TITLE: B-296988, Specialty Marine, Inc., October 11, 2005
BNUMBER: B-296988
DATE: October 11, 2005
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B-296988, Specialty Marine, Inc., October 11, 2005

   Decision

   Matter of: Specialty Marine, Inc.

   File: B-296988

   Date: October 11, 2005

   Robert E. Korroch, Esq., Williams Mullen, for the protester.

   Kenneth T. Rye, Esq., and George Brezna, Esq., Department of the Navy, for
   the agency.

   Kenneth L. Kilgour, Esq., and Christine S. Melody, Esq., Office of the
   General Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   1. Protest that the time allowed for submission of quotations was
   unreasonable is denied where the solicited firms received a reasonable
   time to respond to the solicitation and the agency was under no obligation
   to solicit the protester.

   2. Protest challenging agency's failure to publicly display solicitation
   is denied where the record supports the agency's use of the unusual and
   compelling urgency exception to the public display requirement.

   3. Protest that the awardee was improperly permitted to alter its
   quotation is denied where the record supports the agency's assertion that,
   initially, the quotation was misinterpreted by the contracting specialist
   and in fact no alteration to the quotation was ever made.

   DECISION

   Specialty Marine, Inc. (SMI) protests the issuance of a purchase order by
   the Department of the Navy, Military Sealift Command (MSC), Sealift
   Logistics Command Atlantic (SEALOGLANT), to Atlantic Fabrication & Boiler
   Services, Inc. under solicitation No. N2141952135000, to perform a flush
   of the Central Fresh Water System (CFWS) on a Navy ship. SMI alleges that
   SEALOGLANT established an unreasonably short response time for receipt of
   quotations; failed to publicly display the solicitation; and improperly
   altered the quotation from Atlantic or allowed Atlantic to change the
   quotation to make it acceptable.

   We deny the protest.

   According to the agency, a Navy oiler that had recently completed a major
   reactivation contract required additional repair work. Specifically, an
   attempted sea trial was cut short due to a rust problem in the ship's
   CFWS, which provides water to cool various pieces of equipment. The rusty
   condition of the pipes was discovered on July 8 and 9, 2005. The agency
   tried less costly remediation methods to rectify the rust problem, finally
   determining on July 21 that the CFWS needed to be chemically cleaned and
   flushed. Prior to the system being flushed, the ship would also require
   "temporary services"--cooling water and low-pressure air services--to
   continue to operate certain equipment.

   The Navy thus prepared two solicitations, each with its own statement of
   work, one for the temporary services and one for the CFWS flushing; the
   latter is the subject of this protest. The Navy required the work to be
   completed promptly, for two reasons. A sea trial was necessary to verify
   the extensive repairs just completed so that, if necessary, MSC could
   invoke the warranty clause in the repair contract. Moreover, the Navy
   asserts that it urgently needed the ship to replace other oilers with
   mechanical problems. The government estimates were $20,000 for the
   temporary services, with a performance period of August 4-8, and $24,900
   for the flushing work, with a performance period of August 8-19.

   On July 29, SEALOGLANT orally contacted three potential sources for the
   temporary services (SMI, Atlantic, and Alliance Technical Services, Inc.)
   and three for the flushing work (Chemical Cleaning Specialists, Atlantic,
   and Auxiliary Systems, Inc.). Each firm received the statement of work for
   the work for which they had been contacted; accordingly, SMI received only
   the statement of work for the temporary services. Each was advised of a
   scheduled ship check on August 1 and was told to submit its quotation by 9
   a.m. on August 3. The agency did not display or otherwise publicize the
   solicitations. At the ship check on August 1, SMI requested and received a
   copy of the statement of work for the flushing work.

   Atlantic and SMI submitted the only quotations, and both firms offered
   quotations for both solicitations. Unlike SMI, Atlantic placed both
   quotations on one sheet of paper and included the total price for both
   solicitations. Initially, SEALOGLANT's contract specialist mistakenly
   viewed Atlantic's total price as its quotation for the CFWS flushing work
   alone, and therefore incorrectly determined that SMI had submitted the
   lower quotation for the flushing requirement.

   At about 9:30 a.m. on the day quotations were due, the contracting
   specialist telephoned SMI to advise that it would be receiving purchase
   orders for both the temporary services and the flushing. A few minutes
   later, having realized her mistake, the contracting specialist called SMI
   to advise it of her error and to rescind her prior notice concerning the
   issuance of a purchase order for the flushing requirement. The contract
   specialist then called Atlantic and advised that it had submitted the
   lower quotation for the flushing service and that Atlantic would be
   receiving a purchase order to flush the ship's CFWS. Shortly thereafter,
   SMI called the contracting specialist to say that it was withdrawing its
   quotation for the temporary services.

   SMI alleges that the time allowed for the submission of quotations was
   unreasonable. Contracting agencies are required to provide a reasonable
   time for all offerors to respond to solicitations, 41 U.S.C. sect.
   416(a)(5) (2000); Federal Acquisition Regulation (FAR) sect. 13.003(h)(2).
   The decision as to the appropriate response time lies within the
   discretion of the contracting officer. See Crowley Am. Transp., Inc.,
   B-259599.2, June 19, 1995, 95-1 CPD para. 277 at 6. There is nothing in
   the record which would indicate that the contracting officer abused his
   discretion here. The agency concluded on July 21 that the solution to the
   rust problem required flushing the system. The agency issued the
   solicitation 8 days later on July 29, with quotations due August 3, giving
   the solicited firms 5 days to prepare and submit quotations. As discussed
   above, the agency states that the Navy's supply of oilers is critically
   low, and that military readiness mandates that this ship promptly be made
   seaworthy. In addition, there were concerns that the quality of the
   renovation work be ascertained, which could not be done absent a sea
   trial. Given the speed with which the Navy moved to repair this problem
   with the ship, and the importance of the ship's functioning to the Navy's
   preparedness, we conclude that the record supports the reasonableness of
   the contracting officer's exercise of discretion in requiring that
   quotations be submitted 5 days from the date of the solicitation. See id.

   SMI argues not that the 5 days was unreasonable, but that the time that
   SMI had between when it received the solicitation (the afternoon of August
   1) and the time set for submission of quotations (the morning of August 3)
   was unreasonable. This argument is unpersuasive. The agency was under no
   obligation to solicit SMI. In using simplified acquisition procedures,
   agencies are required to promote competition to the maximum extent
   practicable. FAR sect. 13.104. Where, as here, a simplified acquisition is
   not expected to exceed $25,000, the contracting officer is required to
   consider solicitation of at least three sources to promote competition to
   the maximum extent practicable. FAR sect. 13.104(b); Aleman & Assocs.,
   Inc., B-287275, May 17, 2001, 2001 CPD para. 93 at 4. The agency fulfilled
   this requirement by issuing the flushing solicitation to three firms.
   Since all firms, regardless of when they received the solicitation, were
   required to submit quotations by the solicitation's specified due date,
   SMI did not have as much time as the other, solicited firms in which to
   prepare its quotation. However, the time period being judged for its
   reasonableness is that afforded to the firms that were solicited. As
   explained above, we find the time set by the agency for the submission of
   quotations reasonable under the particular facts of this case.

   SMI also asserts that the agency did not publicly display the solicitation
   as required by FAR sect. 5.101(a)(2). For procurements between $10,000 and
   $25,000, such as the one here, the requirements for public notice of the
   solicitation appear in FAR sect. 5.101(a)(2); that provision requires
   public display of the solicitation unless one of the enumerated exceptions
   in FAR sect. 5.202 applies. While FAR sect. 5.101(a)(2) is generally
   applicable to all procurements between $10,000 and $25,000, where, as
   here, the agency has chosen to use simplified acquisition procedures for a
   procurement in that price range, the notice requirements are established
   not by FAR sect. 5.101, but by FAR sect. 13.105. That provision states
   that the notice requirements of FAR sect. 5.101 (including the public
   display requirement in FAR sect. 5.101(a)(2)) apply unless "an exception
   in [FAR sect.] 5.202 applies." FAR sect. 13.105(a)(2). The language does
   not limit the available exceptions to those enumerated in FAR sect.
   5.101(a)(2). Accordingly, all the exceptions in FAR sect. 5.202 are
   available to an agency using simplified acquisition procedures to conduct
   a procurement with an anticipated value between $10,000 and $25,000. See
   Military Agency Servs. Pty., Ltd., B-290414 et al., Aug. 1, 2002, 2002 CPD
   para. 6-7.

   Here, the agency relies on the unusual and compelling urgency exception in
   FAR sect. 5.202(a)(2).[1] We will object to an agency's determination that
   it has a need for property or services of an unusual and compelling
   urgency only where the determination lacks a reasonable basis. See Abbott
   Prods., Inc., B-231131, Aug. 8, 1988, 88-2 CPD para. 119 at 6. In this
   regard, an agency's assertion that there is a critical need which affects
   military operations carries considerable weight, and the protester's
   burden to show unreasonableness is particularly heavy. Id. As explained
   above (in the analysis of the whether the response time to the
   solicitation was reasonable), there is ample support in the record for the
   agency's position that there was an urgent need to procure the work called
   for under both solicitations here. [2] Given that conclusion, the agency
   was not obligated to publicly display the solicitation.

   SMI also argues that the agency acted improperly by in effect allowing the
   awardee to alter its quotation. This argument is unsupported by the
   record. As noted above, the record shows that the awardee's quotations for
   the two solicitations were submitted on one piece of paper and the
   contracting specialist mistakenly read the awardee's total quotation for
   the two solicitations as its quotation for the flushing work alone--a
   mistake that was quickly recognized and rectified. There simply is no
   indication of any impropriety by the agency in connection with its
   consideration of the awardee's quotation. See Pride Mobility Prods. Corp.,
   B-292822.5, Dec. 6, 2004, 2005 CPD para. 72 at 5 (contracting officers are
   presumed to act in good faith; we will not attribute unfair or prejudicial
   motives to procurement officials on the basis of inference or
   supposition).

   The protest is denied.

   Anthony H. Gamboa
   General Counsel

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

   [1] Under FAR sect. 5.202(a)(2), for purchases conducted using simplified
   acquisition procedures, the exception may be used "if unusual and
   compelling urgency precludes competition to the maximum extent practicable
   . . . ." We recognize that, in addition to the reference to unusual and
   compelling urgency, FAR sect. 5.202(a)(2) ties use of the exception
   generally to situations where "the Government would be seriously injured
   if the agency complies with the time periods specified in [FAR sect.]
   5.203." It is not clear that this provision is intended to apply to
   simplified acquisitions between $10,000 and $25,000, however, since the
   time periods referenced--those in FAR sect. 5.203--do not apply to such
   acquisitions, see FAR sections 5.101(a)(1), 5.201(b)(1)(i), 5.203; those
   acquisitions are instead subject to the less stringent time periods in FAR
   sect. 5.101(a)(2). In any event, we think the record supports a conclusion
   that the government would have been seriously injured by complying with
   the notice period requirements, given the need for the services described
   above.

   [2] We note that the agency is not required to have a written
   justification and approval (J&A) for the use of this exception. The
   requirement for a written J&A is found in FAR sect. 6.302-2(c)(1); that
   provision is not applicable to procurements conducted as simplified
   acquisitions. FAR sect. 6.001(a).