TITLE: B-299705, Metson Marine Services, Inc., July 20, 2007
BNUMBER: B-299705
DATE: July 20, 2007
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B-299705, 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

   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

   Agency reasonably determined that protester's proposal was technically
   unacceptable and that it would not conduct further discussions with the
   protester, where protester's final revised proposal, submitted after
   extensive discussions, failed to meet the solicitation's requirements for
   a key personnel position.

   DECISION

   Metson Marine Services, Inc. protests the award of a contract to Seaward
   Services, Inc. under request for proposals (RFP) No. N00033-06-R-1012,
   issued by the Department of the Navy, Military Sealift Command (MSC) to
   obtain port operation and vessel management services for the Athena high
   speed research vessel system.[1] Metson protests that the agency
   unreasonably concluded that its proposal was technically unacceptable,
   failed to conduct meaningful discussions with Metson, and conducted an
   unreasonable evaluation of Seaward's past performance.

   We deny the protest.

   BACKGROUND

   The MSC operates two Athena system vessels in support of Naval activities
   at the Naval Surface Warfare Center in Panama City, Florida that includes
   engineering support, trial planning, security, and logistic support. RFP
   at 13. The RFP sought proposals to provide all personnel, equipment and
   materials necessary to support the Athena operations and contemplated the
   award of a fixed-price contract with reimbursable items for a base year
   with four 1-year options. Id. at 10, 13, 35.

   The RFP provided that award would be made on a "best value" basis,
   considering three evaluation factors: technical quality, past performance,
   and price. The technical quality evaluation factor was comprised of five
   subfactors which were equal in importance: management overview and
   experience; organization and personnel; operational capabilities;
   maintenance capabilities; and management processes. RFP at 69, 70.
   Although not disclosed in the solicitation, an unacceptable rating under
   any of the technical quality evaluation subfactors would render the
   technical proposal unacceptable overall. Agency Report (AR) exh. 4, Source
   Selection Plan (SSP), at app. E-1. The RFP advised that the technical
   quality evaluation factor was more important than past performance, and
   that the technical quality and past performance evaluation factors
   together were more important than price. Id. The RFP also informed
   offerors that in selecting the best overall proposal, the agency would
   consider the relative technical quality of proposals based upon the
   evaluation of each offeror's ability to exceed the minimum performance
   requirements of the solicitation. RFP at 70.

   Of relevance to this protest, the RFP identified various key personnel
   positions--such as project manager (PM)--and required offerors to propose
   personnel meeting the stated qualifications.[2] RFP at 24. The
   qualifications for the PM position were listed as "must have the
   equivalent of ten (10) years experience directly related to the
   performance requirements of this Contract" and a "Bachelor of Science
   Degree in management, Marine Transportation or Engineering or comparable
   experience." Id.

   The agency received three proposals from Seaward, Metson, and a third
   offeror by the October 5, 2006 closing date. The agency's evaluation panel
   rated the offerors' proposals under the non-price factors using a
   qualitative adjectival system and all were rated technically
   unacceptable.[3] Since none of the initial proposals were rated as
   technically acceptable, the agency opened discussions with all three
   offerors, initiating these discussions by emailing written items for
   discussion on December 19, 2006. In the December 19 email to Metson, the
   agency identified multiple specific non-price and price issues that Metson
   needed to address. AR exh. 15, Metson Summary Items for Discussion;
   Contracting Officer (CO) Statement at 5-6. The agency's email summarized
   the agency's concerns, stating, in part, as follows:

        o Metson Marine's proposal states that the [DELETED]. Please note
          that C 13.4.1 states that the [DELETED] "position cannot be
          collateral duty with any other position."
        o Please provide further information regarding [DELETED] relevant
          experience.

   AR exh. 15, Metson Summary Items for Discussion, at 2.

   On December 20, the agency followed up the December 19 email by conducting
   oral discussions by telephone with Metson; during these discussions,
   Metson was afforded an opportunity to provide comments regarding the
   matters addressed in the December 19 email. During its telephone
   discussions with the agency, Metson acknowledged the agency's concern
   regarding its [DELETED] and indicated that the firm would respond to this
   concern in its final proposal revisions (FPR). CO Statement at 6; AR exh.
   25, Metson's Responses to Summary Items for Discussion, at 2.

   FPRs were submitted by the February 6, 2007 due date. The final consensus
   ratings for Metson and Seaward were as follows:[4]

   +------------------------------------------------------------------------+
   |                                        |    SEAWARD    |    METSON     |
   |----------------------------------------+---------------+---------------|
   |1. Technical Quality Factor Overall     |  Acceptable   | Unacceptable  |
   |----------------------------------------+---------------+---------------|
   |   |Management Overview & Experience    |  Exceptional  |  Acceptable   |
   |   |------------------------------------+---------------+---------------|
   |   |Organization & Personnel            |  Acceptable   | Unacceptable  |
   |   |------------------------------------+---------------+---------------|
   |   |Operational Capabilities            |  Acceptable   |  Acceptable   |
   |   |------------------------------------+---------------+---------------|
   |   |Maintenance Capabilities            |  Acceptable   |  Acceptable   |
   |   |------------------------------------+---------------+---------------|
   |   |Management Processes                |  Exceptional  |  Exceptional  |
   |----------------------------------------+---------------+---------------|
   |2. Past Performance                     |  Exceptional  |  Exceptional  |
   |----------------------------------------+---------------+---------------|
   |3. Total Evaluated Price                | $5,574,946.69 | $5,830,990.00 |
   +------------------------------------------------------------------------+

   AR exh. 28, Final Evaluation Consensus Report, at 3-7; AR exh. 29, Final
   Past Performance Evaluation, at 1-4; AR exh. 31, Final Price Evaluation
   Report.

   Based on these evaluation findings, the CO, who served as the source
   selection authority, determined that Seaward's technically acceptable,
   low-priced proposal represented the best value to the government. In
   reaching this conclusion, the CO found that further discussions were
   unnecessary because Seaward's proposal included advantages that made it a
   more technically advantageous proposal. With respect to the other
   offerors, the CO specifically found that:

     [t]wo of the offerors that submitted [FPRs] were evaluated as
     Unacceptable overall, demonstrating that the offeror's proposal omits
     required information and has a poor possibility of meeting requirements
     and/or presents significant technical risk to the Government, requiring
     extraordinary Contractor effort and Government monitoring to overcome
     difficulties. The SSP states, "An `unacceptable' final rating on any
     technical subfactor renders the technical proposal `unacceptable'
     overall. Any offeror who receives a rating of Unacceptable on any factor
     or subfactor cannot receive an award."

   AR exh. 32, Source Selection Decision, at 3. Accordingly, Seaward's
   proposal was selected for award and Metson was notified of the selection.
   After being debriefed, Metson filed this protest.

   DISCUSSION

   Metson protests that the agency failed to conduct meaningful discussions.
   More specifically, Metson maintains that when Metson's [DELETED] was found
   not to meet the RFP requirements for this key personnel position, the
   agency was obligated to follow up with further discussions. Had it done
   so, the protester asserts, the agency "would have realized that Metson's
   proposed [DELETED] was not only qualified, but exceeded the qualifications
   of the Seaward-proposed [DELETED]. Protest at 5; Protester's Comments at
   2-5.

   As discussed above, the agency identified each and every area which it
   viewed as weak in Metson's initial proposal, including the experience
   level of Metson's [DELETED]. With regard to the specific question
   addressing the experience of Metson's [DELETED], Metson responded by
   proposing [DELETED] in its FPR. Metson now maintains that, if this
   [DELETED] was considered unqualified, the agency was required to permit
   Metson to submit further revisions to its proposal. We disagree.

   When an agency engages in discussions with an offeror, the discussions
   must be meaningful. Training and Mgmt. Res., Inc., B-234710, June 29,
   1989, 89-2 CPD para. 12 at 2. However, this requirement for meaningful
   discussions does not create an obligation for agencies to continue to
   conduct successive rounds of discussions and proposal revisions until all
   proposal defects have been corrected. OMV Med., Inc., B-281490, Feb. 16,
   1999, 99-1 CPD para. 38 at 7. Similarly, an offeror's creation of a
   proposal defect which first appears in a proposal revision following
   discussions does not trigger an obligation to engage in another round of
   discussions and proposal revisions to advise the offeror of the
   newly-created deficiency and permit attempted correction. Cube-All Star
   Servs. Joint Venture, B-291903, Apr. 30, 2003, 2003 CPD para. 145 at
   10-11.

   Here, as discussed above, the agency engaged in written and oral
   discussions with Metson following submission of its initial proposal.
   During these discussions, the agency sought specific information regarding
   the experience of [DELETED] Metson had [DELETED]. The record establishes
   that these discussions clearly communicated agency concerns and were
   meaningful. Further, the record shows that Metson's introduction of
   [DELETED] in its FPR [DELETED], who did not possess the requisite
   qualifications, precluded the agency from accepting its proposal without
   obtaining additional information. As noted above, MSC had no obligation to
   reopen discussions following submission of FPRs in order to provide Metson
   with yet another opportunity to address the agency's previously identified
   concerns.

   Metson next protests that it was unreasonable for the agency to conclude
   that Metson's [DELETED] failed to meet the solicitation qualification
   requirements for this personnel position, arguing that this individual's
   qualifications not only met, but exceeded, the solicitation requirements.
   In reviewing a protest of an agency's proposal evaluation, it is not our
   role to reevaluate proposals. Rather, we will consider only whether the
   evaluation was reasonable and consistent with the terms of the
   solicitation and applicable procurement statutes and regulations. AHNTECH,
   Inc., B-295973, May 11, 2005, 2005 CPD para. 89 at 3; Gemmo Impianti SpA,
   B-290427, Aug. 9, 2002, 2002 CPD para. 146 at 3.

   The record shows that Metson's proposal was rated as unacceptable under
   the technical quality subfactor, organization and personnel, after the
   evaluators concluded that Metson's [DELETED] also lacked the [DELETED]
   requirements set forth in the RFP. In this regard, the evaluators
   specifically noted that the [DELETED]. AR exh. 28, Final Evaluation
   Consensus Report, at 4; AR exh. 9, Metson's FPR, Resumes & Letters of
   Intent. Since there is nothing in the record to indicate that Metson's
   [DELETED] met the RFP's qualification requirements for this position, we
   find nothing unreasonable in the agency's findings; accordingly, there is
   no basis for us to object to this aspect of the evaluation. Although
   Metson continues to express disagreement in this regard, Metson has
   provided nothing to establish that the agency's determination was
   unreasonable. See Caterpillar, Inc., B-280362, B-280362.2, Sept. 23, 1998,
   98-2 CPD para. 87 at 6.

   The protest is denied.[5]

   Gary L. Kepplinger
   General Counsel

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

   [1] This is the first 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] The solicitation required submission of resumes for all key personnel
   and further required letters of intent if the proposed key personnel were
   not currently employed by the offeror. RFP at 66.

   [3] In accordance with the SSP, proposals could receive overall ratings of
   exceptional, acceptable, marginal and unacceptable under the technical
   quality evaluation factor. AR exh. 4, SSP, at app. E-1.

   [4] Because they are not relevant to the protest issues raised, the third
   offeror's ratings are not included here.

   [5] Metson also challenges the agency's evaluation of Seaward's past
   performance and the resulting selection decision. Specifically, Metson
   argues that the agency should have downgraded Seaward's past performance,
   given that Seaward was the incumbent contractor at the time a fire
   occurred on the Athena II in January 2007. As a preliminary matter, we are
   not convinced that an onboard fire necessarily translates into a negative
   past performance assessment. In addition, the agency has advised that the
   causes of the fire were still under investigation at the time of this
   evaluation. Moreover, we think that Metson, as a result of being found
   unacceptable, lacks standing to raise this issue. In order to maintain a
   protest in our Office, a firm must be an interested party, that is, an
   actual or prospective bidder or offeror whose direct economic interest
   will be affected by the award of or failure to award a contract. 4 C.F.R.
   sect. 21.0(a) (2007). A protester is not an interested party where it
   would not be in line for award were its protest to be sustained. Yoosung
   T&S, Ltd., B-291407, Nov. 15, 2002, 2002 CPD para. 204 at 4. Metson is
   ineligible for award here because, as discussed above, the agency
   reasonably found its proposal technically unacceptable. Thus, even if
   Seaward's proposal was assigned a lower past performance rating--we have
   no basis to conclude that Seaward should have been viewed as
   unacceptable--Seaward remains the only technically acceptable offer, and
   remains in line for award.