Maritime Berthing, Inc., B-284123.3, April 27, 2000

Wm. Craig Dubishar, Esq., William L. Walsh, Jr., Esq., and Lars E. Anderson, Esq., Venable, Baetjer & Howard, for the protester.

Harry R. Silver, Esq., Ober, Kaler, Grimes & Shriver, for Violet Dock Port, Inc., an intervenor.

David G. Ranowsky, Esq., and George N. Brezna, Esq., Department of the Navy, for the agency.

Charles W. Morrow, Esq., and James A. Spangenberg, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision.

On a solicitation for ship layberth services to be awarded to the offeror submitting the low-priced, technically acceptable proposal, the agency's determination that the awardee's proposal met a requirement limiting allowable ship motions to 7 feet was unreasonable, even though the proposal on its face provided evidence that it did meet that requirement, where prior to completing the evaluation the agency's evaluators were apprised of significant countervailing evidence that should have given them reason to doubt whether the proposal complied with that requirement, that is, a report from the agency's on-site representative that the awardee's facility did not meet this requirement on an on-going contract, and where the record now demonstrates that the proposal contained insufficient information to determine compliance.

Maritime Berthing, Inc. protests the award of a contract to Violet Dock Port, Inc. under Lot 1 of request for proposals (RFP) No. N00033-99-R-5303, issued by the Department of the Navy, Military Sealift Command (MSC), for layberth services. Maritime contends that Violet's facility cannot meet the RFP's minimum surge requirements and that MSC unreasonably determined that Violet's proposal was acceptable in this regard.

The RFP, issued as a partial small business set-aside, was to procure a layberth facility and services [¹] for four Large, Medium Speed, Roll-on/Roll-off ships (LMSR) on a fixed-priced rate basis for 3 years with two 1-year options. RFP §§ C-1, F-1. Lot 1 of the RFP, which was restricted to small businesses, sought layberth services for two of the LMSR ships in the Gulf Coast and the Atlantic South Region. RFP § C-1.

The RFP provided for award to the responsible offeror with the lowest-priced, technically acceptable offer, and listed technical, price, and past performance as the evaluation factors. RFP § M-2.1. The RFP identified various technical subfactors and sub-subfactors and advised that they would be evaluated on a "pass/fail" basis. RFP § M-2.2. The RFP further advised that "[an] unacceptable evaluation in any sub-subfactor, subfactor, or factor will result in an overall unacceptable rating of an offeror's proposal" and that "[t]he overall safety of the ship and facilities is a key consideration when evaluating the technical proposals." RFP § M-2.1.

If the ships are berthed in or adjacent to a channel, 150 feet (at minimum water depths) will be considered a safe working area. In no event will the ships be berthed less than 200 feet from the limits of a transit channel in which passing traffic may be proceeding at speeds of five (5) knots or greater.

Contractor must ensure that the ships are moored in accordance with the approved mooring plan. If the ships are not moored in accordance with an approved plan, the Contracting Officer or [Contracting Officer's Representative] must be notified in writing as soon as the discrepancy is discovered. Mooring line arrangements shall be of sufficient strength and number to minimize the magnitude of ship motions and positioned so as to not to result in excessively steep mooring line angles. . . . The pier and mooring arrangement must provide proper restraint for forces and moments generated from ships passing the layberth. The allowable ship motions will be plus or minus seven (7) feet in surge [²] and sway directions. [³]

Among other things, the RFP required the offeror's technical proposal to contain a mooring plan for berthing the LMSR vessels. Specifically, section L-7.2A2 of the RFP stated:

a. Mooring Plan. The Offeror should provide a mooring plan which should include the following at a minimum: a) detailed engineering design drawings (conceptual sketches are not acceptable); b) mooring line direction and loads (i.e. breast lines, spring lines, bow and stern lines); and c) mooring line fittings and hardware location and safe working load. . . . In this section, the Offeror should provide a brief description of the meteorological profile for the port region, including: a) maximum winds normally encountered (including hurricanes); b) primary wind directions (seasonal); c) tidal range at berth; d) speed and direction of currents and tides at the layberth; e) waves and seiche; and f) ice characteristics, if any. Additionally, the offeror will submit calculations which approximate the wind and current and any other applicable forces that may be exerted against the ship at the proposed layberth.

a. Hazards. The Offeror should identify and describe any building located within 200 feet of the ship. Additionally, the offeror should describe any potential hazards that would adversely impact the ship, such as, a) surge caused by passing ships; b) open seas; c) current; d) waves and seiche; e) underwater obstructions; f) overhead obstructions; g) solid and/or drift ice in water; h) corrosive waste in water and/or air; i) airborne sand, dust, or grit; or j) any other hazardous condition, including fire. The offeror should propose methods to minimize the risk of hazards.

By the August 10, 1999 closing date, MSC had received [DELETED] proposals for Lot 1 of the RFP, including Maritime's and Violet's. Agency Report, Tab 41, Abstract. Maritime proposed to berth the LMSRs at a layberth facility located on the Gulf Coast at Corpus Christi, Texas, and Violet proposed to berth the LMSRs at pier 1 of its layberth facility located on the Mississippi River at Violet, Louisiana, just below New Orleans, Louisiana.

Violet's proposal contained a mooring plan, which among other things provided details as to how the LMSRs should be moored and included calculations that indicated that surge at the facility was less than 7 feet. Agency Report, Tab 20, Violet Technical Proposal, attachs. 5, 7. The proposal also contained a letter from the president of the Crescent River Port Pilots' Association stating:

The speed limit in this area of the Mississippi River is governed by Rule 6 of the Inland Rules of the road which requires all vessels to travel at a safe speed which is appropriate to the prevailing circumstances and conditions. . . .

Vessels, when passing piers and docks, have an affirmative duty to proceed carefully and prudently so as to avoid creating excessive swells or suction which could damage vessels which are properly moored. Vessels navigating the Mississippi River, in the vicinity of the Violet Dock Port, take into consideration the vessels berthed at the location in determining an appropriate speed. Normally vessels pass the Violet Dock Port as near to mid channel as possible which is approximately 600 feet.

On September 9, after evaluating proposals, the technical evaluation committee (TEC) determined [DELETED] proposals, including Violet's and Maritime's, were in the competitive range. Discussions were conducted with the competitive range offerors in October, although no discussions were apparently conducted with Violet regarding the ability of its berthing facility to meet the surge requirements. Agency Report at 4-6.

Meanwhile, by letter dated October 6, Maritime requested that MSC perform site inspections, particularly of those layberth sites located on the Mississippi River, because Maritime believed that such facilities could not meet the RFP's passing traffic and surge and sway requirements. Agency Report, Tab 42, Maritime Letter to MSC (Oct. 6, 1999). [⁴] On November 30, MSC responded:

Contrary to your assertion . . . the solicitation does not entirely eliminate the possibility of a layberth site on the Mississippi River. The responsibility is on the offeror to prove that a proposed Mississippi River facility is capable of meeting the requirements of the solicitation. The government's responsibility is to accurately evaluate whether or not the offeror has satisfactorily addressed those requirements and submitted a viable proposal.

Previously, in August, MSC had awarded another contract to Violet for layberth services for two Fast Sealift Ships (FSS) at an adjacent pier (pier 5) of the same facility proposed for the LMSR layberth. Tr. at 70. This contract also contained the requirements that the ships could not be berthed less than 200 feet from traffic passing at 5 knots or greater and that allowable ship motions for moored ships not exceed 7 feet in surge and sway directions. See Tr. at 150, 160; Protester's Comments, attach. 4, Declaration of C. Allan Hubler, at 3-4.

On October 13, after the initial evaluation on this protested award but prior to the submission of best and final offers (BAFO), the MSC marine transportation specialist responsible for monitoring compliance with the requirements of this contract sent the Chairman of the TEC the following e-mail message:

Whoaaaa Nellie::: Algol [the FSS vessel docked at pier 5 of Violet's facility] is in the move again!!! She is surging up to 20 ft (witnessed by me) and more according to the Master and crew. The Algol is right across from the anchorage and very large vessels are passing between them and the Algol. . . . REMEMBER, this is the same dock that almost killed two people ten years ago and left their bodies ravaged. . . . During the RFP's for layberth you asked me about problems down there. I voiced my concerns about the past surging problem and you assured me that was taken care of or not a problem.

Although MSC initiated a review of the incident, it did not consider this information in evaluating Violet's proposal for the LMSR procurement. See Tr. at 129-36, 143-44, 156.

MSC received BAFOs by November 30. Violet's BAFO proposed the lowest total evaluated price and Maritime proposed the next lowest total evaluated price. Agency Report, Tabs 18 and 24, Maritime's and Violet's Amended Proposals. The TEC completed its final evaluation on December 2 and determined that both Maritime's and Violet's proposals were acceptable. Agency Report, Tab 40, Memorandum (Dec. 2, 1999). MSC awarded Violet the contract on December 28. This protest from Maritime followed.

During the protest, we admitted to a protective order issued in connection with this protest an attorney retained by Maritime, notwithstanding the agency's objection to the attorney's admission. [⁵] MSC had objected to this individual's admission because the attorney was listed as an "authorized negotiator" for another company that had received award on another lot of the RFP, which is owned by the same group of principals as own Maritime, and had been listed as "authorized negotiator" for other companies owned by these principals in prior MSC procurements. MSC maintained that the designation as an authorized negotiator in itself should result in the denial of the attorney's admission.

After consideration of MSC's objection, we nonetheless admitted the attorney to the protective order because he had established (and MSC had produced no contradicting evidence) that he had performed no activities in this capacity, he agreed to withdraw as the contract negotiator under the contract, and he further agreed not to serve as or be designated as an authorized negotiator for the companies owned by these principals in the future. We do not agree with MSC that designation as an authorized negotiator automatically disqualifies an applicant from admission to a protective order. While we think that this designation should cause an application for admission to a protective order to receive closer scrutiny, the question to be resolved on a case-by-case basis is whether the individual's activities constitute competitive decision-making for the client, such that release of protected materials will results in an unacceptable risk of inadvertent disclosure of the information. See Matsushita Elec. Indus. Co., Ltd. v. U.S., 929 F.2d 1577, 1579
(Fed. Cir. 1991).

Maritime protests that Violet's facility cannot comply with the RFP requirements concerning the minimum distance from passing traffic and surge and sway. [⁶] Maritime contends that MSC's evaluation of Violet's proposal in this respect was unreasonable because it did not inspect Violet's facility nor perform sufficient mathematical calculations to verify that Violet's facility would meet these requirements. Maritime contends that MSC should have performed a comprehensive analysis of Violet's proposed mooring plan, particularly Violet's ability to meet the 7-foot minimum surge requirement, because Violet's facility is commonly known to have surge problems given its particular location on the Mississippi River, and because of the reported observations of the MSC representative of surge that greatly exceeded 7 feet at Violet's facility. [⁷] Maritime also contends that the conditions near Violet's facility make it impossible for Maritime to develop an acceptable mooring plan to meet the passing traffic and surge requirements, since extremely large vessels regularly pass too close to Violet's facility in excess of 5 knots, which cause the surge and sway problems. Maritime has also submitted a detailed analysis from a registered professional engineer with mooring analysis experience that concludes that the analysis contained in Violet's proposal showing compliance with the surge requirement is flawed and based on invalid assumptions. [⁸] Protester's Comments, attach. 4, Declaration of C. Allan Hubler, at 7-12. The engineer also submitted calculations to show that Violet's mooring arrangement would not meet the agency's requirement. Id. at 12-24.

The evaluation of proposals is a matter within the discretion of the contracting agency since the agency is responsible for defining its needs and the best method of accommodating them. Marine Animal Prods. Int'l, Inc., B-247150.2, July 13, 1992, 92-2 CPD ¶ 16 at 5. In reviewing an agency's evaluation, we will not reevaluate proposals, but instead will examine the agency's evaluation to ensure that it was reasonable and consistent with the solicitation's stated evaluation criteria.
MAR Inc., B-246889, Apr. 14, 1992, 92-1 CPD ¶ 367 at 4.

MSC asserts that, in determining that Violet's mooring plan satisfied the minimum surge and passing traffic requirements and was acceptable, it reasonably reviewed and relied upon the representations and calculations contained in Violet's proposal, including the letter from the pilots' association. Agency Report at 11-17. At the hearing, the MSC evaluator, who determined that Violet's mooring plan and surge calculations met the RFP requirements, testified that he accepted the proposal representations "at face value" and made no independent analysis of Violet's proposed mooring plan and surge calculations during his evaluation. [⁹] Tr. at 208-10, 220-21, 245-46. He further testified that he only examined the proposal to ensure mathematical accuracy and use of the proper surge analysis equations, and did not question any of the variables of the surge analysis, such as the size of the vessel selected [¹⁰] or the mooring plan depicted in Violet's drawing. [¹¹] Tr. at 184-90, 208-10.

In determining the technical acceptability of a proposal, an agency may not accept at face value a proposal's promise to meet a material requirement, where there is significant countervailing evidence reasonably known to the agency evaluators that should create doubt whether the offeror will or can comply with that requirement. See Koehring Cranes & Excavators; Komatsu Dresser Co., B-254731.2, B-245731.3, Nov. 23, 1992, 92-2 CPD ¶ 362, at 8; Telemetrics, Inc.; Techniarts Eng'g, B-242957.7, Apr. 3, 1992, 92-2 CPD ¶ 168 at 4-6; Mine Safety Appliances Co.; Interspiro, Inc., B-247919.5, B-247919.6, Sept 3, 1992, 92-2 CPD ¶ 150 at 3, recon. denied, National Draeger, Inc.--Recon., B-247919.7, Nov. 6, 1992, 92-2 CPD ¶ 325 at 3; see also International Bus. Sys., Inc., B-275554, Mar. 3, 1997, 97-1 CPD ¶ 114 at 5 (agency in evaluating past performance may not ignore highly relevant "close at hand" experience, even if the requested reference form was not received).

Here, months before it completed its evaluation and made award to Violet, MSC was presented with significant countervailing evidence indicating that Violet's facility had experienced surge problems that should have caused a closer review of Violet's proposal to ensure that it clearly met the stated surge requirements. As indicated above, MSC's TEC Chairman was specifically advised in October 1999 by MSC's on-site representative that Violet's facility was experiencing surge problems on a nearby pier in the same facility which was serving as a layberth for another MSC vessel under a contract with the same surge requirement. In addition, as noted above, the protester had noted various concerns about surge at Mississippi River facilities, in response to which the agency stated that it was the agency's responsibility to determine whether the offeror properly addressed the RFP requirements and submitted a viable proposal.

Notwithstanding the report of its on-site representative, MSC's TEC Chairman did not seek a more detailed analysis of Violet's proposal promises concerning its ability to meet the surge requirements. Tr. at 156. The Chairman of the TEC testified that the letter from Maritime and the e-mail message from MSC's on-site representative were received after the initial evaluation had concluded that Violet's proposed layberth met RFP requirements, and that he did not cause Violet's proposal to be reevaluated because the protester's letter did not present any new information and because the incident related in the MSC's on-site representative's e-mail message was being investigated. Tr. at 129-36, 143-44.

Given that the surge problem was reported at a pier in Violet's facility, we think that, absent some reasonable explanation, it was unreasonable for MSC to simply accept Violet's assurances that its facility could meet the requirements without performing a more detailed analysis of Violet's proposed mooring plan, including its surge calculations. MSC had adequate time to investigate the matter, conduct discussions with Violet, and reevaluate Violet's proposal in this respect, because the MSC contract monitor's report was made months prior to MSC completing the final evaluation. While MSC now asserts that it had no reason to doubt Violet's ability to meet the surge requirement because the surge problems were experienced at pier 5, not pier 1, MSC has stated no reason why pier 1 should be less susceptible to surge problems than pier 5 and none seems apparent given the close proximity of the piers to one another. While MSC also now claims that FSS ship operator error, slack mooring lines, and the capstan and winch arrangement on the FSS ships were primarily responsible for the particular surge incident, Tr. at 133-34, 160-61, 165-69, the on-site representative's contemporaneous record stated that "all [including Violet] agreed in principle that the extreme surging is caused by vessels passing too close to the [moored vessel]." [¹²] Agency Report, Tab 66, E-Mail from MSC On-Site Representative (Nov. 3, 1999). Thus, the agency should have more closely reviewed and/or conducted discussions concerning Violet's proposal to determine if it could meet the RFP's surge requirements.

After the protester's comments had been filed and our Office scheduled a hearing, the MSC evaluator attempted to verify from Violet's proposal whether the proposed pier could comply with the surge requirement, but concluded that there was insufficient information in the proposal for MSC to independently confirm that Violet's mooring plan and calculations met the requirement. Tr. at 195-96. Specifically, the evaluator testified that coordinates relative to the centerline of the moored ship in Violet's mooring plan and the lengths of the chains and sizes of the chains were necessary to complete an analysis of Violet's mooring plan, and that this information was not included in Violet's mooring plan. Tr. at 196. He then requested Violet to provide additional information and Violet submitted a revised mooring plan, which the agency admits was significantly different from that included in Violet's proposal, so the MSC evaluator could independently determine whether Violet could meet the surge requirements. Tr. at 196, 200-01, 205-08, 216, 224-27, 237, 262. Thus, the record evidences that Violet's proposal contained insufficient information to determine that it met the surge requirements, so that the agency could not reasonably conclude that Violet's proposal was acceptable based on its contents, in view of the countervailing evidence that indicated that Violet's pier may not comply with the surge requirements. Under such circumstances, the agency should have conducted discussions with Violet on this point.

MSC and Violet nevertheless argue that the evaluation was reasonable based upon the various new calculations that were prepared during the course of the protest that purportedly show that Violet's layberth site can comply with the surge requirements. Specifically, the MSC evaluator's pre-hearing calculations, based on information Violet provided in February, conclude Violet's layberth site can meet MSC's surge requirements. Agency Submission (Mar. 25, 2000). In addition, MSC submitted with its post-hearing comments a second set of calculations it prepared with the Optimoor program and the AQWA mooring analysis program that also purportedly show that Violet's layberth site can meet the surge requirement. See Site Specific Report, Mooring Calculations For Two T-AKR-296 Ships (Mar. 2000). Moreover, Violet in its comments submitted a mooring plan and the calculations of a professional engineer that conclude that its facility can meet the agency's surge requirements. Maritime has disputed in detail each of the analyses provided and continues to assert that Violet's facility cannot meet the surge requirement.

We accord less weight to evaluation documents prepared to defend a protest than to the contemporaneous source selection record. The lesser weight reflects our concern that these reevaluations prepared in the heat of an adversarial process may not represent the fair and considered judgment of the agency, which is a prerequisite of a rational evaluation and source selection process. See Boeing Sikorsky Aircraft Support, B-277263.2, B-277263.3, Sept. 29, 1997, 97-2 CPD ¶ 91 at 15. From our review, we cannot conclude that these disputed analyses demonstrate that Violet's proposed pier complies with the surge requirements. In any case, even accepting that these post hoc calculations may show that Violet's pier can meet the surge requirements, the record indicates that they were not based on the offeror's proposed mooring plan, but on subsequent revisions to that plan that could only have been properly provided if discussions had been conducted. See Tr. at 195-200. Thus, the record does not evidence that Violet's submitted proposal met the surge requirements.

Given that Violet may be able to submit an acceptable mooring plan, including compliance with the surge requirements, we recommend that MSC reopen discussions with Violet, Maritime, and the other competitive range offerors, request revised proposals, and then make a new award decision. If an offeror other than Violet is selected, Violet's contract should be terminated. In addition, we recommend that Maritime be reimbursed the cost of filing and pursuing its protest,

including reasonable attorneys' fees. 4 C.F.R. § 21.8(d)(1). The protester should submit its certified claim for such costs, detailing the time expended and the costs incurred, directly to the contracting agency within 60 days of receiving this decision.

1. These services include, for example, electrical shore power, potable water, telephone service, roving guard service, additional soundings, and steam. RFP §§ C-7.3, C-9

2. Surge occurs when the ship moves forward or backward while moored to the pier. See Hearing Transcript (Tr.) at 94.

3. The RFP advised that the Optimoor mooring analysis software program was acceptable to perform mooring calculations. RFP § C-6.1.1(a). This program allows users to calculate the impact of wind- and current-generated forces on mooring lines. Protester's Comments, attach. 4, app. 4, Description of the Optimoor and Dynamoor Mooring Analysis Programs.

4. Maritime identified several alleged problems inherent to mooring large vessels on the Mississippi River that would cause the vessels to be subject to large bow line forces and very large vessel motions forward and aft, that is, surge and sway, because of the river current, the size and speed of vessels traveling the river, and the fact that many facilities utilize mooring buoy systems in lieu of fixed structures. Maritime requested that MSC perform "sufficient analysis . . . to demonstrate conclusively that a proposed facility fully satisfies the technical specifications." Maritime further stated that should "MSC decide to waive or reduce the technical specifications . . . we request that the solicitation be reopened to permit us to offer sites along the Mississippi River." Agency Report, Tab 42, Maritime Letter to MSC (Oct. 6, 1999).

5. Pursuant to 4 C.F.R. § 21.4(a) (2000), our Office may issue a protective order in a protest, as we did here, limiting the release of certain nonpublic documents (or portions of documents) to individuals who have been admitted to the protective order.

6. MSC initially argues that the protest is untimely because Maritime is challenging the agency's decision to accept layberth sites located on the Mississippi River. MSC contends that Maritime was required to protest this issue after receiving the agency's November 30 letter, in which MSC advised Maritime that facilities located on the Mississippi River would be evaluated and considered for award. We think that MSC has mischaracterized Maritime's protest, particularly given MSC's assurances that it would evaluate proposals' compliance with the RFP requirements. Maritime's protest challenges MSC's evaluation of Violet's proposal, not whether MSC could accept layberth sites located on the Mississippi River.

7. Maritime states that the maximum allowable surge requirement contained in the RFP was developed by MSC after a 1988 accident at the Violet facility, where two people sustained serious personal injuries because a vessel had surged. Protester's Comments, attach. 1, Accident Report.

8. For example, the engineer notes that the proposal did not document why it chose a relatively small vessel as the hypothetical passing ship for the analysis, given that the New Orleans Board of Trade record shows that much larger vessels travel this section of the river. Protester's Comments, attach. 4, Declaration of C. Allan Hubler, at 8, 11; see Tr. at 46. The engineer argues that a more accurate surge analysis would have considered the largest vessels traveling the river, since the surge requirements had to be met at all times, which would have caused the calculation to show surge in excess of the RFP requirement. Protester's Comments, attach. 4, Declaration of C. Allan Hubler, at 8, 11. Also, the engineer notes that Violet made calculations as if the mooring lines were attached to rigid structures rather than the multiple buoy mooring system it proposed. Id. at 11-12. The engineer also states that Violet's mooring plan and surge analysis lacked sufficient information for MSC to properly determine that Violet met the surge requirements. Protester's Comments, attach. 4, Declaration of C. Allan Hubler, at 19.

9. The MSC evaluator also testified that he lacked the capability to do an Optimoor analysis because he was not provided a copy of this program. Tr. at 181, 183-84.

10. The MSC evaluator testified that if a larger vessel had been selected as the passing ship, there would have been a larger surge force than reflected in Violet's analysis as included in its proposal. Tr. at 189.

11. There are no contemporaneous documents of this individual's evaluation of Violet's proposed mooring plan.

12. The contract monitor testified that large ships were passing anywhere from 200 to 300 feet from the FSS vessel moored at Violet dock's pier 5. Tr. at 104. The president of the Crescent River Port Pilots' Association, whose letter concerning river traffic was included in Violet's proposal, testified that there were no laws or regulations that prohibit transiting vessels from passing less than 200 feet from moored vessels and no speed limits on passing vessels. Tr. at 39, 46-47. In January 2000, MSC commissioned a study to evaluate surging at pier 5, which recommended that various measures be taken as to how vessels are moored to address the extreme surging of the FSS ships, but concluded that "it is difficult to confirm by review" whether Violet's facility could meet the surge requirements. See ABS Group Violet Layberth (Feb. 15, 2000). Subsequent observations by ABS noted surge in excess of 7 feet when a number of large ships passed the moored FSS ship in Violet's facility, even after a new mooring plan had been implemented. ABS Draft Study of Mississippi River Traffic Violet Dock (Mar. 25, 2000).