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Protest challenging multiple aspects of agency’s evaluation is sustained. The protester alleged the agency unreasonably found the awardee’s price realistic. GAO agreed, reasoning that the price realism analysis was based on a material error. GAO also found that the agency’s past performance evaluation was flawed. The agency considered a reference from that awardee that it should not have and improperly accepted unverifiable performance information. Additionally, GAO determined the agency botched the evaluation under a management factor by assigning a weakness to the protester for a failure to include information that was not required.

The Department of Transportation’s Maritime Administration (MARAD) issued a solicitation seeking services to acquire, operate, and maintain vessels for the Ready Reserve Force. The Ready Reserve Force helps with deployment of U.S. military forces.

Six offerors, including Pasha Hawaii Holdings LLC and Crowley Government Services, Inc., submitted proposals. MARAD found that Crowley’s price was 34 percent lower, and Pasha’s 10 percent lower, than the average of all the offerors’ prices. Crowley’s proposal had the highest technical and past performance ratings. MARAD awarded the contract to Crowley. Pasha protested, challenging various aspects of MARAD’s evaluation.

As an initial matter, MARAD argued that GAO should dismiss the protest because Pasha’s proposal was un-awardable. MARAD claimed that it had reviewed its price analysis in response to the protest and determined that Pasha’s price was not fair and reasonable. But GAO declined to the dismiss the protest, reasoning that the agency’s post hoc price evaluation was not included in the contemporaneous record and did not represent the fair and considered judgement of the agency.

As to the protest, Pasha contended that MARAD’s price realism analysis was flawed. One of the CLINS required offerors to provide for the operation and repair of vessels. Pasha claimed that Crowley had proposed an unrealistic and deficient number of crew for this CLIN, and that this created a performance risk.

GAO agreed, finding that MARAD had not made an explicit finding that Crowley’s proposed crew was realistic for the work. The agency had simply concluded that Crowley’s proposed rates were reasonable without connecting rates, categories, and hours with a finding that the company proposed a sufficient crew. In short, the agency’s analysis was based on a material error of fact about the number of crew members proposed by Crowley.

Next, Pasha argued that the solicitation required offerors to crew vessels to the levels contained in the contract requirements, but MARAD failed to recognize that Crowley’s proposals did not comply with these requirements. MARAD, however, argued that the solicitation contained no required crew compliments, and that offerors had discretion to use their business judgment in proposing crew.

GAO agreed with Pasha’s interpretation of the provision. MARAD’s answers to an offeror’s question actually supported Pasha’s interpretation. An offeror asked whether it was supposed to determine crew compliments. MARAD answered, “No.” GAO found that this answer confirmed the reasonableness of Pasha’s interpretation—namely, offerors were not supposed to determine crew but rather proposals had to confirm to crew requirements. GAO concluded that the confusion surrounding this provision was a latent ambiguity that MARAD needed to clarify and then allow offerors an opportunity to submit proposals based on the clarified requirement.

Next, Pasha objected to MARAD’s past performance evaluation. It contended that MARAD considered only the positive aspects of one of Crowley’s references while ignoring the negative aspects. GAO, however, found that MARAD should not have considered the reference at all. The contract at issue was not performed by Crowley but rather by Crowley’s parent. Also, the record lacked an adequate description of the contract, and the agency’s evaluation contained no evidence of the quality of performance on the contract.

Pasha also contended that the past performance evaluation was flawed because the Crowley’s experience with vessel modification was not completely verifiable. Again, GAO agreed with Pasha. MARAD had no past performance questionnaire or CPARS for this effort. It appeared to GAO that MARAD gave Crowley the benefit of the doubt with this reference. Without any documentation to support the agency’s evaluation conclusions, GAO found that the MARAD should have found this information unverifiable.

Lastly, Pasha objected to a weakness assigned to its proposal under the management factor. MARAD assigned the weakness, finding that Pasha’s proposed master schedule did not include scheduling for certain reflagging and modification activities for vessels. Pasha contended that it was not required to schedule these activities. MARAD claimed that the solicitation contained a patent ambiguity regarding the scheduling of these activities that Pasha should have challenged before submitting its proposals.

GAO found that there really was no ambiguity. Pasha reasonably concluded that the solicitation did not require a schedule for these activities. The assignment of the weakness was unreasonable.

Pasha is represented by James J. McCullough, Michael J. Anstett, Anayansi Rodriguez, and Christopher H. Bell of Fried, Frank, Harris, Shriver & Jacobson LLP. The intervenor, Crowley, is represented by James Y. Boland, Christopher G Griesedieck, and Michael T. Francel of Venable, LLP. The agency is represented by Ryan M. Kabacinski, Ashley S. Amano, Gregory A. Harding, and Mary McAllaster of the Department of Transportation. GAO attorneys Kenneth Kilgour and Jennifer D. Westfall-McGrail participated in the preparation of the decision.