Curtin Maritime Corporation

B-417175.2 Mar 29, 2019 Jump To FULL REPORT VIEW DECISION RELATED PAGES GAO CONTACTS Highlights Curtin Maritime Corporation, a small business concern of Long Beach, California, protests the terms of request for proposals (RFP) No. N32205-19-R-3300, issued by the Department of the Navy, Military Sealift Command (MSC), for a U.S. flag tug vessel. The protester contends that the solicitation's evaluation criteria violate the domestic shipyard preference set forth in Defense Federal Acquisition Regulation Supplement (DFARS) provision 252.247-7026. We deny the protest. We deny the protest. View Decision Decision Matter of: Curtin Maritime Corporation File: B-417175.2 Date: March 29, 2019 Marley Schroepfer, Esq., Curtin Maritime Corporation, for the protester. Ann Calabrese, Esq., Allison McDade, Esq., and Schuyler Lystad, Esq., Department of the Navy, for the agency. Elizabeth Witwer, Esq., and Jennifer D. Westfall-McGrail, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST Protest alleging that the domestic shipyard preference set forth in Defense Federal Acquisition Regulation Supplement (DFARS) provision 252.247-7026 requires the agency to afford a preference to offerors that exclusively use domestic shipyards to perform overhaul, repair, and maintenance for qualifying vessels is denied where the plain language of the DFARS provision and its enabling legislation require only that an agency consider, as one of many evaluation factors, the extent to which an offeror has performed such work in domestic shipyards. DECISION Curtin Maritime Corporation, a small business concern of Long Beach, California, protests the terms of request for proposals (RFP) No. N32205-19-R-3300, issued by the Department of the Navy, Military Sealift Command (MSC), for a U.S. flag tug vessel. The protester contends that the solicitation's evaluation criteria violate the domestic shipyard preference set forth in Defense Federal Acquisition Regulation Supplement (DFARS) provision 252.247-7026.1 We deny the protest. BACKGROUND The agency issued the solicitation as a small business set-aside on December 7, 2018, pursuant to the commercial item and simplified acquisition procedures of Federal Acquisition Regulation (FAR) part 12 and subpart 13.5, respectively. RFP, at 7, 8, 46.2 The solicitation anticipated the award of a fixed-price contract for a "U.S. flag, Jones Act compliant, coastwise endorsed, ocean-going certified tug capable of towing berthing barge YRB-36" from Guam to Hawaii. Id. at 8; Agency Response to 2d GAO Request for Information (RFI), Mar. 22, 2019, at 1. The solicitation provided that award would be made to the offeror whose proposal represented the lowest-priced, technically acceptable proposal. RFP at 47. Relevant here, the solicitation also provided that "[a]ward preferences for domestic shipyard usage (see DFARS 252.247-7026) will be applied to the Government's evaluation of offers." Id. In this respect, the solicitation included DFARS provision 252.247-7026, Evaluation Preference for Use of Domestic Shipyards--Applicable to Acquisition of Carriage by Vessels. Id. at 33-35. As prescribed in section 247.574 of the DFARS, contracting officers shall include this provision "in solicitations, including solicitations using FAR part 12 procedures for the acquisition of commercial items, that require a covered vessel for carriage of cargo for [the Department of Defense]."3 DFARS § 247.574(e). The agency summarizes this requirement, explaining that the provision must be included in "solicitations for the transportation of Department of Defense cargo from U.S. port to U.S. port (commonly referred to as the Coastwise trade)." Contracting Officer's Statement (COS) at 1. The DFARS provision advises offerors, in relevant part, as follows: This solicitation includes an evaluation criterion that considers the extent to which the offeror has had overhaul, repair, and maintenance work for covered vessels performed in U.S. shipyards. DFARS provision 252.247-7026(b). In accordance with the provision, MSC included the following evaluation criterion in the solicitation: Award preferences for domestic shipyard usage (see DFARS 252.247-7026) will be applied to the Government's evaluation of offers. Award will be made, if at all, to the lowest price, technically acceptable offeror that has a Category 1 Domestic Shipyard Usage. If there are no offerors in Category 1, award will be made, if at all, to the lowest price, technically acceptable offeror that has a Category 2 Domestic Shipyard Usage. RFP at 47. In defining the two categories of domestic shipyard usage (DSU), the solicitation provided as follows: If 25% or more of the cost of overhaul, repair, and maintenance work of an offeror has been conducted within a U.S.