Newt Marine Service (W912EK20B0013)

B-419741,B-419741.2 Jul 12, 2021 Jump To FULL REPORT VIEW DECISION RELATED PAGES GAO CONTACTS Highlights Dubuque Barge and Fleeting Service Company d/b/a Newt Marine Service (Newt Marine), of Dubuque, Iowa, protests the award of a contract to Legacy Corporation of Illinois, of East Moline, Illinois, under invitation for bids (IFB) No. W912EK20B0013, issued by the Department of the Army, Army Corps of Engineers, for dredging services. Newt Marine challenges the agency's determination that Legacy is a responsible company. Newt Marine also asserts that Legacy will not comply with the limitation on subcontracting requirement, and that the agency improperly determined that Legacy qualifies as a small business concern for this procurement. 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:  Newt Marine Service File:  B-419741; B-419741.2 Date:  July 12, 2021 Paul R. Hurst, Esq., and Caitlin Conroy, Esq., Steptoe & Johnson LLP, for the protester. Stephen Foster, Legacy Corporation of Illinois, for the intervenor. Anna Kurtz, Esq., Department of the Army, for the agency. Mary G. Curcio, Esq., and John Sorrenti, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST 1.  GAO does not review contracting officer’s affirmative determination of responsibility where contracting officer did not ignore information that, by its nature, would be expected to have a strong bearing on whether the awardee should be found responsible. 2.  GAO will not review protest that awardee will violate prospective contract’s limitations on subcontracting where protester has not pointed to anything in awardee’s bid which indicates that awardee will not comply with the limitations. 3.  Protest that agency improperly determined bidder’s size status is denied where agency was considering responsibility, not size status.  DECISION Dubuque Barge and Fleeting Service Company d/b/a Newt Marine Service (Newt Marine), of Dubuque, Iowa, protests the award of a contract to Legacy Corporation of Illinois, of East Moline, Illinois, under invitation for bids (IFB) No. W912EK20B0013, issued by the Department of the Army, Army Corps of Engineers, for dredging services.  Newt Marine challenges the agency’s determination that Legacy is a responsible company.  Newt Marine also asserts that Legacy will not comply with the limitation on subcontracting requirement, and that the agency improperly determined that Legacy qualifies as a small business concern for this procurement.[1] We deny the protest BACKGROUND The solicitation, which provided for the award of an indefinite-delivery, indefinite-quantity contract for a 1-year base period, and four 1-year option periods, was issued as a small business set-aside on October 27, 2020.  Agency Report (AR), exh. 3, IFB at 5.  Bid opening was January 28, 2021.  AR, exh. 12, IFB amend 7 at 1.  The solicitation requested bids for mechanical dredging, transportation, and placement of dredged materials along part of the Mississippi River.  The solicitation provided that the contract would be awarded to the responsible bidder that submitted the lowest-priced bid which met the solicitation requirements.  IFB at 23. As relevant to this protest, the Corps assigned to this procurement North American Industry Classification System (NAICS) code 237990, dredging and surface cleanup activities, with a size standard of $30 million.  Id. at 5.  The NAICS code further requires that to be considered small for purposes of government procurement, a firm must perform at least 40 percent of the volume dredged with its own equipment, or equipment owned by another small dredging concern.  13 C.F.R. § 121.201; id. n.2.  The IFB also incorporated Federal Acquisition Regulation (FAR) clause 52.219-14, Limitations on Subcontracting (deviation 2020-O0008, March 2020), which requires the contractor to warrant that it will not pay more than 85 percent of the amount paid by the government for contract performance, excluding the cost of materials, to subcontractors that are not similarly situated entities.  IFB at 78.  The agency received two bids--one from Newt Marine priced at $28,679,100, and one from Legacy priced at $24,184,801.  AR exh. 14, Bid Summary Sheet.  The agency determined that Legacy’s bid met the solicitation requirements, that Legacy was a responsible firm, and awarded Legacy the contract on March 31.  AR, exh.