MLSUSA Corporation (N68171-20-R-0001)

B-418477.3,B-418477.4 Sep 28, 2020 Jump To FULL REPORT VIEW DECISION RELATED PAGES GAO CONTACTS Highlights MLS-Multinational Logistic Services Ltd., of Gzira, Malta, and MLSUSA Corporation, of Longmeadow, Massachusetts, acting as a single company, MLS, protest the terms of request for proposals (RFP) No. N68171-20-R-0001, which was issued by the Department of the Navy, Naval Supply Systems Command, for maritime husbanding support services worldwide. The protester asserts that the solicitation contains conflicting requirements that are impossible to perform concurrently. We deny the protest. View Decision Decision Matter of:  MLS-Multinational Logistic Services, Ltd.; MLSUSA Corporation File:  B-418477.3; B-418477.4 Date:  September 28, 2020 Walter A. I. Wilson, Esq., and Sunni R. Harris, Esq., Dinsmore & Shohl LLP, for the protester. David L. Koman, Esq., Department of the Navy, for the agency. Stephanie B. Magnell, Esq., and Evan C. Williams, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST Protest challenging the terms of a solicitation is denied, where the protester has not shown by clear and convincing evidence that performance is an impossibility. DECISION MLS-Multinational Logistic Services Ltd., of Gzira, Malta, and MLSUSA Corporation, of Longmeadow, Massachusetts, acting as a single company, MLS, protest the terms of request for proposals (RFP) No. N68171-20-R-0001, which was issued by the Department of the Navy, Naval Supply Systems Command, for maritime husbanding support services worldwide.  The protester asserts that the solicitation contains conflicting requirements that are impossible to perform concurrently. We deny the protest. BACKGROUND On December 31, 2019, the Agency issued the RFP with the intent to award multiple-award indefinite-delivery, indefinite-quantity contracts for maritime husbanding support of Navy ships at approximately 2,287 ports worldwide.  RFP at 2;[1] Contracting Officer’s Statement (COS) at 3.  The contracts will be issued with a 5-year base period and a 5‑year option period, for a total period of performance of 10 years.  Id. at 2, 6.  Each period has a maximum value of $1,061,000,000.  Id.  The initial RFP deadline for proposal submission was February 18, 2020.  AR, Tab 6, RFP amend. 0005 at 1.  Several days prior, on February 14, each MLS entity filed a pre-award protest with our Office.  These protests were docketed as B‑418477 and B‑4187477.2.  MLS argued that the terms of the solicitation were impossible to perform and did not reflect the Navy’s minimum needs.[2]  Protests, B‑418477, B-4187477.2.  The protesters also asserted that the solicitation unduly restricted competition and deprived them of a fair opportunity to compete for task orders.  Id.  On May 4, the GAO attorney assigned to the protest held a conference call with the parties to discuss the relative risks of the parties’ positions.[3]  COS at 16.  In the call, the GAO attorney advised the agency that she considered there to be a risk to the Navy in the formulation of RFP paragraph 1.3, specifically with regard to the representations the contractor was to make related to any status as the Navy’s agent.  Id.  The Navy subsequently filed a notice of corrective action, stating that it intended to amend the solicitation and allow offerors to revise their proposals.  Notice of Corrective Action & Req. for Dismissal, B-418477, May 7, 2020; Resp. to GAO Req. for Clarification, B-418477, May 11, 2020; Notice of Corrective Action & Req. for Dismissal, B-418477.2, May 7, 2020; Resp. to GAO Req. for Clarification, B-418477.2, May 11, 2020.  Our Office dismissed the protests as academic on the basis of the agency’s proposed corrective action.  MLS-Multinational Logistic Servs., Ltd.; MLSUSA Corp., B‑418477, B-4187477.2, May 12, 2020, (unpublished decision). On June 18, the Navy issued amendment 0007 to the solicitation, revising the contested language in paragraph 1.3 and extending the solicitation closing date to June 25.  AR, Tab 8, RFP Amend. 0007.  The revised solicitation provision at issue now reads, in relevant part, as follows: 1.3  This contract is for support of sovereign vessels of the United States.  Many of the usual relationships and practices in commercial ships’ husbanding do not apply.  This contract governs the relationship between the United States Navy and the HSP.  This contract governs and supersedes any usual commercial practice that conflicts with the terms of the contract.  This contract creates an independent contractual relationship between the HSP and the United States Navy.  The HSP is the prime contractor to provide the Navy all requirements called for in a task order.  Only the HSP contractor has privity of contract with any other entity, including port authorities that the HSP uses to execute a task order.