Glenn Def. Marine v. The United States
| Decision Date | 15 February 2011 |
| Docket Number | No. 10-852C,10-852C |
| Parties | GLENN DEFENSE MARINE (ASIA) PTE, LTD, Plaintiff, v. THE UNITED STATES, Defendant. |
| Court | U.S. Claims Court |
Post-award bid protest; Cross-motions for judgment on the administrative record; Standard of review; Single contract versus split award; FAR § 51.212-1(h)-multiple awards; "Lowest total price" evaluation clause; NAVSUP clause reserving right to award single contract; Treatment of extrinsic evidence; Evidence of subjective intent; RFP authorized split award; Relief denied.
OPINIONDavid S. Black, Holland and Knight, LLP, McLean, VA, for plaintiff.
Paul D. Oliver, United States Department of Justice, Washington, D.C., with whom was Assistant Attorney General Tony West, for defendant.
This post-award bid protest is before the court on the parties' cross-motions for judgment on the administrative record. The Navy awarded plaintiff, Glenn Defense Marine (Asia), PTE, Ltd. (Glenn Defense or GDMA), a contract to provide husbanding services to ships docking in two ports in the Philippines. Under the same solicitation, the Navy awarded a similar contract to one of plaintiff's competitors, covering two other ports in the Philippines. Plaintiff contends that it should have received a single award for all four ports. It asserts that the Navy deviated from the solicitation terms in making a split award. Because the court finds that the solicitation, in fact, authorized multiple awards, it DENIES plaintiff's motion for judgment on the administrative record and GRANTS defendant's cross-motion.2
The administrative record in this case reveals the following:
On May 6, 2010, the United States Navy (the Navy) issued a Request for Proposals (RFP) No. N40345-10-R-0077, seeking a contractor to provide husbanding services for Navy ships in four ports in the Philippines. The RFP contemplated the award of an indefinite-delivery, indefinite-quantity (IDIQ) performance-based service contract with a base period of twelve months and an option period of six months. The RFP directed offerors to submit a technical proposal, past performance information, and a pricing schedule, among other documents.
Prior to issuing the RFP, the Navy drafted several presolicitation documents, describing the intended nature and details of the husbanding contract. The contracting officer (CO) circulated these documents were circulated within the agency by the contracting officer (CO); they were not made available to the offerors until well after the awards.
On April 8, 2010, the CO issued the first of these documents, the Pre-Solicitation Strategy (PSS). It stated that "[t]he Government will award a contract for Husbanding Services-Philippines to the responsible offeror who submits the lowest price, technically acceptable offer with acceptable or neutral past performance." In describing the evaluation process, the PSS anticipated that "[t]echnically acceptable proposals with acceptable or neutral past performance will have the price portion of the proposal evaluated with the proposed contract being awarded to the lowest price (all items/all lots) proposal." In the multiple awards section, the PSS explained that "[m]ultiple awards will not be made" for this IDIQ contract because "[a] single award would provide the customer with a seamless point of contact for port and force protection services."
On April 29, 2010, the CO completed the Source Selection Plan (SSP). It stated that "[t]he Government will award one contract for husbanding services in Philippines.... to the responsible offeror who submits the lowest price, technically acceptable offer with acceptable orneutral past performance." It quoted a "Single Award For All Items" NAVSUP clause, which stated that "the Government reserved the right to make a single award...."
On May 4, 2010, the CO finished the final version of the Department of Navy Acquisition Strategy (DONAS). This document described the upcoming solicitation as a "follow-on requirement" of a contract The DONAS anticipated that the U.S. Navy Fleet and Industry Supply Center (FISC) would Under a subsection entitled the DONAS stated that "[t]he RFP will indicate the Government's intent to make a single award."
On May 6, 2010, FISC issued RFP No. N403450-10-R-0077. The RFP was for an IDIQ contract in which "prices [were] firm-fixed-price per unit and [were] inclusive of ALL costs,..." (Emphasis in original). Husbanding services were defined as "provid[ing] all supplies and services required during a port visit," including trash and chemical liquids removal, fresh potable water, food delivery, transportation services, force protection supplies and services, and communications equipment, among other services.
The RFP's Performance Work Statement (PWS) further described the services to be provided under the contract. It stated:
The contract is sub-divided into Lots. Lots may be for individual ports or they may include several ports under one Lot. For this contract, the following Lots apply:
• Lot 1-Manila
• Lot 2-Subic Bay
• Lot 3-Puerto Princesa
The contractor was "required to be able to simultaneously Husband eight (8) ships at once among the ports identified in the lots." The PWS further indicated that It went on to describe the services expected under the Contract Line Items (CLINs), and the corresponding requirements for each offeror's proposal.
Pricing proposals were to be based on Exhibit A of the RFP, which contained a separate spreadsheet for each lot, and listed each service or supply required under a line item subheading. Offerors were to "insert their proposed price for each CLIN and SUBCLIN items." For eachitem, a "Base Year Est[imated] Qty" was provided and the offeror was required to list the "Base Year Unit Price" and "Base Year Total Price." The last spreadsheet in Exhibit A was as follows:
+--------+-------------+--------------+------------+-------+
| LOT 1- | LOT 2-SUBIC | LOT 3-PUETRO | LOT 4-CEBU | TOTAL |
+--------+-------------+--------------+------------+-------+
| MANILA | BAY | PRINCESA | | |
+--------+-------------+--------------+------------+-------+
| $ | $ | $ | $ | $ |
+--------+-------------+--------------+------------+-------+
Price was to be evaluated based on this pricing/fee schedule and "in accordance with FAR [Federal Acquisition Regulations Chapter] 15."
The Navy was to make its award "to the responsible offeror who submits the lowest total price, technically acceptable offer with acceptable or neutral past performance." The RFP incorporated by reference FAR § 52.212-1, "Instructions to Offerors-Commercial Items," which includes the following clause:
(h) Multiple awards. The Government may accept any item or group of items of an offer, unless the offeror qualifies the offer by specific limitations. Unless otherwise provided in the Schedule, offers may not be submitted for quantities less than those specified. The Government reserves the right to make an award on any item for a quantity less than the quantity offered, at the unit price offered, unless the offeror specifies otherwise in the offer.
FAR § 52.212-1. The final paragraph of the RFP quoted the following NAVSUP clause:
Single Award For All Items (JAN 1999) (NAVSUP): Due to the interrelationship of supplies and/or services to be provided hereunder, the Government reserves the right to make a single award to the offeror whose offer is considered in the best interest of the Government, price and other factors considered. Therefore, offerors proposing less than the entire requirement may be determined to be unacceptable.
The RFP required all proposals to be submitted by June 11, 2010.
On June 11, 2010, the Navy received proposals from three contractors: Glenn Defense; Inchcape Shipping Services (Inchcape); and Global Ship Management (Global). After these proposals were received, the Navy determined that the RFP had underestimated the number of ship visits. On July 28, 2010, the Navy amended the RFP to eliminate the six-month option period and to revise Exhibit A, the schedule of supplies and services. On August 5, 2010, Glenn Defense, Inchcape, and Global all submitted revised proposals. The Navy gave each offeror's technical proposal and past performance evaluation a rating of "acceptable." The breakdown of pricing, as reflected in the offerors' pricing schedules, was as follows:
+----------+----------------+----------------+--------------+-------------+----------------+
| | Lot 1-Manila | Lot 2-Subic | Lot 3-Puerto | Lot 4-Cebu | TOTAL |
| | | Bay | Princesa | | |
+----------+----------------+----------------+--------------+-------------+----------------+
| GDMA | $212,670.05 | $457,357.95 | $62,258.80 | $56,601.20 | $788,888.00 |
+----------+----------------+----------------+--------------+-------------+----------------+
| Global | $188,199.50 | $378,287.15 | $122,813.66 | $117,869.56 | $807,169.87 |
+----------+----------------+----------------+--------------+-------------+----------------+
| Inchcape | $2,092, 092.42 | $2,850, 860.85 | $521,901.63 | $971,347.16 | $6,436, 202.05 |...To continue reading
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