Hurabiell, Esq., Huppert & Hurabiell, for the protester.

   Stephen H. S. Tryon, Esq., Naval Surface Warfare Center, 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

   Protester's contention that the awardee misrepresented its corporate
   history and technical experience is denied where the record shows that no
   misrepresentation occurred and that, in any event, the agency did not
   evaluate the awardee or any other offeror as to corporate experience.

   DECISION

   DOER Marine protests the issuance of a purchase order to Deep Ocean
   Engineering under request for quotations (RFQ) No. N00167-04-Q-0412,
   issued by the Naval Surface Warfare Center, Carderock Division (NSWCCD),
   Department of the Navy, for tethered underwater remotely operated vehicle
   (ROV) systems. DOER argues that Deep Ocean Engineering misrepresented its
   corporate history and ROV manufacturing experience.

   We deny the protest.

   On August 3, 2004, NSWCCD issued the RFQ for seven ROV systems.[1] The
   RFQ, issued as a simplified commercial item acquisition under Federal
   Acquisition Regulation (FAR) Parts 12 and 13, contemplated the award of a
   fixed-price purchase order. In addition to the specifications for the ROV
   system, the solicitation notified vendors that "[a]ward will be made to
   the company [whose] offer can meet all of the technical specifications and
   delivery requirements, and at the lowest overall cost." ROV Specifications
   at 4.

   Five vendors, including DOER and Deep Ocean Engineering, submitted
   quotations consisting of a technical proposal and price proposal by the
   August 27 closing date. The Navy's evaluation of vendors' technical
   proposals determined that only Deep Ocean Engineering's proposal met all
   of the solicitation requirements; by contrast, the agency determined that
   DOER's proposal did not, among other things, meet the solicitation's
   weight and delivery schedule requirements.[2] Agency Report (AR),
   Tab 6, Agency Evaluation of ROV Quotations, at 2-3. After determining that
   Deep Ocean Engineering's price of $781,690 was fair and reasonable, the
   agency made award to Deep Ocean Engineering as the vendor submitting the
   lowest-priced, technically acceptable quotation. AR, Tab 7, Source
   Selection Decision. This protest followed.

   DOER's protest essentially centers upon its assertion that Deep Ocean
   Engineering misrepresented both its corporate history and ROV
   manufacturing experience. Specifically, DOER contends that while the
   current Deep Ocean Engineering company has been in existence for just 4
   years, the entity "masquerades as a firm with a 20-plus year contiguous
   [sic] history and unfairly trades on the proven track record of the
   original [Deep Ocean Engineering] company," citing various corporate
   sales, divestitures, and name changes. Protest at 2. DOER further argues
   that Deep Ocean Engineering's various misrepresentations about its
   corporate history and ROV manufacturing experience have misled clients and
   potential clients, including the Navy here. Id.

   When using simplified acquisition procedures, an agency must conduct the
   procurement consistent with a concern for fair and equitable competition
   and must evaluate quotations in accordance with the terms of the
   solicitation. Kathryn Huddleston & Assocs., Ltd., B-289453, Mar. 11, 2002,
   2002 CPD para. 57 at 6; Finlen Complex, Inc., B-288280, Oct. 10, 2001,
   2001 CPD para. 167 at 8-10. In reviewing protests of an allegedly improper
   simplified acquisition evaluation, we examine the record to determine
   whether the agency met this standard and exercised its discretion
   reasonably. American Artisan Prods., Inc., B-293801.2, June 7, 2004, 2004
   CPD para. 127 at 3. An offeror's misrepresentation concerning experience
   or other matters that materially influences an agency's consideration of
   its proposal generally provides a basis for proposal rejection or
   reevaluation of the award decision based on the faulty proposal. See ACS
   Gov't Servs., Inc., B-293014, Jan. 20, 2004, 2004 CPD para. 18 at 4;
   Cygnus Corp., B-275957, B-275957.2, Apr. 23, 1997, 97-1 CPD para. 202 at
   10. A misrepresentation is material where the agency relied upon it and it
   likely had a significant impact upon the evaluation. ACS Gov't Servs.,
   Inc., supra; Integration Techs. Group, Inc., B-291657, Feb. 13, 2003, 2003
   CPD para. 55 at 5.

   We conclude that the record simply provides no basis to find that Deep
   Ocean Engineering made a misrepresentation here. In its technical
   proposal, Deep Ocean Engineering provided an introduction and a company
   profile, claiming that the entity has been in continuous operation for 22
   years designing, building, and testing ROV systems. AR, Tab 4, Deep Ocean
   Engineering's Technical Proposal, at 1-2. Deep Ocean Engineering's
   technical proposal then provided descriptions of its manufacturing
   expertise and experience, including specific information on similar,
   relevant ROV programs. Lastly, Deep Ocean Engineering provided extensive
   information about how the vendor's proposed ROV system would meet each of
   the required specifications by means of a line-by-line comparison. Id. at
   13-22.

   We think the protester's allegations challenging Deep Ocean Engineering's
   claim of 22 years' continuous ROV experience amount to a disagreement as
   to the proper attribution of (and credit for) the awardee's corporate
   history. As the agency correctly notes, "whether the company's history
   must be measured by the latest date of incorporation, or its past
   corporate history, or the contracting and manufacturing experience of its
   [principal employees] is not established by law, regulation or practice."
   Agency Report at 4. At most, we think Deep Ocean Engineering's alleged
   "misrepresentations" regarding its corporate history and ROV production
   experience amount to mere "puffery" and do not, in our view, rise to the
   level of misrepresentations. See Cygnus Corp., supra.

   In any event, it is clear that any "misrepresentation" by Deep Ocean
   Engineering was not material to the agency's evaluation and resulting
   award decision. As set forth above, the RFQ did not require vendors to
   provide information regarding corporate history or prior ROV production
   experience, and the agency did not consider vendors' corporate experience
   or past performance in its evaluation of proposals.
   In this regard, the record clearly establishes, and DOER does not dispute,
   that NSWCCD did not evaluate Deep Ocean Engineering or any other vendor as
   to corporate experience. AR, Tab 6, Technical Evaluation of ROV
   Quotations. Instead, the Navy's technical evaluation was limited to
   whether each vendor's proposal ROV was technically acceptable (i.e.,
   whether it would meet the requirements of the ROV specification as set
   forth in the solicitation). Id. Similarly, the agency's award decision was
   based solely upon price and technical acceptability. AR, Tab 7, Source
   Selection Decision. Quite simply, even assuming arguendo that Deep Ocean
   Engineering's claim of 22 years' continuous ROV experience was inaccurate,
   the record demonstrates that the claim did not have a significant impact
   on the agency's evaluation of vendors' quotations.[3] See ACS Gov't
   Servs., Inc., supra.

   The protest is denied.

   Anthony H. Gamboa

   General Counsel

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

   [1] The intended purpose of the ROVs was to position sensors relative to a
   Navy ship hull in a marine industrial environment. ROV Specifications at
   1. The ROV was also designed to carry a suite of sensors for inspection of
   ship hull and other underwater structures. Id.

   [2] Specifically, the agency determined that DOER's proposed ROV failed to
   comply with the solicitation's weight requirement of less than 100 pounds.
   AR, Tab 6, Agency Evaluation of ROV Quotations, at 2. The Navy also
   concluded that DOER's quotation did not comply with the solicitation
   requirement that the first two ROVs be delivered within 45 days of award
   and the remaining five ROVs be delivered within 90 days of award. Id.
   Despite the agency's determination that the protester's quotation was
   technically unacceptable (a conclusion which DOER does not contest), the
   protester remains an interested party to challenge the award to Deep Ocean
   Engineering here because the awardee was the only vendor whose offer was
   found by the agency to be technically acceptable; if the awardee's offer
   were found to be unacceptable, then the agency would have to resolicit the
   requirement, giving the protester another chance to compete. See Infrared
   Techs. Corp., B-255709, Mar. 23, 1994, 94-1 CPD para. 212 at 3 n.2;
   Georgetown Univ., B-249365.2, Jan. 11, 1993, 93-1 CPD para. 87 at 5.

   [3] DOER also protests that the ROV specifications here were dramatically
   different from those that it had expected, thereby making the preparation
   of a complete and responsive quotation more difficult. Protest at 2. To
   the extent that DOER is challenging defects in the solicitation, that
   protest is untimely; under our Bid Protest Regulations, a protest against
   alleged solicitation improprieties must be filed prior to the closing time
   for receipt of initial proposals. 4 C.F.R. sect. 21.2(a)(1) (2004).