United States General Accounting Office

Washington, DC 20548 

Comptroller General

of the United States

Decision 

Matter of: Ballast Ham Dredging BV 

File: B-291848 

Date: April 4, 2003 

Simon Boon for the protester. 

Joseph A. Gonzales, Esq., Department of the Army, for the agency. 

John L. Formica, Esq., and James A. Spangenberg, Esq., Office of the General 

Counsel, GAO, participated in the preparation of the decision. 

DIGEST 

Agency’s evaluation of the protester’s proposal as marginal under certain evaluation 

factors and selection of the awardee’s higher-rated, slightly higher-priced proposal 

for the award of a contract for dredging were reasonable and consistent with the 

terms of the solicitation. 

DECISION 

Ballast Ham Dredging BV protests the award of a contract to Van Oord ACZ Marine 

Contractors BV, under request for proposals (RFP) No. DACW01-02-R-0067, issued 

by the Army Corps of Engineers, for maintenance dredging of the access channel to 

the Port of Guayaquil, Ecuador. Ballast Ham argues that the agency’s evaluation of 

its proposal, and the selection of Van Oord’s higher-priced proposal for award, were 

unreasonable. 

We deny the protest. 

The RFP provided for the award of a fixed-price contract for the dredging to be 

completed within 540 days. The successful contractor will provide all equipment, 

materials, and personnel to complete the dredging and dispose of the dredged 

materials in accordance with the terms of the RFP. The solicitation stated that 

award would be made to the offeror whose proposal represented the best value, 

considering price and the following evaluation factors listed (with one exception) in 

descending order of importance: specialized experience on similar type work; 

dredging equipment; dredging approach; key personnel experience and 
Page 2 B-291848 

qualifications; organization; and preliminary project schedule.1 The RFP advised that 

to determine the “best value” proposal for award, the agency would consider all 

evaluation factors combined (other than price) equal in importance to price. 

The RFP included detailed instructions for the preparation of proposals, and 

requested that proposals include separate sections addressing each of the stated 

evaluation factors. The solicitation added that the agency intended to award a 

contract without conducting discussions and therefore offerors’ initial proposals 

should contain their best terms with regard to both price and technical submissions. 

The agency received six proposals by the closing date. The proposals were 

reviewed, and clarification questions were provided to the offerors. Van Oord’s 

proposal was evaluated as “above average,” with an identified “advantage,” under 

both the specialized experience on similar type work and dredging equipment 

factors, and “satisfactory” under the dredging approach, key personnel experience 

and qualifications, organization, and preliminary project schedule factors, at a price 

of $13,245,597.2 Ballast Ham’s proposal was also evaluated as “above average,” with 

an identified “advantage,” under both the specialized experience on similar type 

work and dredging equipment factors, and “satisfactory” under the key personnel 

experience and qualifications and organization factors; however, this proposal was 

rated “marginal,” with one “significant weakness,” under the dredging approach 

factor and “marginal,” with two “deficiencies,” under the preliminary project 

schedule factor, at a price of $12,872,087. AR, Tab I, Source Selection Evaluation 

Board (SSEB) Report, Dec. 5, 2002, at 1-3; attachs., Revised Consensus Evaluation 

Sheets, Van Oord’s and Ballast Ham’s Proposals. 

In considering the evaluation results, the source selection authority (SSA) and SSEB 

noted that the proposals submitted by Van Oord and two other offerors were 

technically acceptable or better as initially submitted, while the proposals of Ballast 

Ham and the remaining two offerors had deficiencies and/or weaknesses, such that 

“discussions would be necessary to allow them to bring their offers into compliance 

with the Solicitation.” The SSA also noted that Van Oord’s proposal was evaluated 

as above average with advantages under the two most important evaluation factors 

(specialized experience and dredging equipment), and that it had offered a “highly 

competitive” price (only 3 percent higher than Ballast Ham’s price). With regard to 

Ballast Ham’s proposal, the SSA found that while it was the lowest-priced proposal, 

and like Van Oord’s proposal had received “above average” ratings under the two 

most important evaluation factors, the proposal contained one significant weakness 

and two deficiencies that would need to be addressed through discussions. The SSA 

ultimately concluded that because of Van Oord’s initial proposal’s highly competitive 

 

1

 The dredging equipment and dredging approach factors were equal in importance. 

2

 In accordance with the solicitation, the proposals were evaluated under the 

evaluation factors as outstanding, above average, satisfactory, marginal, or 

unsatisfactory. 
Page 3 B-291848 

price, “above average” ratings under the two most important technical evaluation 

factors, and lack of any weaknesses or deficiencies, award should be made to Van 

Oord without discussions as the offeror submitting the proposal representing the 

best value. AR, Tab H, Source Selection Decision, at 1-3. 

Ballast Ham protests that the agency’s evaluation of its proposal as containing a 

significant weakness under the dredging approach factor and two deficiencies under 

the preliminary project schedule factor was unreasonable, and that given its 

proposal’s low price and “above average” ratings under the two most important 

evaluation factors, it should have been selected for award as representing the best 

value. 

In reviewing an agency’s evaluation of proposals, we will not reevaluate them, but 

instead will examine the agency’s evaluation to ensure that it was reasonable and 

consistent with the solicitation’s stated evaluation factors and applicable statutes 

and regulations. J.A. Jones/IBC Joint Venture; Black Constr. Co., B-285627, 

B-285627.2, Sept. 18, 2000, 2000 CPD ¶ 161 at 3. 

With regard to dredging approach, the RFP requested that each offeror’s proposal 

provide “a narrative describing your approach to dredging,” to include, for example, 

descriptions of “the resources available and to be utilized to perform the work.” 

RFP at 00110-1, ¶ 2.2.l. The RFP informed offerors that proposals would be 

evaluated to determine “the extent and adequacy of their understanding of the 

Solicitation requirements,” including “the approach to carrying out the required 

maintenance dredging activities in an efficient and timely manner.” RFP at 00120-2, 

¶ 3.2.1. 

In the dredging approach section of its proposal, Ballast Ham stated that “[t]he 

available information from site investigations indicates that the soil to be dredged is 

ranging from medium to fine sands up till very soft clay, with specific gravity ranging 

from between 1.3t

/m3 and 1.9t/m3”--that is, the material to be dredged weighs between 

1.3 and 1.9 tons per cubic meter. The protester’s proposal continued here by stating 

that “[t]he selected dredging equipment shall be capable of dredging these types of 

soil and within the time limits stipulated in the Contract Documents.” AR, Tab S, 

Ballast Ham’s Proposal, at 38. 

In evaluating Ballast Ham’s proposal, the agency referred to the above-quoted 

statements, and determined that, before it could receive award, Ballast Ham would 

have to “explain the accuracy of the information” regarding the materials to be 

dredged, as well as “the expected impact on the contract if the materials fall outside 

these limits.” AR, Tab I, SSEB Report, Dec. 5, 2002, attach., Revised Consensus 

Evaluation Sheet, Ballast Ham’s Proposal, at 1. The agency explains that it was 

concerned that Ballast Ham’s reference to the materials that firm believed were to be 

dredged, and the indication that it had selected its equipment and dredging approach 

based upon this belief, constituted an impermissible “limitation” on its equipment’s 

“capabilities . . . qualifying the type of dredge material that the offeror would agree to 
Page 4 B-291848 

remove, and establishing grounds for a potential claim.” AR at 4. Because of this, 

the agency evaluated Ballast Ham’s proposal under the “dredging approach” factor 

as “marginal” with a “significant weakness.” AR, Tab I, SSEB Report, Dec. 5, 2002, 

attach., Revised Consensus Evaluation Sheet, Ballast Ham’s Proposal, at 1. 

Ballast Ham asserts that the agency’s concern here is unreasonable, and that the 

notation was merely a “summation of the soil information . . . contained in the Bid 

documentation.” Protest at 2. The protester explains in this regard that it had 

“extrapolated the physical characteristics of the material” to be dredged from the 

information included in the solicitation, and had used that data in preparing its 

proposal. Ballast Ham points out that in any event its proposed dredge is capable of 

removing materials “up to 2.1t/m3.” Protester’s Comments at 2. 

In our view, the agency reasonably determined that the references in Ballast Ham’s 

proposal to the materials to be dredged by metric ton (which was not included in the 

solicitation), and the statement that its equipment and approach would allow it to 

remove “these types of soil and within the time limits stipulated in the Contract,”

could reasonably be construed to be a limitation on what the contractor was capable 

of performing or bound to perform within the scope of the contract. Although the 

protester’s assertion that its dredge is capable of performing the contract appears 

accurate, and it contends that the references in its proposal were not meant as 

limitations but were simply informational references, the fact remains that this 

assertion and explanation were not included in the protester’s proposal. As such, we 

do not object to the agency’s evaluation of Ballast Ham’s proposal as “marginal” with 

a “significant weakness” under the dredging approach factor. 

With regard to the preliminary project schedule section, the RFP instructed offerors 

to include a “narrative, describing [their] scheduling capability and planning 

organization.” RFP at 00110-4, ¶ 2.3.4.1. Offerors were also instructed to address 

how they planned to maintain, update and use their schedules, and to “[d]escribe the 

equipment and software/hardware” that they intended to use for scheduling. Id. 

Offerors were also requested to “[s]ubmit a preliminary schedule for dredging.” 

RFP at 00110-4, ¶ 2.3.4.2. In this regard, the solicitation identified five “reaches” (or 

sections) of the channel to be dredged, and specifically requested that the submitted 

schedules “[s]how the dredging time for each of the reaches identified.” 

RFP amend. 1, at 00110-4, ¶ 2.3.4.2.2 (emphasis deleted). With regard to the 

evaluation of proposals, the solicitation provided, among other things, that “[t]he 

Offeror must submit the requested information” and “demonstrate an effective 

understanding of the schedule logic, activities, and constraints necessary to 

complete dredging, within the required performance period.” RFP at 00120-3, ¶ 3.2.6. 

The preliminary project schedule section of Ballast Ham’s proposal consisted of only 

a one-page “PRELIMINARY TIMESCHEDULE” chart, depicting seven tasks and the 

number of days scheduled to complete each task described. For example, the 

schedule included the tasks of “mobilisation” and “dredging works,” and scheduled 
Page 5 B-291848 

42 and 182 days, respectively, for the completion of these tasks. AR, Tab S, Ballast 

Ham’s Proposal, at 142. 

As mentioned previously, the agency evaluated Ballast Ham’s proposal as “marginal”

with two deficiencies under the preliminary project schedule factor, specifically 

noting that the proposal “failed to address” the requirement for a narrative 

describing Ballast Ham’s scheduling capability, planning organization, and the 

equipment and software/hardware it intended to use, and that the schedule “failed to 

show the time for dredging each of the Reaches identified” in the solicitation for 

dredging as required. AR, Tab I, SSEB Report, Dec. 5, 2002, attach., Revised 

Consensus Evaluation Sheet, Ballast Ham’s Proposal, at 3. 

While conceding that nowhere in its proposal does it describe the equipment and 

software/hardware that it intended to use for scheduling, the protester asserts that 

the narrative sought by the agency with regard to scheduling was provided in other 

sections of its proposal. In support of this assertion, the protester points to the 

“dredging approach” section of its proposal, which provides in part that after notice 

of award “[t]he project staff will start making final planning’s, work preparations and 

work plans,” and the “organization” section of its proposal, which provides in part 

that Ballast Ham’s proposed “works manager” will be involved in “[p]lanning and 

progress control.” Protester’s Comments at 2-3; AR, Tab S, Ballast Ham’s Proposal, 

at 40, 62. Similarly, the protester, while conceding that its proposal did not “[s]how 

the dredging time for each of the reaches identified” in the solicitation as required, 

asserts that the “dredging approach” section of its proposal effectively met this 

requirement with regard to 98 percent of this work by stating that “the actual 

dredging will start from the Oceanside of the channel, working towards the port” and 

that “[t]he total channel will be dredged in sections about two-kilometer[s] length.” 

AR, Tab S, Ballast Ham’s Proposal, at 43. 

The agency explains that it was aware that Ballast Ham had included information 

bearing on its preliminary project schedule in other sections of its proposal, but that 

in its view, this information was insufficient. The agency adds that the Ballast Ham’s 

proposal does not, in any section, address the equipment and software Ballast Ham 

intends to use for scheduling, nor does it explain how Ballast Ham would maintain, 

update, or use the schedule as required by the solicitation. AR at 5. 

As described above, the record demonstrates that Ballast Ham’s proposal omitted 

required information with regard to the preliminary project schedule. Additionally, 

the information actually provided was sparse and was not presented in a manner 

consistent with the RFP’s instructions. As such, the agency’s evaluation of Ballast 

Ham’s proposal under the “preliminary project schedule” evaluation factor as 

marginal with two deficiencies was reasonable.3

 

3

 Ballast Ham argues for the first time in its comments that the agency “should have 

sought further clarification before awarding the Contract.” Protester’s Comments 

at 1. The agency’s written debriefing of December 18, 2002, included the agency’s 
Page 6 B-291848 

Based upon its contention that its proposal was unreasonably evaluated, Ballast Ham 

finally challenges the agency’s award determination. As explained above, we believe 

that the agency’s evaluation of Ballast Ham’s proposal was reasonable. Because the 

agency in its source selection document reasonably explained why Van Oord’s 

slightly higher-priced, higher-rated proposal represented the best value, Ballast 

Ham’s contentions here provide no basis for overturning the award determination. 

Matrix Int’l Logisitics, Inc., B-277208, B-277208.2, Sept. 15, 1997, 97-2 CPD ¶ 94 at 14. 

The protest is denied. 

Anthony H. Gamboa 

General Counsel 

 

consensus evaluation sheets for Ballast Ham’s proposal. Ballast Ham was thus 

aware of the precise ratings, weaknesses, and deficiencies identified by the agency in 

its evaluation of Ballast Ham’s proposal at that time, and should have raised its 

argument regarding “further clarifications” in its initial protest to our Office. Ballast 

Ham’s protest on this basis, raised for the first time in its February 19, 2003 

comments on the agency report, is therefore untimely. 4 C.F.R. § 21.2(a)(2) (2003); 

Wilderness Mountain Catering, B-280767.2, Dec. 28, 1998, 99-1 CPD ¶ 4 at 7. In any 

event, the record indicates that Ballast would have had to provide additional 

information (such as its approach to project scheduling and the equipment and 

hardware/software it would use) in order to address the agency’s evaluated 

concerns. Allowing Ballast to so revise its proposal or provide additional 

information to address these concerns could not have been accomplished through 

clarifications, but rather, would have constituted discussions. J.A. Jones/IBC Joint 

Venture; Black Constr. Co., supra, at 5.