TITLE: B-299705.2, Metson Marine Services, Inc., July 20, 2007
BNUMBER: B-299705.2
DATE: July 20, 2007
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B-299705.2, Metson Marine Services, Inc., July 20, 2007
DOCUMENT FOR PUBLIC RELEASE
The decision issued on the date below was subject to a GAO Protective
Order. This redacted version has been approved for public release.
Decision
Matter of: Metson Marine Services, Inc.
File: B-299705.2
Date: July 20, 2007
Margaret A. Dillenburg, Esq., Law Offices of Margaret A. Dillenburg, PC,
and Alexander J. Brittin, Esq., Brittin Law Group, PLLC, for the
protester.
Richard P. Rector, Esq., and Carl L. Vacketta, Esq., DLA Piper US LLP, for
Seaward Services, Inc., an intervenor.
Joel A. Weger, Esq., and Pamela Castellano, Esq., Department of the Navy,
Military Sealift Command, for the agency.
Paula A. Williams, Esq., and Ralph O. White, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
Protest challenging evaluation of proposals and source selection decision
is denied where agency's determinations were reasonable and consistent
with the solicitation and protester's arguments amount to mere
disagreement with the agency's conclusions.
DECISION
Metson Marine Services, Inc. protests the award of a contract to Seaward
Services, Inc. under request for proposals (RFP) No. N00033-06-R-1013
issued by the Department of the Navy, Military Sealift Command (MSC) for
port operations and vessel management services at the Naval Diving and
Salvage Training Center (NDSTC) in Panama City, Florida.[1] The protester
contends that the agency unreasonably evaluated offerors' past
performance, failed to conduct meaningful discussions, and that the
resulting award decision was improper.
We deny the protest.
BACKGROUND
This acquisition is for vessel operation and maintenance services for the
NDSTC and the Naval School Explosive Ordinance Disposal (NAVSCOLEOD), and
port control services for the Naval Support Activity (NSA), including port
operations and scheduling of all vessel operations.[2] The RFP, issued on
August 15, 2006, contemplated the award of a fixed-price contract with
reimbursable elements for a base year with four option periods.
The solicitation provided for award on a "best value" basis, considering
technical quality, past performance, and price. Technical quality was more
important than past performance, and the two factors together were more
important than price. The technical quality factor consisted of five
equally weighted subfactors: (1) management overview and experience; (2)
organization and personnel; (3) operational capabilities; (4) maintenance
capabilities; and (5) management processes. RFP at 77-78.
As relevant for this dispute, the instructions in the RFP for the
organization and personnel subfactor required offerors to provide specific
information such as:
o Offeror shall provide an organizational chart which must include
the total number of personnel; separately identify each position;
identify contract or subcontracted personnel; part-time personnel;
and show related cross-decking of personnel to each position (or
collateral duties).
o Offeror must describe how it will provide adequate qualified
personnel to meet the mission requirements by describing its labor
pool; providing a strike contingency plan; providing a plan for
obtaining additional personnel should the need arise during the
life of the contract. Offerors should provide convincing proof that
it has, or has the ability to obtain, additional personnel with
relevant experience in technical areas described in Section C.
Id. at 72-73. As to the personnel requirements, the RFP required offerors
to demonstrate that their proposed personnel met minimum qualification
requirements for education and experience. For example, the RFP required
offerors to propose a project manager (PM) for this work, and indicated
that the individual proposed was required to have a "Bachelor of Science
Degree in Management, Marine Transportation or Engineering or comparable
experience" as well as "the equivalent of ten (10) years experience
directly related to the performance requirements" of this contract. RFP
amend. 6, at 28.
With regard to the past performance evaluation factor, the solicitation
advised that the past performance evaluations would be based on the
offerors' proposals, responses received from past performance reference
questionnaires (at least three but no more than five), and data obtained
from other sources. RFP at 78. Offerors were asked to provide descriptions
of current and relevant contracts in order for the agency to assess past
performance. The RFP defined "current" contracts (or subcontracts) as
those in-progress or completed within the last 5 years, and "relevant"
contracts (or subcontracts) as efforts involving "similar scope, magnitude
and complexity" to the efforts described in this solicitation. Id. at
74-75.
Three offerors, including Metson and Seaward, submitted proposals in
response to the RFP. Based on the initial evaluation, all proposals were
considered technically unacceptable.[3] After conducting several rounds of
written and telephone discussions during which offerors were advised of
the weaknesses, omissions, risks and other aspects of their respective
technical and price proposals,[4] the agency requested final proposal
revisions (FPR) which were received by February 23, 2007. Contracting
Officer's (CO) Statement, at 6-7. The agency evaluators concluded that all
FPRs were technically unacceptable, noting that Metson's [DELETED] and
that Metson's proposed organization "has a poor possibility of meeting RFP
requirements, with [DELETED] presents a significant risk to the
Government." AR exh. 63, Final Technical Evaluation Report, at. 4.
Thereafter, the agency reopened discussions with each offeror. Among other
things, the agency's written discussions advised Metson of the following:
o Based on the solicitation requirements, your [DELETED] does not
have the experience required per Section C 13.5.1 of the RFP.
o Please clarify your organization chart, as it is unclear.
AR exh. 64, Metson Discussion Items (Mar. 19, 2007).
On March 22, the agency followed up the March 19 email by conducting
telephone discussions with Metson, which were memorialized in a subsequent
email to Metson. In this email, the agency stated:
o Per our discussions this morning, please provide the additional
information requested with regards to [DELETED]. In addition,
please clarify your org[anizational] chart with regards to FT/PT
personnel and maintenance personnel.
Id., Metson Discussion Items (Mar. 22, 2007).
The agency again requested FPRs which were due by March 22. The final
results regarding Seaward's and Metson's proposals were:[5]
+------------------------------------------------------------------------+
| |Seaward |Metson |
|--------------------------------------+----------------+----------------|
|1. Overall Technical Quality |Excellent |Acceptable |
|--------------------------------------+----------------+----------------|
| |Management Overview & Experience |Excellent |Excellent |
| |---------------------------------+----------------+----------------|
| |Organization & Personnel |Excellent |Marginal |
| |---------------------------------+----------------+----------------|
| |Operational Capabilities |Acceptable |Marginal |
| |---------------------------------+----------------+----------------|
| |Maintenance Capabilities |Excellent |Acceptable |
| |---------------------------------+----------------+----------------|
| |Management Processes |Excellent |Excellent |
|--------------------------------------+----------------+----------------|
|2. Past Performance |Exceptional |Acceptable |
|--------------------------------------+----------------+----------------|
|3. Total Evaluated Price |$8,174,687.22 |$7,533,034.00 |
+------------------------------------------------------------------------+
AR exh. 66, Post-Negotiation Business Clearance Memorandum, at 7-8.
Based on the evaluation results, the CO, who served as the source
selection authority, determined that Seaward's proposal represented the
best value. In this regard, the CO concluded:
While Seaward is 8.5% higher than Metson, the expectation is that
Metson's manning plan would need to be revised to include additional
personnel, thus increasing price, to alleviate the risk noted by the
Technical Evaluation Committee. . . . Seaward's proposal offers strength
in the form of a dedicated [Senior Maintenance Engineer], which offers
more depth to the maintenance department. Additionally, concerns over
Metson's ability to maintain continuity of personnel under
N00033-05-D-1012 resulted in a past performance rating of Acceptable
versus Seaward's rating of Exceptional. As proposed, Seaward Services
offers technical advantages that will significantly benefit the
Government and contribute to successful contract performance (i.e.
mission accomplishment).
AR exh. 73, Source Selection Decision, at 4. Following notification of its
nonselection and receipt of a debriefing, Metson filed this protest.
DISCUSSION
Metson protests that the agency failed to meaningfully advise Metson
regarding the agency's concern that Metson "intended to call on staff from
other contracts in other locations for use on the Dive School Contract."
Protester's Comments at 11. Had the agency done so, the protester alleges,
it could have addressed the agency's concerns, so that its technical score
would have been significantly higher, resulting in a different best value
determination by the agency. Id. The agency responds that it clearly
advised Metson of the areas where its proposal contained weaknesses, and
fully met its obligation to provide meaningful discussions. We agree.
Discussions, when conducted, must be meaningful; that is, discussions may
not mislead offerors and must identify deficiencies and significant
weaknesses in each offeror's proposal that could reasonably be addressed
in a manner to materially enhance the offeror's potential for receiving
award. PAI Corp., B-298349, Aug. 18, 2006, 2006 CPD para. 124 at 8.
Agencies are not required to "spoon-feed" an offeror during discussions;
agencies need only lead offerors into the areas of their proposals that
require amplification. LaBarge Elecs., B-266210, Feb. 9, 1996, 96-1 CPD
para. 58 at 6.
Here, as noted above, the agency specifically questioned Metson with
regard to its proposed staffing and organizational plan. That is, the
contemporaneous evaluation record confirms that during multiple rounds of
discussions, the agency directly questioned Metson regarding the specific
bases on which Metson's second FPR ultimately was rated marginal under the
organization and personnel subfactor. While the record reflects that
Metson did in fact address these issues, MSC concluded that Metson's
responses did not fully allay its concerns. For instance, although Metson
had submitted a revised organizational chart, the evaluators found that
the protester failed to "clearly illustrate" or otherwise provide details
regarding "how their labor pool would be utilized or where these people
are located." AR exh. 67, Final Technical Evaluation Report, at 4. In
addition, the evaluators had concerns about Metson's plans to use "several
part time personnel assigned to their contract at [DELETED] if "surge
operations" are required under the Dive School contract. Id. Because the
agency's evaluation was dependent upon information furnished in the
proposals, it was Metson's obligation to submit an adequately written
proposal for the agency to evaluate. United Def. LP, B-286925.3 et al.,
Apr. 9, 2001, 2001 CPD para. 75 at 19. As evidenced by the record here,
despite repeated requests, Metson simply failed to provide the agency with
a clearly written organizational plan delineating its proposed staffing.
Consequently, Metson's assertion that the agency failed to meaningfully
advise Metson of the agency's concerns in this regard is contrary to the
evaluation record.
Next, Metson maintains that its rating under the past performance factor
should have been higher, since three of the four reference questionnaires
received were reviewed and assigned an exceptional rating by the
evaluators, and only the fourth reference questionnaire received for
Metson's contract at [DELETED] was rated acceptable. In the protester's
view, the agency "placed a disproportionate weight" on one contract while
minimizing the collective weight of three other relevant contracts, each
of which were rated exceptional. Protester's Comments at 3.
Where a solicitation requires the evaluation of offerors' past
performance, an agency has the discretion to determine the scope of the
offerors' performance histories to be considered, provided all proposals
are evaluated on the same basis and in a manner consistent with the
solicitation's requirements. The MIL Corp., B-297508, B-297508.2, Jan. 26,
2006, 2006 CPD para. 34 at 10; Hanley Indus., Inc., B-295318, Feb. 2,
2005, 2005 CPD para. 20 at 4. Moreover, it is reasonable for an agency to
give differing weight to an offeror's prior contracts based upon their
similarity or relevance to the required effort. See e.g., Continental
RPVs, B-292768.2, B-292768.3, Dec. 11, 2003, 2004 CPD para. 56 at 9-12. An
agency may thus reasonably give less weight to prior contracts that are
found to be less relevant, and greater weight to prior contracts that are
found to have greater relevance. Court Copies & Images, Inc., B-277268,
B-277268.2, Sept. 24, 1997, 97-2 CPD para. 85 at 5.
The record shows that the agency received four completed past performance
questionnaires for Metson, and that it considered the relevance and
quality of each of these references when performing its past performance
evaluation. Of these four references, one was for Metson's performance of
a [DELETED] contract; the second reflected Metson's performance as a
[DELETED]; the third reference was for Metson's performance of its
[DELETED] contract; and the fourth reference was for the [DELETED]
contract. AR exh. 54, Initial Past Performance Evaluation Memorandum, at
4-5; AR exh. 70, Final Past Performance Evaluation Memorandum, at 1-3.
Although the agency considered all four references, it gave greater weight
to its evaluation of Metson's [DELETED] contract--for port operations,
operation of multiple watercrafts, related maintenance and waterfront
administration--which the agency considered to be extremely similar to the
type and scope of work required for the Dive School effort. Specifically,
the evaluation record shows that the on-going [DELETED] contract was the
most recent MSC contract awarded to Metson and that the agency had actual
knowledge of the issues relating to the difficulties experienced by Metson
with regard to its personnel levels and continuity of key personnel. AR
exh. 70, Final Past Performance Evaluation, at 2-3. As a result, the
agency assigned an overall rating of acceptable to Metson's proposal under
the past performance factor.
In our view, it was not unreasonable for MSC to conclude that Metson's
current performance on the [DELETED] contract was more relevant to the
Dive School requirements than Metson's three other contracts, or that the
[DELETED] contract was a more appropriate indicator of Metson's likely
future success on the Dive School contract. Moreover, under these
circumstances, we will not find that the agency acted unreasonably in
according more weight to the [DELETED] contract, than to the other three
contracts, in determining Metson's overall past performance rating. See
ProServe Corp.--Protest and Request for Declaration of Entitlement to
Protest Costs, B-247948.2, B-247948.3, Oct. 5, 1992, 92-2 CPD para. 225 at
5. We also note in conclusion that the protester does not dispute the
accuracy of the agency's assessment of its performance under any of the
four past performance references, other than its disagreement as to the
overall resulting past performance rating the agency generated with the
four references. See SWR, Inc.--Protests & Costs, B-294266.2 et al., Apr.
22, 2005, 2005 CPD para. 94 at 6.
Metson next contends that the agency unreasonably evaluated Seaward's past
performance record because the agency impermissibly failed to consider the
facts surrounding the Athena vessel fire which occurred during the period
of Seaward's performance of the prior contract. Protester's Comments at
5-9. Here, the CO explains, and the record confirms, that the
investigation of the vessel fire was not completed at the time proposals
were evaluated. We think that this explanation provides a reasonable basis
for the agency's decision not to consider this incident in evaluating
Seaward's past performance history and we conclude that the agency
reasonably exercised its discretion in deciding not to do so. In sum,
based on our review of the record as a whole, we conclude that the agency
reasonably evaluated the proposals of Metson and Seaward.
Finally, Metson asserts that the agency's best value decision was flawed
due to the alleged evaluation improprieties discussed above. In a best
value procurement such as this, a procuring agency may select for award a
higher-priced but technically higher-rated proposal, where the agency
determines that the price premium is justified considering the technical
superiority of the selected proposal. 4-D Neuroimaging, B-286155.2,
B-286155.3, Oct. 10, 2001, 2001 CPD para. 183 at 10. Here, the agency
performed a price/technical tradeoff, as required, and reasonably
concluded that Seaward's proposal offered the best value to the
government. Further, it is clear that the CO applied the solicitation's
stated evaluation scheme, which made technical superiority more important
than price, and weighed Metson's evaluated price along with Metson's
non-price ratings against the higher evaluated price of Seaward along with
its relative technical strengths. Based on that analysis, quoted in part
above, we have no basis to question the agency's selection of Seaward's
higher-rated, higher-priced proposal.
The protest is denied.[6]
Gary L. Kepplinger
General Counsel
------------------------
[1] This is the second of two separate follow-on contracts awarded to
Seaward under RFP Nos. N00033-06-R-1012 (the Athena solicitation) and
N00033-06-R-1013 (the Dive School solicitation). Because the issues raised
by Metson challenging each award are separate and distinct, we have
addressed the protest of each procurement separately.
[2] As amended, the solicitation identified more than 20 different
watercraft ranging from 132-foot vessels to 27-foot power boats, as well
as small vessels such as the single passenger Wave Runners, that must be
operated and maintained by the contractor. Managing the movement and
coordination of these vessels is one part of providing these port
operation services. In addition, the contractor will be responsible for
running all aspects of the marina where these vessels are kept when not in
use, as well as coordinating and planning for all operation and
maintenance services. Agency Report (AR) amend. 6, at 37-38, Agency Legal
Memorandum, at 28 n 5.
[3] The technical quality evaluation factor and subfactors were rated on
an adjectival basis as excellent, acceptable, marginal, and unacceptable;
an unacceptable rating on any technical subfactor would result in an
overall technical rating of unacceptable. Past performance was assigned
ratings of exceptional (indicating no doubt that the offeror will
successfully perform the required effort); acceptable (little doubt of
successful performance); marginal (some doubt of successful performance);
unacceptable (substantial doubt of successful performance); and neutral.
AR exh. 36, Source Selection Plan, app. E-1 and E-3.
[4] For instance, during discussions with Metson, the agency asked Metson,
among other things, to:
o Please resubmit organizational chart--annotating total number of
personnel to each position. Current chart shows one [Yard Diving
Tenders] crew. Also, provide chart of cross decking. Provide any
part-time labor or subcontracted labor.
AR exh. 49, Metson Summary Items for Discussion, at 2.
[5] The agency's evaluation of the third offeror's proposal is not
relevant to resolution of this protest; accordingly, that proposal and the
agency's evaluation thereof are not further discussed.
[6] In pursuing this protest, Metson has raised various other issues
including, for example, the allegation that the agency impermissibly
allowed Seaward to utilize a single PM for both the Athena and Dive School
contracts. We have considered all of Metson's allegations and find that
the record shows that they are either factually incorrect, without merit,
or did not result in any prejudice to Metson.