Admiral Towing and Barge Company, B-291849; B-291849.2, March 6, 2003

Admiral Towing and Barge Company, B-291849; B-291849.2, March 6, 2003 TITLE: Admiral Towing and Barge Company, B-291849; B-291849.2, March 6, 2003 BNUMBER: B-291849; B-291849.2 DATE: March 6, 2003 ********************************************************************** Admiral Towing and Barge Company, B-291849; B-291849.2, March 6, 2003 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: Admiral Towing and Barge Company File: B-291849; B-291849.2 Date: March 6, 2003 Michael A. Hopkins, Esq., and David M. Glynn, Esq., McKenna Long & Aldridge, for the protester. George N. Brezna, Esq., and David Ranowsky, Esq., the Department of the Navy, the agency. John L. Formica, Esq., and James A. Spangenberg, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST Agency properly amended solicitation to become a 100-percent set-aside for small businesses where the agency reasonably determined, based upon the proposals it received from small businesses, that it could reasonably expect after discussions to receive proposals from at least two small business concerns capable of performing the contract and that award would be at a fair market price. DECISION Admiral Towing and Barge Company protests the terms of request for proposals (RFP) No. N00033-03-R-1003, issued by the Department of the Navy, for tug boat services to assist vessels in Pearl Harbor, Hawaii and surrounding waters. Admiral challenges certain terms of the solicitation, as well as the Navy*s determination to make this solicitation a small business set-aside. We deny the protest. The RFP, issued November 21, 2002, provides for the award of a fixed-price contract for the charter of four tug boats with crews to assist vessels in docking, undocking, and emergency situations. The RFP provides for a *time charter arrangement,* whereby the contractor makes the tug boats available 24 hours per day, 365 days per year, and is paid a daily rate for each tug boat regardless of whether the tugs are used on any given day. The RFP provides that the award will be made to the offeror with acceptable past performance submitting the lowest priced, technically acceptable proposal. With regard to technical acceptability, the RFP sets forth certain vessel specifications and characteristics, and states that the agency will evaluate proposals to determine whether the proposed vessels meet the RFP*s minimum requirements. The RFP also includes past performance worksheets to be completed by the offerors* references and returned by the references directly to the agency. Finally, the RFP provides a *rate table* to be completed by offerors, and explains that prices will be evaluated based upon the offerors* rates as set forth in their completed rate tables, and fuel costs to the government, based upon the fuel consumption figures provided by the offerors, the government*s estimated work requirements, and cost of fuel as calculated by the agency.[1] The RFP was amended on December 3, 2002 to include a notice providing that *[i]f two or more offers from qualified small business concerns are received this solicitation shall be converted to a 100 percent set-aside for small business concerns.* The RFP added here that *[n]otwithstanding the possibility of a small business set-aside, the procurement remains unrestricted and large businesses may offer.* RFP amend. 1, at 2. Admiral, one of the two incumbent contractors, protested to our Office that the above clause *unfairly discriminates against large, qualified bidders, including Admiral.* Initial Protest at 3. The protester also challenged certain other terms of the solicitation. On January 24, prior to the date for the agency*s submission of its report in response to the protest, the agency amended the solicitation to inform offerors that it had *received two or more qualified small business offers,* and that because of this, *the solicitation is converted to a 100% set-aside for small business concerns.* RFP amend. 6, at 2. In response, Admiral filed a second protest, challenging the agency*s conversion of the solicitation to a 100-percent set-aside for small businesses.[2] Admiral contends that, based upon its review of the small business offerors* proposals, the agency*s determination to amend the solicitation to make it a 100-percent set-aside for small businesses was unreasonable.