B-177668, APR 24, 1973

B-177668, APR 24, 1973

DECISION DENYING PROTEST OF THE AWARD OF A CONTRACT BY THE NAVAL SHIP SYSTEMS COMMAND TO OCEAN SEARCH, INC., UNDER RFP N00024-72-R-0569(Q). EVALUATION OF KEY POSITIONS CANDIDATES, FOR POSITIONS OF SENIOR PROJECT MANAGER, PROJECT MANAGER AND PROJECT COORDINATOR, RESULTED IN AWARD GOING TO OCEAN SEARCH, INC. WHICH WAS CONSIDERED BETTER QUALIFIED TO PERFORM.

TO OCEAN SYSTEMS, INC.:

WE ARE IN RECEIPT OF YOUR LETTER OF MARCH 28, 1973, AND PRIOR CORRESPONDENCE, PROTESTING THE AWARD OF A CONTRACT BY THE NAVAL SHIP SYSTEMS COMMAND TO OCEAN SEARCH, INC., UNDER REQUEST FOR PROPOSALS (RFP) N00024-72-R-0569(Q) FOR AIRCRAFT SALVAGE, DEEP RECOVERY, AND RELATED OCEAN ENGINEERING SERVICES.

YOU CONTEND THAT THE AWARD SHOULD HAVE BEEN MADE TO YOUR COMPANY BECAUSE IT WAS DETERMINED TO BE CAPABLE OF PERFORMING THE SERVICES AND PROPOSED RATES WHICH WERE LOWER THAN THOSE OFFERED BY OCEAN SEARCH. IN THAT CONNECTION, YOU HAVE STATED THAT WHEN "BEST AND FINAL" OFFERS WERE SOLICITED "PRICE BECAME THE PRIMARY BASIS FOR MAKING AWARD OF A CONTRACT." IN SUPPORT OF THAT POSITION, YOU HAVE STATED:

"BEST AND FINAL" ARE COMMONLY USED "WORDS OF ART" IN THE GOVERNMENT CONTRACTS FIELD WHICH ARE ALWAYS USED IN CONNECTION WITH PRICE. WHENEVER THIS TERM IS QUOTED IT INDICATES THAT AN AWARD WILL BE MADE TO SYSTEMS' CANDIDATES WERE EVALUATED LESS FAVORABLY. ONE WAS DETERMINED NOT QUALIFIED BECAUSE OF INSUFFICIENT MARITIME EXPERIENCE, HAVING JUST ENTERED THE MARITIME INDUSTRY IN OCTOBER OF 1971, AND FOR NOT POSSESSING ANY DEMONSTRATED COMPETENCE IN SPECIFIC SEARCH OR RECOVERY OPERATIONS. HIS QUALIFICATIONS ALSO WERE DOWNGRADED FOR FAILURE TO EXHIBIT ANY SPECIALIZED RELATED TRAINING SUCH AS IN SUBMARINES AND/OR SALVAGE DIVING. OCEAN SYSTEMS' SECOND CANDIDATE WAS DETERMINED TO HAVE SUFFICIENT TRAINING. HE, HOWEVER, LACKED THE EXPERIENCE SOUGHT SINCE HE HAD NEVER BEFORE BEEN A SENIOR PROJECT MANAGER AND HAD PARTICIPATED IN RELATIVELY FEW AIRCRAFT SEARCH AND RECOVERY OPERATIONS. THEREFORE, HE WAS CATEGORIZED AS A POTENTIAL SENIOR PROJECT MANAGER, BUT NOT A PROPER CANDIDATE FOR THE PRESENT JOB.

THE OTHER KEY PERSONNEL REQUESTED IN THE SOLICITATION WERE A PROJECT MANAGER, "A HIGHLY QUALIFIED INDIVIDUAL WHO MAY BE ASSIGNED TO ASSIST A SENIOR PROJECT MANAGER IN PERFORMANCE OF A TASK OR TO BE IN CHARGE OF A TASK TO WHICH NO SENIOR PROJECT MANAGER IS ASSIGNED," AND A PROJECT COORDINATOR, "A QUALIFIED PERSON, BASED AT THE CONTRACTOR'S WASHINGTON, D.C. AREA OFFICE AND CONTINUOUSLY AVAILABLE FOR ASSIGNMENT IN ANY ASPECT OF A SPECIFIC TASK, WHOSE FUNCTION IS TO PROVIDE LIAISON COMMUNICATION, AND PLANNING SERVICES BETWEEN THE PROJECT MANAGER AND THE SUPERVISOR OF SALVAGE THROUGHOUT THE DURATION OF THE TASK. HE IS THE OPERATIONAL INTERFACE IN THE MATERIAL AND PERSONNEL ASPECTS OF THE TASK WITH RESPONSIBILITIES CORRESPONDING TO THOSE OF THE LOGISTICS COORDINATOR IN HIS FIELD."

FOR THESE POSITIONS, OCEAN SEARCH'S CANDIDATES WERE ALL RATED EITHER SELECTED WAS BECAUSE OF THE OVERHEAD RATES YOU OFFERED AND THE FAILURE TO QUOTE A PRICE FOR A TV CAMERA, THE AGENCY RECORD INDICATES THAT THE REASON OCEAN SEARCH WAS SELECTED WAS THAT IT WAS CONSIDERED TO BE BETTER QUALIFIED TO PERFORM. IN THAT REGARD, AN AUGUST 8, 1972, MEMORANDUM IN THE RECORD RECOGNIZED THAT THE RATES OFFERED BY YOUR COMPANY WERE ABOUT 20 PERCENT LESS THAN THOSE QUOTED BY OCEAN SEARCH AND STATED:

2. IN SPITE OF THE LOWER RATES QUOTED BY OCEAN SYSTEMS, WE HAVE DECIDED TO SELECT OCEAN SEARCH BECAUSE, IN OUR PROFESSIONAL OPINION, THE KEY TO SUCCESS OR FAILURE OF THE TYPE OF SALVAGE OPERATIONS CONTEMPLATED UNDER THE RFP DEPENDS DIRECTLY ON THE QUALIFICATION AND EXPERIENCE OF KEY CONTRACTOR PERSONNEL. BY REFERENCE (A) WE HAVE PROVIDED A COMPARISON OF PERSONNEL QUALIFICATIONS OFFERED BY OCEAN SYSTEMS AND OCEAN SEARCH WHICH CLEARLY INDICATES THAT FROM A TECHNICAL OR OPERATIONAL STANDPOINT, OCEAN SEARCH IS SUPERIOR.

3. IN OUR OPINION, THE OPERATIONAL CONSIDERATION INVOLVED FAR OUTWEIGHS THE FINANCIAL CONSIDERATIONS AND ACCORDINGLY REQUEST THAT THE SUBJECT RFP BE AWARDED TO OCEAN SEARCH, INC.

FROM THE FOREGOING, IT IS APPARENT THAT PRICE WAS CONSIDERED IN THE EVALUATION OF PROPOSALS AND IT WAS DETERMINED THAT THE QUALIFICATIONS OF THE SUCCESSFUL OFFEROR OUTWEIGHED THAT FACTOR. IN 50 COMP. GEN. 110 (1970), IT WAS HELD THAT IN A NEGOTIATED PROCUREMENT IT IS WITHIN THE DISCRETION OF THE CONTRACTING AGENCY TO DETERMINE THAT IT IS TO THE GOVERNMENT'S ADVANTAGE TO AWARD A CONTRACT TO OTHER THAN THE LOW OFFEROR.

WITH RESPECT TO YOUR CONTENTION THAT "BEST AND FINAL" ARE TERMS OF ART