Oregon Iron Works, Inc., B-284088.2, June 15, 2000

B-284088.2 Jun 15, 2000 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights Post-award protest that agency improperly failed to provide protester an opportunity to address agency's past performance concerns during those discussions is not timely filed. 2. Protester's complaints that its proposal should have been evaluated more favorably with regard to various non-price evaluation factors are without merit where they merely reflect protester's disagreements with the agency's evaluation. 3. Agency's consideration of past performance information regarding contract performance completed more than 3 years prior to source selection does not provide a basis to sustain the protest where the contracts were submitted by the protester as part of its proposal. BACKGROUND The solicitation for this procurement was issued on August 12. View Decision Matter of: Oregon Iron Works, Inc. File: B-284088.2 Date: June 15, 2000 DIGEST Attorneys DECISION Oregon Iron Works, Inc. (OIW) protests the Department of the Navy's award of a fixed-price contract to Appleton Marine, Inc. under request for proposals (RFP) No. N47408-99-R-3924, to provide ship-to-shore amphibious bulk liquid transfer (ABLT) systems. OIW protests that the agency improperly failed to discuss its concerns regarding OIW's past performance and otherwise improperly evaluated proposals. We deny the protest. BACKGROUND The solicitation for this procurement was issued on August 12, 1999, seeking proposals for engineering, fabrication, testing, inspection and delivery of eight ABLT systems, with four options for an additional four systems under each option. The systems will be used to transfer fuels and potable water between ships and shore stations. Each system includes flexible hoses, from 5,000 to 10,000 feet in length, along with hose reels on which the hoses are stored. Under a prior contract, OIW developed a prototype ABLT system along with related product specifications. The agency provided the specifications to potential offerors with the solicitation, but specifically stated that "[t]his Statement of Work requirements takes precedence over the Product Specifications," further explaining that "[t]he requirements established within Section C.3 of this Statement of Work take precedence over the requirements delineated in the attachments to the SOW." RFP Sec. C.3.0.2. Consistent with these provisions, RFP Sec. C.3 made certain changes to the specifications, among other things, stating: "Change the materials for the hose reel assembly and the bow ramp assembly to stainless steel, and the preferred Type is 316L for its marine atmosphere resistance characteristics." RFP Sec. C.3.2.1. On August 30, the agency issued RFP amendment No. 2, again addressing the structural material to be used, but now mandating use of the particular type of steel it had previously identified as "preferred," stating: "316L stainless steel shall be used for [various specified portions of the ABLT systems.]" RFP amend. 2, at 3-4. On September 15, the agency issued RFP amendment No. 4, in which it responded to a question regarding the required structural material. Specifically, a potential offeror asked: "Since the . . . Solicitation requires the substitution of 316L stainless steel . . . will [there] be a requirement to perform a reanalysis of the structure components, and possibility of redesign of the structure to maintain the same structural strength[?]" The agency responded: "No[,] as long as the sizes and thicknesses as indicated on the drawings are kept or maintained." RFP amend. 4, at 2. On September 29, the agency issued RFP amendment No. 8, again addressing the required structural material and associated strength requirements, reprinting the following question and response in the amendment: [Question:] The question is to resolve the concern about the structural integrity of the hose reel frame with the change from carbon steel to 316L stainless steel. By example. The lifting eyes are specified as 3/4" ASTM A572 Gr 50 steel plate with a min. yield of 50000 psi. A 3/4" 316L stainless plate will produce to ASTM A240 and has a min. yield of 25000 psi. This would be typical of most structural components of the frame. Is the lower strength acceptable? Response: For the non-mild steel load bearing members, such as padeyes (ASTM 572 Grade 50), the thickness of the plate must compensate for the difference in strength between the high-strength structural steel and stainless steel. RFP amend. 8, at 1. On September 30, the agency realized that RFP amendment No. 8, which required that the proposed thickness of load bearing members compensate for the difference in strength between the previously specified steel and the now-required stainless steel, conflicted with RFP amendment No. 4, which specifically stated that no redesign of the structure would be required. The agency states that, "[because] there were only a few days before the closing date . . .