Omni2Max (N32205-18-R-4041)

B-419445 Mar 04, 2021 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights Omni2Max, a small business of La Mesa, California, protests its exclusion from competition under solicitation No. N32205-18-R-4041 issued by the Department of the Navy, Military Sealift Command, for the charter of a vessel to support a towed array sensor system. The protester alleges that the agency unreasonably excluded its proposal from the competition for failing to demonstrate that Omni2Max possessed the requisite legal interest in the vessel it proposed, per the terms of the solicitation. We deny the protest. View Decision 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:  Omni2Max File:  B-419445 Date:  March 4, 2021 Wayne A. Keup, Esq., Wayne A. Keup, PLLC, for the protester. Robert Young, Esq., and Jeffrey Davenport, Esq., Department of the Navy, for the agency. Michael Willems, Esq., and Edward Goldstein, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST Protest challenging protester’s exclusion from competition is denied where the solicitation required evidence of legally enforceable agreements, and the protester did not provide such evidence. DECISION Omni2Max, a small business of La Mesa, California, protests its exclusion from competition under solicitation No. N32205-18-R-4041 issued by the Department of the Navy, Military Sealift Command, for the charter of a vessel to support a towed array sensor system.  The protester alleges that the agency unreasonably excluded its proposal from the competition for failing to demonstrate that Omni2Max possessed the requisite legal interest in the vessel it proposed, per the terms of the solicitation. We deny the protest. BACKGROUND The agency issued the request for proposals (RFP) on June 16, 2020, seeking to charter a vessel for a period of up to four years and eleven months.  Memorandum of Law (MOL) at 1.  The solicitation provided that award would be made to the lowest-priced, technically acceptable offeror considering the following evaluation factors:  (1) critical submission data; (2) technical; (3) past performance; and (4) price.  Agency Report (AR), Tab 4, Request for Proposals (RFP) at 54.  Relevant to this protest, concerning the critical submission data evaluation factor, the solicitation required offerors to certify that they:  (1) owned the proposed vessel; (2) were the bareboat charterer of the vessel; or (3) had an “irrevocable, legally enforceable right (e.g. contract or option) to purchase, bareboat charter or lease the vessel(s) proposed.”  Id. at 51. The solicitation further provided that if an offeror was not the owner or bareboat charterer of the vessel at the time of proposal submission, the offeror was required to provide supporting evidence concerning its legally enforceable right to purchase, bareboat charter, or lease the vessel.  Id.  Specifically, the RFP required that the provided evidence must establish:  (1) the identity of the current owner; (2) the current nation of registry; (3) a description and date of the contract or option to purchase, bareboat charter or lease the vessel; and (4) the name and position of signatories to such contract or option.  Id.  The RFP explained that the agency would evaluate the critical submission data evaluation factor first, and that offerors without acceptable responses would not be further evaluated or considered for award.  RFP at 54. The protester submitted an offer in response to the solicitation, and proposed a vessel that the protester neither owned nor had chartered.  MOL at 2.  Rather, the protester’s proposal included two documents styled as “letters of commitment.”  AR, Tab 5, Letters of Commitment at 1-2.  The first letter was signed by representatives of the protester and the company that operates the vessel, and included the solicitation number and information about the owner of the vessel.  With respect to the protester’s right to offer the vessel, the letter provided, in full: Manager is authorized to offer the vessel OCEAN GUARDIAN in the above-referenced solicitation and commit to making the vessel available to charter the vessel to Omni2Max, Inc., for a minimum initial period of 365 days charter days [sic], plus 50 transit days, as well as up to three subsequent charter option periods of 365 days and one charter option period of 334 days.  Id. at 1.  The second letter was signed twice by a single individual both on behalf of the company that owns the vessel and on behalf of the company that operates the vessel.  This letter included identical substantive language authorizing the “manager” to offer and commit the vessel to the protester.  Id.