TITLE:  International Marine Products, Inc., B-296127, June 13, 2005
BNUMBER:  B-296127
DATE:  June 13, 2005
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   Decision

   Matter of:   International Marine Products, Inc.

   File:            B-296127

   Date:              June 13, 2005

   Robert A. Landman for the protester.

   Scott Garner, Esq., and George Brezna, Esq., Military Sealift Command, for
the agency.

   Edward Goldstein, Esq., and Christine S. Melody, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   1.  Receipt on Saturday of an agency-level protest decision by a
vice-president for the protester did not constitute actual or constructive
knowledge of adverse agency action on that date, where Saturday was not a
business day for the protester and the envelope containing the decision
was not opened until Monday, the first business day after receipt.

   2.  Protester's assertion that agency's evaluation of its technical
proposal was flawed is denied where the record shows that the evaluation
was reasonable and consistent with the solicitation, and the protester's
contentions represent only its disagreement with the agency's judgment.

   DECISION

   International Marine Products, Inc. (IMP) protests the award of a contract
to Beach Panel Controls, Inc. under request for proposals (RFP) No.
N62381-03-R-1003, issued by the Department of the Navy, Military Sealift
Command for automation control system inspection, training, system
services and repairs, as well as "emergent repairs."  RFP at 2-20.  IMP
protests the evaluation of its proposal and alleges that the agency was
biased in favor of Beach Panel.

   We deny the protest.

   The Navy issued the RFP on March 19, 2002.  As amended, the RFP
anticipated the award of an indefinite-delivery requirements-type contract
with fixed unit prices, for a base year plus four 1-year options, for a
variety of inspection, repair, training, and testing services to be
performed aboard 35 Military Sealift Command vessels.  Award was to be
made to the responsible offeror whose proposal represented the "best
value" to the government based on the agency's consideration of three
major evaluation factors (in descending order of importance):  technical,
price, and past performance.  RFP at 52-53.

   Under the technical factor, the RFP identified (in descending order of
importance) four "technical factors":  (1) ability to perform the
statement of work (which included two subfactors, 1.1 management control
and 1.2 quality control); (2) understanding the statement of work; (3)
experience; and (4) problem areas. 

   As it relates to the protest, under the technical factor regarding ability
to perform the statement of work, the RFP required offerors to provide
manufacturer "certifications/qualifications of being an OEM *original
equipment manufacturer' for the equipment being maintained aboard
vessels."  RFP attach. J-2.  Offerors were further required to provide
"contractors['] special pricing" agreements with manufacturers and to
identify "the available labor resources to accomplish scope of work and
capability of performing multiple large tasks, upgrades and inspections
simultaneously on vessels all over the country. (Ability to accomplish
large tasks on up to *five' vessels concurrently)."  Id. 

   Four offerors submitted timely proposals by the RFP's June 18, 2003
closing date, including proposals from the protester and Beach Panel.  In
its initial evaluation of proposals, the Navy rated IMP as "satisfactory"
overall under the technical evaluation factors, while identifying numerous
weaknesses with IMP's proposal, and rated its past performance as "good." 
Beach Panel received overall ratings of "excellent" for both the technical
and past performance factors. 

   Specifically, as it relates to the protest, with regard to the evaluation
of IMP's proposal under the technical factor regarding ability to perform
the statement of work, the Navy noted that IMP's evidence of OEM
certification was limited to two companies through a third-party
electrical supplier.  This perceived "lack of OEM depth" created risk for
the government, according to the Navy.[1]  AR, Tab 7, Technical Evaluation
Report, Aug. 6, 2003, at 9.  Under this same technical factor, the Navy
found fault with IMP's evidence of contractor special pricing agreements,
noting IMP's failure to include specific pricing and product information
and IMP's limited supply structure, which, in the Navy's view, exposed the
government to greater risk.  The Navy also raised concerns about IMP's
size and its ability to accomplish five concurrent tasks as required by
the solicitation.  In this regard the Navy was concerned with IMP's
reliance on memoranda of understanding to provide its pool of labor. 
According to the Navy, this approach "lacks continuity of experience,
which can reduce productivity when dealing with complicated electronic and
control systems."  AR, Tab 7, Technical Evaluation Report, Aug. 6, 2004,
at 9. 

   After the initial evaluation, the Navy held discussions with the
offerors.  During its discussions with the protester, the Navy asked IMP,
among other things, to identify any additional OEM certification letters
it maintained and how IMP would meet the solicitation requirements given
its size and with the use of its identified subcontractors.  AR, Tab 10,
IMP Items for Negotiations, Sept. 13, 2004, at 2.

   After the conclusion of discussions and the submission of revised
proposals--only IMP and Beach Panel submitted revised proposals--the Navy
evaluated the offerors' revised proposals and again rated IMP as
satisfactory overall under the technical factors and Beach Panel as
excellent.  With regard to the evaluation of IMP, the Navy remained
concerned about IMP's OEM certifications.  In response to the Navy's
discussion question regarding the OEM certification issue, IMP had
submitted an additional letter from a third-party electrical supplier as
further evidence of its OEM certification.  The Navy, however, contacted
each of the electrical suppliers identified by IMP and learned that, while
IMP maintained a business relationship with the suppliers, IMP did not in
fact maintain any OEM certifications.  The Navy concluded that the letters
provided by IMP were misleading and that IMP had failed to satisfy the OEM
certification requirement.  More specifically, the Navy concluded that
IMP's lack of OEM certification was a limitation on the company's
technical resources.  AR, Tab 13, Revised Technical Evaluation Report. 

   The Navy also reiterated its concerns regarding IMP's contractor special
pricing information, as well as IMP's size and ability to perform the
requirements.  With regard to the contractor special pricing issue, the
Navy again concluded that IMP failed to provide specifics or pricing
information and that IMP's information was limited to a single electrical
distributor local to IMP geographically.  Regarding IMP's size and ability
to perform the requirements, IMP had revised its proposal in response to
the Navy's discussions questions regarding this issue, to indicate that it
had grown to 19 employees and that it would directly hire or subcontract
for additional labor as necessary.  The Navy, however, remained concerned
that IMP may have problems accomplishing five tasks concurrently, as
required by the solicitation.  In this regard, the Navy noted that IMP's
organization was small, specifically noting that an organization of 19
employees is "insufficient" based on the level of effort required to
maintain the Navy's then-existing contract.  In addition, the Navy
concluded that IMP's plan to obtain additional labor as necessary lacked
continuity, which could reduce productivity in dealing with complicated
electronic and control systems.  AR, Tab 13, Revised Technical Evaluation
Report.           

   After evaluating the revised proposals and conducting a price/technical
tradeoff, the Navy decided to make award to Beach Panel.  While IMP's
total evaluated price ($5,170,700) was lower than Beach Panel's price
($5,990,000), the Navy concluded that Beach Panel's higher-rated proposal
was worth the higher price.  AR, Tab 14, Source Selection Decision. 

   Upon learning of the Navy's decision, IMP filed a protest with the Navy,
which was denied, and then filed the subject protest with our Office.

   As an initial matter, the Navy argues that IMP's protest should be
dismissed as untimely because IMP, by its own admission, received the
Navy's decision denying its agency-level protest on Saturday, March 12,
yet did not file its protest with our Office until March 24, more than 10
days after receipt of the agency-level protest decision.  The protester
responds that it is not open for business on weekends, and that although a
vice-president for IMP received the envelope containing the protest
decision on March 12 and then called another principle of the company to
inform him that a letter had arrived from the Navy, the envelope was not
opened until Monday, March 14.
A 
Our Bid Protest Regulations provide that where, as here, a protester
timely files an agency-level protest, any subsequent protest to our Office
must be filed within 10A daysA of actual or constructive knowledge of
initial adverse agency action.  4A C.F.R. S 21.2(a)(3) (2005).  In an
analogous case, Supreme Edgelight Devices, Inc.,

   B-295574, Mar. 4, 2005, 2005 CPD P 58, a protester's office clerk received
mail containing the agency's decision in response to the protester's
agency-level protest on a Saturday (not a business day) but the mail was
not opened until Monday, the next business day.  We concluded that the
agency-level protest decision should be considered as received by the
protester on Monday, not Saturday, as argued by the agency, for the
purpose of determining whether a subsequent protest to our Office was
timely. 

   The agency argues that our decision in Supreme Edgelight is
distinguishable because in that case, the agency's decision was only
received by an office clerk and here, a vice-president for IMP received
the mail containing the decision and went to the added effort of calling
another principle of IMP to inform him of the letter's arrival.  According
to the agency, our Office should charge IMP with constructive notice of
the agency-level protest decision based on the Saturday receipt.  Since
IMP was awaiting a decision from the agency with regard to its protest and
two principles for IMP were aware of the letter from the Navy on Saturday,
in the agency's view, IMP had a duty to open the mail containing the
agency's decision, relying on our decisions holding that protesters have a
duty to diligently pursue all information that may give rise to a protest
issue.  See, e.g., Global Eng'g and Constr., LLC, B-290288.3, B-290288.4,
Apr. 3, 2003, 2003 CPD P 180 at 7 n.7. 

   We do not agree with the Navy that the circumstances of this case warrant
application of a rule different from the one articulated in Supreme
Edgelight.  The time period for filing a protest with our Office commences
with a protester's actual or constructive knowledge of initial adverse
agency action.  As in Supreme Edgelight, there plainly was no actual
knowledge in this case.  Moreover, as we found in Supreme Edgelight, the
receipt of an agency-level protest decision on a nona**business day, where
the notice is not actually read, does not constitute constructive
knowledge.  While the Navy correctly points out that protesters have a
duty to diligently pursue their bases for protest, we have never held, as
the Navy would have us do here, that such a duty extends to conducting
business outside of ordinary business hours (for example, a weekend).  In
addition, contrary to the Navy's argument, the position of the individual
who receives the envelope containing the decision but leaves it unopened
(whether a clerk, a principle of the company, or anyone else) has no
bearing on whether a protester has received constructive notice of initial
adverse agency action.[2]A   

   Thus, we find that receipt of the agency's unopened envelope containing
the decision on Saturday did not constitute constructive knowledge of
initial adverse agency action, given that Saturday was not an ordinary
business day for the protester.  Rather, we conclude that IMP first
learned of the agency's protest decision on Monday, March 14, the next
businessA day.  Accordingly, IMP's protest, which was filed within 10
calendar days of that date, is timely.

   In its protest, IMP principally challenges the agency's evaluation of its
proposal.[3]  Specifically, IMP contends that the Navy afforded too much
weight to the submission of OEM certification and contractor special
pricing agreements.  In IMP's view, OEM certifications "do not in fact
offer any insight into an OEM's technical capability," and contractor
special pricing agreements are "not a guarantee of best pricing." [4] 
Protester's Comments at 3.  In addition, IMP challenges the agency's
conclusion that its staffing was inadequate as well as the agency's
determination that its teaming arrangements presented greater risk. 
According to IMP, the solicitation did not require a minimum level of
staffing, it had demonstrated its ability to successfully perform other
large-scale projects, and the agency effectively required staffing levels
in excess of the solicitation's requirements.

   Fundamentally, the challenges raised by IMP in its protest offer little
more than mere disagreement with the Navy's assessments of the weaknesses
in its proposal.[5]  However, in reviewing challenges to an agency's
evaluation of proposals, we will not substitute our judgment for that of
the agency regarding the merits of proposals.  We will examine the
agency's evaluation to ensure that it was reasonable and consistent with
the solicitation's evaluation criteria, and with procurement statutes and
regulations.  M-Cubed Info. Sys., Inc., Ba**284445, B-284445.2, Apr. 19,
2000, 2000 CPD P 74 at 5.  As a consequence, a protestor's mere
disagreement with the agency's judgment is not sufficient to establish
that the agency acted unreasonably.  Command Mgmt. Servs., Inc.,
B-292893.2, June 30, 2004, 2004 CPD P 168 at 3. 

   While IMP believes that OEM certifications and contractor special pricing
agreements with manufacturers are of minimal value in evaluating an
offeror's ability to perform the requirements of the solicitation and that
the Navy should not have given any significant weight to these
certifications or agreements, the RFP expressly required offerors to
provide these certifications and agreements, and in the agency's view,
IMP's submissions were insufficient.  In the Navy's judgment IMP's lack of
certifications and its single special pricing agreement presented greater
risk of unsuccessful performance.  Other than IMP's own assessments
regarding the limited value of OEM certification and special pricing
agreements, there is nothing in the record to suggest that the agency's
judgments were unreasonable or inconsistent with the terms of the
solicitation.

   Similarly, IMP's assertions regarding the Navy's evaluation of its work
force do not demonstrate that the agency's judgments were unreasonable or
inconsistent with the terms of the solicitation.  The Navy specifically
considered IMP's work force plan in the context of IMP's ability to
perform five concurrent tasks as specified in the RFP, and found that
IMP's proposal presented risks in this regard.  Again, while IMP maintains
that its work force is sufficient to meet the requirements of the
solicitation, this disagreement does not provide a basis for finding the
agency's assessments unreasonable. 

   Moreover, there was nothing inherently unreasonable about the agency's
concerns with IMP's use of subcontracting arrangements to address
additional work force needs, as IMP suggests.  According to IMP, such
arrangements are standard practice and therefore the agency should not
have viewed IMP's use of a teaming arrangement in a negative light.  The
agency, however, in the context of questioning IMP's size and ability to
perform the solicitation requirements, was concerned that IMP's use of
subcontractors on an as-needed basis had the potential for a lack of
continuity and reduced productivity.  While IMP may disagree with this
assessment, there is nothing to suggest that it was unreasonable.  In
addition, IMP's reliance on the fact that the RFP did not preclude a
contractor's use of teaming arrangements or subcontractors is misplaced. 
The mere fact that an RFP does not expressly disallow a particular
approach does not mean that the agency is precluded from considering the
advantages or disadvantages in that approach.

   As a final matter, IMP argues that the Navy's decision to make award to
Beach Panel was colored by the agency's general bias in favor of Beach
Panel.  In support of this contention IMP points to what IMP characterizes
as the Navy's history of "questionable contracting practices" in favor of
Beach Panel dating back to 1996, including various contract awards.
    Government officials are presumed to act in good faith and, where a
protester contends that contracting officials are motivated by bias or bad
faith, it must provide convincing proof, since our Office will not
attribute unfair or prejudicial motives to procurement officials on the
basis of inference or suppositions.  Supreme Edgelight Devices, Inc.,
supra, at 4.  IMP's assertions regarding the agency's prior contracting
history with Beach Panel are conclusory in nature and fail to demonstrate
bias by the agency. 

   The protest is denied.     

   Anthony H. Gamboa

   General Counsel

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

   [1] In contrast, Beach Panel indicated in its proposal that it was a
certified OEM with 20 major electrical component suppliers.  Beach Panel
Proposal at 3.

   [2] In contrast, actual knowledge of adverse agency action, even when
received on a non-business day, commences the time for filing a protest
with our Office.  See Atkinson Dredging Co., B-218030.2, July 3, 1985,
85-2 CPD P 22.

   [3] IMP also argued that one of the technical evaluators was improperly
biased in favor of Beach Panel because he was "a close personal friend" of
Beach Panel's owner.  The Navy specifically refuted this assertion in its
report on the protest and the protester did not rebut the agency's
position in its comments.  We therefore consider this issue abandoned. 
See Delco Indus. Textile Corp., B-292324, Aug. 8, 2003, 2003 CPD P 141 at
3 n.2.  In addition, IMP raised several arguments in its agency-level
protest.  For example, IMP maintained that the Navy improperly evaluated
its proposal with respect to the quality control requirements.  IMP,
however, did not expressly raise these arguments in its protest with our
Office, and we therefore do not consider them.       

   [4] To the extent IMP suggests that the Navy should not have given any
consideration to OEM certifications, or contractor special pricing
agreements, as part of the technical evaluation, this suggestion is
contrary to the express terms of the RFP, which provided for the
consideration of these items under the technical evaluation factors. 
Moreover, any challenge to the solicitation's inclusion of these factors
in the evaluation criteria is untimely since it relates to the propriety
of the terms of the RFP, which, under our timeliness rules, must be raised
prior to time set for receipt of initial proposals.  4 C.F.R. S
21.2(a)(1).

   [5] It should be noted that in challenging the agency's evaluation, IMP
suggests that the issues it protests were the paramount reasons that
caused the agency to select Beach Panel's higher-priced proposal.  The
record, however, reflects that the Navy evaluated IMP's proposal as
containing numerous other weaknesses, all of which contributed to IMP's
overall technical rating of "satisfactory" and were considered as part of
the tradeoff decision.