Universal Yacht Services, Inc., B-287071; B-287071.2, April 4, 2001

Universal Yacht Services, Inc., B-287071; B-287071.2, April 4, 2001 TITLE: Universal Yacht Services, Inc., B-287071; B-287071.2, April 4, 2001 BNUMBER: B-287071; B-287071.2 DATE: April 4, 2001 ********************************************************************** Universal Yacht Services, Inc., B-287071; B-287071.2, April 4, 2001 Decision Matter of: Universal Yacht Services, Inc. File: B-287071; B-287071.2 Date: April 4, 2001 Edward J. Tolchin, Esq., Fettmann, Tolchin & Majors, for the protester. Anthony Savas, Petchem, Inc., an intervenor. Robert M. Elwell, Esq., and George N. Brezna, Esq., Department of the Navy, for the agency. Linda S. Lebowitz, Esq., and Michael R. Golden, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST Proposal that failed to conform to a material solicitation requirement was technically unacceptable and could not form the basis for award. DECISION Universal Yacht Services, Inc. (UYS) protests the award of a contract to Petchem, Inc. under request for proposals (RFP) No. N00033-00-R-1033, issued by the Department of the Navy, Military Sealift Command, for a personnel transfer vessel (PTV) which will be used to conduct open ocean transfers of passengers and cargo between sea-borne submarines and the shore in the area of Port Canaveral, Florida. UYS contends that the agency improperly waived a material solicitation requirement for Petchem and improperly accepted Petchem's nonconforming proposal for award. We sustain the protest. The RFP, issued as a total small business set-aside on September 22, 2000, contemplated the award of a fixed-price time charter contract for a base period and three 1-year option periods. [1] RFP Cover Sheet; RFP at 2-4, 26. The RFP's statement of work contained a 2-page list of required minimum vessel characteristics. As relevant here, the RFP listed a transit speed requirement of "9 knots in moderate weather @ 80% rated horsepower." RFP at 6. The agency explains that this phrase means that a vessel must be capable of making a speed of 9 knots (nautical miles per hour) at 80 percent of its engine's total maximum rated horsepower in moderate weather conditions, that is, in winds of 11 to 16 knots and seas of 3 to 5 feet. The agency states that the requirement for 9 knots reflects its need for a reasonable transit time between shore facilities and submarines. The agency further states that its requirement that 9 knots be attained under moderate weather conditions at 80 percent rated horsepower will ensure that adequate (in this case, 20 percent) emergency reserve power exists. [2] Memorandum from CO to GAO (Mar. 8, 2001). The RFP stated that the award would be made to the responsible offeror whose proposal was determined to be most advantageous to the government, considering price, technical characteristics of the proposed vessel, and an offeror's past performance. RFP at 32. Eight firms, including UYS, a recently incorporated firm, and Petchem, the incumbent contractor, submitted proposals by the closing time on October 20. UYS proposed a vessel (the "Ocean Discovery") which had been out of service since 1996. Petchem proposed the same vessel (the "Christine S") which it used to perform the PTV requirements under the predecessor contract. With respect to the RFP's transit speed requirement, UYS inserted on its vessel characteristic sheet [3] that its vessel's speed was ">15Kts in moderate weather @ 80% rated horsepower." Agency Report (AR), Tab 5, UYS Initial Proposal, attach. 3-2. Petchem inserted on its vessel characteristic sheet that its vessel's speed was "9 kts. in mod. weather @ 80%." [4] AR, Tab 6, Petchem Initial Proposal, attach. 3-2. The proposals of three firms, including UYS and Petchem, were included in the competitive range. AR, Tab 11, Pre-Negotiation Business Clearance Memorandum, at 10. Following two rounds of discussions with each of the competitive range offerors, the offerors submitted final proposal revisions. As relevant here, in its final proposal revision, UYS remained committed to the transit speed proposed in its initial proposal, as referenced above. In its final proposal revision, Petchem committed to "9 kts. in mod. weather" without any reference to "@ 80% rated horsepower." AR, Tab 16, Petchem's Revised Proposal, attach. 3-2. The contracting officer, who served as the source selection authority, determined that the proposals of UYS and Petchem were both technically acceptable, but that Petchem's proposal provided the best technical solution, followed by the proposal of UYS. More specifically, the contracting officer noted that Petchem proposed a proven vessel which was currently performing the agency's PTV requirements (including the same minimum transit speed requirement as included in this RFP).