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.