Gulf Copper Ship Repair, Inc., B-292431, August 27, 2003

B-292431 Aug 27, 2003 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights Agency's selection of proposal that failed to conform to a minimum water depth specification is an unobjectionable waiver of the solicitation requirement. Where deviation is negligible and does not result in prejudice to the protester. 2. Agency reasonably selected lower priced proposal from firm whose past performance was reasonably rated neutral instead of higher priced proposal of protester whose past performance was rated very good. Award was to be made on a "best value" basis. Offerors were instructed that the agency might select other than the lowest priced offer. Offerors were to submit berthing plans and sketches to show that the proposed navigation route from the navigation channel to the berthing position satisfied certain minimum water depth requirements. View Decision Gulf Copper Ship Repair, Inc., B-292431, August 27, 2003 DIGEST Attorneys DECISION Gulf Copper Ship Repair, Inc. protests the award to Anteon Corp. by the Department of the Navy under request for proposals (RFP) No. N62678-03-R-0049 for ship maintenance and repair. Gulf challenges the acceptability of Anteon's proposal, the agency's methodology in evaluating past performance, and the source selection decision. We deny the protest. The RFP provides for award of a fixed-price contract for the "phased maintenance" of the USS Heron. RFP at B-1. Award was to be made on a "best value" basis, considering past performance and price, with past performance being "approximately equal to . . .[, but] more important than" price. RFP at M-2, 3. The solicitation specified that the past performance data considered by the agency would include Contractor Performance Assessment Reporting System (CPARS) reports and "other relevant past performance information" from other sources. RFP at L-6. Offerors were instructed that the agency might select other than the lowest priced offer, or other than the offer with the highest evaluation rating. RFP at M-3. Among other requirements, offerors were to submit berthing plans and sketches to show that the proposed navigation route from the navigation channel to the berthing position satisfied certain minimum water depth requirements. Specifically, a water depth of 2 feet more than the minimum vessel clearance at the mean low water (MLW) /1/ was required by the specifications. RFP at L-9; Agency Report (AR), Tab 14, Standard Item 009-101, at 1; Tab 15, Drawing 845-668699, at 4. Vessel clearance was stated to be 10 feet, 1 inch, which thus required a minimum water depth of 12 feet, 1 inch at MLW throughout the navigation route. AR at 11. Offers were received from Gulf and Anteon in response to the RFP. The Past Performance Evaluation Team (PPET) evaluated Gulf's past performance as very good and Anteon's as marginal, based upon the PPET's review of the CPARS reports where available, past performance questionnaires, and other data. Gulf's very good rating was based upon the CPARS reports from nine contracts, which the PPET determined to be "very relevant" to the procurement. /2/ The PPET found that Anteon's four referenced contracts were not relevant, and thus rated Anteon marginal "based solely on a lack of relevance and not significant weaknesses or deficiencies in the contractor's past performance record." AR, Tab 4, PPET Memorandum at 2-3, 6-8. The Best Value Advisory Committee (BVAC) reviewed the findings of the PPET and, although it agreed with the PPET's rating for Gulf, it disagreed with the rating for Anteon. The BVAC determined that the PPET's findings concerning Anteon were inconsistent with the definition of "marginal" past performance set forth in the source selection plan. /3/ A marginal rating, the BVAC noted, was warranted where "serious [performance] problems" or "quality" issues arose in connection with the performance of "relevant contract(s) that are similar to the subject availability," which was not the case here. Rather, the PPET's findings were based solely on the lack of relevant past performance, which the BVAC found warranted only a neutral rating. Accordingly, the BVAC adopted a neutral rating for Anteon. The BVAC also considered the firms' proposed prices, noting that Anteon's price was lower than Gulf's. The BVAC recommended award to Anteon, stating that, in light of Anteon's neutral past performance rating, the BVAC [did] not consider the risk of performance if award goes to Anteon to justify paying the additional [cost] for this availability. In the absence of any information to indicate that Anteon is a bad performer, the BVAC considers Anteon to be the better value. AR, Tab 5, BVAC Memorandum, at 2-4. The source selection authority (SSA) concurred with the BVAC's findings and recommended award to Anteon. Specifically, the SSA stated I agree with the BVAC that Anteon's past performance history does not warrant a marginal rating.