TITLE:  Oceaneering International, Inc., B-287325, June 5, 2001
BNUMBER:  B-287325
DATE:  June 5, 2001
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Oceaneering International, Inc., B-287325, June 5, 2001

Decision

Matter of: Oceaneering International, Inc.

File: B-287325

Date: June 5, 2001

Daniel J. Riley, Esq., O. Kevin Vincent, Esq., and Thomas B. Carr, Esq.,
Baker Botts, for the protester.

Buel White, Esq., for Phoenix International, Inc., the intervenor.

Andrew C. Saunders, Esq., Kelly Swartz, Esq., and John M. Davis, Esq., Naval
Sea Systems Command, for the agency.

Henry J. Gorczycki, Esq., and James A. Spangenberg, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

1. General Accounting Office's granting of an extension of the due date for
the protester's comments on the agency report does not waive the timeliness
requirements for filing a supplemental protest, and thus new and independent
protest issues, first raised in comments submitted more than 10 days after
receipt of the agency report on which the issues were based, are dismissed
as untimely.

2. Agency reasonably evaluated the comparative degree of relevance of the
past contract experience of offerors under the experience factor, and not
under the past performance factor, consistent with the solicitation's
evaluation scheme.

3. Agency's determination that the corporate experience of the awardee was
equivalent to that of the incumbent is reasonable where the awardee
performed contract work very similar to the work required under the
solicitation and where the awardee's proposed key management personnel
possessed significant experience.

4. Agency was not required by the solicitation to contact sources of
information relating to an offeror's past performance, but has the
discretion to consider only the references listed in the proposal.

5. Agency may have a reasonable basis to consider one proposal superior to
another under an evaluation factor, even though both proposals are awarded
the same rating for the factor.

6. Agency's evaluation of an oral presentation in response to a solicitation
for an international undersea search, salvage and rescue operations contract
did not use an unstated evaluation factor in considering whether offerors
discussed alternative ports of mobilization where this element is intrinsic
to one of the matters that was to be addressed in the oral
presentation--mobilization.

7. Agency's failure to obtain or consider supporting cost data for
subcontractor costs in the cost evaluation is unobjectionable, where the
solicitation stipulated for evaluation purposes an amount for the cost
reimbursable subcontract costs, the solicitation only required the
submission of such data "as appropriate," and neither the protester nor the
awardee submitted this supporting cost data.

DECISION

Oceaneering International, Inc. protests an award to Phoenix International,
Inc. under request for proposals (RFP) No. N00024-R-4114, issued by the
Naval Sea Systems Command (NAVSEA), for undersea operations services.

We deny the protest.

BACKGROUND

The mission of NAVSEA's Office of the Director of Ocean Engineering,
Supervisor of Salvage and Diving (SUPSALV), is to provide support to the
Navy and other agencies in the ocean engineering disciplines. In doing so,
SUPSALV maintains contracts to supplement the Navy's salvage, search,
recovery and rescue capabilities. The primary purpose of the contract
contemplated by this RFP is to provide services that assist the Navy in
conducting undersea search, salvage and rescue operations on a worldwide
basis. Oceaneering is the incumbent contractor for these services. Phoenix
is the incumbent contractor for SUPSALV's worldwide diving services
contract.

The RFP, issued on September 11, 2000, contemplated the award of an
indefinite-delivery/indefinite-quantity contract at fixed-price rates, with
provision for some cost-reimbursement type services, for 1 year with 4
option years. Work will be ordered under the contract by delivery orders
that may include fixed rate "scheduled" items as well as cost reimbursable
"nonscheduled" items. The scheduled items were for various categories of
personnel, for which fixed hourly rates were required to be offered, as well
as for certain equipment. The nonscheduled cost reimbursable items included
subcontract costs. According to the RFP, evaluated cost was to be based on
an analysis of the reasonableness, realism and completeness of the offerors'
responses to five scenarios included in schedule C of the RFP. For each of
the scenarios, the RFP specified the hours for each scheduled item, for
which the offeror was to provide their rates; for nonscheduled items,
including subcontracting costs, the RFP stated dollar figures that were
applicable to all offerors, and offerors were to provide only the dollar
value of their firm's burdens applicable to the stated cost figures. The RFP
provided for the submission of supporting cost data for the offeror's
indirect costs and subcontracted costs where appropriate.

The awardee was to be the responsible offeror whose acceptable proposal
represented the best value as determined in accordance with the stated
evaluation factors and subfactors. The technical evaluation factors and
their relative importance were as follows: technical capability--30 percent;
management approach--30 percent; experience--25 percent; and organizational
past performance--15 percent. The technical capability factor had the
following three equally weighted subfactors: oral presentation, resumes, and
facilities. The RFP stated that the technical evaluation factors were
significantly more important than evaluated cost. The RFP stated that it was
intended that award would be made without discussions.

NAVSEA received proposals from Oceaneering and Phoenix. The agency rated
Phoenix's proposal outstanding (i.e., the highest adjectival rating) under
all factors and subfactors, and rated Oceaneering's proposal outstanding
under all factors and subfactors, with the exception of a good rating (i.e.,
the second highest rating) under the resumes subfactor of the technical
capability factor. Phoenix's proposal had the lowest evaluated cost of
$27,442,727. Oceaneering's evaluated cost was $28,255,921. NAVSEA selected
Phoenix's proposal for award. The source selection decision stated the
following:

4. Although the SSET concluded that both offers were outstanding in
technical capability, it determined the Phoenix proposal was stronger
overall in the technical capability factor. In the resumes subfactor,
Phoenix's proposed Search and [Remotely Operated Vehicles (ROV)] Operation
Project Managers . . . and Search Operation Assistant Project Managers . . .
were better suited to conduct SUPSALV search and recovery operations.

5. Phoenix's search capability advantage was also evident in the technical
(quiz) problem of the oral presentation. While Phoenix presented an
excellent plan for locating the lost sonar using the Side Scan Sonar (SSS),
Oceaneering assumed they could not locate the target initially with the SSS.
They continued the search utilizing the [ROV] which is not normally used as
[a] search tool and therefore complicated the search and recovery efforts.
Phoenix's search capabilities will likely lead to increased efficiencies and
ultimately, lowered SUPSALV operating costs.

6. The two offerors' facilities were also evaluated as outstanding; however,
the Phoenix proposal had a significant advantage. Phoenix's water front
location and pier significantly enhances full operational and maintenance
testing of all [government furnished equipment]. The waterfront location
could also be used as a mobilization/
demobilization site for search and recovery operations.

7. Although Phoenix's operational and maintenance experience has been
relatively short[,] it was rated substantially equal to Oceaneering['s]. The
five documented search and recovery operations were very similar to many
SUPSALV search and recovery operations and were conducted flawlessly. Three
of those tasks were in water depths in excess of 9,000 [feet of seawater].
Phoenix also participated in Operation Pacific Reach 2000 Submarine Rescue
Exercise and completed three SUPSALV search and recovery operations.
Successful completion of these operations demonstrated the vast operational
and maintenance experience. In addition, Oceaneering has more years as a
corporation, Phoenix was found to have more experience in its personnel.
Based on this conclusion, both Offerors' operational and maintenance
experience was considered equal. In all other ratings, Phoenix and
Oceaneering were considered to be substantially equal.

8. The [Cost Analysis Panel] . . . concluded the Phoenix proposal normalized
cost was approximately $800,000 less than the Oceaneering proposal.

9. Based on the foregoing, award of the contract to Phoenix is considered to
be in accordance with the predetermined source selection methodology, and is
moreover in the best interest of the Government. Phoenix's proposal was
rated higher than Oceaneering's proposal in the technical capability factor
and in all of the other evaluation factors the proposals were rated
substantially equal; Phoenix's evaluated price is lower than Oceaneering's
evaluated price.

Agency Report, Tab 8, Source Selection Evaluation Team (SSET) Recommendation
of Award, at 2-3. [1]

On February 14, 2001, NAVSEA awarded the contract to Phoenix. Following a
debriefing, Oceaneering filed this protest on February 26. NAVSEA has issued
a stop work order under Phoenix's contract.

PROTESTS

Oceaneering's initial protest raised the following protest issues: (1)
NAVSEA's technical evaluation was unfair and unreasonable because, although
the agency considered the greater experience of Phoenix's proposed project
management key personnel in rating Phoenix's proposal higher under the
resumes subfactor of the technical capability factor, NAVSEA did not
consider Oceaneering's greater organizational experience in rating the two
proposals equivalent under the other factors and subfactors, Protest at 3-4,
15-17; (2) NAVSEA's evaluation under the experience and past performance
factors did not properly consider the extent to which proposed personnel had
worked together on the offerors' past projects, id. at 4, 17; (3) NAVSEA
failed to seek past performance information, other than that provided by
contract references identified in the proposal, in evaluating Phoenix's past
performance, id. at 4, 17-19; (4) NAVSEA deviated from the rating system
stated in the RFP, which required the agency to consider as equivalent
proposals receiving the same adjectival rating, in that the agency
improperly considered Phoenix's oral presentation to be better than
Oceaneering's, although both offerors received the same outstanding rating,
id. at 19; (5) NAVSEA evaluated oral presentation quiz responses using an
unstated evaluation criterion--the extent to which offerors discussed
alternative mobilization ports, id. at 4, 19-20; and (6) NAVSEA failed to
conduct a proper cost realism analysis on Phoenix's "unscheduled"
subcontract costs because Phoenix did not submit supporting cost data for
its subcontractors,
id. at 4, 20-21.

Following the submission of NAVSEA's report on the protest, Oceaneering
submitted two sets of comments that raised additional protest grounds. As a
result of Oceaneering's request for an extension, which we granted,
Oceaneering filed its initial comments on the report with our Office on
April 11, 13 days after it had received the agency report providing the
bases for these additional protest grounds. These additional protest grounds
were: (1) Phoenix's proposal improperly relied on the past performance of a
proposed subcontractor for one of five contract references, Protester's
Comments, at 7-8, 12; (2) NAVSEA's evaluation of Oceaneering's proposal
under the oral presentation subfactor of the technical capability factor was
unreasonable with respect to Oceaneering's presumptions regarding its use of
the SSS, id. at 16-17; (3) NAVSEA failed to evaluate deficiencies in the
qualifications of Phoenix's proposed technical key personnel, such that
Oceaneering's key personnel should have been considered superior overall to
Phoenix's key personnel, id. at 2-7; (4) Phoenix's resumes for its key
personnel exceeded the page limitation stated in the RFP, Protester's
Supplemental Comments (Apr. 30, 2001) at 9-10; (5) NAVSEA did not have
adequate supporting cost data for Phoenix's own proposed indirect rates
applicable to nonscheduled costs as required by the RFP, Protester's
Comments at 19-20; (6) NAVSEA's cost evaluation improperly evaluated
Phoenix's hazardous duty premium and lead electronic technician rates, id.
at 20-21; and (7) NAVSEA failed to evaluate the reasonableness and realism
of the costs of submarine rescue operations, id. at 23.

UNTIMELY PROTEST ISSUES

The agency asserts that the additional protest grounds were untimely filed
because they arise from information in the agency report and accompanying
documents received by the protester on March 29, and these additional
protest grounds were not filed in our Office within 10 days of that date.
Bid Protest Regulations, 4 C.F.R. sect. 21.2(a)(2) (2001). Oceaneering responds
that these issues were not new grounds of protest, but rather provided
additional support for its initial protest challenging the propriety of
NAVSEA's technical and cost evaluations.

As a general rule, the timeliness of specific bases of protest raised after
the filing of a timely protest depends on the relationship the later-raised
bases bear to the initial protest. Where the later-raised bases present new
and independent grounds for protest, they must independently satisfy our
timeliness requirements; conversely, where the later-raised bases merely
provide additional support for an earlier, timely raised protest basis, we
will consider the later-raised arguments. Ti Hu, Inc., B-284360, Mar. 31,
2000, 2000 CPD para. 62 at 4.

Here, Oceaneering's additional protest issues constitute new and independent
protest grounds, rather than additional support for the initial protest
grounds. For example, Oceaneering's initial challenges to the evaluation of
past performance essentially concern the degree to which Oceaneering's past
performance rating should have been higher than Phoenix's because Phoenix's
organizational experience has been on relevant but allegedly less complex
contracts than Oceaneering's, whereas in its later-raised protest ground it
alleged that the agency should not have evaluated one of the contract
references listed in Phoenix's proposal because it was for a subcontractor.
As a second example, we note that the initial protest of the cost evaluation
was that the agency did not have or evaluate cost data for Phoenix's
subcontractors as required by the RFP and thus could not evaluate the cost
realism of Phoenix's unscheduled subcontracting costs, whereas in its
later-raised protest grounds it alleged that the agency did not have
adequate information on, or did not reasonably evaluate, Phoenix's own cost
data regarding its indirect rates, and that other elements of Phoenix's cost
proposal (other than subcontract costs) were misevaluated. In all cases,
although the initial and later-raised protest grounds have evaluation
factors in common, the nature of the allegations are significantly
different, so as to constitute separate and independent protest grounds that
must satisfy the timeliness requirements of our Bid Protest Regulations. See
id. (example of separate and independent protest grounds arising under the
same evaluation factor); RAMCOR Servs. Group, Inc., A-276633.2 et al., Mar.
23, 1998, 98-1 CPD para. 121 at 9 n.9 (individual examples of flaws in
evaluation must be alleged in a timely manner); Vinnell Corp., B-270793,
B-270793.2, Apr. 24, 1996, 96-1 CPD para. 271 at 7 (same).

The fact that our Office granted the protester's request for an extension on
filing its comments did not, and cannot, waive the timeliness requirements
for filing new bid protest issues. [2] ATA Defense Indus., Inc., B-282511.8,
May 18, 2000, 2000 CPD para. 81 at 4. We therefore dismiss these additional
protest grounds as untimely. [3]

DISCUSSION

Oceaneering timely challenges various aspects of the agency's evaluation of
the proposals. In considering such a protest, we will examine the record to
determine whether the agency's judgment was reasonable and consistent with
stated evaluation

criteria and applicable statutes and regulations. Modern Techs. Corp. et
al., B-278695 et al., Mar. 4, 1998, 98-1 CPD para. 81 at 6. In our review of the
agency's evaluation here, we have considered each of the protester's many
timely raised allegations and, while we do not address each in detail, we
find no basis to overturn NAVSEA's selection decision.

Oceaneering's first general area of protest is that, under the
organizational past performance and experience factors, NAVSEA did not
reasonably evaluate the comparative degree of relevance of the two offerors'
contract histories to the RFP requirements. [4]

Where the solicitation so provides, the contracting agency's past
performance evaluation should meaningfully consider the similarity of an
offeror's contracts to that of the contract to be awarded. Beneco Enters.,
Inc., B-283512.3, July 10, 2000, 2000 CPD para. 176 at 7-8 n.4; Chem-Services of
Indiana, Inc., B-253905, Oct. 28, 1993, 93-2 CPD para. 262 at 3-4. We think the
agency did so here consistent with the terms of the RFP.

While recognizing that organizational past performance would only be
evaluated based on relevant contracts, the RFP did not provide for a
specific assessment of the degree of relevance of prior contracts to the RFP
requirements under the past performance factor, but provided for the degree
of relevance of contracts performed to be evaluated under the experience
factor. The RFP stated:

Past performance is a measure of the degree to which an offeror satisfied
its customers in the past and complied with Federal, state, and local laws
and regulations. The Government will contact some of each offeror's
customers to ask whether or not they believe: (1) that the offeror was
capable, efficient, and effective; (2) that the offeror's performance
conformed to the terms and conditions of its contract; (3) that the offeror
was reasonable and cooperative during performance; (4) that the offeror was
committed to customer satisfaction; and (5) if given a chance would they
select the same or a different contractor team. . . . In the case of an
offeror without a record of relevant past performance or for whom
information on past performance is not available, the offeror will not be
evaluated favorably or unfavorably on past performance.

RFP sect. M.2.5. With regard to the experience factor, the RFP stated:

Experience is the opportunity to learn by doing. The Government will
evaluate each offeror's organizational experience on the basis of its
breadth, its depth, and its relevance to the work that will be required
under the prospective contract, based on the information provided in the
past performance/reference information sheets submitted in [the proposal].
The Government will also consider the organizational experience of the
offeror's proposed subcontractors.

RFP sect. M.2.4, amend. 5 at 2. The agency has the discretion to structure the
evaluation scheme in this manner, and we will not object to an agency's
reasonable evaluation of past performance and experience under such a
scheme. Sigmatech, Inc., B-271821, B-271821.2, Aug. 22, 1996, 96-2 CPD para. 101
at 9 n.14; see Contrack Int'l, Inc., B-270102, B-270102.2, Feb. 8, 1996,
96-1 CPD para. 53 at 3-5.

Here, both offerors have extensive recent experience in international
search, recovery and rescue operations involving the skills, services and
equipment called for under the RFP. Oceaneering does not assert that
Phoenix's contract experience is not relevant to the RFP requirements. Nor
does the protester allege that Phoenix's record of past performance, which
was considered in NAVSEA's evaluation, does not reflect a similar level of
quality of performance as Oceaneering's. Indeed, the contract references for
both offerors reflected that both offerors performed at the highest levels.
Therefore, the record supports the outstanding ratings for both offerors
under the organizational past performance factor and the agency's
determination that the two offerors were equivalent under this factor. [5]

As stated, the experience factor provided for the evaluation of each
offeror's organizational experience on the basis of its breadth, its depth,
and its relevance to the work required under the RFP. Phoenix's proposal
included detailed information on contracts for the international deep sea
search, recovery and/or inspection involving an aircraft, a missile, a ship
and a submarine for military and commercial clients, and a proposed Phoenix
subcontractor's contract for the design, manufacture and support of a
submarine rescue system, as well as Phoenix's SUPSALV contract for worldwide
diving and diving-related services, which included delivery orders for
recovery operations and support for a submarine rescue exercise. Phoenix
Proposal, vol. III sect. 4.5.2, app. B, Past Performance Questionnaires. NAVSEA
considered these contracts to be "very similar" to the operations to be
performed under the solicited contract. Agency Report, Tab 8, SSET
Recommendation of Award, at 2-3. Oceaneering's proposal referenced
operations performed as the incumbent, so its contract experience was on
operations similar to or the same as that which would be required under the
solicited contract. NAVSEA also considered that Oceaneering has been in
business longer than Phoenix, although it found the difference in the extent
of experience between the offerors was offset by the greater experience of
Phoenix's proposed key personnel. Id. at 3.

Oceaneering's contention that Phoenix's contracts are not as relevant as
Oceaneering's was based on the protester's assessment that its experience is
more complex than Phoenix's considering such criteria as greater
international significance of the operation or recovery of more debris
items. However, the RFP did not identify these as relevant criteria and the
protester provides no support, other than its own opinion, to establish
these criteria as important discriminators for degree of relevance of the
offerors' experience. Under the circumstances, we find that NAVSEA's
judgment that the experience of these two offerors was essentially equal was
reasonable. See Modern Techs. Corp. et al., supra, at 7 (where other
offerors have experience on contracts similar to the RFP agency is not
required to evaluate incumbency as an experience advantage); Cygnus Corp.,
B-275957, B-275957.2, Apr. 23, 1997, 97-1 CPD para. 202 at 8-9 (experience of
proposed personnel can reasonably offset lack of corporate experience);
Comtrack Int'l, Inc., supra,
at 3-4 (agency can reasonably consider similar experience of an offeror as
essentially equal to that of the incumbent contractor where the RFP does not
explicitly require or prefer identical experience to the work solicited).
The protester's mere disagreement with the agency evaluation does not
provide a basis for sustaining its protest. Magney Grande Distribution,
Inc., B-286981, Mar. 22, 2001, 2001 CPD para. 56 at 5.

Citing Beneco Enters., Inc., supra, at 7-9 (determination that an offeror's
past performance based on the experience of a single proposed personnel's
work on job order contracts (JOC) was equal to the extensive and successful
JOC past performance of the protester was unreasonable and inconsistent with
the terms of the RFP), the protester also alleges that the agency
unreasonably considered the experience of Phoenix's key personnel equal to
Oceaneering's organizational experience as the incumbent. [6] This argument
is based upon an incorrect representation of the facts. As discussed above,
contrary to the protester's allegation, the agency's evaluation did not
equate the experience of Phoenix's proposed personnel, in and of itself, to
the experience of Oceaneering as an organization, but appropriately gave
significant weight to Phoenix's "very relevant" corporate experience.

Oceaneering next alleges that NAVSEA failed to apply the "50/50" rule for
evaluating the degree to which each offeror's proposed team has worked
together in the past. The RFP proposal preparation instructions for the past
performance reference information sheet, which was to be used to evaluate
organizational past performance and experience, states the following:

The degree to which the offeror's team has worked together in the past is
also an important consideration of the offeror's ability to perform.
Therefore, for each referenced contract, the contractor shall provide the
approximate number of people dedicated at least 50% of the time during
referenced contract period of performance, who will also be assigned to the
proposed team for this effort at least 50% of the time.

RFP sect. L.4.4. The protester asserts that it had proposed more people meeting
this standard than did Phoenix, and thus should have received a higher
rating than Phoenix under the past performance and/or experience factors.

NAVSEA states that the RFP requested the information, but did not establish
a "rule," or the mathematical formula proposed by the protester, for
evaluating the degree to which proposed personnel had worked together
previously. NAVSEA found that the information submitted showed that both
offerors proposed personnel who had worked together under prior contracts
and that this was not a distinguishing factor between the offerors.

It is apparent that the requested information concerning the "approximate
number" of people assigned to this contract who have previously worked
together was solicited to evaluate the offerors' experience, even though
this was not one of the elements mentioned in describing the experience
evaluation factor. [7] Given that the RFP did not request the specific
identification of individuals who have worked together, we agree with the
agency that a mathematical comparison of the relative numbers of proposed
personnel who have worked together previously was not envisioned by the RFP.
Moreover, based on our review of the proposals, both of which described
significant instances of proposed personnel having worked together
previously, we think the agency could have reasonably concluded that this
was not a distinguishing factor between the offerors' relative experience.

The protester next alleges that the RFP required the agency to contact other
sources of past performance information than the references provided by the
offerors, and that NAVSEA failed to do this. The pertinent RFP provision
states:

In evaluating past performance the Government will contact some of the
references provided by the offeror and other sources of information,
including, but not limited to: Federal, state, and local government
agencies, better business bureaus, published media, and electronic data
bases. The Government may consider past performance information obtained
from sources other than those identified by the offeror.

RFP sect. M.2.5. The protester contends that the language "will contact" applies
directly to the phrase "other sources of information." Oceaneering claims
that if the agency had looked at other sources of information as required,
it would have readily discovered that the Discovery Channel was dissatisfied
with Phoenix's performance on the USS Indianapolis contract, which should
have adversely affected Phoenix's organizational past performance
evaluation.

The agency denies that it was obligated to contact other sources of
information, although it did so, and posits that from its review of the
documentation of record concerning the performance of the USS Indianapolis
contract, it does not believe the Discovery Channel was dissatisfied with
Phoenix's contract performance.

The protester's argument does not consider the word "some" in the first
sentence of this provision. There is no punctuation in the sentence to
suggest that the phrase "will contact some" does not apply in total to all
sources identified after it. Thus, the RFP provides that the agency will
contact some, but not necessarily all, of the sources listed in the
sentence. This reading is consistent with the use of the permissive "may
consider" other information stated in the very next sentence in the
provision. This reading is also consistent with the agency's answer to an
offeror question concerning this section of the RFP, stating the RFP
provides that information "may be obtained ‘from other sources of
information.'" RFP amend 5, attach. 1, NAVSEA's Answers to Offerors'
Questions. It is also consistent with the discretion that rests with
agencies in determining the number of sources to contact for evaluating past
performance. See Braswell Servs. Group, Inc., B-278921.2, June 17, 1998,
98-2 CPD para. 10 at 6 (no legal requirement for agency to consider past
performance references). Here, the agency contacted the contract references
identified in the proposals and evaluated past performance based on the
information it obtained; this is consistent with the stated evaluation
scheme and the agency's discretion. [8]

The protester also alleges that it was improper under the stated evaluation
rating scheme for the agency to consider Phoenix's oral presentation as
better than Oceaneering's when both received the same adjectival rating of
outstanding. We disagree.

There is nothing improper with the agency identifying strengths and
weaknesses under an adjectival rating scheme, as the agency did here.
Adjectival ratings and point scores are only a guide to assist agencies in
evaluating proposals; information on advantages and disadvantages of
proposals is the type of information that source selection officials should
have in addition to ratings and point scores to enable them to determine
whether and to what extent meaningful differences exist between proposals.
Israel Aircraft Indus., Ltd., MATA Helicopters Div., B-274389 et al.,
Dec. 6, 1996, 97-1 CPD para. 41 at 7. Proposals with the same adjectival rating
are not necessarily of equal quality and the agency may properly consider
specific advantages that make one proposal of higher quality than another. A
& W Maintenance Servs., Inc.--Recon., B-255711.2, Jan. 17, 1995, 95-1 CPD
para. 24 at 4.

In this case, NAVSEA determined that one of the meaningful differences in
the offerors' quiz responses was that Phoenix addressed alternative ports of
mobilization for responding to the search and recovery problem presented by
the quiz and Oceaneering did not. Oceaneering alleges that this constituted
an unstated evaluation criterion that could not be used to distinguish quiz
responses without disclosing in the RFP that this was an element of the
evaluation. The RFP instructions for the oral presentation stated topics
that offerors were to address in responding to the search and recovery
technical problems, the first of which was mobilization of vessels,
personnel, equipment and supplies. [9] RFP sect. L.3.1. We think that discussing
alternative ports of mobilization is intrinsic to the evaluation of the
mobilization component of the oral presentation subfactor, and, as such, it
is not an unstated evaluation criterion. See Sturm, Ruger & Co., Inc.,
B-250193, Jan. 14, 1993, 93-1 CPD 42 at 5-6 n.7 (evaluated element need not
be stated in RFP where it is intrinsic to criteria that are stated in RFP);
Marine Animal Prods. Int'l, Inc., B-247150.2, July 13, 1992, 92-2 CPD para. 16
at 6 (same). Although the protester contends there was no need for it to
discuss alternative ports because it had selected the best port in response
to the quiz problem, we think that, given the many uncertainties that the
contractor will face in performing under the contract, NAVSEA reasonably
evaluated as a weakness Oceaneering's failure to anticipate contingencies
when identifying a mobilization port. [10]

The final protest ground concerns the RFP request for cost data for
subcontractors. Oceaneering states that the purpose of requesting this
information was to enable the agency to perform a cost realism assessment on
the unscheduled costs (i.e., part of the cost reimbursable portion of the
contract) for each offeror. The agency did not obtain cost data for
Phoenix's subcontractors, and thus Oceaneering alleges that NAVSEA could not
perform a cost realism analysis of Phoenix's unscheduled subcontracting
costs as required. The agency responds that the RFP did not contemplate a
cost realism analysis of unscheduled subcontracting costs, and the RFP was
so structured because such costs applicable to a given proposal under this
RFP could not be predicted in advance of an operation and any attempt to do
so would not provide a realistic comparison of offerors' proposed costs.

The RFP stated the following under the evaluated cost factor:

The evaluation will be based on an analysis of the reasonableness, realism
and completeness of the cost data. Pertinent cost information, . . . as
necessary and appropriate, will be used to arrive at the Government
determination of the realism of the offeror's Schedule C Pricing Formats. If
proposed costs are considered to be unrealistic, including unrealistic
indirect rates, the offeror's proposed costs will be adjusted upward or
downward to reflect more realistic costs.

RFP sect. M.2.6. As noted, the five schedule C pricing scenarios stipulated the
labor positions and corresponding hours to be used; offerors were to apply
their proposed labor rates and other costs to complete the pricing
scenarios. For the unscheduled subcontracting cost items, the agency
stipulated the same subcontracting costs for all offerors. The only costs an
offeror was to propose in relation to these stipulated costs were its own
burden rates on these subcontracted costs. RFP sect. M.5.2.a requires that
supporting cost data be provided for the offeror's burden rates and
RFP sect. M.5.2.b requires this same burden rate information be provided for
subcontractors "as appropriate." Neither offeror provided the subcontractor
supporting cost data. Given that the RFP stipulated the amounts for
unscheduled subcontracting costs and did not provide a mechanism for
assessing the cost realism of such costs, and that the protester and awardee
similarly responded to the RFP and were treated identically with respect to
not providing supporting subcontractor cost data, the agency's failure to
obtain or assess this data provides no basis to sustain this protest ground.
[11]

The protest is denied.

Anthony H. Gamboa

General Counsel

Notes

1. The SSET Recommendation for Award was prepared by the SSET for the Source
Selection Authority (SSA). The SSA agreed with the recommendation and did
not prepare a separate source selection decision document. Agency Report,
Tab 14, Business Clearance Memorandum, at 10-11.

2. The protester requests that, for its allegation that NAVSEA failed to
consider the cost resulting to the government for submarine rescue
operations, we consider this protest ground under the significant issue
exception to the timeliness requirements of our Bid Protest Regulations, 4
C.F.R. sect. 21.2(c). Protester's Supplemental Comments (Apr. 30, 2001) at
21-22. Our Office will review an untimely protest under the significant
issue exception only if the matter raised is of widespread interest to the
procurement community and has not been considered on the merits in a
previous decision. Source Diversified, Inc., B-259034, Mar. 1, 1995, 95-1
CPD para. 119 at 3. Here, Oceaneering itself states that our Office has
previously considered on the merits the issue of an agency's requirement to
consider cost or price in its source selection. Protester's Supplemental
Comments (Apr. 30, 2001) at 21 (citing S. J. Thomas Co., Inc., B-283192,
Oct. 20, 1999, 99-2 CPD para. 73). Also, the issue is limited to a particular
procurement and we do not believe that it is of widespread interest to the
procurement community. See Source Diversified, Inc., supra, at 3-4. Thus, we
do not consider this protest ground to fall under the significant issue
exception of our timeliness rules.

3. With regard to the additional protest ground concerning NAVSEA's
evaluation of Oceaneering's use of the SSS in its oral presentation quiz
response, the protester concedes that this weakness was communicated to it
both at its February 22 debriefing and in the agency report, but alleges
that its knowledge of this issue, first raised by the protester in its April
11 comments on the agency report, should be based on its receipt of an
audible copy of its oral presentation on April 5 because "[d]uring the
debriefing, Oceaneering's personnel had no specific recollection of the
assumptions that they had communicated to the evaluators during the quiz
response." Protester's Supplemental Comments (Apr. 30, 2001) at 7. We do not
believe that the quality of a protester's memory as to what it said at the
oral presentation should be a basis for tolling of the time period for
filing protests.
We also note that the protester does not deny the gist of the oral
presentation on which this protest ground is based, but only disputes
whether it should have been assessed a weakness for this aspect of the oral
presentation. Thus, this protest basis was untimely raised.

4. The protester also generally alleged that this protest ground applied to
the evaluation under the technical capability factor. However, it did not
develop, produce support for, or otherwise allege any examples of, an
improper evaluation under this factor concerning the degree of relevant
experience of the offerors.

5. Oceaneering alleges that NAVSEA improperly considered the personal
experience of proposed personnel in evaluating Phoenix's proposal under the
past performance factor, even though the RFP expressly precluded the
consideration of the personal past performance of key personnel in
evaluating organizational past performance. See RFP sect. M.2.5. Contrary to the
protester's unsupported allegation, the record of evaluations under the
organizational past performance factor shows that the agency did not violate
this preclusion. Agency Report, Tab 7, Consensus Evaluator Worksheet, at
9-10, 18; Tab 13, Individual Evaluators' Worksheets.

6. To the extent the agency considered the experience of proposed personnel
under the experience factor, we note that the RFP did not preclude such
consideration under that factor and, absent such preclusion, we believe that
the agency has the discretion to consider such information when evaluating a
firm's experience.
See Cygnus Corp., supra (agency may properly consider experience of proposed
personnel in evaluating the organizational experience of the offeror, even
where the solicitation defines the factor in terms of corporate experience).
The protester does not assert that key personnel experience cannot be
considered under the experience factor, but only that key personnel
experience should not have the same weight as corporate experience under
this factor.

7. This information could not relate to the past performance factor, which,
as indicated, did not evaluate the relative relevance of contracts or
consider key personnel's experience.

8. The parties dispute whether the agency contacted sources other than those
identified in Phoenix's proposal. Given that the RFP did not require the
agency to contact additional sources, the dispute is academic.

9. No criteria for evaluating the oral presentation subfactor were stated in
section M of the RFP. The agency cited the instruction for presentation
content at RFP sect. L.3.1 as the criteria for evaluating this subfactor. Agency
Report at 36-38. The protester does not disagree.

10. Whether or not the protester's optimism that contingencies are unlikely
is justified, by not discussing this contingency issue during its oral
presentation, the protester missed this opportunity to demonstrate for
evaluation purposes a facet of its technical capabilities.

11. The protester contends that Phoenix has made more extensive use of
subcontractors in its proposal than did Oceaneering in that some of
Phoenix's proposed key personnel are actually subcontractor employees, so
there was a duty for the agency to insist on obtaining supporting
subcontractor cost data from Phoenix, but not Oceaneering. However, as
pointed out by the agency, all key personnel are to be provided at the
scheduled fixed rates, so we see no need to obtain cost data for
subcontractors.