Judges: Marian Blank Horn
Filed: Jul. 31, 2014
Latest Update: Mar. 02, 2020
Summary: In the United States Court of Federal Claims No. 14-102C June 24, 2014 Redacted Version Issued for Publication: July 31, 20141 * * * * * * * * * * * * * * * * * * * * * AMERICAN AUTO LOGISTICS, LP * Protestor, * * v. * United States Transportation * Command; Past Performance UNITED STATES, Evaluation; Performance Price * Defendant, * Tradeoff; Commercial * Marketplace; Global Privately- v. * Owned Vehicle Contract. INTERNATIONAL AUTO LOGISTICS, * LLC * * Defendant-Intervenor. * * * * * * * * * *
Summary: In the United States Court of Federal Claims No. 14-102C June 24, 2014 Redacted Version Issued for Publication: July 31, 20141 * * * * * * * * * * * * * * * * * * * * * AMERICAN AUTO LOGISTICS, LP * Protestor, * * v. * United States Transportation * Command; Past Performance UNITED STATES, Evaluation; Performance Price * Defendant, * Tradeoff; Commercial * Marketplace; Global Privately- v. * Owned Vehicle Contract. INTERNATIONAL AUTO LOGISTICS, * LLC * * Defendant-Intervenor. * * * * * * * * * * ..
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In the United States Court of Federal Claims
No. 14-102C
June 24, 2014
Redacted Version Issued for Publication: July 31, 20141
* * * * * * * * * * * * * * * * * * * *
*
AMERICAN AUTO LOGISTICS, LP
*
Protestor, *
*
v. * United States Transportation
* Command; Past Performance
UNITED STATES, Evaluation; Performance Price
*
Defendant, * Tradeoff; Commercial
* Marketplace; Global Privately-
v. * Owned Vehicle Contract.
INTERNATIONAL AUTO LOGISTICS, *
LLC *
*
Defendant-Intervenor. *
* * * * * * * * * * * * * * * * * * *
Timothy Sullivan, Law Offices of Thompson Coburn, LLP, Washington, D.C., for
protestor. With him was Katherine S. Nucci, Thompson Coburn, LLP, Scott F. Lane,
Thompson Coburn, LLP, and Jayna Marie Rust, Thompson Coburn, LLP, of counsel.
J. Byran Warnock, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, Washington, D.C., for defendant. With him were
Martin F. Hockey, Jr., Assistant Director, Robert E. Kirschman, Jr., Director,
Commercial Litigation Branch, Civil Division, and Stuart F. Delery, Assistant Attorney
General, Civil Division. Also with him were J. Toby Harryman, Agency Counsel, United
States Transportation Command, and Christopher S. Cole, Trial Attorney, Air Force
Legal Operations Agency, of counsel.
Jon Davidson Levin, of counsel, Law Offices of Maynard, Cooper, & Gale, PC,
for defendant-intervenor. With him were Gary L. Rigney, Maynard, Cooper, & Gale,
PC, W. Brad English, Maynard, Cooper, & Gale, PC, and J. Andrew Watson, III,
Maynard, Cooper, & Gale, PC, of counsel.
1
This opinion was issued under seal on June 24, 2014. The parties were asked to
propose redactions prior to public release of the opinion. This opinion is issued with
some of the redactions that the parties proposed. Some additional redactions, although
not proposed by the parties, are added in the interest of consistency. Words which are
redacted are reflected with the following notation: “[redacted].”
OPINION
HORN, J.
Protestor, American Auto Logistics, LP, filed a post-award bid protest on
February 5, 2014, challenging the award by the United States Transportation Command
(TRANSCOM) of a procurement contract, for “transportation and storage services with
respect to privately-owned vehicles” of military service members and Department of
Defense civilian employees, to International Auto Logistics, LLC. The contract was
awarded under solicitation HTC711-13-R-R003, also known as the Global Privately-
Owned Vehicle Contract III (GPC III) solicitation. International Auto Logistics intervened
in the protest. Before bringing suit in this court, protestor filed a post-award protest with
the Government Accountability Office (the GAO), which was denied. Protestor alleges in
this court that “TRANSCOM’s evaluation of IAL’s [International Auto Logistics’] past
performance proposal submitted in response to the RFP [Request for Proposal] was
unreasonable and contrary to applicable law and the terms of the RFP,” and that
TRANSCOM’s source selection decision, favoring International Auto Logistics’ lower
price over American Auto Logistics’ higher past performance rating, “was unreasonable
and contrary to applicable law and the terms of the RFP.” In a hearing before this court,
protestor also alleged that, in order to perform the awarded contract, International Auto
Logistics proposed to subcontract with “a fairly notoriously debarred company,” with
protestor alleging the name of the debarred or suspended company to be Agility
International or Agility Defense and Government Services.
Protestor seeks “injunctive and declaratory relief prohibiting TRANSCOM and IAL
[International Auto Logistics] from proceeding with performance of the GPC III Contract
awarded to IAL,” a finding that the source selection authority’s decision was “arbitrary
and capricious, an abuse of discretion, and contrary to the RFP's criteria and applicable
law,” and an order from the court “requiring TRANSCOM to conduct a new evaluation
of IAL's past performance proposal and make a new source selection decision in strict
accordance with the RFP and applicable law.” Defendant agreed to stay further
performance of the TRANSCOM contract awarded to International Auto Logistics for a
brief period of time in order to allow the litigation to proceed. The court issued an oral
decision to the parties denying protestor’s motion for injunction relief. This opinion
reduces to writing the prior oral decision delivered to the parties.
FINDINGS OF FACT
TRANSCOM describes itself in its GAO agency report as:
responsible for the movement of Department of Defense (DoD) personnel
and cargo worldwide in support of peace, wartime, and contingency
operations. As part of its mission, USTRANSCOM supports the
requirement of its Component Command, the Military Surface Deployment
and Distribution Command (SDDC), for complete transportation services
for the movement of privately-owned vehicles (POVs) belonging to U.S.
2
Military Service Members and civilian employees of U.S. Government
globally.
In the GAO agency report, TRANSCOM indicated that its component command, the
United States Army Military Surface Deployment and Distribution Command, provides
“receipt, delivery, and processing of POVs, arranging for ocean transportation, customs
clearance and agriculture inspections, transportation between vehicle processing
centers (VPCs) and ports,” as well as long-term storage. See also Component
Commands, About USTRANSCOM, U.S. Transp. Command,
http://www.transcom.mil/about/cocom.cfm (last modified Feb. 8, 2012). It appears that
“[a]s part of its mission, USTRANSCOM supports the requirement[s] of its Component
Command,” the Military Surface Deployment and Distribution Command. Protestor
maintains that it has performed these services for fifteen years for TRANSCOM under
two contracts, the Global Privately-Owned Vehicle Contract I (GPC I), and then the
Global Privately-Owned Vehicle Contract II (GPC II).
According to defendant’s agency report to the GAO: “Because the GPCII contract
was 10 years old, the Agency conducted extensive market research, including
numerous opportunities for industry engagement, to determine the best commercial
solution for the GPCIII requirement.” Defendant further maintained in its agency report
that on November 14, 2011, the agency made a request for information in preparation
for the GPC III solicitation as part of this market research. The request for information,
titled “Global Privately Owned Vehicle (POV) Contract (GPC III) Request for
Information,” stated:
USTRANSCOM is seeking information to determine the availability and
technical capability of the business community to provide complete
logistics of transportation and storage services of Privately Owned
Vehicles (POVs) belonging to U.S. service members and DOD civilian
employees worldwide. The overall scope of this program is to provide for
the receipt, processing, transportation, storage, and delivery of vehicles at
Continental United States (CONUS) and Outside the Continental United
States (OCONUS) locations worldwide.
Services include operating multiple vehicle processing centers (VPCs) in
CONUS and OCONUS to receive/deliver customers' POVs, preparing
POVs for shipment, and ensuring all necessary agriculture and customs
clearances are accomplished; arranging for and/or providing ocean and
inland transportation of the POVs between VPCs and other designated
locations; providing information on the status and location of POV
shipments as well as other program information; resolving POV loss
and/or damage claims with customers, and with the Government; and
storage to include maintenance of POVs.
Global Privately Owned Vehicle (POV) Contract (GPC III) Request for Information,
FedBizOps.Gov (Nov. 14, 2011, 11:23 a.m.),
3
https://www.fbo.gov/index?s=opportunity&mode=form&tab=core&id=f6c51b361ab6fb97
9c21d6e428361c41&_cview=1. The request for information issued by TRANSCOM
inquired, in part:
Is the work associated with this contract [GPC III] considered "commercial"
as defined at Federal Acquisition Regulation (FAR) 2.101(services [sic] of
a type offered and sold competitively in substantial quantities in the
commercial marketplace based on established catalog or market prices for
specific tasks performed or specific outcomes to be achieved and under
standard commercial terms and conditions)? Please provide your
rationale.[2]
The record before the court indicates that on December 12, 2011, five companies
responded to the request for information, with four respondents responding affirmatively
to the above question. [Redacted] responded: “Yes. All of our POV Storage work has
been performed under a Government Contract.” [Redacted] stated:
[Redacted] considers the work associated with this contract as commercial
based on the definition provided in FAR 2.101. The specific services
included within the scope of this bid are of a type and quantity transacted
in the commercial marketplace. Vehicle handling, storage, transportation
and repair work are all services performed and achieved under
commercial terms and conditions. The company performs many of these
services within its other commercial contracts today.
Another respondent, [redacted], stated: “Yes. The storage and transporting of vehicles
is a service that is offered, sold and available to the general public by specific
companies and independent contractors on a commercial basis.” [Redacted] remarked
that “[d]ue to the definition of a ‘commercial item’ held within the Federal Acquisition
Regulation (FAR), this contract would be considered ‘commercial.’” (quoting FAR
2.101(b)). Protestor, American Auto Logistics, responded, however, that it “does not
consider the work associated with this contract as ‘commercial’ as defined in FAR
2.101. AAL [American Auto Logistics] solely supplies its services to the Military Surface
Deployment and Distribution Command and does not participate in the commercial
market.”
Subsequently, TRANSCOM published a “MARKET RESEARCH REPORT” for
the “Global Privately Owned Vehicle Contract (GPC) III,” dated May 18, 2012.
(emphasis and capitalization in original). The government’s market research report
stated:
The Global Privately-Owned Vehicle Contract III (GPC III) requirement
includes (1) operating multiple vehicle processing centers (VPCs) in the
2
As explained more fully below, the term “commercial item” is defined in 48 C.F.R.
§ 2.101 (2013).
4
Continental United States (CONUS) and Outside of the Continental United
States (OCONUS) to receive and/or deliver customers' POVs, (2)
preparing POVs for shipment, and ensuring all necessary agriculture and
customs clearances are accomplished; (3) arranging for and/or providing
ocean and inland transportation of the POVs between VPCs and other
designated locations; (4) providing information on the status and location
of POV shipments as well as other program information; (5) resolving POV
loss and/or damage claims with customers and with the Government; and
(6) storing POVs in accordance with this contract. Although the movement
of POVs is worldwide, the long term storage of POVs will happen in
CONUS.
The May 18, 2012 market research report further stated that “[t]he objective of this
market research report is to gather and analyze information on all aspects of logistics
required in the movement and/or storage of privately-owned vehicles (POVs) which are
the property of U.S. service members and/or civilians.” The market research report
continued:
USTRANSCOM posted a Request for Information (RFI) to FedBizOpps
(FBO) on 14 November 2011. A market research questionnaire was
included for data collection and analysis purposes. . . . In addition, a
review of Internet sources, historical acquisition information, previous
market research from the 2003 SDDC Contracting Center for the GPC II,
was undertaken to locate sources.
Using the findings from the November 14, 2011 request for information in its
market research report, TRANSCOM made a positive determination as to the
commercial nature of the work involved within the GPC III program:
The work associated with the GPC II contract was determined a
“commercial item” under the Federal Acquisition Regulation (FAR) at
subpart 2.101. FAR subpart 2.101 defines a service as a commercial item
when it is “a type offered and sold competitively in substantial quantities in
the commercial marketplace based on established catalog or market
prices for specific tasks performed or specific outcomes to be achieved
and under standard commercial terms and conditions.” The GPC II was
awarded following FAR Part 12 (Acquisition of Commercial Items)
procedures. The GPC III requirement is the continuation of the work
performed under the GPC II contract and it too is determined a
commercial item. This determination agrees with the market survey where
four (4) of the five (5) [80%] of the RFI respondents agreed that the
services associated with this effort are commercial. These RFI
respondents provide the transportation and/or storage of vehicles as a
service commonly offered to the general public, in substantial quantities,
and at competitive market prices.
5
The incumbent contractor’s response states that the services sought
under the GPC III requirement are not commercial. The basis for its
response is that the incumbent does not offer the same services
commercially. The incumbent’s interpretation, however, does not preclude
the services from being “commercial” under the FAR definition. As noted
above, 80% of the companies which responded to the RFI concluded that
the services were commercial (See, Attachment 1). Because the services
fall within the definition in FAR 2.101 and it is very probable the needs of
the Government can be met through the commercial market, it has been
determined that this requirement is “commercial.” (See, FAR 2.101 and
DFARS 212.102).
(brackets in original). The market research report also discussed TRANSCOM’s findings
regarding other elements of the GPC III solicitation, including the pricing arrangement,
period of performance and performance incentives, contractor transition, technical
requirements, and small business concerns. The report came to the following
conclusions:
As a result of the market research, a determination has been made that
the Government needs can be met through the commercial marketplace.
Therefore, it has been determined this requirement is commercial. The
requirement will have a firm-fixed price (FFP) CLIN structure and will be a
commercial services contract under FAR Part 12 --Acquisition of
Commercial Items-- and the Government will solicit bids on a full and open
competitive basis.
After issuing the May 18, 2012 market research report, on October 25, 2012,
another request for information was submitted via e-mail, by Ms. Marie T. Pendergast, a
contracting officer for TRANSCOM, under the subject heading “Market Research -
Global Privately Owned Vehicle (POV) Contract (GPC III).” Eight companies responded
to the e-mail request for information, including the protestor, as well as International
Auto Processing, the parent company of intervenor, International Auto Logistics. The
other companies that responded were [redacted]. Under the topic of pricing,
TRANSCOM asked: “How can the Government simplify the pricing structure?” Three
respondents, [redacted], [redacted], and [redacted], indicated in separate, but identical
responses, that the current arrangement “is as simple as possible,” while [redacted]
stated it “is simpler that [sic] what is done commercially,” and [redacted] stated that “the
current structure of a VPC to VPC rate provides the best value to the government.”
American Auto Logistics, [redacted] and [redacted] did not respond to the question.
TRANSCOM also asked about: “Vehicle Processing Centers Network (VPC). Is
there a commercial alternative to the VPC network? How can the Government simplify
POV processing?” To the first question, American Auto Logistics responded, “[s]hould
the Government desire to simplify POV processing, it would need to balance the
benefits of simplification to the consequences of Quality of Life and Quality Assurance
objectives of the program . . . .” [Redacted] indicated “[t]here is, but your service level
6
would not be the same,” and [redacted] stated “[t]here isn't a commercial network that
can handle the volume and seasonality of the GPC. Most commercial systems handle
only a few cars a day, at most, and certainly doesn't have the storage capability to
handle this contract.” [Redacted] stated, “[m]ixing this program with a commercial
program could and most likely would reduce the extremely high level of service.”
[Redacted] and [redacted] both made separate responses, but stated, in identical
language, that “[t]here are potentially multiple commercial networks that might work.”
Both also stated, “[h]owever, currently 99 % of all revenue generated at the current VPC
network is generated from the GPC making it virtually an exclusive network. . . . Most
commercial alternatives would not have the excess space or acreage needed [sic]
handle the GPC, negating most of or all cost advantage,” and that “[m]ost foreign VPCs
are GOCOs [Government-Owned, Contractor-Operated]. An alternative to a commercial
solution could be to make the US VPC’s [sic] GOCOs.” [Redacted] responded, “[w]hile
there is the option of using a completely commercial solution for this requirement,
[redacted] believes this would reduce the level of service currently provided.” [Redacted]
indicated that it uses a commercial VPC, but, with regards to the TRANSCOM Privately-
Owned Vehicle Contract, “[t]he issue we see is finding the land within the port area to
handle the operation.” [Redacted] offered no response to this question. On December
12, 2012, TRANSCOM sent a follow up e-mail to members of the industry, stating:
“Previously, we asked for information on any commercial alternatives to the VPC
network currently in place. More specifically, we are seeking input on the concept of
door-to-door service which is more commercial in nature.” [Redacted], in its response,
noted that: “We think there is a lot of merit in exploring existing commercial
infrastructure as an alternative to contractors setting up and maintaining separate VPC’s
[sic] outside of a commercial structure.”
On November 27, 2012, TRANSCOM held a “Global POV Contract III Industry
Day” to discuss the GPC III solicitation, which was attended by some of the industry
participants which had responded to the prior requests for information. From the
minutes of the event provided in the record, American Auto Logistics and [redacted],
among others, sent a joint delegation, and [redacted] and [redacted] sent a joint
delegation. The “Industry Day” meeting included a “Procurement & Requirements
Overview” with Ms. Pendergast, the TRANSCOM contracting officer, a question and
answer session, and individual breakouts. (emphasis in original). In one of the “Industry
Day” presentations, the slides of which are in the record, TRANSCOM listed a
“Requirements Snap Shot,” which stated: “Contractor shall provide all personnel,
supervision, training, and equipment necessary to perform PWS [Performance Work
Statement] tasks for shipment and storage of POVs globally.” The expected
transportation volume of privately-owned vehicles was estimated in the presentation to
be “[a]pproximately 66,500 a year,” with “[a]pproximately 8,500 POVs in storage at a
time.” The presentation also made clear that the upcoming solicitation would be a firm
fixed price contract and a best value source selection. The minutes from the “Industry
Day” meeting also reflect that TRANSCOM was asked, but was unable to clarify at that
time, what factors would be used to determine “best value.” Subsequently, the agency
issued draft performance work statements. Both performance work statements
discussed the technical requirements offerors were to meet under GPC III.
7
On February 12, 2013, TRANSCOM issued an “ACQUISITION PLAN” for the
“GLOBAL PRIVATELY OWNED VEHICLE CONTRACT III (GPC III).” (emphasis and
capitalization in original). The acquisition plan discussed the proposed technical and
price requirements for the GPC III solicitation, and gave the background of the prior
GPC I and GPC II contracts. Under “Capability or Performance,” the acquisition plan
stated, “[t]he Government will require the contractor to deliver POVs on time to the
correct destination for 98% of shipments per month,” and “[t]he contractor is required to
achieve a satisfactory or better overall customer service level on 95% of comment cards
submitted.” (emphasis in original). Under “Trade-offs” (emphasis in original), the
document stated:
The Government will conduct a Past Performance Price Tradeoff (PPT)
source selection in which competing offerors' past performance history will
be evaluated on a basis approximately equal to cost or price
considerations. Each offeror’s business proposal, technical proposal, and
small business subcontracting plan will be evaluated on an
Acceptable/Unacceptable basis.
Under “Source Selection Procedures” in the ACQUISITION PLAN, TRANSCOM
stated, “[c]ompeting offerors’ past performance history will be evaluated on a basis of
importance approximately equal to price.” (emphasis in original).
On February 25, 2013, TRANSCOM issued a “SOURCE SELECTION PLAN
FOR GLOBAL PRIVATELY-OWNED VEHICLE CONTRACT III.” (emphasis and
capitalization in original). Under “Planned Acquisition Approach,” TRANSCOM stated
that the government would “evaluate using a Past Performance Price Tradeoff (PPT)
source selection approach in accordance with the mandatory DoD Source Selection
Procedures, with past performance and price considered approximately equal.”
(emphasis in original). A document contained in the record, titled “ACQUISITION
STRATEGY PANEL,” also stated that the source selection process would be “Best
Value Source Selection using Past-Performance/ Price Tradeoff (PPT) procedures,”
with “[p]ast performance and price considered approximately equal.” (emphasis and
capitalization in original). Another document in the record, titled “ACQUISITION OF
SERVICES,” dated March 20, 2013, also made similar statements regarding the GPC III
solicitation performance and price tradeoff. (emphasis and capitalization in original).
The solicitation at issue in the above captioned case, solicitation HTC711-13-R-
R003, was issued on May 1, 2013 by TRANSCOM. It was amended ten times. The
administrative record contains the “[c]onformed” solicitation, which is the version this
court considers and references in this opinion. The conformed solicitation, which
includes all ten amendments, required submission of “signed and dated offers on or
before 12:00 pm Central Time on 15 July 2013.”3 (emphasis in original).
3
The ninth amendment to the solicitation was dated July 1, 2013, fifteen days before
proposals were due. The tenth and final amendment to the solicitation was dated
8
The performance work statement, attachment 1 to the solicitation, described the
scope of work required under the solicitation:
1.2. Scope of Work. The contractor shall provide all personnel,
supervision, training, and equipment necessary to perform all tasks as
identified in the PWS for shipments and storage of POVs globally in
accordance with the Defense Transportation Regulation (DTR), Joint
Travel Regulations (JTR), Joint Federal Travel Regulations (JFTR), and all
applicable regulations. The contractor shall assume all responsibility,
liability, and costs for receipt/delivery, processing, and transportation of
the POV from point of receipt to final delivery. The contractor's
responsibilities include, but are not limited to: (1) operating multiple vehicle
processing centers (VPCs), preparing POVs for shipment, and ensuring all
necessary agriculture and customs clearances are accomplished; (2)
arranging for and/or providing inland and ocean transportation of the
POVs; (3) providing Intransit Visibility (ITV) of POV shipments; (4) storage
of POVs; and (5) resolving POV loss and/or damage claims.
(emphasis in original). The performance work statement also explained that, “[t]he
contractor shall operate Vehicle Processing Centers (VPCs) and Quality of Life Sites
(QoLs) in accordance with Appendices A,” including “construction, upkeep, purchase,
lease or rental of any commercial structure, land, or equipment for CO/CO [contractor-
owned and contractor-operated] facilities.”4 In the performance work statement,
TRANSCOM listed the following performance objectives in chart form:
August 27, 2013, six weeks after the proposals was due. The cover sheet to the tenth
amendment indicated that the amendment made only minor changes which are not
relevant to the current dispute before this court. The tenth amendment stated,
specifically, that “[t]he purpose of this [tenth] Amendment is to correct the evaluation
language in the Addendum to FAR 52.212-2 for Technical Subfactor 1 - Transition
Plan.” Protestor’s counsel in the February 7, 2014 hearing alleged, however, “the tenth
amendment here changed the evaluation language somewhat, and that’s the language
you have to focus on with respect to the past performance evaluation.”
4
Appendix A of the solicitation listed nineteen CO/CO vehicle processing centers,
located in the United States and abroad, as well as fifteen government-owned, but
contractor-operated vehicle processing centers, fourteen located outside of the United
States, and one in Guam. Appendix A also listed four Quality of Life sites, all located
outside of the United States.
9
PWS [Performance Work
Statement] PARA PERFORMANCE
PERFORMANCE OBJECTIVE [Paragraph] THRESHOLD
Transport POVs within RDDs 1.3.5.1. & Attachment 4 to
98% per month
[Required Delivery Dates] the contract
Resolve claims directly with
customers using on-site 1.3.11. 95% per quarter
settlement process
Settle claims within 90 days from
1.3.11. 99% per quarter
the date the claim was filed
Rated satisfactory or better for
overall customer service on 1.3.10. 95% per month
comment cards submitted
Adhere to VISA [Voluntary
Intermodal Sealift Agreement] 4.0 100% of shipments
preferences
(emphasis and capitalization in original).
The contract was projected to cover two base periods of, first, ten months, 5 and
then, one year. There also were three option years and an additional, optional, six-
month extension described in the solicitation. The solicitation further specified, “[t]he
total duration of this contract, including the exercise of any options under this clause,
shall not exceed 65 months (includes the 6 month extension).” (emphasis in original).
The record contains two independent government cost estimates, which include
an estimated cost to the government for each period of performance of the GPC III
contract. The cost estimates were both broken down into the following seven
categories: “Full Service,” “Partial Service,” “Ocean Transportation,” “Homeport Move,”
“Storage,” “Door to Door,” and “Out of Pocket.” In a March 6, 2013 estimate, the
government estimated that the cost to the government of the GPC III effort would be
$1,348,114,177.44 for the maximum 65 month term of the contract. In an October 4,
2013 estimate, the government estimated that the cost to the government of the GPC III
effort would be $1,189,863,420.21 for the maximum term of the contract. The October
4, 2013 estimate was used in the government’s final “price analysis,” signed October
17, 2013.
The solicitation stated that “[t]he Government will award a contract resulting from
this solicitation to the responsible offeror whose offer conforming to the solicitation will
be most advantageous to the Government, price and other factors considered.”
According to the solicitation, “[t]he following factors shall be used to evaluate offers:”
5
The record indicates that amendment seven to the solicitation, issued June 25, 2013,
changed the period of performance of the solicitation’s first base period from eleven
months to ten months. The solicitation, as amended, indicated that the first base period
of performance would be from December 1, 2013 to September 30, 2014.
10
(1) Business Proposal
(2) Technical Proposal
(A) Subfactor 1 – Transition Plan
(B) Subfactor 2 – Technical Approach
(C) Subfactor 3 – Information Assurance & Cyber Security
(3) Past Performance Proposal
(4) Small Business Proposal
(A) Subfactor 1 – Small Business Subcontracting Plan
(B) Subfactor 2 – Small Business Utilization Strategy
(5) Price Proposal
The solicitation also described TRANSCOM’s evaluation strategy:
This is a competitive best value source selection. The Government will
conduct a Performance Price Tradeoff (PPT) source selection in which
competing offerors' past performance history will be evaluated on a basis
approximately equal to cost or price considerations. Award will be made to
the offeror who is deemed responsible IAW [in accordance with] FAR Part
9, who submits an acceptable business proposal, technical proposal, and
small business proposal, and is judged, based on their past performance
and total evaluated price, to represent the best value to the Government.
This may result in an award to a higher rated, higher priced offeror, where
the decision is consistent with the evaluation factors and the Source
Selection Authority (SSA) reasonably determines that the superior past
performance of the higher priced offeror outweighs the cost difference.
However, the Government will not pay a price premium that it considers to
be disproportionate to the benefits associated with the proposed margin of
service superiority.
The solicitation continued: “The Government intends to evaluate proposals and award a
single contract after conducting discussions with offerors whose proposals have been
determined to be within the competitive range.” TRANSCOM reiterated, in response to a
question from industry, that it “intends to conduct discussions with offerors whose
proposals have been determined to be within the competitive range.”
The business proposal was to be “evaluated to determine whether it complies
with all terms and conditions of the solicitation. Business proposals will be rated as
Acceptable or Unacceptable.” Both the technical and small business proposals were to
be “evaluated as Acceptable or Unacceptable at the subfactor level.” If any subfactor for
either the technical or small business proposals were “rated as Unacceptable” that
particular proposal section would be rated as “Unacceptable.”
Regarding the price proposal, the solicitation stated that a “Total Evaluated Price”
would be determined based on a number of factors and formulas, and that “[t]he
summation of the extended prices for the base period, all options, and the 6-month
11
extension will constitute the TEP [Total Evaluated Price].” The solicitation also stated,
“[i]n order to be considered for award, the Total Evaluated Price (TEP) must be
determined fair, reasonable, and realistic,” and that TRANSCOM would conduct price
reasonableness and realism evaluations as well as separately check for “[u]nbalanced
pricing.” Protestor has not contested the government’s evaluation of any offerors’
business, technical, small business, or pricing proposals.
According to the solicitation, an offeror’s past performance proposal would be
evaluated along a scale:
Using the Past Performance questionnaires submitted by the offeror’s
references , [sic] the offeror’s Past Performance proposal, and other
information independently obtained from Government or commercial
sources (i.e. Past Performance Information Retrieval System, Federal
Awardee Performance and Integrity Information System, electronic
Subcontracting Reporting System (eSRS), Questionnaires tailored to the
circumstances for this acquisition, through Defense Contract Management
Agency channels, or through interviews with Program Managers,
Contracting Officer Representatives and Contracting Officers), the
Government will assign an overall confidence assessment for each
offeror. The purpose of the past performance evaluation is to allow the
Government to assess the offeror’s ability to perform the effort described
in this RFP, based on the offeror’s demonstrated past performance. Each
Past Performance effort will be evaluated on the basis of recency and
relevancy.
The solicitation explained that the government first would “perform an
independent assessment” of the individual past performance references submitted by
the offerors, “determining the recency and then the relevancy of each past performance
effort. To be considered a recent effort, the effort must be currently ongoing or have
been performed within 3 years of proposal submission.” (emphasis in original).
According to the solicitation, the ratings given to each past performance reference were
to be as follows:
RATING DESCRIPTION
Very Relevant Present/past performance effort involved
essentially the same scope and magnitude of
effort and complexities this solicitation
requires.
Relevant Present/past performance effort involved
similar scope and magnitude of effort and
complexities this solicitation requires.
Somewhat Relevant Present/past performance effort involved some
of the scope and magnitude of effort and
complexities this solicitation requires.
12
Not Relevant Present/past performance effort involved little
or none of the scope and magnitude of effort
and complexities this solicitation requires.
The solicitation stated:
Relevancy in regard to scope and magnitude of effort and complexity will
be assessed based on, but not limited to, the similarities between a given
past performance effort and this solicitation in terms of the following for
CONUS and/or OCONUS operations: POV processing, arranging for or
providing ocean transportation, arranging for or providing inland
transportation, customer service, and storage.
The solicitation also stated:
The offeror shall submit no more than three past performance references
for the offeror (prime contractor), public or private, for which the offeror
has performed services within the previous three calendar years similar in
nature to the services described in this solicitation. The offeror shall
submit no more than three past performance references for each major
subcontractor, public or private, for which each subcontractor has
performed services within the previous three calendar years similar in
nature to the services described in this solicitation.
(emphasis in original). For each past performance reference provided, TRANSCOM
instructed offerors to “send out a Past Performance Questionnaire (Attachment L-1) to
each of the offeror’s references identified in a proposal, along with a request for the
reference to complete the questionnaire and return it to the Government by the date
specified for receipt of offers.”
The solicitation explained that, after individually rating each past performance
reference, “overall Past Performance Confidence Assessment ratings will be assigned
to each offeror using the following definitions:”
RATING DESCRIPTION
Substantial Confidence Based on the offeror’s recent/relevant
performance record, the Government has a
high expectation that the offeror will
successfully perform the required effort.
Satisfactory Confidence Based on the offeror’s recent/relevant
performance record, the Government has a
reasonable expectation that the offeror will
successfully perform the required effort.
Limited Confidence Based on the offeror’s recent/relevant
performance record, the Government has a
low expectation that the offeror will
successfully perform the required effort.
13
No Confidence Based on the offeror’s recent/relevant
performance record, the Government has no
expectation that the offeror will be able to
successfully perform the required effort.
Unknown Confidence (Neutral) No recent/relevant performance record is
available or the offeror’s performance record is
so sparse that no meaningful confidence
assessment rating can be reasonably
assigned.
The solicitation also stated that “[t]he relevancy of each contract reference will be
considered in the overall confidence assessment rating for the offeror,” and that “[i]n
assigning an overall confidence assessment for each offeror, the Government will
consider at a minimum: POV processing, arranging for or providing ocean
transportation, arranging for or providing inland transportation, customer service,
storage, overall performance, and small business utilization.” The solicitation also stated
that “[i]n evaluating past performance, the Government will give greater consideration to
information on those contracts deemed most relevant to the effort described in this
RFP.” Additionally, the solicitation stated that: “Past performance regarding predecessor
companies or principal subcontractors that will perform major or critical aspects of this
requirement will be weighted the same (equally as important) as the past performance
information for the offeror.”
The record contains a document with questions asked by industry about the
solicitation. Among the relevant questions, one industry member asked whether “[t]he
past performance evaluation weighting gives the most consideration to relevancy of
past performance, meaning that only the incumbent, as the sole provider of these
services for the past 15 years, will benefit from the price benefit of the tradeoff.” The
government responded: “In this source selection, past performance and price will be
weighted approximately equally. Recency and relevancy of each past performance
effort provided will be considered in the overall confidence assessment rating.”
American Auto Logistics’ proposal was dated July 15, 2013 and described the
protestor’s asserted advantage as “our unmatched experience as contractor of the
Global POV Contract, during which we have established an exclusive network of
facilities, transportation assets, and processes to provide the highest level of customer
service for Service Members . . . .” In its proposal, American Auto Logistics listed under
“The AAL Team Advantage” its “10 years excellent past performance on GPC II,”
“99.4% RDD compliance,” “99.8% customer satisfaction ratings of Excellent/Good,”
“[e]stablished global network of proven subcontractors and affiliates,” “[e]stablished and
exclusive VPC and storage facilities,” “[p]roven and efficient claims site settlement
process,” “[p]roprietary and copyrighted logistics management system with enhanced
functionality to meet or exceed GPC III requirements,” “[e]ffective utilization of qualified
Small Business concerns,” and “[o]pen, collaborative working environment with
USTRANSCOM and GPC program stakeholders.” (emphasis in original). American Auto
Logistics provided a graphic that identified major parts of the “AAL Team:”
14
American Auto Logistics explained in its proposal that it would work with six
“major subcontractors,”6 each of which “played critical support roles in providing the
highest level of GPC support during the past decade,” and each of which “are our
current subcontractors in GPC II.” The following is a summary of American Auto
Logistics’ descriptions of its “major subcontractors,” as discussed in its proposal:
American Auto Logistics’ Major Subcontractors
Subcontractor Description
American Roll-on American Roll-on Roll-off Carrier, “a related company to AAL, is a
Roll-off Carrier vessel operating company and provides Ro-Ro liner services in the
U.S. and internationally.”
American Logistics American Logistics Network, “another related company to AAL,
Network operates a number of VPCs, as well as four storage facilities in the
U.S.”
AP Logistics AP Logistics “is a 50/50 joint venture between ALN [American
Logistics Network] and Pasha established to operate our two Alaska
VPCs.”
Matson Terminals Matson Terminals “manages the Honolulu, Hawaii, VPC, which is the
highest volume full service VPC in the program.”
6
Although at the start of its past performance proposal American Auto Logistics stated
that it has “five major subcontractors,” later on, under its “BRIEF OVERVIEW OF OUR
GPC III MAJOR SUBCONTRACTORS,” American Auto Logistics discussed six
companies, all six of which are described in the accompanying chart. (emphasis and
capitalization in original).
15
The Pasha Group7 The Pasha Group “manages CONUS and OCONUS VPCs, and
provides inland distribution. Pasha also manages POV storage
operations in the states of California and Washington for AAL.”
Transcar “Transcar, a related company to AAL, is responsible for operations in
Europe and has been an AAL partner in the GPC since the inception
of the P5 program in 1994.”
American Auto Logistics stated in its proposal that, “[a]ll major subcontractors are
exclusive to AAL for the life of the GPC III contract.”
American Auto Logistics stated in its small business proposal that, “for the GPC II
contract term to date, AAL has awarded $288 million, representing 45.2% of
subcontracted dollars to small business,” and that “[o]ur Small Business Subcontracting
Plan (Subfactor 1) complies fully with FAR 52.219-9.” American Auto Logistics’ final,
offered, “Total Evaluated Price” was $957,535,151.41. (emphasis in original).
The winning bid was submitted by International Auto Logistics, the intervenor in
this protest, and was dated July 1, 2013. International Auto Logistics explained that it “is
a wholly owned subsidiary of International Auto Processing, Inc. (IAP),” and that:
IAL was established in 2012 as a special-purpose company to source
government bid opportunities, including GPC III. IAL has at its disposal,
complete access to IAP’s robust resources, including port and vehicle
processing expertise, rail and trucking networks, IT systems, quality and
training processes, and commercial business best practice techniques.
IAP has been active in the POV processing business since 1986 and has
processed over 4 million vehicles since its inception.[8]
International Auto Logistics stated in its proposal that, “[o]ur GPC III approach
provides high standards of services to each and every SM [service member]. Our
approach improves overall vehicle processing center (VPC) and vehicle storage
facilities (VSF), reduces vehicle damage, and mitigates legal liability providing SDDC a
best value solution at the lowest cost.” International Auto Logistics highlighted its “Team
7
Although not listed as a “major subcontractor” by American Auto Logistics, the
protestor presented past performance references for a seventh subcontractor, Pasha
Hawaii Transport Lines. According to American Auto Logistics’ proposal, Pasha Hawaii
Transport Lines was created from The Pasha Group in order to “provide new and
competitive service for the movement of rolling stock between the Pacific Coast and
Hawaii.” According to American Auto Logistics, “PHTL [Pasha Hawaii Transport Lines]
has carried 12,091 military POVs for AAL in support of GPC II on our U.S. Flag Jones
Act qualified vessel; we anticipate that 3,865 additional vehicles will load onto PHTL
vessels during the peak summer months of 2013.”
8
Elsewhere the proposal states that International Auto Processing “has processed over
6,000,000 vehicles since its inception.”
16
IAL” approach, stating that, “Team IAL’s key personnel have over 100 years combined,
highly-relevant experience with the GPC Program, starting with the P5 Pilot Program
(94-98), GPC I (98-03), GPC II (03-13), U.S. Flag Ocean Privately Owned Vehicle
(POV) Shipping and Trucking, U.S. Army Installation Management Command (IMCOM)
Deployment Storage, and 2nd POV programs.”
International Auto Logistics further stated in its proposal that “Team IAL consists
of prime offeror International Auto Logistics (IAL), and the following subcontractors:”
Liberty Global Logistics, LLC
Horizon Lines, Inc.
Trans Global Auto Logistics Inc./Global Auto Logistics, LLC
SDV Command Source, LLC
Posey Transport Group
Boyle Transportation
Vehicle Processing Center of Fayetteville, Inc. (VPC of Fayetteville)
North American Consulting & Services Company
Lincoln Properties
International Auto Logistics continued:
Each Team IAL member was handpicked on the basis of experience and
successful performance on highly-relevant GPC, POV, or automotive
processing efforts. Out [sic] team includes experienced U.S. Flag/VISA
and Jones Act participants. In addition, the key personnel that lead our
team have extensive GPC, POV, automobile processing and
transportation experience.
The court summarized International Auto Logistics’ descriptions of its “Team IAL”
subcontractors, as follows:
International Auto Logistics’ “Team IAL” Subcontractors
Subcontractor Description Responsibility
Area for GPC III
Liberty Global Liberty Global Logistics “has been a “US Flag ocean
Logistics USTRANSCOM/SDDC transportation partner since shipping and
February 2009 and transports cargo between U.S. POV logistics”
and international destinations via truck, air, sea and
rail.”
Horizon Lines “Horizon is comprised of two primary operating “VPC operations
subsidiaries. Horizon Lines, LLC, owns or leases a and US Flag
fleet of 15 U.S.-flag container ships and 5 port Jones Act ocean
terminals linking the continental United States with shipping;” Horizon
Alaska, Hawaii, Micronesia and Puerto Rico. Lines was proposed
Horizon Logistics, LLC, offers customized logistics to operate the
17
solutions to shippers from a suite of transportation vehicle processing
and distribution management services, information center in Honolulu,
technology developed by Horizon Services Group, Hawaii.
as well as intermodal trucking and warehousing
services provided by Sea-Logix.”
Trans Global “Global Auto Logistics, LLC (GAL) is a woman- “VPC and VSF
Auto owned small business concern located in a [vehicle storage
Logistics/Global HUBZone and shares common ownership with facility] operations,
Auto Logistics Trans Global Auto Logistics, Inc. (TGAL). TGAL OTR [over-the-road]
was established June 2002 and has offices in CONUS/OCONUS
Texas, Florida, Germany, the U.K., and France transport and
. . . .” “TGAL is a licensed NVOCC [Non-Vessel customs clearance
Operating Common Carrier] and freight forwarder, Services;” Global
and was originally formed to facilitate Global 2nd Auto Logistics was
POV movements that were not included as part of proposed to operate
the GPC programs. . . . TGAL transports seventeen vehicle
automobiles and all types of military, industrial and processing centers
infrastructure cargo types.” “GAL was formed as a and two vehicle
special purpose company, with the goal of storage facilities.9
participating in bidding and obtaining support
contracts with the U.S. Government. GAL relies on
TGAL and its principals for its past performance.”
“For more than 11 years, in the U.S. and in
conjunction with our European offices, we have
been serving U.S. Service Members by facilitating
the shipment of their 2nd POVs.”
SDV Command SDV is a “Veteran’s Administration CVE [Center for “VPC and
Source Veterans Enterprise] certified, Service-Disabled VSF operations;”
Veteran-Owned Small Business (SDVOSB) . . . . SDV Command
SDV’s mission is to provide employment Source was
9
According to the International Auto Logistics proposal, Global Auto Logistics was
proposed to operate the contractor-owned and operated vehicle processing centers in
or near Dallas, Texas, San Diego, California, Brandon, United Kingdom, and Rota,
Spain. Intervenor’s proposal also stated that Global Auto Logistics would manage a
contractor-owned and operated vehicle processing center in “Ausano, Italy,” however,
the court could not identify a city by that name. The solicitation, as well as American
Auto Logistics’ proposal, however, indicate that this vehicle processing center is to be
located in “Aviano, Italy.” The International Auto Logistics proposal also stated that “[a]ll
GO/COs [will be] operated by GAL except Guam, Taegu & Seoul (operated by IAL) and
Ankara [operated by North American Consulting Services Company];” which consists of
twelve government-owned, contractor-operated vehicle processing centers in Europe,
located, according to the solicitation, in or near: Chievres, Belgium, Schinnen, the
Netherlands, Baumholder, Germany, Boeblingen, Germany, Grafenwoehr, Germany,
Kaiserslautern, Germany, Schweinfurt, Germany, Spangdahlem, Germany, Wiesbaden,
Germany, Naples, Italy, Sigonella, Italy, and Vicenza, Italy. Global Auto Logistics also
was proposed to operate the Arlington, Texas, and Lacey, Washington vehicle storage
facilities.
18
opportunities to service-disabled Veterans and their proposed to operate
family members through work on Government the Atlanta,
(Federal, State and local) and select private sector Georgia, St. Louis,
contracts,” “most recently in processing, storing, Missouri, and San
maintaining and out-processing POVs for Soldiers Juan, Puerto Rico
deployed to Iraq, Afghanistan, and other selected vehicle processing
AORs [Areas of Responsibility].” “As the prime centers. It was
contractor on the U.S. Army Installation proposed to
Management Command (IMCOM) POV Storage – manage the
West Region contract, SDV Command Source Kingstree, South
operated VPC and Vehicle Storage Facilities (VSF) Carolina vehicle
at seven (7) locations/installations in five (5) storage facility.
western States.”
Posey Transport “Posey Transport Group (Posey) provides vehicle “OTR CONUS
Group transport services across the continental United transport.”
States and Canada.” (emphasis removed).
“Beginning in 2010, Posey provided POV transport
services as a subcontractor to SDV Command
Source (also a Team IAL member company) under
an Army IMCOM contract.
Posey’s services include relocation services for
auto dealerships, specialty vehicle manufacturers,
and individuals. Our truck brokering services are
built on an extensive network of carrier and driver
resource.”
Boyle “Boyle Transportation is the premier Transportation “VPC and VSF
Transportation Protective Services provider to the DOD and operations;” Boyle
defense industry shippers of security-sensitive Transportation was
cargo.” Its capabilities include “operation of a VPC proposed to operate
and three VSF sites for the Global POV Contract II, the Charleston,
and servicing approximately 3,000 vehicles each South Carolina
month.” Boyle Transportation also provides vehicle processing
consulting services related to “VPC and storage center, and the
facility operations for IMCOM requirements.” Graniteville, South
Carolina vehicle
storage facility.
VPC of VPC of Fayetteville provides “POV storage “VPC
Fayetteville solutions for service members,” and “ensure[s] and VSF
each vehicle is indoors, protected from the operations;” VPC of
elements and vandalism, and monitored 24 hours a Fayetteville was
day. VPC of Fayetteville is experienced in military proposed to operate
affairs and specializes in assisting service the Winnsboro,
members.” (emphasis removed). South Caroline
vehicle storage
facility.
North American North American Consulting Services “has provided “VPC operations
Consulting vehicle processing, transportation, and customer and OTR transport
Services services since 2003.” (emphasis removed), with (Turkey);” North
“[o]ver 35 years of experience operating VPCs and American
19
coordinating transportation of items.” (emphasis Consulting Services
removed). “NACS provides OCONUS vehicle was proposed to
processing and over the road transportation operate the Incirlik,
services, as well, focusing on markets in Turkey.” Turkey, Izimir,
Turkey, and Ankara,
Turkey vehicle
processing centers.
It also was
proposed to operate
the Pomona,
California, and
Chino, California
vehicle storage
facilities.
Lincoln Property “Lincoln offers a full range of asset management, “[R]eal estate
Company property management, and construction advisory and agent
management services.” “Lincoln’s experience services.”
relevant to GPC III includes the identification,
qualification, assessment and leasing of over 1.2
million sq. ft. of vehicle processing and storage
facilities under an IMCOM POV Storage – West
contract.” “As part of the proposal development
process, Lincoln advised and assisted Team IAL in
identifying and selecting every CO/CO VPC and
storage location we have proposed . . . .”
Didlake10 Didlake is an “AbilityOne directed subcontractor Didlake was
providing Norfolk, VA VPC operations.” “Didlake proposed to operate
offers new, life-enriching opportunities for people the Norfolk, Virginia
with disabilities.” vehicle processing
center.
Unlike American Auto Logistics, International Auto Logistics spent a significant
portion of its proposal discussing its proposed personnel as “very relevant and
applicable to the Government’s assessment of our team’s past performance.”
According to International Auto Logistics, that included “team member company
personnel performing and/or supporting major or critical elements of the GPC III
contract.” In its proposal, International Auto Logistics profiled eighteen individuals from
“Team IAL,” including Doug Tipton, the president of International Auto Logistics, and a
Senior Vice President of the parent company, International Auto Processing, who “was
an executive for 5 years with American Shipping & Logistics, Inc., the parent of the
incumbent American Auto Logistics, Inc. (AAL).” The International Auto Logistics
proposal noted that, “as Executive Vice President and COO [Chief Operating Officer] of
AAL, Mr. Tipton traveled to over 75% of the current VPCs and storage sites while
10
Didlake was not included as a subcontractor in the list of subcontractors on the first
page of intervenor’s past performance proposal, and no past performance references
were offered for Didlake. Didlake was included, however, elsewhere in the intervenor’s
proposal.
20
Program Manager for the GPC II.” Additionally, the proposal noted that Rob Miller, the
“Chairman of International Auto Logistics,” is the President and Chief Executive Officer
of the intervenor’s parent company, International Auto Processing. The proposal also
profiled the leadership of many of the subcontractors of “Team IAL.” Of particular
relevance, International Auto Logistics profiled three members from Global Auto
Logistics and Trans Global Auto Logistics. The proposal profiled Kay Lester, president
and owner of both Global Auto Logistics and Trans Global Auto Logistics. The proposal
stated Ms. Lester has “30+ years experience in the field of POV handling, transportation
and shipping for Commercial Customers,” and “13+ years experience in setting up
VPCs.” The proposal also profiled Anthony Lester, stating that he is the Vice President
of Trans Global Auto Logistics [TGAL], and that “Tony has been with TGAL since its
inception in 1997, providing management and logistics of 2nd POV door to door
shipments for U.S. Military force members both Domestic and Overseas.” In addition,
International Auto Logistics profiled Joachim Wetz, the “TGAL General Manager, Vice
President of European Operations,” and “General Manager and VP of Transglobal Auto
Shipping European Branch.” The proposal stated that Mr. Wetz has “30+ years
experience in POV – shipping, customer service, and claims handling,” and
“[o]perational experience with GPC I and GPC II with TRANSCAR (subcontractor of
AAL).”
International Auto Logistics also submitted a small business proposal, in which it
described its small business utilization strategy, stating, “[w]e have assigned a GPC III
Subcontract Plan Administrator (SPA) to ensure we meet our obligations under FAR
52.219-9, Small Business Subcontracting.” The proposal also noted that “Team IAL is a
Small Business and Veteran Participation Leader—We Exceed Small Business
and Veteran-owned Small Business Subcontracting Goals.” (emphasis in original).
International Auto Logistics indicated in a chart in its proposal that its goal was to award
24.6% of its total contract dollars to small businesses, as follows:
In its pricing proposal, International Auto Logistics offered “[z]ero transition cost
pricing,” and claimed it would spread capital costs over the life of the award in order to
remain cost competitive with the incumbent American Auto Logistics. (emphasis in
21
original). After TRANSCOM’s initial review of proposals, International Auto Logistics
updated its price proposal in response to a notice from TRANSCOM that certain line
items in the initial pricing proposal “appear to be high (unfair and unreasonable) as
evaluated using the techniques set forth in FAR 15.404-1(b)(2).” International Auto
Logistics’ final, offered, “Total Evaluated Price” was $919,233,416.75. (emphasis in
original).
According to the record, five offerors submitted proposals in response to the
GPC III solicitation: International Auto Logistics, American Auto Logistics, [redacted],
[redacted], and [redacted]. According to a TRANSCOM “SOURCE SELECTION
EVALUATION BOARD (SSEB) TEAM TRAINING” document, a Source Selection
Evaluation Board was to first conduct initial evaluations in order to establish a
competitive range. (capitalization and emphasis in original). Then, initial evaluation
notices would be sent to offerors and discussions would be conducted, after which the
government would accept revised interim proposals. After submission of the revised
interim proposals, offerors would have one more chance to submit final proposal
revisions, after which the Source Selection Evaluation Board would complete its report.
Following the issuance of the Source Selection Evaluation Board report, the Source
Selection Advisory Council would perform a comparative analysis, if required.
Thereafter, the source selection authority would make her final source selection
decision.
The Source Selection Evaluation Board rated the final business, technical, and
small business proposals for all five offerors as Acceptable. The Source Selection
Evaluation Board also determined that the final Total Evaluated Prices for American
Auto Logistics and International Auto Logistics were “fair, reasonable, and realistic.”
Neither of these conclusions by TRANSCOM are disputed in the case before the court.
According to the record and parties’ joint submission, American Auto Logistics
submitted eighteen past performance references, two for American Auto Logistics as
the prime contractor, and sixteen for its proposed subcontractors. Both of American
Auto Logistics’ past performance references were rated as “Very Relevant.” The past
performance questionnaires for American Auto Logistics’ references indicated
“Exceptional” performance for one reference, and “Very Good to Exceptional”
performance for the other. American Auto Logistics’ subcontractor, The Pasha Group,
submitted one past performance reference, which was also rated as “Very Relevant,”
and the “[p]ast performance questionnaire indicated overall Exceptional Performance”
related to that effort. The government reviewed six past performance references for
Matson Terminals, one of which was rated as “Very Relevant.” For that reference, the
“[p]ast performance questionnaire indicated overall Very Good Performance.” Of the
remaining fourteen references, thirteen were rated as “Somewhat Relevant,” with the
government indicating between satisfactory and exceptional performance for those
efforts. One reference, from Transcar, reference “W564KB-12-D-0014 James D’Attlo,”
was rated by the government as “Not Relevant.” All of American Auto Logistics’
eighteen references were also determined to be “recent,” meaning that they were
“currently ongoing or have been performed within 3 years of proposal submission.” In
22
coming to an overall past performance rating for American Auto Logistics, the Source
Selection Evaluation Board stated the following:
Most significant and of greatest consideration was AAL’s two Very Good –
Exceptional past performance references for its Very Relevant (VR)
current contract providing all of the same services required (POV
processing, arranging for/providing ocean and inland transportation,
customer service, storage), with both CONUS and OCONUS operations,
under a single long term contract of the same magnitude and scope as
required in this solicitation. Also considered significant and given
substantial consideration was the Very Good - Exceptional past
performance of two of AAL’s subcontractors on VR efforts providing all of
the same services required (POV processing, arranging/providing ocean
and inland transportation, customer service, and storage), with both
CONUS and OCONUS operations, under a single contract of the same
magnitude and scope as required in this solicitation. The Government also
considered, though less significantly, the Satisfactory-Exceptional past
performance on the SR [Somewhat Relevant] references, which
considered together, reflect further successful performance of all of the
services required by this solicitation (POV processing, arranging
for/providing ocean and inland transportation, customer service, and
storage) with both CONUS and OCONUS operations. Overall, the offeror’s
past performance for all efforts considered reflect Satisfactory –
Exceptional ratings, with the performance on the VR references rated Very
Good to Exceptional. The Government also considered AAL’s
documented Very Good past performance in Small Business
Subcontracting Utilization. A Confidence Assessment Rating of
Substantial Confidence was assigned as the Government has a high
expectation the offeror will successfully perform the required effort.
The source selection authority agreed with the Source Selection Evaluation Board to
award American Auto Logistics a “Substantial Confidence” overall past performance
rating, the highest possible rating, and noted that “the Government has a high
expectation AAL will successfully perform the required effort.” TRANSCOM’s choice to
give American Auto Logistics a past performance rating of “Substantial Confidence” also
is not in dispute in the above captioned case.
Regarding International Auto Logistics, as part of its initial past performance
evaluation, TRANSCOM reviewed twenty-six past performance references, some
submitted by International Auto Logistics, and some identified by the agency through its
Past Performance Information Retrieval System. The Source Selection Evaluation
Board, after conducting its initial review, identified three potential issues related to past
performance. First, the Source Selection Evaluation Board noted that for one of
International Auto Logistics’ subcontractors, Horizon Lines, a past performance
reference found by the agency had a low performance rating: “The Government
considered that Horizon, one of IAL’s subcontractors, has Unsatisfactory ratings on one
23
reference, however pending IAL’s response to the EN [Evaluation Notice], this rating is
of minimal concern.” Additionally, TRANSCOM noted that International Auto Logistics’
“evaluated performance is through its parent company, International Auto Processing
(IAP). Evaluation Notice (EN IAL-0009) will be sent to verify the relationship specific to
this contract between IAL and IAP.” TRANSCOM also noted that Global Auto Logistics,
another of intervenor’s subcontractors, “shares common ownership with Trans Global
Auto Logistics (TGAL) and relies on TGAL for their past performance record. Evaluation
Notice (EN IAL-0010) will be sent to verify the relationship specific to this contract
between GAL and TGAL.”
International Auto Logistics responded to the three evaluation notices issued by
TRANSCOM. In response to the evaluation notice regarding Horizon Lines,
International Auto Logistics attached additional documents which it stated “shows a
reenergized Horizon Lines being an ALPHA carrier meeting RDD 98.7% of the time with
an ITV [In-Transit Visibility] percentage of 97.0%. This performance level continues with
the supporting evidence in our proposal reflecting Horizon’s 100% 90-day rolling
performance rating.” International Auto Logistics also stated:
IAL noted in its vendor prequalification audits that in mid-2012 Horizon put
in place new procedures and timely RDD reporting mechanisms that
clearly showed exemplary performance measurements in the later time
window. Horizon operationally addressed weaknesses in the
USTRANSCOM-cited CPAR for break bulk cargo by initiating a procedure
for monitoring and reporting Gate Out and Delivery events in 2012, the
effects of which corrected the issue and improved service statistics on this
cargo.
Finally, International Auto Logistics mentioned that “[a]ll Team IAL subcontractors must
meet or exceed IAL performance metrics and quality standards on the GPC III contract,”
and that they will be closely monitored. As a result, the Source Selection Evaluation
Board stated: “Offeror's revised proposal is sufficient to address the concerns of this
EN. EN is closed.”
In response to the evaluation notice on the relationship between International
Auto Processing and International Auto Logistics, International Auto Logistics
responded with a letter from Robert Miller, “President & CEO” of International Auto
Processing, stating in relevant part:
This letter confirms International Auto Processing's (lAP) firm and lasting
commitment to support its wholly-owned subsidiary International Auto
Logistics (IAL) to the fullest extent. IAL will have at its complete disposal
lAP's robust resources, port and vehicle processing expertise, rail, and
trucking networks, IT systems, quality and ISO9001 certified programs
and processes, commercial best practices and techniques, Human
Resources, and financial backing to meet any challenge and ensure
24
compliance with the requirements as defined under the GPCIII PWS
[Performance Work Statement].
Many of the lAP Board and Management team such as myself, President
of lAP, Vince Watson, CFO, Steve Robbins, VP Operations (and over 18
years with lAP), both IAP/IAL Board members, as well as many of our
departmental leaders and team members are on-call and will be sharing
their skills, knowledge, operation techniques and experience in the training
process as well as being "on-call" should additional support be required.
The lAP and IAL team are highly aware of the customer's need in a
contract transition. lAP pledges to IAL its complete support.
International Auto Logistics also separately pointed to parts of its proposal that indicated
that it would be able to take advantage of International Auto Processing’s “‘robust
resources, including port and vehicle processing expertise, rail and trucking networks,
IT systems, quality and training processes, and commercial business best practice
techniques,’” as well as “IAP’s human resources and financial backing.” (emphasis in
original). As a result of this response, the Source Selection Evaluation Board stated:
“Offeror's revised proposal is sufficient to address the concerns of this EN. EN is
closed.”
In response to the evaluation notice on the relationship between Trans Global
Auto Logistics and Global Auto Logistics, International Auto Logistics attached a letter
from Trans Global Auto Logistics, stating in relevant part:
This letter confirms Trans Global Auto Logistics (TGAL) firm and lasting
commitment to support its sister company Global Auto Logistics (GAL)
both of which are controlled by Kay Lester to the fullest extent. GAL will
have at its complete disposal TGAL's vast resources in the areas of; [sic]
freight forwarding,2nd [sic] POV movement, NVOCC (Non-Vessel Owning
Common Carrier), warehousing, trucking, global operations network,
systems, operational transportation logistics policies and procedures,
human resources, and financial backing to meet any challenge and insure
GAL compliance with the requirements as defined under the GPCIII PWS.
Although Ms. Lester, the president and owner of both entities, did not sign the letter,
Aldo Flores, who identified himself as the General Manager of Trans Global Auto
Logistics, stated: “I represent I am fully authorized to confirm Kay [Lester] and her
companies [sic] resources will be at full disposal toward the successful performance of
responsibilities to the magnitude required under the scope of the solicitation PWS.” The
International Auto Logistics proposal also stated:
[A]ll of TGAL’s key personnel as outlined in the proposal such as Kay
Lester, Tony Lester and Joe Wetz, all with unquestioned prior GPC and
similar related service as well as their supportive team members will be on
25
hand and on call to assist GAL. From training, to quality operational
processes and procedures, Ocean and Inland Logistics and more.”
In response, the Source Selection Evaluation Board stated: “Offeror's revised proposal
is sufficient to address the concerns of this EN. EN is closed.”
After receiving responses from International Auto Logistics as well as other
offerors, the Source Selection Evaluation Board conducted its interim evaluation.
TRANSCOM discussed International Auto Logistics’ responses to the agency’s
evaluation notices:
One EN was issued to afford IAL the opportunity to respond to adverse
past performance information to which IAL responded by providing a
satisfactory explanation as to the adverse past performance. IAL
responded by stating Horizon lines has made improvements to their
performance and is currently an “ALPHA” carrier (defined as eligible for all
cargo bookings, Preferred Contractor for Unit Move Cargo) and meets
their RDD 98.7% of the time and has an ITV percentage of 97%. Both
unsatisfactory ratings are of minimal concern since Horizon has corrected
its performance and is currently performing above average. Two additional
ENs were issued to verify the relationship between IAL and IAP as well as
GAL and TGAL for the purposes of past performance information in IAL’s
proposal. IAL responded by providing information sufficient to confirm the
relationships between itself and IAP as well as GAL and TGAL for the
purpose of past performance information for this solicitation. Additional
information was also received from IAL’s past performance references
during this time. After evaluation of all new information noted above,
however, it was determined the overall impact was not significant enough
to affect IAL’s past performance rating. Therefore, IAL’s past performance
confidence assessment remained Satisfactory Confidence.
As part of the interim evaluation, the Source Selection Evaluation Board
summarized its review of each of International Auto Logistics’ past performance
references in a chart in the interim evaluation report, starting with the prime contractor’s
past performance references. International Auto Logistics provided three past
performance references, which were performed by its parent company, International
Auto Processing. TRANSCOM summarized the references as follows:
Reference Description of Effort Performance Recent Relevancy Rationale for Performance
or Contract Evaluated Areas (Y/N) Rating Relevancy Rating Comments
No.
MBUSA Prime contractor receiving, POV Y SR Reference provided includes Past Performance
(Mercedes inspecting, documenting, Processing, 1/1/07 – [Somewhat customer service, short term questionnaire
Benz USA) washing, providing and Storage, 12/31/12 Relevant] storage, and POV processing indicated overall
Ted managing truck areas, Customer but does not include Exceptional
Boudalis painting and body repairs, Service arranging/providing ocean & Performance.
customer service, inland transportation, longterm Reference stated
performance reporting, and storage, or OCONUS they would award
interim storage at the VPC performance. future contract.
in Brunswick, GA.
26
General Prime contractor receiving, POV Y SR Reference provided includes Past Performance
Motors inspecting, documenting, Processing, 10/1/07 customer service, short term questionnaire
Scott washing, providing and Storage, – storage, and POV processing indicated overall
McMillan managing truck areas, Customer 12/31/17 but does not include Very Good
painting and body repairs, Service arranging/providing ocean & Performance.
customer service, inland transportation, longterm Reference stated
performance reporting, and storage, or OCONUS they would award
interim storage at the VPC performance. future contract.
in Brunswick, GA.
[Hyundai] Prime contractor providing POV Y SR Reference provided Past Performance
Glovis new/finished vehicle processing, 2010- includes customer questionnaire
America, processing and storage in customer 2012 service, storage, and indicated overall
Inc. the US. service, POV processing but Very Good
Glenn Clift storage does not include Performance.
arranging/providing Reference stated
ocean & inland they would award
transportation or future contract.
OCONUS
performance.
TRANSCOM stated: “In summary, IAL’s performance record includes CONUS
operations and demonstrates Very Good-Exceptional performance in POV processing,
storage and customer service.”
TRANSCOM next examined International Auto Logistics’ subcontractors’ past
performance references, in the order they appear in the above list of subcontractors.
Regarding the subcontractor, Liberty Global Logistics, TRANSCOM summarized the
three references submitted for the subcontractor as follows:
Reference Description of Effort Performance Recent Relevancy Rationale for Performance
or Contract Evaluated Areas (Y/N) Rating Relevancy Rating Comments
No.
HTC711- Prime contractor providing Providing/ Y SR Reference provided includes Past Performance
09-D- international cargo arranging for 1/1/09 – providing/arranging for ocean & questionnaire
0039 transportation and ocean & 2/29/12 inland transportation, customer indicated overall
Bill distribution services using inland service, and CONUS/OCONUS Exceptional
Lindquist common contract ocean transportation, performance but does not Performance.
carriers offering regularly customer include POV processing and Reference stated
scheduled commercial liner service storage. they would award
service. future contract.
Uniworld Prime contractor providing Providing/ Y SR Reference provided includes Past Performance
Ross carriage of vehicles and arranging for 1/1/11 - providing/arranging for ocean questionnaire
Shrourou heavy equipment via ocean ocean Present transportation, customer service, indicated overall
transportation from US East transportation, and CONUS/OCONUS Exceptional
Coast to various customer performance but does not Performance.
destinations in the service include POV processing, Reference stated
Mediterranean, Red Sea, providing/arranging inland they would award
and Arabian Gulf. transportation, or storage. future contract.
27
HTC711- Prime contractor providing Providing/ Y SR Reference provided includes PPIRS [Past
09-D- international cargo arranging for 04/01/11 providing/arranging for ocean & Performance
0039 transportation and ocean & – inland transportation, customer Information
Kim distribution services using inland 09/30/12 service, and CONUS/OCONUS Retrieval System]
Crossen common contract ocean transportation, performance but does not indicated
carriers offering regularly customer include POV processing and Satisfactory
scheduled commercial liner service storage. performance.
service. Reference stated
they would award
future contract.
TRANSCOM stated: “In summary, LGL’s [Liberty Global Logistics’] performance record
covers CONUS and OCONUS operations and demonstrates Satisfactory-Exceptional
performance in providing/arranging for inland and ocean transportation and customer
service.”
Next, TRANSCOM reviewed Horizon Line’s past performance references, as follows:
Reference Description of Effort Performance Recent Relevancy Rationale for Performance
or Contract Evaluated Areas (Y/N) Rating Relevancy Rating Comments
No.
HTC711- Prime contractor Providing/arranging Y SR Reference provided includes PPIRS indicated
11-09-D- providing international for ocean & inland 1/30/09 providing/arranging for ocean Satisfactory
0037 cargo transportation and transportation – & inland transportation, and performance.
Kim distribution services using 9/30/12 CONUS/OCONUS Reference stated
Crossen common contract ocean performance but does not they would award
carriers offering regularly include POV processing, future contract.
scheduled commercial storage, and customer service.
liner service.
HTC711- Prime contractor Providing/arranging Y SR Reference provided includes PPIRS indicated
11-D-R012 providing port to port and for ocean & inland 12/1/11 providing/arranging for ocean Satisfactory
Kim end to end ocean transportation – & inland transportation, and performance.
Crossen transportation services 11/30/12 CONUS/OCONUS Reference stated
between CONUS and performance but does not they would award
Alaska/Hawaii. include POV processing, future contract.
storage, and customer service.
HTC711- Prime contractor Providing/arranging Y SR Reference provided includes PPIRS indicated
11-D-W004 providing port to port and for ocean & inland 08/01/11 providing/arranging for ocean Unsatisfactory to
Kim end to end ocean transportation – & inland transportation, and Satisfactory
Crossen transportation services 11/30/12 CONUS/OCONUS performance.
to/from Alaska/Hawaii performance but does not Reference stated
and CONUS. include POV processing, they might or
storage, or customer service. might not award
future contract.
TRANSCOM commented that “No PPQs [completed Past Performance
Questionnaires] were received for Horizon,” and therefore, all of Horizon Line’s
references came from a search of TRANSCOM’s Past Performance Information
Retrieval System. TRANSCOM provided some additional discussion regarding Horizon
Line’s “Unsatisfactory to Satisfactory performance” rating with regards to reference
HTC711-11-D-W004, the third past performance reference in the above chart. The
agency stated:
In the area of on-time delivery, the report noted that Horizon met the
Required Delivery Date for 64 of 95 pieces moved during this period of
28
performance and no cargo movement was measured for Dec 2011, Feb
through Jun 2012, and Sep 2012 due to incomplete submission of EDI
codes. Additionally, Horizon’s overall ITV percentage was 56% and the
Contracting Officer stated she might or might not award to Horizon today
given the choice. Horizon was given “Charlie” ratings for both areas
(defined as eligible for cargo bookings at a reduced preference).
Evaluation Notice (EN IAL-0008) was issued to provide IAL an opportunity
to respond to Horizon’s adverse past performance. IAL responded by
stating Horizon lines has made improvements to their performance and is
currently an “ALPHA” carrier (defined as eligible for all cargo bookings,
Preferred Contractor for Unit Move Cargo) and meets their RDD 98.7% of
the time and has an ITV percentage of 97%. Both unsatisfactory ratings
are of minimal concern since Horizon has corrected its performance and is
currently performing above average. Additionally, IAL has established
performance metrics for its subcontractors which will be managed via its
TRAX system to ensure on-time performance and complete in-transit
visibility. In summary, Horizon’s performance record covers CONUS and
OCONUS operations and demonstrates Unsatisfactory - Satisfactory
performance in providing/arranging for inland and ocean transportation,
with an acceptable resolution to the Unsatisfactory performance.
TRANSCOM next examined Global Auto Logistics, which submitted three past
performance references, all performed through Trans Global Auto Logistics. Two of the
references were determined by TRANSCOM to be “Relevant,” making them the highest
rated International Auto Logistics references in terms of relevance. The first reference
stated, “TGAL, a sub-contractor to Allied International/Sirva under their contract with the
Canadian Government, is responsible for complete POV processing in Europe of both
inbound and outbound Canadian Department of Defense service member POVs.” The
reference mentioned that, “TGAL has established multiple agencies in Geilenkirchen,
Heidelberg, Hamburg, Berlin, Munich, Rome and Naples” in carrying out its assigned
role. The subcontract with Allied International/Sirva was stated to be for $2 million
annually, $10 million over its life cycle.
The second Global Auto Logistics reference was one in which Trans Global Auto
Logistics asserted it provides “VW-Logistics with complete transportation and relocation
services for their Group-employee’s global moves (i.e. VW, Porsche, Audi, Skoda,
Seat), to and from one of their global Plants or Regional headquarters.” The reference
stated that the contract is for “$650,000 annually (estimated),” and also mentioned that,
“VW-Logistics provides Trans Global with allocated and sufficient space on their
chartered RO/RO – vessels, to facilitate the timely shipping of our volume of Canadian
Forces 1st and 2nd POV program, as well as for the U.S.-Service-Members 2nd POVs.”
TRANSCOM rated only two of the three references provided:
29
Reference Description of Effort Performance Recent Relevancy Rationale for Performance
or Contract Evaluated Areas (Y/N) Rating Relevancy Rating Comments
No.
W6447- Subcontractor providing Providing/arranging Y R Reference provided includes Past performance
ILEA08-35 complete transportation for ocean & inland 2008 - [Relevant] providing/arranging for ocean questionnaire
Pat services of POVs for transportation, Present & inland transportation, indicated overall
Amirault service members of the customer service, customer service, POV Exceptional
Canadian Department of POV processing processing, and Performance.
National Defense for CONUS/OCONUS Reference stated
shipments between performance but does not they would award
Canada/US and Europe. include storage. future contract.
Volkswagen Prime contractor Providing/arranging Y R Reference provided includes Past performance
Logistics providing transportation for ocean & inland 2006 - providing/arranging for ocean questionnaire
Andree and relocation services transportation, Present & inland transportation, indicated overall
Brinkmann for shipment of private customer service, customer service, POV Very Good to
vehicles worldwide POV processing processing, and Exceptional
including additional CONUS/OCONUS Performance.
services required locally performance but does not Reference stated
by host nation countries. include storage. they would award
future contract.
The third Global Auto Logistics reference, for the contract with Hoegh Auto
Liners, referenced a $1.5 million annual effort, in which, Trans Global Auto Logistics is
“[p]roviding ocean transportation services between U.S., Europe, West Africa, Middle
East, and Australia.” The agency did not evaluate the Global Auto Logistics reference
regarding the contract with Hoegh Auto Liners. The agency indicated that when it tried
to contact Hoegh Auto Liners:
Spoke to Mr. McKown on 8/26/2013 @ 1:50PM. He explained the
relationship between his company and TGAL is that TGAL buys vessel
space from Hoegh Auto Liners. TGAL is not performing services for
Hoegh Auto Liners, but instead is a customer providing cargo to them to
be shipped. After going over the PPQ with Mr. McKown over the phone, it
was determined he is not the right person to complete a PPQ on behalf of
TGAL.
In the TRANSCOM source selection evaluation notes contained in the record, the
government stated that “[t]he Hoegh reference is not present. Perhaps an EN would be
appropriate, particularly if we’ll do this consistently across the board in other instances,”
and that “[r]eference has been e-mailed twice and called once requesting a PPQ.” The
record does not contain an indication of any further attempt to contact Hoegh in order to
verify Global Auto Logistics’ past performance reference.
Separately, TRANSCOM in its interim evaluation report also noted the strength of
Global Auto Logistics’ key personnel, stating:
TGAL’s key personnel (Kay Lester, Tony Lester, and Joe Wetz) have prior
experience with GPC II and similar related service and are available to
GAL in performance under this contract. Additionally, GAL and TGAL are
both controlled by Kay Lester. GAL will have at its disposal TGAL’s vast
30
resources in the areas of freight forwarding, POV movement, NVOCCs,
warehousing, trucking, global operations, network, systems, operational
transportation logistics policies and procedures, human resources, and
financial backing.
TRANSCOM concluded: “In summary, GAL’s performance record covers CONUS and
OCONUS operations and demonstrates Very Good-Exceptional performance in
providing/arranging for inland and ocean transportation, customer service, and POV
processing.”
TRANSCOM next reviewed the past performance references of SDV Command
Source. TRANSCOM considered the three references provided by intervenor and one
reference TRANSCOM found through its own Past Performance Information Retrieval
System. TRANSCOM stated in its review:
Reference Description of Effort Performance Recent Relevancy Rationale for Performance
or Contract Evaluated Areas (Y/N) Rating Relevancy Rating Comments
No.
W9124J- Prime contractor providing POV processing, Y SR Reference provided includes Past performance
09-D-0017 complete in-processing providing/arranging 7/1/09 – providing/arranging for inland questionnaire
Gerard Storage services for the for inland 6/30/12 transportation, customer indicated overall
Sovie Dept of the Army POVs. transportation, service, storage, and POV Very Good
customer service, processing but does not Performance.
and storage. include providing/arranging Reference stated
for ocean transportation or they would award
OCONUS performance. future contract.
W9124J- Prime contractor providing POV processing, Y SR Reference provided includes Past performance
09-D-0017 complete in-processing providing/arranging 7/1/09 – providing/arranging for inland questionnaire
DO Fort Storage services in for inland 6/30/12 transportation, customer indicated overall
Carson, Colorado for the Dept of transportation, service, storage, and POV Exceptional
CO the Army POVs. customer service, processing but does not Performance.
Jennifer and storage. include providing/arranging Reference stated
DeGraff for ocean transportation or they would award
OCONUS performance. future contract.
W9124J- Prime contractor providing POV processing, Y SR Reference provided includes Past performance
09-D-0017 complete in-processing providing/arranging 7/1/09 – providing/arranging for inland questionnaire
DO Joint Storage services in for inland 6/30/12 transportation, customer indicated overall
Base Washington for the Dept transportation, service, storage, and POV Exceptional
Lewis- of the Army POVs. customer service, processing but does not Performance.
McChord, and storage. include providing/arranging Reference stated
WA for ocean transportation or they would award
Arthur OCONUS performance. future contract.
Dearen
W9124J- Prime contractor POV processing, Y SR Reference provided includes PPIRS indicated
09-D-0017 providing complete in- providing/arranging providing/arranging for inland Very Good to
Angela processing storage for inland transportation, customer Exceptional
Arwood services for the Dept of transportation, service, storage, and POV performance.
the Army POVs. customer service, processing but does not Reference stated
and storage. include providing/arranging they would award
for ocean transportation or future contract.
OCONUS performance.
TRANSCOM concluded: “In summary, SDV’s performance record covers CONUS
operations and demonstrates Very Good to Exceptional performance in
31
providing/arranging for inland transportation, customer service, storage, and POV
processing.”
TRANSCOM next evaluated Posey Transport Group. Of the three references,
only one was found to be “Somewhat Relevant,” with the other two determined to be
“Not Relevant.” For the “Somewhat Relevant” reference, TRANSCOM rated the
reference as follows:
Reference Description of Effort Performance Recent Relevancy Rationale for Performance
or Contract Evaluated Areas (Y/N) Rating Relevancy Rating Comments
No.
AT&T Marc Prime contractor Providing/arranging Y SR Reference provided includes Past Performance
Botindari managing the inland 2009 – providing/arranging inland questionnaire
transportation of new transportation, Present transportation and customer indicated overall
vehicles entering service customer service service in US only. The Exceptional
and the transportation of reference does not include Performance.
used surplus vehicle providing/arranging ocean Reference stated
relocation and specialty transportation, POV they would award
equipment relocation. processing, storage, or future contract.
OCONUS performance.
TRANSCOM concluded that: “In summary, Posey’s performance record cover [sic]
CONUS operations only and demonstrates Exceptional performance in
providing/arranging for inland transportation and customer service.”
Of the remaining twelve past references, ten were determined to be not relevant,
and two not recent. The references are summarized below by the court:
Subcontractor Reference TRANSCOM’s Description of Effort TRANSCOM’s Rationale for
or Contract Evaluated Relevancy Rating
No.
Posey Transport TS00010203 “Subcontractor providing POV transport
“Reference provided includes providing/arranging
Group Joe between VPCs and vehicle storage facilities
inland transportation and customer service in the
Adamczyk (VSFs) at operating locations in five US
western United States only. The reference does not
western states. 2009-2010 $107,945; 2010-
include providing/arranging ocean transportation, POV
2011 $319,530; 2011-2012 $53,143.” processing, storage, OCONUS performance, and was a
low dollar value in comparison to this Solicitation.”
Posey Transport Erhard BMW “Prime contractor managing the “Reference provided includes providing/arranging
Group John transportation of dealer to dealer vehicle inland transportation and customer service in United
Kapousis trades and dealer to customer POV States and Canada only. The reference does not include
transportation requests in CONUS and providing/arranging ocean transportation, POV
Canada. 2010 $21,255; 2011 $14,670; processing, storage, OCONUS performance, and was a
2012 $8,830; 2013 $9,900.” low dollar value in comparison to this Solicitation.”
Boyle GSA Ron “Prime contractor moving US National “Reference provided includes providing/arranging
Transportation Siegel Archives via inland transportation for inland transportation and customer service in the United
National Archives Records Administration States only. The reference does not include
with security requirements in CONUS. providing/arranging ocean transportation, POV
$200,000 annually.” processing, storage, OCONUS performance, and was a
low dollar value in comparison to this Solicitation.”
Boyle M&EC Mike “Prime contractor moving nuclear materials, “Reference provided includes providing/arranging
Transportation Eisenhower security, and/or other specified inland transportation and customer service in the United
requirements in CONUS. $120,000.” States only. The reference does not include
providing/arranging ocean transportation, POV
processing, storage, OCONUS performance, and was a
low dollar value in comparison to this Solicitation.”
32
VPC of VPC001 “Prime contractor providing indoor POV “Reference provided includes customer service, storage,
Fayetteville & RV001 storage (including maintenance) for two & POV processing in North Carolina only. The reference
Arthur POVs, one RV, and sold the vehicle in does not include providing/arranging ocean or inland
Goodman Hope Mills, North Carolina. Also provided transportation, OCONUS performance, and was a very
shuttle service to/from airport. $2,279.46 low dollar value in comparison to this Solicitation. This
annually; $6,838.38 life cycle.” reference was a onetime arrangement between the
contractor and an individual.”
VPC of VPC013 “Prime contractor providing indoor POV “Reference provided includes customer service, storage,
Fayetteville & VPC190 storage (including maintenance) and POV processing, and arranging/providing
Michelle shipping for one POV and packing, crating, inland transportation in North Carolina only. The
Bandy storage, and shipping of household goods reference does not include providing/arranging ocean
in Hope Mills, North Carolina. Also provided transportation, OCONUS performance, and was a very
shuttle service to/from airport. $3,085.” low dollar value in comparison to this Solicitation. This
reference was a onetime arrangement between the
contractor and an individual.”
VPC of VPC182 “Prime contractor providing indoor POV “Reference provided includes customer service, storage,
Fayetteville Juan storage (including maintenance) and POV processing, and arranging/providing inland
Villarreal shipping for one POV in Hope Mills, North transportation in North Carolina only. The reference
Carolina. $1,671.03.” does not include providing/arranging ocean
transportation, OCONUS performance, and was a very
low dollar value in comparison to this Solicitation. This
reference was a onetime arrangement between the
contractor and an individual.”
North American GAPS “Individual who developed, established, and “Reference provided is for an individual’s performance
Consulting Donald instituted operational and administrative (Ruhi Guven) as a previous President of (GAPS).
Services Asdell processes and programs to operate vehicle Information provided is not for NACS as a company.”
processing and factory operations as the
President of GAPS. $235,000 annual;
$725,000 life cycle.”
North American City & Port “Prime contractor providing port and [Not recent]
Consulting of Long terminal operations and logistics needs at
Services Beach the port of Long Beach, CA.”
Frank
Colonna
North American A&R “Prime contractor reviewing and updating [Not recent]
Consulting Engineering existing Quality Assurance program to
Services Murat reflect the industry required standards in
Sehidoglu Carson, CA.”
Lincoln Property W9124J- “Subcontractor who researched, negotiated, “Reference provided includes customer service in
Company 09-D-0017 and acquired facilities to support the reference to acquiring facilities in CONUS only. The
Joe contract.” reference does not include providing/arranging ocean or
Adamczyk inland transportation, OCONUS performance, POV
processing, or storage.”
Lincoln Property Cascades “Prime contractor who identified needs and “Reference provided includes customer service in
Company Technologies, criteria to find the person office spaces in reference to acquiring facilities in CONUS only. The
Inc. Washington, D.C. and Northern Virginia.” reference does not include providing/arranging ocean or
Alfredo inland transportation, OCONUS performance, POV
Casta processing, or storage.”
TRANSCOM remarked that Boyle Transportation’s and VPC of Fayetteville’s “Not
Relevant” references were for too low an amount of money. North American Consulting
Services’ one recent reference was remarked as not relevant because it was an
“individual’s performance (Ruhi Guven).” Lincoln Property Company’s two “Not
Relevant” references were remarked as containing too little scope: “The references
includes [sic] customer service for acquiring facilities in CONUS only, but do not include
providing/arranging for inland or ocean transportation, POV processing, storage, or
OCONUS performance.”
33
In reaching an interim past performance confidence determination, the
TRANSCOM evaluators stated:
SUMMARY: The Government considered all of the past performance
above (28 references) in establishing an overall confidence assessment
rating for IAL. IAL had no VR references for the services required
(CONUS and OCONUS operations, POV processing, arranging
for/providing ocean and inland transportation, customer service, and
storage). as they have not performed the services together in a single long
term contract of the same magnitude and scope as required in this
Solicitation. Most significant and of greatest consideration was the Very
Good – Exceptional performance of one of IALs subcontractors on two R
efforts of similar scope and magnitude of effort and complexities as this
solicitation as the efforts covered CONUS and OCONUS operations,
providing/arranging for inland and ocean transportation, customer service,
and POV processing. Only storage was not provided under these similar
efforts. The Government also considered the Satisfactory-Exceptional past
performance on the SR references, which considered together, reflect
successful performance of all of the services required by this solicitation
(CONUS and OCONUS operations, POV processing, arranging
for/providing ocean and inland transportation, customer service, and
storage). The Government considered that Horizon, one of IAL’s
subcontractors, has Unsatisfactory ratings on one reference, however IAL
satisfactorily addressed the adverse past performance and the rating is of
minimal concern. The Government did not consider the ten efforts that
were determined not relevant nor the two determined not recent. The
offeror has no documented past performance in the area of Small
Business Subcontracting Utilization, therefore performance in this area is
unknown and will not be treated favorable [sic] nor unfavorably.
Although IAL has no VR references as they have not performed a single
contract of the same magnitude and scope as required in this Solicitation,
it’ s [sic] R references are considered significant as they include all
required services with the exception of storage. In addition, IAL and its
subcontractors combined have provided sufficient references to
demonstrate successful performance in all individual performance areas
as required by the solicitation. This gives the Government a reasonable
expectation the offeror will successfully perform the required effort.
Therefore, a Confidence Assessment Rating of Satisfactory Confidence
was assigned.
(emphasis and capitalization in original). The record indicates that, after the interim
evaluation discussed above was completed, “[n]o discussions were held, nor revisions
made” by International Auto Logistics regarding its past performance proposal. The
Source Selection Evaluation Board signed and approved its final report on October 15,
2013. In the final report, since International Auto Logistics had made no changes to its
34
past performance evaluation, the Source Selection Evaluation Board maintained its
rating determination from the interim evaluation, and stated: International Auto Logistics’
“past performance confidence assessment remained Satisfactory Confidence.”
The same Source Selection Evaluation Board offered the following final
evaluation for all offerors:
(emphasis in original). American Auto Logistics received a past performance confidence
rating of “Substantial Confidence,” and International Auto Logistics received a past
performance rating of “Satisfactory Confidence.”
The Source Selection Advisory Council submitted its report reviewing the GPC III
solicitation on October 16, 2013. The Source Selection Advisory Council performed an
“integrated assessment” of the various proposals, which “takes into consideration the
potential tradeoffs in terms of performance confidence assessment ratings and price.”
The integrated assessment did not consider technical subfactors, “because the factors
were rated on an Acceptable / Unacceptable basis and all offerors’ proposals were
rated as Acceptable.” In its integrated assessment, the Source Selection Advisory
Council compared International Auto Logistics directly with American Auto Logistics:
IAL received a Satisfactory past performance confidence assessment
rating, offering a lesser level of confidence in successful contract
performance when compared to AAL’s proposal, which received a
Substantial Confidence rating. All services under this requirement for
which past performance information was requested represent commercial
services. The lack of a single reference encompassing all performance
areas resulted in IAL being assigned a lower past performance confidence
assessment rating (Satisfactory Confidence) than AAL (Substantial
Confidence). However, the difference between these two ratings is
mitigated to an extent by the general commercial nature of the contract.
Offerors have access to the existing shipping lanes for ocean
transportation using the Government’s Universal Services Contract (USC)
35
and Regional Domestic Contracts (RDC); many of the OCONUS VPCs
are Government-provided; warehousing, vehicle processing space, line-
haul services, and the IT requirements are also commercially available.
Although IAL’s past performance was not the same scope as the
solicitation or AAL’s past performance, it includes the same commercial
services required with the exception of performing under a single contract.
Adding volume to a commercial service already being performed presents
less risk than adding a new service. IAL’s past performance provides the
Government satisfactory confidence it has the experience that would
enable IAL to expand its current commercial efforts to meet the
Government’s requirements. While the solicitation permits the
Government to award to an offeror with a higher price where superior past
performance of the higher priced offeror outweighs the cost difference, the
Government will not pay a price premium that it considers disproportionate
to the benefits associated with the proposed margin of service superiority.
The incumbent’s superior past performance, when compared to the price
and past performance proposals of IAL, does not warrant awarding at the
higher proposed price. Therefore, IAL’s proposal represents the best
overall value to the Government.
The Source Selection Advisory Council, in making its final recommendation to the
source selection authority, “determined the offeror representing the best value to the
Government, price and other factors considered, is IAL. Award to IAL is recommended.”
The source selection authority, Gail Jorgenson, made the final selection and
signed the Source Selection Decision Document on October 23, 2013. Under the
“Basis for Award,” the Source Selection Decision Document stated:
The Government utilized a variation of the Trade-off Source Selection
Process in accordance with (IAW) the mandatory DOD Source Selection
Procedures. Specifically, the Government conducted a Past Performance
Price Tradeoff (PPT) source selection in which competing offerors’ past
performance history was evaluated on a basis approximately equal to cost
or price considerations. Award will be made to the offeror deemed
responsible IAW FAR Part 9, as supplemented, who submitted an
acceptable Business Proposal, Technical Proposal, and Small Business
Proposal, and is judged, based on their past performance and total
evaluated price, to represent the best value to the Government. Offerors
were notified that this may result in an award to a higher rated, higher
priced offeror, where the decision is consistent with the evaluation factors
and the Government reasonably determines that the superior past
performance of the higher priced offeror outweighs the difference in price.
Offerors were also notified that the Government will not pay a price
premium it considers to be disproportionate to the benefits associated with
the proposed margin of service superiority. Therefore, the Government will
award the contract to the offeror representing the best value, all factors
36
considered in accordance with the solicitation. An integrated assessment
of the source selection team’s evaluations of price and past performance
is described below.
The source selection authority decided to give all the remaining offerors, including
International Auto Logistics, a “Satisfactory Confidence” past performance rating, in
agreement with the recommendations from the Source Selection Evaluation Board. The
source selection authority stated that “the Government has a reasonable expectation
these offerors will successfully perform the required effort.” The source selection
authority discussed International Auto Logistics’ past performance evaluation in further
detail:
The Government considered 26[11] past performance references in
establishing an overall confidence assessment rating for IAL. IAL had no
Very Relevant references for the services required as they have not
performed the required services together in a single long-term contract of
the same magnitude and scope as the current requirement. Although IAL
has no Very Relevant references, its Relevant references are considered
significant as they include all required services with the exception of
storage. Most significant and of greatest consideration was the Very Good
– Exceptional performance of IAL’s subcontractors on two Relevant efforts
of similar scope and magnitude of effort and complexity as this solicitation,
which included CONUS and OCONUS operations, providing/arranging for
inland and ocean transportation, customer service, and POV processing,
representing all performance areas noted in the solicitation except for
long-term storage. The Government also considered the Satisfactory-
Exceptional past performance on the Somewhat Relevant references,
which considered together, reflect successful performance of all of the
services required by this solicitation, including long-term storage. The
offeror has no documented past performance in the area of Small
Business Subcontracting Utilization, therefore performance in this area is
unknown and was treated neither favorable [sic] nor unfavorably. Because
IAL and its subcontractors combined have provided numerous references
to demonstrate successful performance in individual performance areas
as required by the solicitation, the Government has a reasonable
expectation the offeror will successfully perform the required effort;
therefore, a Confidence Assessment Rating of Satisfactory Confidence
was assigned.
11
Although the source selection authority stated in the Source Selection Decision
Document that the government had reviewed twenty-six references for International
Auto Logistics, the Source Selection Evaluation Board stated that it reviewed twenty-
eight past performance references. A joint comparative chart submitted by the parties
also indicates that the government reviewed twenty-eight past performance references
for International Auto Logistics.
37
In discussing International Auto Logistics’ “Integrated Assessment” (emphasis
in original), the source selection authority stated:
All services under this requirement for which past performance information
was requested (POV processing, arranging for or providing ocean
transportation, arranging for or providing inland transportation, customer
service, and storage) represent commercial services, despite the difficulty
for offerors other than the incumbent to produce a single, comprehensive
past performance reference including essentially the same scope and
magnitude of effort and complexities requested in the solicitation. While
the lack of a single reference encompassing all performance areas
resulted in a lower past performance confidence assessment rating, the
value between Satisfactory Confidence and Substantial Confidence
ratings regarding actual contract performance is reduced to an extent by
the general commercial nature of the contract and the prevalence of the
required services in the commercial marketplace. This includes access to
existing shipping lanes for ocean transportation, including the use of the
Government’s Universal Services Contract (USC) and Regional Domestic
Contracts (RDC); the Government-provided vehicle processing center
facilities in many of the OCONUS locations; the availability of commercial
warehousing and vehicle processing center space, availability of
commercial line-haul services to and from the major POV processing
centers, and the basic, commercial-based IT requirements. The
Government also notes IAL’s past performance score reflected the scope
of its past performance. IAL did not present past performance of the same
scope as the Government requirement or AAL’s past performance.
However, while the scope was not the same, the Government notes IAL’s
past performance includes largely the same commercial services
conducted by AAL (with the exception of performing under a single
contract) and includes services IAL demonstrated it has and currently
performs in the commercial marketplace. Adding volume to a commercial
service already being performed presents less risk than adding a new
service. IAL’s past performance provides the Government satisfactory
confidence that it has the experience that would enable IAL to expand
current commercial efforts to meet the Government requirements.
While the Government may award to a higher rated, higher priced offeror,
where it determines that the superior past performance of the higher
priced offeror outweighs the associated price premium, the
aforementioned commercial qualities of the requirements impact the
extent to which the Government is willing to trade-off increased cost for
higher-rated past performance. IAL’s TEP is the lowest submitted by any
38
offeror and is $38,301,734.66[12] below the next lowest offer. While the
solicitation permits the Government to award to an offeror with a higher
price where superior past performance of the higher priced offeror
outweighs the cost difference, the Government will not pay a price
premium that it considers disproportionate to the benefits associated with
the proposed margin of service superiority. The incumbent’s superior past
performance, when compared to the price and past performance
proposals of IAL, does not warrant awarding at the higher proposed price.
Therefore, IAL’s proposal represents the best overall value to the
Government. Additional rationale for this tradeoff are detailed in the next
section.
The source selection authority, within American Auto Logistics’ “Integrated
Assessment” (emphasis in original), also elaborated further as to why the government
had concluded that International Auto Logistics was a better candidate for the GPC III
award:
AAL was the only offeror to receive a Very Relevant past performance
rating on any reference submitted, because only AAL submitted evidence
of providing all of the same services as the current requirement, with
essentially the same scope and magnitude of effort and complexities,
under a single contract. This is due to AAL and its subcontractors’ unique
position of having successfully provided these services for the past 13
years. As a result, AAL received a Substantial Confidence past
performance rating. AAL’s proposed price is $38,301,734.66 higher than
the lowest priced offeror. While the solicitation permits the Government to
award to an offeror with a higher price, where superior past performance
of the higher priced offeror outweighs the cost difference, the Government
will not pay a price premium that it considers disproportionate to the
benefits associated with the proposed margin of service superiority. In the
present case, AAL’s higher past performance does not outweigh the
$38,301,734.66 price premium. A distinguishing difference in the past
performance rating of AAL and IAL is that AAL’s performance occurred
under a single contract, and was of the same scope and magnitude as the
solicited requirement. On the other hand, IAL demonstrated performance
of similar or the same tasks [sic] under separate contracts, and was not
the same scope and magnitude of the solicited requirement. In other
words, both proposals demonstrated successful performance of
essentially the same commercial services, but only AAL’s performance
was under a single contract with similar scope. In order to award to AAL,
the Government would be required to trade-off a $38,301,734.66 price
premium for award to an offeror whose past performance score is higher
12
In a footnote, the source selection authority stated: “All figures represent the price
differences in the TEPs as evaluated. Actual difference in cost to the Government is
dependent on POV shipping and storage volume during contract performance.”
39
because it performed the same recent and relevant commercial services
under a single contract versus multiple contracts. Under the current Global
POV Contract, AAL performs the work of a third-party logistics provider
and is responsible for dividing and managing work between its
subcontractors. The experience of providing logistics services for the
same work (of greater scope) under a single contract versus multiple
commercial contracts (of lesser scope), for purposes of actual contract
performance, is not significant enough to justify the higher price. Awarding
to AAL, with a $38,301,734.66 higher price would represent a price
premium disproportionate to the benefits associated with the proposed
margin of service superiority. As detailed above, the primary margin of
service superiority represented in AAL’s higher past performance score is
not in specific performance areas, but rather contract integration, which in
the current commercial marketplace is not worth the $38,301,734.66 price
premium. Therefore, AAL does not represent the best value to the
Government.
In making its “SOURCE SELECTION DECISION” (emphasis in original), the
source selection authority maintained that:
In accordance with the solicitation, which indicated that past performance
would be evaluated on a basis approximately equal to price, I have
determined that the additional cost of $38,301,734.66 is not proportionate
to the benefit associated with the higher past performance rating which
was based on the fact that AAL had successfully performed the current
effort for the services required under this solicitation under a single
contract.
The source selection authority concluded that “[i]t is, therefore, my decision that the
proposal submitted by IAL represents the best value to the Government.” Contract
HTC711-14-D-R025 was awarded to International Auto Logistics, LLC on October 24,
2013.
American Auto Logistics filed a post-award bid protest at the GAO on November
1, 2013. In its protest to the GAO, American Auto Logistics argued that: (1)
TRANSCOM’s “evaluation of IAL's proposal under the Technical factor was
unreasonable because IAL's technical approach could not have effectively
demonstrated its ability to comply with the PWS requirements . . . ;” (2) “IAL's past
performance rating was unwarranted given its extremely limited and largely irrelevant
experience in providing the required range of services of similar scope, magnitude of
effort, and complexity;” (3) “TRANSCOM's price realism assessment of IAL's proposal
was inadequate because specific elements of IAL's lower pricing cannot reflect a clear
understanding of the requirements . . . ;” (4) “TRANSCOM failed to conduct a
reasonable performance/price tradeoff in making its source selection decision, and
effectively and improperly converted the specified best value tradeoff criteria to a
lowest-priced, technically-acceptable award scheme;” and (5) that TRANSCOM
40
improperly evaluated International Auto Logistics’ technical proposal, because
TRANSCOM “failed to recognize that IAL poses an unacceptable security risk due to its
ties to the Unification Church . . . which has made various investments in North Korea
(Pyonghwa Motors Co., KumGangSan International Group and Botongkang Hotel and
Golf Course in Pyongyang) and have extensive economic ties to the North Korean and
Chinese governments.” In a footnote, American Auto Logistics claimed that “lAP is
owned by Panda Motors, Inc.(also [sic] known and doing business as Panda
Development Company (China)), which is in turn owned and controlled by the
Unification Church.”
TRANSCOM filed its agency report on November 26, 2013. In its response to the
agency report filed at the GAO, American Auto Logistics dropped its first and third
claims, regarding TRANSCOM’s evaluation of International Auto Logistics’ “technical
approach” and TRANSCOM’s price realism analysis. American Auto Logistics
maintained, and elaborated on, its claim that TRANSCOM’s past performance
assessment was flawed, and explained that International Auto Logistics’ two “Relevant”
references for Global Auto Logistics were actually not relevant. Protestor alleged first
that the references were invalid because they came from a sister organization, Trans
Global Auto Logistics Europe,13 not Global Auto Logistics itself. American Auto Logistics
also alleged at the GAO that “[e]ven assuming it was appropriate to consider the past
performance of TGAL-E [Trans Global Auto Logistics Europe], neither the Allied
Contract nor the Volkswagen Contract warranted a “Relevant” rating under the RFP's
definitions.” (footnote omitted). American Auto Logistics also maintained that
TRANSCOM “gave credit to TGAL's key personnel in assigning it Relevant ratings -
even though the RFP’s evaluation criteria do not allow for past performance credit with
respect to key personnel.” Finally, American Auto Logistics maintained that Global Auto
Logistics’ past performance references could not be significant, as, allegedly, “GAL was
proposed to perform no more than $3-4 million per year of the contract's scope,
equating to less than two percent of the total contract value,” and therefore was a minor
subcontractor. American Auto Logistics also questioned the source selection authority’s
13
This is the first instance in the record in which “Trans Global Auto Logistics Europe” is
mentioned as a separate entity from Trans Global Auto Logistics. Earlier, in its proposal,
International Auto Logistics appears to have referred to the entity as its “European
branch” and “European offices.” According to an exhibit filed by protestor during the
GAO protest, protestor claimed that “[t]he most recent (and only) list of shareholders
available from the corporate registry is dated February 2, 2007, lists the following four
entities and individuals as each owning 25% of Trans Global Logistics Europe:”
Trans Global Logistics Inc. Texas (25%)
Frank Hollmann (25%)
MIRASCON Versicherungsmakler GmbH, KoIn (25%)
Joachim Wetz (25%)
(footnote omitted).
41
conclusion regarding the other “Somewhat Relevant” references in the International
Auto Logistics proposal, focusing in particular on the references regarding the
solicitation of “POV Processing Services,” “Inland Transportation Services,” and “Ocean
Transportation Services.” (emphasis in original). Protestor contended at the GAO that
International Auto Logistics, due to its alleged lack of experience, could give “at best a
‘low expectation,’ that IAL will successfully perform the GPC III requirements.”
In its response to the TRANSCOM agency report, American Auto Logistics also
maintained that, “[i]n view of the numerous flaws in TRANSCOM's evaluation of IAL's
past performance proposal, therefore,” “TRANSCOM's past performance/price tradeoff
and source selection decision were necessarily flawed and unreasonable.” American
Auto Logistics contended that “the SSA's integrated assessment explicitly discounted
the differences in the AAL and IAL past performance ratings from the outset based
merely on the ‘nature of the contract.’” According to American Auto Logistics, “[q]uite
simply, the SSA did not have the authority to reduce the difference between a
Substantial Confidence rating and Satisfactory Confidence rating in the context of
making the award decision based on the commercial nature of the contract.” (emphasis
in original). In addition, American Auto Logistics maintained that “IAL's Significant Ties
To North Korea, China And The Unification Church Are Very Real And Pose
Security Risks,” and attached to its comments a report by Stroz Friedberg LLC,
detailing International Auto Processing’s alleged ties to the Unification Church, North
Korea, and China. (emphasis in original).
International Auto Logistics intervened in the protest at the GAO. International
Auto Logistics submitted comments to the agency report and also provided an affidavit
from Kay Lester of Global Auto Logistics, to explain the relationship between Global
Auto Logistics, Trans Global Auto Logistics, and Trans Global Auto Logistics Europe.
The affidavit stated in relevant part:
I [Kay Lester] am the President and owner of Trans Global Auto Logistics,
Inc., (“TGAL”), a Woman-Owned Small Business (“WOSB”), a position I
have held since 2002. . . . I am also the President and owner of Global
Auto Logistics, LLC (“GAL”), a WOSB, a position I have held since GAL
was formed in early 2013 for the purpose of participating on support
contracts with the U.S. Government. My duties for these companies
consist of overseeing and managing day-to-day and overall operations.
...
Trans Global Logistics Europe (“TGALE”), GmbH, is a subsidiary of TGAL,
TGALE was formed in 2005 to provide TGAL’s customer base with a
variety of support throughout Europe, including port handling, customs
clearance services, general freight handling, trucking / inland
transportation and logistics support throughout Europe. I am a principal of
TGALE. I have been intimately involved with TGALE since its formation.
After forming TGALE, I opened the European office, made all hiring
42
decisions, conducted all training, and negotiated all inland agency, port
services, and inland transportation service agreements. Having fully
developed the infrastructure, I continue to manage all day-to-day
operations with my partner Joachim Wetz. TGALE will make all of its
resources and assets available to GAL and TGAL in the performance of
the GPC III contracting effort, particularly in light of TGAL’s anticipated
contractual role in performing the aforementioned services in and
throughout Europe.
International Auto Logistics also provided an affidavit from Mr. Wetz, which
stated in relevant part:
Trans Global Logistics Europe GmbH (“TGALE”), is a subsidiary of TGAL.
I am the General Manager of Trans Global Logistics Europe GmbH
(“TGALE”) and manage day-to-day operations with my business partner
Sandra K. Lester. TGALE was formed in 2005 to provide TGAL’s
customer base general freight trucking and transportation, inland
transportation, and logistics support through Europe. TGALE will make all
of its resources and assets available to GAL and TGAL in performance of
the GPC III contracting effort, particularly in light of TGAL’s anticipated
contractual role in performing the aforementioned services in and
throughout Europe.
The GAO denied American Auto Logistics’ protest, on January 30, 2014.
Regarding protestor’s past performance claim, the GAO stated that “[t]he evaluation of
past performance, including the agency’s determination of the relevance and scope of
an offeror’s performance history to be considered, is within the sound discretion of the
contracting agency.” Regarding American Auto Logistics’ claim that Global Auto
Logistics’ past performance references were performed allegedly by Trans Global Auto
Logistics Europe, the GAO stated: “It is well settled that an agency may rely on the
performance of a parent or sister company where, as here, resources and key
personnel are anticipated to be relied on during performance.” (citing Serco, Inc., B-
406683, 2012 WL 3298132 (Comp. Gen. Aug. 3, 2012), and Ecompex, Inc., B-
292865.4,
2004 WL 1675519 (Comp. Gen. June 18, 2004)). The GAO further stated
that “IAL emphasized that GAL and its sister company [Trans Global Auto Logistics]
shared common ownership and that the sister company’s president and owner,
European managing partner, and key personnel would be supporting GAL in its
performance of this contract.” (footnote omitted). The GAO also explained that,
“[a]lthough the protester maintains that the European ‘affiliate’ is a separate and distinct
entity from the sister company, the protester’s own evidence shows that the ‘affiliate’
was formed to support and serve the customer base of the sister company.” In addition,
the GAO found no issue with the agency’s consideration of Global Auto Logistics’ past
performance references,
even though the references did not perform all of the work required here
under one contract, and even though GAL is expected to perform only a
43
relatively small portion of the work on the contract. The RFP did not
require that each reference have experience performing all of the required
work, or all of the work under one contract.
The GAO also addressed American Auto Logistics’ “attempts to diminish the relevancy
of several of the somewhat relevant contracts the agency considered in evaluating IAL’s
performance,” stating that:
The protester again bases its complaint on the fact that none of the
referenced contracts involved performing all of the requirements of the
RFP under a single contract. . . . We have reviewed each of the
challenged references and find that the record supports the agency’s
relevancy determination as well as the agency’s conclusion that,
collectively, all of the references provided the agency with satisfactory
confidence that IAL would successfully perform the contract.
Regarding American Auto Logistics’ claim that the performance price tradeoff
was unreasonable, the GAO stated:
At the heart of the protester’s complaints is its belief that the agency is not
justified in selecting a lower priced contractor given the protester’s
superior record of performance. As noted above, the agency disagreed.
. . . As the agency explains, the services procured here were commercial
services that are available in the commercial marketplace. Thus, the IAL
team’s performance under separate smaller contracts, in the agency’s
eyes, was relevant to demonstrating satisfactory performance, and AAL’s
superior performance did not warrant the added cost in the commercial
marketplace.
(footnote omitted). The GAO added, “[i]n sum, we find unobjectionable the agency’s
conclusion that, although the protester had a superior record of performance, that
superiority was not worth a price premium of $38 million.” Finally, the GAO addressed
the claim regarding the Unification Church, North Korea, and China in a footnote, stating
that “[t]he agency responds that it is not aware of any connection between IAL and
North Korea, China, or the Unification Life Church. Further, the agency notes that
protester acknowledges that IAL submitted an acceptable information assurance and
cybersecurity plan,” and that the agency had not violated any laws or regulations in this
regard. (internal citations omitted). The GAO concluded that the “protester’s allegations
regarding IAL’s possible relationships do not provide a basis for our Office to sustain its
protest.”
Protestor filed suit in this court on February 5, 2014, alleging that “TRANSCOM's
past performance evaluation methodology was unreasonable and contrary to the criteria
in the RFP. According to the protestor, TRANSCOM failed to evaluate each past
performance reference provided by IAL and its subcontractors to determine its similarity
in terms of scope, magnitude of effort and complexities to the GPC III solicitation
44
requirements.” Protestor maintains, as it did at the GAO, that “[t]he two Relevant ratings
assigned to the contract references provided for subcontractor GAL/TGAL were
improper and inconsistent with the RFP's criteria . . . .” Moreover, protestor argues in
this court that TRANSCOM “also failed to properly apply the RFP relevancy criteria
when evaluating the past performance references for IAP and several of IAL's other
named subcontractors.”
Protestor also argues:
TRANSCOM's source selection decision was also substantially flawed,
and contrary to the RFP and applicable law, because it diminished the
value of AAL's Substantial Confidence rating, as compared to IAL's
Satisfactory Confidence rating, on the basis that certain of the service
elements of the GPC III requirement are available in the commercial
marketplace, that IAL had demonstrated that is [sic] has and currently
performs all of the GPC III service elements in the commercial
marketplace, and that “adding volume to a commercial service already
being performed presents less risk than adding a new service.”
Although not presented in the complaint, in a hearing before this court, protestor
raised a third protest ground, that International Auto Logistics has subcontracted with an
allegedly “fairly notoriously debarred company,” under the name Agility International or
Agility Defense and Government Services. Protestor subsequently elaborated on its
third ground in writing, stating that “International Auto Logistics, LLC intends to
subcontract with, or otherwise use the services of, an Agility business unit that is
currently on the excluded parties list in the System for Award Management for purposes
of performing certain portions of the GPC III contract at issue in this protest.” Defendant
maintains, in a February 19, 2014 status report, that “Agility is not listed as a
subcontractor in International Auto Logistics’ proposal for the contract at issue,” and
that, “as of February 18, 2014, Agility is not listed as suspended or debarred in the
System for Award Management and is eligible to receive Government contracts.”
Nonetheless, protestor contends that defendant did not perform sufficient research on
the issue, because there are “hundreds of Agility-affiliated companies that have been
suspended from contracting with the U.S. Government,” and that although intervenor’s
counsel claimed that they “knew nothing about what any unspecified Agility entity was
‘doing or why it is doing it,’” intervenor’s counsel “also represent[s] the two Agility
companies that challenged their suspensions before the U.S. District Court for the
Northern District of Alabama.” (footnote omitted).
Protestor sought “injunctive and declaratory relief prohibiting TRANSCOM and
IAL from proceeding with performance of the GPC III Contract awarded to IAL,” and
submitted motions for both a temporary restraining order and preliminary injunction
regarding the GPC III contract. Protestor also sought a finding that the source selection
decision was “arbitrary and capricious, an abuse of discretion, and contrary to the RFP's
criteria and applicable law,” and requested an order from the court “requiring
TRANSCOM to conduct a new evaluation of IAL's past performance proposal and make
45
a new source selection decision in strict accordance with the RFP and applicable law.”
The parties and the court agreed to proceed on an expedited schedule for the above
captioned case. The court issued an oral decision indicating to the parties no injunction
was forthcoming. As noted above, this opinion reduces to writing the oral decision
previously issued to the parties.
DISCUSSION
The Tucker Act grants the United States Court of Federal Claims “jurisdiction to
render judgment on an action by an interested party objecting to a solicitation by a
Federal agency for bids or proposals for a proposed contract or to a proposed award or
the award of a contract or any alleged violation of statute or regulation in connection
with a procurement or a proposed procurement.” 28 U.S.C. § 1491(a)(1) (2012). In
order to have standing to sue as an “interested party” under this provision, a
disappointed bidder must show that it suffered competitive injury or was “prejudiced” by
the alleged error in the procurement process. See Todd Constr., L.P. v. United States,
656 F.3d 1306, 1315 (Fed. Cir. 2011) (To prevail, a bid protester must first “‘show that it
was prejudiced by a significant error’ (i.e., ‘that but for the error, it would have had a
substantial chance of securing the contract).’” (quoting Labatt Food Serv., Inc. v. United
States,
577 F.3d 1375, 1378, 1380 (Fed. Cir. 2009))); Blue & Gold Fleet, L.P. v. United
States,
492 F.3d 1308, 1317 (Fed. Cir. 2007); see also Sci. Applications Int’l Corp. v.
United States,
108 Fed. Cl. 235, 281 (2012); Linc Gov’t Servs., LLC v. United States,
96
Fed. Cl. 672, 693 (2010) (“In order to establish standing to sue, the plaintiff in a bid
protest has always needed to demonstrate that it suffered competitive injury, or
‘prejudice,’ as a result of the allegedly unlawful agency decisions.” (citing Rex Serv.
Corp. v. United States,
448 F.3d 1305, 1308 (Fed. Cir. 2006); Statistica, Inc. v.
Christopher,
102 F.3d 1577, 1580–81 (Fed. Cir. 1996); Morgan Bus. Assocs., Inc. v.
United States,
223 Ct. Cl. 325, 332 (1980); Vulcan Eng’g Co. v. United States,
16 Cl. Ct.
84, 88 (1988))). In order to establish what one Judge on this court has called
“allegational prejudice” for the purposes of standing, the bidder must show that there
was a “substantial chance” it would have received the contract award, but for the
alleged procurement error. See Linc Gov’t Servs., LLC v. United
States, 96 Fed. Cl. at
675; Bannum, Inc. v. United States,
115 Fed. Cl. 148, 153 (2014); see also Bannum,
Inc. v. United States,
404 F.3d 1346, 1358 (Fed. Cir. 2005); Galen Med. Assocs., Inc. v.
United States,
369 F.3d 1324, 1331 (Fed. Cir.), reh’g denied (Fed. Cir. 2004); Info.
Tech. & Applications Corp. v. United States,
316 F.3d 1312, 1319 (Fed. Cir.), reh’g and
reh’g en banc denied (Fed. Cir. 2003); Statistica, Inc. v.
Christopher, 102 F.3d at 1581;
Hyperion, Inc. v. United States,
115 Fed. Cl. 541, 550 (2014) (“The government
acknowledges that proving prejudice for purposes of standing merely requires
“allegational prejudice,” as contrasted to prejudice on the merits . . . .”); Archura LLC v.
United States,
112 Fed. Cl. 487, 497 (2013); Lab. Corp. of Am. v. United States,
108
Fed. Cl. 549, 557 (2012). Because standing is a jurisdictional issue, this showing of
prejudice is a threshold issue. See Corus Grp. PLC. v. Int’l Trade Comm'n,
352 F.3d
1351, 1357 (Fed. Cir. 2003); Myers Investigative & Sec. Servs., Inc. v. United States,
275 F.3d 1366, 1370 (Fed. Cir. 2002).
46
Protestor, American Auto Logistics, maintains that it has standing as an
interested party under 28 U.S.C. § 1491(b)(1), since “Plaintiff's proposal received the
highest possible past performance rating,” “had the second-lowest evaluated price,” and
was acceptable in all other evaluation areas. Neither defendant nor intervenor challenge
protestor’s standing. Given protestor’s position as the second-lowest offeror in terms of
price and the only offeror with a “Substantial Confidence” past performance rating, the
court agrees that protestor had a substantial chance of winning the solicitation at issue
in the above captioned case if it is able to succeed on the merits of the protest.
Pursuant to Rule 52.1(c) of the Rules of the United States Court of Federal
Claims (RCFC) (2013), which governs motions for judgment on the administrative
record, the court’s inquiry is directed to “‘whether, given all the disputed and undisputed
facts, a party has met its burden of proof based on the evidence in the record.’” Mgmt. &
Training Corp. v. United States, 115 Fed. Cl. 26, 40 (2014) (quoting A & D Fire Prot.,
Inc. v. United States,
72 Fed. Cl. 126, 131 (2006) (citing Bannum, Inc. v. United States,
404 F.3d 1356–57)); see also Eco Tour Adventures, Inc. v. United States,
114 Fed. Cl.
6, 21 (2013); DMS All-Star Joint Venture v. United States,
90 Fed. Cl. 653, 661 (2010).
The Administrative Dispute Resolution Act of 1996 (ADRA), Pub. L. No. 104-320,
§§ 12(a), 12(b), 110 Stat. 3870, 3874 (1996) (codified at 28 U.S.C. § 1491(b)(1)–(4)
(2012)), amended the Tucker Act to establish a statutory basis for bid protests in the
United States Court of Federal Claims. See Impresa Construzioni Geom. Domenico
Garufi v. United States, 238 F.3d 1324, 1330–32 (Fed. Cir. 2001). The statute provides
that protests of agency procurement decisions are to be reviewed under Administrative
Procedure Act (APA) standards, making applicable the standards outlined in Scanwell
Laboratories, Inc. v. Shaffer,
424 F.2d 859 (D.C. Cir. 1970), and the line of cases
following that decision. See, e.g., Res. Conservation Grp., LLC v. United States,
597
F.3d 1238, 1242 (Fed. Cir. 2010) (“Following passage of the APA in 1946, the District of
Columbia Circuit in Scanwell Labs., Inc. v. Shaffer,
424 F.2d 859 (D.C. Cir. 1970), held
that challenges to awards of government contracts were reviewable in federal district
courts pursuant to the judicial review provisions of the APA.”); Galen Med. Assocs., Inc.
v. United
States, 369 F.3d at 1329 (citing to Scanwell Laboratories, Inc. v. Shaffer for its
reasoning that “suits challenging the award process are in the public interest and
disappointed bidders are the parties with an incentive to enforce the law”); Banknote
Corp. of Am., Inc. v. United States,
365 F.3d 1345, 1351 (Fed. Cir. 2004) (“Under the
APA standard as applied in the Scanwell line of cases, and now in ADRA cases, ‘a bid
award may be set aside if either (1) the procurement official’s decision lacked a rational
basis; or (2) the procurement procedure involved a violation of regulation or procedure.’”
(quoting Impresa Construzioni Geom. Domenico Garufi v. United
States, 238 F.3d at
1332)); Info. Tech. & Applications Corp. v. United
States, 316 F.3d at 1319. The United
States Court of Appeals for the Federal Circuit has stated that the Court of Federal
Claims’ jurisdiction over “any alleged violation of statute or regulation in connection with
a procurement or a proposed procurement,” 28 U.S.C. § 1491(b)(1), “provides a broad
grant of jurisdiction because ‘[p]rocurement includes all stages of the process of
acquiring property or services, beginning with the process for determining a need for
property or services and ending with contract completion and closeout.’” Sys.
47
Application & Techs., Inc. v. United States, 691 F.3d 1374, 1381 (Fed. Cir. 2012)
(quoting Res. Conservation Grp., LLC v. United
States, 597 F.3d at 1244) (emphasis in
original); see also Rockies Exp. Pipeline LLC v. Salazar,
730 F.3d 1330, 1336 (Fed. Cir.
2013), reh’g denied (Fed. Cir. 2014); Distributed Solutions, Inc. v. United States,
539
F.3d 1340, 1345 (Fed. Cir.) (“[T]he phrase, ‘in connection with a procurement or
proposed procurement,’ by definition involves a connection with any stage of the federal
contracting acquisition process, including ‘the process for determining a need for
property or services.’”), reh’g denied (Fed. Cir. 2008); RAMCOR Servs. Grp., Inc. v.
United States,
185 F.3d 1286, 1289 (Fed. Cir. 1999) (“The operative phrase ‘in
connection with’ is very sweeping in scope.”).
Agency procurement actions should be set aside when they are “arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law,” or “without
observance of procedure required by law.” 5 U.S.C. § 706(2)(A), (2)(D) (2012);14 see
14
The language of 5 U.S.C. § 706 provides:
To the extent necessary to decision and when presented, the reviewing
court shall decide all relevant questions of law, interpret constitutional and
statutory provisions, and determine the meaning or applicability of the
terms of an agency action. The reviewing court shall—
(1) compel agency action unlawfully withheld or unreasonably delayed;
and
(2) hold unlawful and set aside agency action, findings, and
conclusions found to be—
(A) arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law;
(B) contrary to constitutional right, power, privilege, or immunity;
(C) in excess of statutory jurisdiction, authority, or limitations, or
short of statutory right;
(D) without observance of procedure required by law;
(E) unsupported by substantial evidence in a case subject to
sections 556 and 557 of this title or otherwise reviewed on the
record of an agency hearing provided by statute; or
(F) unwarranted by the facts to the extent that the facts are subject
to trial de novo by the reviewing court.
48
also Orion Tech., Inc. v. United States, 704 F.3d 1344, 1347 (Fed. Cir. 2013); COMINT
Sys. Corp. v. United States,
700 F.3d 1377, 1381 (Fed. Cir. 2012); Savantage Fin.
Servs. Inc., v. United States,
595 F.3d 1282, 1285-86 (Fed. Cir. 2010); Weeks Marine,
Inc. v. United States,
575 F.3d 1352, 1358 (2009); Axiom Res. Mgmt., Inc. v. United
States,
564 F.3d 1374, 1381 (Fed. Cir. 2009) (noting arbitrary and capricious standard
set forth in 5 U.S.C. § 706(2)(A), and reaffirming the analysis of Impresa Construzioni
Geom. Domenico Garufi v. United
States, 238 F.3d at 1332); Blue & Gold Fleet, L.P. v.
United States,
492 F.3d 1308, 1312 (Fed. Cir. 2007) (“[T]he inquiry is whether the
[government’s] procurement decision was ‘arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law.’” (quoting 5 U.S.C. § 706(2)(A) (2000)));
Bannum, Inc. v. United
States, 404 F.3d at 1351; Eco Tour Adventures, Inc. v. United
States, 114 Fed. Cl. at 22; Contracting, Consulting, Eng’g LLC v. United States,
104
Fed. Cl. 334, 340 (2012). “‘In a bid protest case, the agency’s award must be upheld
unless it is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance
with law.’” Turner Constr. Co. v. United States,
645 F.3d 1377, 1383 (Fed. Cir.) (quoting
PAI Corp. v. United States,
614 F.3d 1347, 1351 (Fed. Cir. 2010)), reh’g and reh’g en
banc denied (Fed. Cir. 2011); see also Glenn Def. Marine (ASIA), PTE Ltd. v. United
States,
720 F.3d 901, 907 (Fed. Cir. 2013); McVey Co. v. United States,
111 Fed. Cl.
387, 402 (2013) (“The first step is to demonstrate error, that is, to show that the agency
acted in an arbitrary and capricious manner, without a rational basis or contrary to
law.”); PlanetSpace, Inc. v. United States,
92 Fed. Cl. 520, 531–32 (2010) (“Stated
another way, a plaintiff must show that the agency’s decision either lacked a rational
basis or was contrary to law.” (citing Weeks Marine, Inc. v. United
States, 575 F.3d at
1358)).
In discussing the appropriate standard of review for bid protest cases, the United
States Court of Appeals for the Federal Circuit specifically has addressed subsections
(2)(A) and (2)(D) of 5 U.S.C. § 706, see Impresa Construzioni Geom. Domenico Garufi
v. United States, 238 F.3d at 1332 n.5, but the Federal Circuit has focused its attention
primarily on subsection (2)(A). See COMINT Systems Corp. v. United
States, 700 F.3d
at 1381 (“We evaluate agency actions according to the standards set forth in the
Administrative Procedure Act; namely, for whether they are ‘arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law.’” (quoting 5 U.S.C.
§ 706(2)(A))); Bannum, Inc. v. United
States, 404 F.3d at 1351; NVT Techs., Inc. v.
United States,
370 F.3d 1153, 1159 (Fed. Cir. 2004) (“Bid protest actions are subject to
the standard of review established under section 706 of Title 5 of the Administrative
Procedure Act (‘APA’), 28 U.S.C. § 1491(b)(4) (2000), by which an agency’s decision is
to be set aside only if it is ‘arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law,’ 5 U.S.C. § 706(2)(A) (2000).” (citations omitted)); Banknote
Corp. of Am., Inc. v. United
States, 365 F.3d at 1350 (“Among the various APA
In making the foregoing determinations, the court shall review the whole
record or those parts of it cited by a party, and due account shall be taken
of the rule of prejudicial error.
5 U.S.C. § 706.
49
standards of review in section 706, the proper standard to be applied in bid protest
cases is provided by 5 U.S.C. § 706(2)(A): a reviewing court shall set aside the agency
action if it is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance
with law.’” (quoting 5 U.S.C. § 706(2)(A), and citing Advanced Data Concepts, Inc. v.
United States, 216 F.3d 1054, 1058 (Fed. Cir.), reh’g denied (Fed. Cir. 2000))); Info.
Tech. & Applications Corp. v. United
States, 316 F.3d at 1319 (“Consequently, our
inquiry is whether the Air Force’s procurement decision was ‘arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law.’ 5 U.S.C. § 706(2)(A)
(2000).”).
The United States Supreme Court has identified sample grounds which can
constitute arbitrary or capricious agency action:
[W]e will not vacate an agency’s decision unless it “has relied on factors
which Congress has not intended it to consider, entirely failed to consider
an important aspect of the problem, offered an explanation for its decision
that runs counter to the evidence before the agency, or is so implausible
that it could not be ascribed to a difference in view or the product of
agency expertise.”
Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 658 (2007) (quoting
Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co.,
463 U.S. 29, 43 (1983));
see also F.C.C. v. Fox Television Stations, Inc.,
556 U.S. 502, 552 (2009); SKF USA
Inc. v. United States,
630 F.3d 1365, 1374 (Fed. Cir. 2011); Ala. Aircraft Indus., Inc.-
Birmingham v. United States,
586 F.3d 1372, 1375 (Fed. Cir. 2009), reh’g and reh’g en
banc denied (Fed. Cir. 2010); In re Sang Su
Lee, 277 F.3d at 1342 (“The agency must
present a full and reasoned explanation of its decision. . . . The reviewing court is thus
enabled to perform a meaningful review . . . .”); WHR Grp., Inc. v. United States,
115
Fed. Cl. 386, 398 (2014); Supreme Foodservice GmbH v. United States,
109 Fed. Cl.
369, 382 (2013) (applying the standard in a bid protest dispute); Linc Gov’t Servs., LLC
v. United States,
108 Fed. Cl. 473, 489 (2012) (same). The United States Supreme
Court also has cautioned, however, that “courts are not free to impose upon agencies
specific procedural requirements that have no basis in the APA.” Pension Benefit Guar.
Corp. v. LTV Corp.,
496 U.S. 633, 654 (1990).
A disappointed bidder has the burden of demonstrating the arbitrary and
capricious nature of the agency decision by a preponderance of the evidence. See
Grumman Data Sys. Corp. v. Dalton, 88 F.3d 990, 995–96 (Fed. Cir. 1996); Davis Boat
Works, Inc. v. United States,
111 Fed. Cl. 342, 349 (2013); Contracting, Consulting,
Eng’g LLC v. United
States, 104 Fed. Cl. at 340; Fulcra Worldwide, LLC v. United
States,
97 Fed. Cl. 523 (2011). The Federal Circuit has made clear that “[t]his court will
not overturn a contracting officer’s determination unless it is arbitrary, capricious, or
otherwise contrary to law. To demonstrate that such a determination is arbitrary or
capricious, a protester must identify ‘hard facts;’ a mere inference or suspicion . . . is not
enough.” PAI Corp. v. United
States, 614 F.3d at 1352 (citing John C. Grimberg Co. v.
United States,
185 F.3d 1297, 1300 (Fed. Cir. 1999)); see also Turner Constr. Co., Inc.
50
v. United States, 645 F.3d at 1387; Sierra Nev. Corp. v. United States,
107 Fed. Cl.
735, 759 (2012); Filtration Dev. Co., LLC v. United States,
60 Fed. Cl. 371, 380 (2004).
Furthermore, to prevail in a bid protest case, the protestor not only must show
that the government’s actions were arbitrary, capricious, or otherwise not in accordance
with the law, but the protestor also must show that it was prejudiced by the
government’s actions. See 5 U.S.C. § 706 (“[D]ue account shall be taken of the rule of
prejudicial error.”); see also Glenn Def. Marine (ASIA), PTE Ltd. v. United States, 720
F.3d at 907 (“In a bid protest case, the inquiry is whether the agency's action was
arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law
and, if so, whether the error is prejudicial.”); Linc Gov’t Servs., LLC v. United
States, 96
Fed. Cl. at 694–96. Recognizing the two-step analysis of bid protest cases, the United
States Court of Appeals for the Federal Circuit has stated that:
A bid protest proceeds in two steps. First . . . the trial court determines
whether the government acted without rational basis or contrary to law
when evaluating the bids and awarding the contract. Second . . . if the trial
court finds that the government’s conduct fails the APA review under 5
U.S.C. § 706(2)(A), then it proceeds to determine, as a factual matter, if
the bid protester was prejudiced by that conduct.
Bannum, Inc. v. United States, 404 F.3d at 1351; Eco Tour Adventures, Inc. v. United
States, 114 Fed. Cl. at 22; Archura LLC v. United
States, 112 Fed. Cl. at 496. In
describing the prejudice requirement, the Federal Circuit also has held that:
To prevail in a bid protest, a protester must show a significant, prejudicial
error in the procurement process. See Statistica, Inc. v. Christopher, 102
F.3d 1577, 1581 (Fed. Cir. 1996); Data Gen. Corp. v. Johnson,
78 F.3d
1556, 1562 (Fed. Cir. 1996). “To establish prejudice, a protester is not
required to show that but for the alleged error, the protester would have
been awarded the contract.” Data General, 78 F.3d at 1562 (citation
omitted). Rather, the protester must show “that there was a substantial
chance it would have received the contract award but for that error.”
Statistica, 102 F.3d at 1582; see CACI, Inc.-Fed. v. United States,
719
F.2d 1567, 1574-75 (Fed. Cir. 1983) (to establish competitive prejudice,
protester must demonstrate that but for the alleged error, “‘there was a
substantial chance that [it] would receive an award--that it was within the
zone of active consideration.’”) (citation omitted).
Alfa Laval Separation, Inc. v. United States, 175 F.3d 1365, 1367 (Fed. Cir.), reh’g
denied (Fed. Cir. 1999); see also Glenn Def. Marine (ASIA), PTE Ltd. v. United
States,
720 F.3d at 912; Allied Tech. Grp., Inc. v. United States,
649 F.3d 1320, 1326 (Fed.
Cir.), reh’g en banc denied (Fed. Cir. 2011); Info. Tech. & Applications Corp. v. United
States, 316 F.3d at 1319; Impresa Construzioni Geom. Domenico Garufi v. United
States, 238 F.3d at 1332-33; OMV Med., Inc. v. United States,
219 F.3d 1337, 1342
(Fed. Cir. 2000); Advanced Data Concepts, Inc. v. United
States, 216 F.3d at 1057;
51
Stratos Mobile Networks USA, LLC v. United States, 213 F.3d 1375, 1380 (Fed. Cir.
2000).
In Data General Corp. v. Johnson, the United States Court of Appeals for the
Federal Circuit wrote:
We think that the appropriate standard is that, to establish prejudice, a
protester must show that, had it not been for the alleged error in the
procurement process, there was a reasonable likelihood that the protester
would have been awarded the contract . . . . The standard reflects a
reasonable balance between the importance of (1) averting unwarranted
interruptions of and interferences with the procurement process and (2)
ensuring that protesters who have been adversely affected by allegedly
significant error in the procurement process have a forum available to vent
their grievances. This is a refinement and clarification of the “substantial
chance” language of CACI, Inc.-Fed. [v. United States], 719 F.2d at 1574.
Data Gen. Corp. v. Johnson,
78 F.3d 1556, 1562 (Fed. Cir.), reh’g denied, en banc
suggestion declined (Fed. Cir. 1996); see also Glenn Def. Marine (ASIA), PTE Ltd. v.
United
States, 720 F.3d at 912; Bannum, Inc. v. United
States, 404 F.3d at 1353, 1358
(“The trial court was required to determine whether these errors in the procurement
process significantly prejudiced Bannum . . . . To establish ‘significant prejudice’
Bannum must show that there was a ‘substantial chance’ it would have received the
contract award but for the [government’s] errors” in the bid process. (citing Info. Tech. &
Applications Corp. v. United
States, 316 F.3d at 1319; Alfa Laval Separation, Inc. v.
United
States, 175 F.3d at 1367; Statistica, Inc. v.
Christopher, 102 F.3d at 1581; Data
Gen. Corp. v.
Johnson, 78 F.3d at 1562); Advanced Data Concepts, Inc. v. United
States, 216 F.3d at 1057 (using a “reasonable likelihood” rule); Stratos Mobile Networks
USA, LLC v. United
States, 213 F.3d at 1380 (using a “substantial chance” test);
Archura LLC v. United
States, 112 Fed. Cl. at 496 (using a “substantial chance” test);
Info. Scis. Corp. v. United States,
73 Fed. Cl. 70, 96 (2006) (using a “substantial
chance” test), recons. in part,
75 Fed. Cl. 406 (2007).
Under an arbitrary or capricious standard, the reviewing court should not
substitute its judgment for that of the agency, but should review the basis for the agency
decision to determine if it was legally permissible, reasonable, and supported by the
facts. See Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. at 43
(“The scope of review under the arbitrary and capricious standard is narrow and a court
is not to substitute its judgment for that of the agency.”); see also Turner Constr. Co.,
Inc. v. United
States, 645 F.3d at 1383; R & W Flammann GmbH v. United States,
339
F.3d 1320, 1322 (Fed. Cir. 2003) (citing Ray v. Lehman,
55 F.3d 606, 608 (Fed. Cir.),
cert. denied,
516 U.S. 916 (1995)). “‘“If the court finds a reasonable basis for the
agency’s action, the court should stay its hand even though it might, as an original
proposition, have reached a different conclusion as to the proper administration and
application of the procurement regulations.”’” Weeks Marine, Inc. v. United
States, 575
F.3d at 1371 (quoting Honeywell, Inc. v. United States,
870 F.2d 644, 648 (Fed. Cir.
52
1989) (quoting M. Steinthal & Co. v. Seamans, 455 F.2d 1289, 1301 (D.C. Cir. 1971)));
Norsat Int’l [America], Inc. v. United States,
111 Fed. Cl. 483, 493 (2013); Davis Boat
Works, Inc. v. United
States, 111 Fed. Cl. at 349; HP Enter. Servs., LLC v. United
States,
104 Fed. Cl. 230, 238 (2012); Vanguard Recovery Assistance v. United States,
101 Fed. Cl. 765, 780 (2011).
As stated by the United States Supreme Court:
Section 706(2)(A) requires a finding that the actual choice made was not
“arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law.” To make this finding the court must consider
whether the decision was based on a consideration of the relevant factors
and whether there has been a clear error of judgment. Although this
inquiry into the facts is to be searching and careful, the ultimate standard
of review is a narrow one. The court is not empowered to substitute its
judgment for that of the agency.
Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971), abrogated on
other grounds by Califano v. Sanders,
430 U.S. 99 (1977); see also U.S. Postal Serv. v.
Gregory,
534 U.S. 1, 6-7 (2001); Bowman Transp., Inc. v. Arkansas-Best Freight Sys.,
Inc., 419 U.S. at 285; Co-Steel Raritan, Inc. v. Int’l Trade
Comm'n, 357 F.3d at 1309 (In
discussing the “arbitrary, capricious, and abuse of discretion otherwise not in
accordance with the law” standard, the Federal Circuit stated that “the ultimate standard
of review is a narrow one. The court is not empowered to substitute its judgment for that
of the agency.” (quotation omitted)); In re Sang Su
Lee, 277 F.3d at 1342; Advanced
Data Concepts, Inc. v. United
States, 216 F.3d at 1058 (“The arbitrary and capricious
standard applicable here is highly deferential. This standard requires a reviewing court
to sustain an agency action evincing rational reasoning and consideration of relevant
factors.” (citing Bowman Transp., Inc. v. Arkansas-Best Freight Sys.,
Inc., 419 U.S. at
285)); Lockheed Missiles & Space Co. v. Bentsen,
4 F.3d 955, 959 (Fed. Cir. 1993);
BCPeabody Constr. Servs., Inc. v. United States,
112 Fed. Cl. 502, 508 (2013) (“The
court ‘is not empowered to substitute its judgment for that of the agency,’ and it must
uphold an agency's decision against a challenge if the ‘contracting agency provided a
coherent and reasonable explanation of its exercise of discretion.’” (quoting Keeton
Corrs., Inc. v. United States,
59 Fed. Cl. 753, 755 (2004); Axiom Res. Mgmt., Inc. v.
United
States, 564 F.3d at 1381) (internal citations omitted)), appeal withdrawn, 559 F.
App’x 1033 (Fed. Cir. 2014); Supreme Foodservice GmbH v. United States, 109 Fed.
Cl. at 382; Alamo Travel Grp., LP v. United States,
108 Fed. Cl. 224, 231 (2012); Gulf
Grp. Inc. v. United States,
61 Fed. Cl. 338, 351 (2004); ManTech Telecomms. & Info.
Sys. Corp. v. United States,
49 Fed. Cl. 57, 63 (2001), aff’d, 30 F. App’x 995 (Fed. Cir.
2002).
According to the United States Court of Appeals for the Federal Circuit:
Effective contracting demands broad discretion. Burroughs Corp. v. United
States, 617 F.2d 590, 598 (Ct. Cl. 1980); Sperry Flight Sys. Div. v. United
53
States, 548 F.2d 915, 921,
212 Ct. Cl. 329 (1977); see NKF Eng’g, Inc. v.
United States, 805 F.2d 372, 377 (Fed. Cir. 1986); Tidewater
Management Servs., Inc. v. United States, 573 F.2d 65, 73,
216 Ct. Cl. 69
(1978); RADVA Corp. v. United States,
17 Cl. Ct. 812, 819 (1989), aff’d,
914 F.2d 271 (Fed. Cir. 1990). Accordingly, agencies “are entrusted with a
good deal of discretion in determining which bid is the most advantageous
to the Government.” Tidewater Management Servs., 573 F.2d at 73,
216
Ct. Cl. 69.
Lockheed Missiles & Space Co. v.
Bentsen, 4 F.3d at 958-59; see also Res-Care, Inc.
v. United States,
735 F.3d 1384, 1390 (Fed. Cir.) (The Department of Labor, “as a
federal procurement entity, has ‘broad discretion to determine what particular method of
procurement will be in the best interests of the United States in a particular situation.’”
(quoting Tyler Constr. Grp. v. United States,
570 F.3d 1329, 1334 (Fed. Cir. 2009))),
reh’g en banc denied (Fed. Cir. 2014); Grumman Data Sys. Corp. v.
Dalton, 88 F.3d at
995; Kingdomware Techs., Inc. v. United States,
107 Fed. Cl. 226, 231 (2012)
(“‘Federal procurement entities have “broad discretion to determine what particular
method of procurement will be in the best interests of the United States in a particular
situation.”’” (quoting K-Lak Corp. v. United States,
98 Fed. Cl. 1, 8 (2011) (quoting Tyler
Constr. Grp. v. United
States, 570 F.3d at 1334))).
Similarly, the Federal Circuit further has indicated that:
Contracting officers “are entitled to exercise discretion upon a broad range
of issues confronting them in the procurement process.” Impresa
Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324,
1332 (Fed. Cir. 2001) (internal quotation marks omitted). Accordingly,
procurement decisions are subject to a “highly deferential rational basis
review.” CHE Consulting, Inc. v. United States, 552 F.3d 1351, 1354 (Fed.
Cir. 2008) (internal quotation marks omitted). Applying this highly
deferential standard, the court must sustain an agency action unless the
action does not “evince[ ] rational reasoning and consideration of relevant
factors.” Advanced Data Concepts, Inc. v. United States, 216 F.3d 1054,
1058 (Fed. Cir. 2000) (alterations added).
PAI Corp. v. United States, 614 F.3d at 1351; see also Weeks Marine, Inc. v. United
States, 575 F.3d at 1368-69 (“We have stated that procurement decisions ‘invoke[ ]
“highly deferential” rational basis review.’ Under that standard, we sustain an agency
action ‘evincing rational reasoning and consideration of relevant factors.’” (quoting CHE
Consulting, Inc. v. United
States, 552 F.3d at 1354 (quoting Advanced Data Concepts,
Inc. v. United
States, 216 F.3d at 1058))); Cohen Fin. Servs., Inc. v. United States,
112
Fed. Cl. 153, 162 (2013); McVey Co., Inc. v. United
States, 111 Fed. Cl. at 402.
The wide discretion afforded contracting officers extends to a broad range of
procurement functions, including the determination of what constitutes an advantage
over other proposals. See L-3 Commc’ns EOTech, Inc. v. United States, 83 Fed. Cl.
54
643, 650 (2008) (“The deference afforded to an agency’s decision must be even greater
when a trial court is asked to review a technical evaluation.”), appeal dismissed, 356 F.
App’x 390 (Fed. Cir. 2009); Textron, Inc. v. United States,
74 Fed. Cl. 277, 286 (2008),
appeal denied, 222 F. App’x 974–96, (Fed. Cir. 2007) (in which the court considered
technical ranking decisions as “‘minutiae of the procurement process’” not to be second
guessed by a court (quoting E.W. Bliss Co. v. United States,
77 F.3d 445, 449 (Fed. Cir.
1996))). This is because “[t]he evaluation of proposals for their technical excellence or
quality is a process that often requires the special expertise of procurement officials,
and thus reviewing courts give the greatest deference possible to these determinations.”
Beta Analytics Int’l, Inc. v. United States,
67 Fed. Cl. 384, 395 (2005) (citing E.W. Bliss
Co. v. United
States, 77 F.3d at 449); see also CRAssociates, Inc. v. United States,
102
Fed. Cl. 698, 717 (2011); Unisys Corp. v. United States,
89 Fed. Cl. 126, 142 (2009)
(holding that an agency’s “exercise of such technical judgment and expertise . . . . is
entitled to the greatest possible deference under E.W. Bliss”). The question is not
whether the court would reach the same conclusions as the agency regarding the
comparison of proposals, but, rather, whether the conclusions reached by the agency
lacked a reasonable basis and, therefore, were arbitrary or capricious, in which case,
courts have a role to review and instruct. See WorldTravelService v. United States,
49
Fed. Cl. 431, 441 (2001) (“Therefore, this court’s main task is to ensure that the
[agency] examined the relevant data and articulated a ‘rational connection between the
facts found and the choice made.’” (quoting Motor Vehicle Mfrs. Ass’n v. State Farm
Mut. Auto. Ins.
Co., 463 U.S. at 43 (internal citations omitted))); Cybertech Grp., Inc. v.
United States,
48 Fed. Cl. 638, 646 (2001) (“The court recognizes that the agency
possesses wide discretion in the application of procurement regulations.”).
The amount of discretion afforded the contracting officer is greater in some
circumstances as compared to others. For example, in a negotiated procurement,
contracting officers are generally afforded greater decision making discretion, in
comparison to their role in sealed bid procurements. See Glenn Def. Marine (ASIA),
PTE Ltd. v. United States, 720 F.3d at 907 (“The protestor's burden is greater in
negotiated procurement, as here, than in other types of bid protests because ‘“the
contracting officer is entrusted with a relatively high degree of discretion.”’” (quoting
Galen Med. Assocs., Inc. v. United
States, 369 F.3d at 1330 (quoting Burroughs Corp.
v. United States,
223 Ct. Cl. 53, 64,
617 F.2d 590, 598 (1980)))); Galen Med. Assocs.,
Inc. v. United
States, 369 F.3d at 1330 (“Because the bid protest at issue here involved
a ‘negotiated procurement,’ the protestor’s burden of proving that the award was
arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law is
greater than in other types of bid protests.” (citations omitted)); Am. Tel. & Tel. Co. v.
United States,
307 F.3d 1374, 1379 (Fed. Cir. 2002) (“Moreover, in a negotiated
procurement, as in this case, this court has held that the regulations entrust the
contracting officer with especially great discretion, extending even to his application of
procurement regulations.”), reh’g en banc denied (Fed. Cir.), cert. denied,
540 U.S. 937
(2003).
The United States Court of Appeals for the Federal Circuit has explained that
procurement officials have an even greater degree of discretion when it comes to best-
value determinations, as compared to deciding on price alone. See Galen Med.
55
Assocs., Inc. v. United States, 369 F.3d at 1330 (noting that because “the contract was
to be awarded based on ‘best value,’ the contracting officer had even greater discretion
than if the contract were to have been awarded on the basis of cost alone”); see also
CHE Consulting, Inc. v. United
States, 552 F.3d at 1354 (citing E.W. Bliss Co. v. United
States, 77 F.3d at 449); Banknote Corp. of Am. Inc. v. United
States, 365 F.3d at 1355
(“It is well-established that contracting officers have a great deal of discretion in making
contract award decisions, particularly when, as here, the contract is to be awarded to
the bidder or bidders that will provide the agency with the best value.” (citing TRW, Inc.
v. Unisys Corp.,
98 F.3d 1325, 1327-28 (Fed. Cir. 1996))); Am. Tel. & Tel. Co. v. United
States, 307 F.3d at 1379; E.W. Bliss Co. v. United
States, 77 F.3d at 449 (“Procurement
officials have substantial discretion to determine which proposal represents the best
value for the government.”); Optimization Consulting, Inc. v. United States,
115 Fed. Cl.
78, 89 (2013); Amazon Web Servs., Inc. v. United States,
113 Fed. Cl. 102, 110 (2013)
(“Contracting officers are afforded ‘an even greater degree of discretion when the award
is determined based on the best value to the agency.’” (quoting Galen Med. Assocs.,
Inc. v. United
States, 369 F.3d at 1330)); Akal Sec., Inc. v. United States,
103 Fed. Cl.
310, 329 (2011) (“The United States Court of Appeals for the Federal Circuit has
recognized that ‘[p]rocurement officials have substantial discretion to determine which
proposal represents the best value for the government.’” (quoting E.W. Bliss Co. v.
United
States, 77 F.3d at 449)); Blackwater Lodge & Training Ctr., Inc. v. United States,
86 Fed. Cl. 488, 514 (2009).
When the contracting officer’s discretion grows, so does the burden on the
protestor. As noted in D & S Consultants, Inc. v. United States:
The protestor’s burden becomes more difficult the greater the degree of
discretion vested in the contracting officer. DynCorp Int’l v. United States,
76 Fed. Cl. 528, 537 (2007). Negotiated procurements afford the
contracting officer a “breadth of discretion;” “best-value” awards afford the
contracting officer additional discretion. Id. Therefore, in a negotiated,
best-value procurement, the “protestor’s burden is especially heavy.” Id.
D & S Consultants, Inc. v. United States,
101 Fed. Cl. 23, 33 (2011), aff’d, 484 F. App’x
558 (Fed. Cir. 2012); see also Galen Med. Assocs., Inc. v. United
States, 369 F.3d at
1330 (noting that contracting officers have great discretion in negotiated procurements
but even greater discretion in best-value determinations than in procurements based on
cost alone); PHT Supply Corp. v. United States,
71 Fed. Cl. 1, 11 (2006) (“It is critical to
note that ‘a protestor’s burden is particularly great in negotiated procurements because
the contracting officer is entrusted with a relatively high degree of discretion, and
greater still, where, as here, the procurement is a “best-value” procurement.’” (citations
omitted)). “It is well-established that contracting officers have a great deal of discretion
in making contract award decisions, particularly when, as here, the contract is to be
awarded to the bidder or bidders that will provide the agency with the best value.”
Banknote Corp. of Am. Inc. v. United
States, 365 F.3d at 1355 (citing TRW, Inc. v.
Unisys
Corp., 98 F.3d at 1327-28; E.W. Bliss Co. v. United
States, 77 F.3d at 449;
Lockheed Missiles & Space Co. v.
Bentsen, 4 F.3d at 958–59); see also Am. Tel. & Tel.
56
Co. v. United States, 307 F.3d at 1379; Lockheed Missiles & Space Co. v.
Bentsen, 4
F.3d at 958; Brooks Range Contract Servs., Inc. v. United States,
101 Fed. Cl. 699, 707
(2011) (“[A] plaintiff’s burden ‘is elevated where the solicitation contemplates award on a
“best value” basis.’” (internal citations omitted)); Matt Martin Real Estate Mgmt. LLC v.
United States,
96 Fed. Cl. 106, 113 (2010); Serco v. United States,
81 Fed. Cl. 463, 496
(2008) (“To be sure, as noted at the outset, plaintiffs have a significant burden of
showing error in that regard because a court must accord considerable deference to an
agency’s best-value decision in trading off price with other factors.”).
Although it is not bound by GAO decisions, the court typically gives respect and
consideration to GAO decisions. See CBY Design Builders v. United States, 105 Fed.
Cl. 303, 341 (2012) (citing Centech Grp., Inc. v. United States, 554 F.3d 1029, 1038 n.4
(Fed. Cir. 2009) (GAO decisions are “not binding” authority, but may be “instructive in
the area of bid protests.”)); Kingdomware Techs., Inc. v. United
States, 107 Fed. Cl. at
230 n.2; Orion Tech., Inc. v. United States,
102 Fed. Cl. 218, 229 n.17 (2011) (“While
the decisions of the Comptroller General and the boards of contract appeals are not
binding on the Court of Federal Claims, their analyses may be instructive.”), aff’d,
704
F.3d 1344 (Fed. Cir. 2013). Decisions of the GAO are treated as expert opinions, which
the court should “prudently consider.” Thompson v. Cherokee Nation of Okla.,
334 F.3d
1075, 1084 (Fed. Cir.), reh’g and reh’g en banc denied (Fed. Cir. 2003), aff'd in part,
rev’d in part sub nom. Cherokee Nation of Okla. v. Leavitt,
543 U.S. 631 (2005); see
also Glenn Def. Marine (Asia) PTE Ltd. v. United States,
97 Fed. Cl. 568, 577
(2011), dismissed,
459 F. App'x 906 (Fed. Cir. 2011); Global Computer Enters., Inc. v.
United States,
88 Fed. Cl. 350, 412 (2009) (“‘Although not binding on this court, GAO
opinions are properly used for information and guidance, given the GAO's experience
and expertise.’” (quoting Career Training Concepts, Inc. v. United States,
83 Fed. Cl.
213, 232 (2008))); Femme Comp Inc. v. United States,
83 Fed. Cl. 704, 746 (2008);
Consol. Eng'g Servs., Inc. v. United States,
64 Fed. Cl. 617, 623 (2005).
Protestor argues that the decision by TRANSCOM to award the GPC III contract
to International Auto Logistics was “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with applicable law,” citing to 28 U.S.C. § 1491(b)(4).
Protestor alleges three protest grounds in support: First, protestor challenges
TRANSCOM’s award of a “Satisfactory Confidence” past performance rating to
International Auto Logistics. Second, protestor challenges TRANSCOM’s decision,
under its integrated assessment and performance price tradeoff, to award the contract
to the lower-priced International Auto Logistics, despite protestor’s higher past
performance rating of “Substantial Confidence.” Third, protestor challenges the award to
International Auto Logistics as in violation of federal procurement laws, because
International Auto Logistics is allegedly proposing to use a suspended or debarred
contractor for contract performance.
Given the complexity of the facts presented before the court, utilizing a joint
submission submitted by the parties, the court has prepared three charts comparing
International Auto Logistics’ past performance references with those of American Auto
Logistics:
57
Comparative Chart – TRANSCOM’s Past Performance Evaluation
of International Auto Logistics
Continental United States)
Reference Evaluation by
Arranging for or Providing
Arranging for or Providing
OCONUS (Outside the
Ocean Transportation
Inland Transportation
CONUS (Continental
Past Performance
Customer Services
POV Processing
United States)
TRANSCOM
Relevancy
Recency
Storage
(a) MBUSA Ted Somewhat Exceptional
International Y √ √ √ √
Boudalis Relevant Performance
Contractor
Auto
(b) General Motors Somewhat Very Good
Prime
Logistics/ Y √ √ √ √
Scott McMillan Relevant Performance
International
(c) Glovis
Auto Somewhat Very Good
Processing
America, Inc. Y √ √ √ √
Relevant Performance
Glenn Clift
(a) HTC711-09-D- Somewhat Exceptional
Y √ √ √ √ √
0039 Bill Lindquist Relevant Performance
Liberty Global (b) Uniworld Ross Somewhat Exceptional
Y √ √ √ √
Logistics Shrourou Relevant Performance
(c) HTC711-09-D- Somewhat Satisfactory
Y √ √ √ √ √
0039 Kim Crossen Relevant Performance
(a) HTC711-11-09-
Somewhat Satisfactory
D-0037 Kim Y √ √ √ √
Relevant Performance
Crossen
(b) HTC711- 11-
Somewhat Satisfactory
Horizon Lines DR012 Kim Y √ √ √ √
Relevant Performance
Crossen
(c) HTC711- 11- Unsatisfactory
Somewhat
DW004 Kim Y √ √ √ √ to Satisfactory
Relevant
Crossen Performance
Global Auto (a) Allied Contract Exceptional
Y Relevant √ √ √ √ √ √
Logistics/ W6447-ILEA08-35 Performance
Trans Global (b) Volkswagen Very Good to
Subcontractors
Auto Logistics Andree Y Relevant √ √ √ √ √ √ Exceptional
Logistics Brinkmann Performance
(a) W9124J- 09-D- Somewhat Very Good
Y √ √ √ √ √
0017 Gerard Sovie Relevant Performance
(b) W9124J-09-D-
Somewhat Exceptional
0017 DO Fort Y √ √ √ √ √
Relevant Performance
SDV Carson
Command (c) W9124J- 09-D-
Somewhat Exceptional
Source 0017 DO Joint Y √ √ √ √ √
Relevant Performance
Base
(d) W9124J-09-D- Very Good to
Somewhat
0017 Angela Y √ √ √ √ √ Exceptional
Relevant
Arwood Performance
(a) AT&T Marc Somewhat Exceptional
Y √ √ √
Botindari Relevant Performance
Posey
(b) TS00010203 Not
Transport Y
Joe Adamczyk Relevant
Group
(c) Erhard BMW Not
Y
John Kapousis Relevant
(a) GSA Ron Not
Boyle Y
Siegel Relevant
Transport-
(b) M&EC Mike Not
ation Y
Eisenhower Relevant
58
(a) Arthur Not
Y
Goodman Relevant
VPC of Not
(b) Michelle Bandy Y
Fayetteville Relevant
Not
(c) Juan Villarreal Y
Relevant
(a) GAPS Donald Not
North Y
Asdell Relevant
American
(b) City & Port of
Consulting & N -
Long Beach
Services
(c) A&R
Company N -
Engineering
(a) W9124J-09-D-
Not
0017 Joe Y
Lincoln Relevant
Adamczyk
Properties
(b) Cascades Not
Y
Technologies Relevant
59
Comparative Chart – TRANSCOM’s Past Performance Evaluation
of American Auto Logistics
Continental United States)
Reference Evaluation by
Arranging for or Providing
Arranging for or Providing
OCONUS (Outside the
Ocean Transportation
Inland Transportation
CONUS (Continental
Past Performance
Customer Services
POV Processing
United States)
TRANSCOM
Relevancy
Recency
Storage
(a) DAMT01-03-D- Very Exceptional
Y √ √ √ √ √ √ √
Contractor
0184 Willice Doyle Relevant Performance
American
Prime
Auto Very Good to
(b) DAMT01-03-D-
Logistics Very Exceptional
0184 Krissy Y √ √ √ √ √ √ √
Relevant Performance
Schneider
(a) HTC711-12- Exceptional
Somewhat
American DW004 Bill Y √ √ √ √ √ Performance
Relevant
Roll-on Roll- Lindquist
off Carrier (b) HTC711-09-D- Somewhat Satisfactory
Y √ √ √ √
0029 Kim Crossen Relevant Performance
American Exceptional
(a) DAMT01-03-D- Somewhat
Logistics Y √ √ √ √ √ Performance
0184 Willice Doyle Relevant
Network
(a) DAMT01-03-D- Somewhat Very Good
AP Logistics Y √ √ √ √ √
0184 Willice Doyle Relevant Performance
(a) DAMT01-03-D- Very Very Good
Y √ √ √ √ √ √ √
0184 Willice Doyle Relevant Performance
(b) HTC711-12- Exceptional
Somewhat
DW014 Bill Y √ √ √ √ √ Performance
Relevant
Lindquist
(c) HTC711-11- Exceptional
Somewhat
DW005-0014 Bill Y √ √ √ √ √ Performance
Relevant
Lindquist
Subcontractors
Matson
(d) HTC711-11- Satisfactory
Somewhat
DR013 Kim Y √ √ √ √ Performance
Relevant
Crossen
(e) HTC711-11- Satisfactory
Somewhat
DW005 Kim Y √ √ √ √ Performance
Relevant
Crossen
(f) HTC711-09-D- Somewhat Satisfactory
Y √ √ √ √
0041 Kim Crossen Relevant Performance
(a) DAMT01-03-D- Somewhat Exceptional
Y √ √ √ √ √
0184 Willice Doyle Relevant Performance
Transcar
(b) W564KB-12-D- Not
Y
0014 James D’Attlo Relevant
The Pasha (a) DAMT01-03-D- Very Exceptional
Y √ √ √ √ √ √ √
Group 0184 Willice Doyle Relevant Performance
(a) HTC711-11- Exceptional
Somewhat
DW007 Bill Y √ √ √ √ √ Performance
Relevant
Lindquist
Pasha Hawaii (b) HTC711-11- Satisfactory
Somewhat
Transport DW007 Kim Y √ √ √ √ Performance
Relevant
Lines Crossen
(c) HTC711-11- Satisfactory
Somewhat
DR016 Suzanne Y √ √ √ √ Performance
Relevant
Mudd-Yarber
60
Summary Comparative Chart - TRANSCOM Evaluation
Number of Past Performance References
Very Somewhat Not Not
Relevant
Relevant Relevant Relevant Recent
INTERNATIONAL AUTO LOGISTICS
International Auto
Logistics/International 3
Auto Processing
Liberty Global Logistics 3
Horizon Lines 3
Global Auto Logistics/
Trans Global Auto 2
Logistics
SDV Command Source 4
Posey Transport Group 1 2
Boyle Transportation 2
VPC of Fayetteville 3
North American
Consulting & Services 1 2
Company
Lincoln Properties 2
TOTAL (28) 2 14 10 2
AMERICAN AUTO LOGISTICS
American Auto Logistics 2
American Roll-on Roll-off
2
Carrier
American Logistics
1
Network
AP Logistics 1
Matson 1 5
Transcar 1 1
The Pasha Group 1
Pasha Hawaii Transport
3
Lines
TOTAL (18) 4 13 1
61
Past Performance Evaluation
In response to protestor’s challenges of the agency’s past performance
evaluations, defendant responds that when evaluating past performance in a negotiated
procurement, this court maintains a highly deferential standard, such that, in order to
prevail, protestor must demonstrate “‘by a preponderance of the evidence that the
[source selection authority decision] lacked any rational basis,’” quoting Overstreet Elec.
Co., Inc. v. United States, 59 Fed. Cl. 99, 117 (2003), appeal dismissed, 89 F. App’x
741 (Fed. Cir. 2004). (emphasis and modification in original). Previously, a Judge of the
United States Court of Federal Claims explained, “[i]n the bid protest context, the
assignment of a past performance rating is reviewed ‘only to ensure that it was
reasonable and consistent with the stated evaluation criteria and applicable statutes and
regulations, since determining the relative merits of the offerors' past performance is
primarily a matter within the contracting agency's discretion.’” Todd Constr., L.P. v.
United States,
88 Fed. Cl. 235, 247 (2009) (quoting Clean Venture, Inc., B-284176,
2000 WL 253581, at *3 (Comp. Gen. Mar. 6, 2000)), aff’d,
656 F.3d 1306 (Fed. Cir.
2011); see also Vanguard Recovery Assistance v. United
States, 101 Fed. Cl. at 785 (It
is a “‘well-recognized’ principle that ‘an agency's evaluation of past performance is
entitled to great deference.’” (quoting Al Andalus Gen. Contracts Co. v. United States,
86 Fed. Cl. 252, 264 (2009) (citing Westech Int'l, Inc. v. United States,
79 Fed. Cl. 272,
293 (2007)))); SP Sys., Inc. v. United States,
86 Fed. Cl. 1, 23 (2009) (A “past
performance evaluation ‘will not be disturbed unless it is unreasonable or inconsistent
with the terms of the solicitation or applicable statutes or regulations.’” (quoting Consol.
Eng’g Servs., Inc. v. United
States, 64 Fed. Cl. at 637)). “‘When the Court considers a
bid protest challenge to a past performance evaluation conducted in the course of a
negotiated procurement, “the greatest deference possible is given to the agency.”’”
FirstLine Transp. Sec., Inc. v. United States,
100 Fed. Cl. 359, 396 (2011) (quoting
Univ. Research Co. v. United States,
65 Fed. Cl. 500, 505 (2005) (quoting Gulf Grp.,
Inc. v. United
States, 61 Fed. Cl. at 351)); see also Plasan N. Am., Inc. v. United States,
109 Fed. Cl. 561, 572, appeal dismissed (Fed. Cir. 2013); Fort Carson Support Servs. v.
United States,
71 Fed. Cl. 571, 598 (2006) (“Evaluation of past performance is ‘within
the discretion of the contracting agency and will not be disturbed unless it is
unreasonable or inconsistent with the terms of the solicitation or applicable statutes or
regulations.’” (quoting Consol. Eng'g Servs. v. United
States, 64 Fed. Cl. at 637)).
Likewise, the Court in Seaborn Health Care, Inc. v. United States, wrote:
A similar deferential standard applies when the Court is reviewing an
agency's assessment of past performance evaluations. Commissioning
Solutions Global, LLC v. United States, 97 Fed. Cl. 1, 9 (2011) (“[I]n cases
such as this, when a negotiated procurement is involved and at issue is a
performance evaluation, the greatest deference possible is given to the
agency—what our Court has called a ‘triple whammy of deference.’”)
(quoting Gulf Grp., Inc. v. United States, 61 Fed. Cl. 338, 351 (2004)));
see also Blackwater Lodge & Training Center Inc. v. United States], 86
Fed. Cl. 488, 493 (2009) (“mere disagreement” with past performance
evaluations is insufficient to disturb agency's decision).
62
Seaborn Health Care, Inc. v. United States, 101 Fed. Cl. 42, 48 (2011). Continuing, the
court stated:
In evaluating an offeror's past performance, FAR 15.305(a)(2) affords
agencies considerable discretion in deciding what data is most relevant.
PlanetSpace Inc. v. United States, 92 Fed. Cl. 520, 539 (2010). “Thus,
when evaluating an offeror's past performance, the [contracting officer]
‘may give unequal weight,’ or no weight at all, ‘to different contracts when
[the contracting officer] views one as more relevant than another.’” Linc
Gov't Servs., LLC v. United States, 96 Fed. Cl. 672, 718 (2010) (quoting
SDS Int'l, Inc. v. United States, 48 Fed. Cl. 759, 769 (2001)).
Seaborn Health Care, Inc. v. United
States, 101 Fed. Cl. at 51 (modifications in
original); see also Vanguard Recovery Assistance v. United
States, 101 Fed. Cl. at 787.
“The court must especially defer to the agency's technical evaluations, past
performance ratings, and other ‘minutiae of the procurement process . . . which involve
discretionary determinations of procurement officials.’” J.C.N. Constr., Inc. v. United
States,
107 Fed. Cl. 503, 510 (2012) (quoting E.W. Bliss Co. v. United
States, 77 F.3d
at 449), subsequent determination,
2013 WL 593479 (Fed. Cl. Feb. 15, 2013). This
court has determined that, in a negotiated performance, a protestor must overcome a
“triple whammy of deference by demonstrating by a preponderance of the evidence that
the SSA lacked any rational basis” to assign a given past performance rating.
Overstreet Elec. Co., Inc. v. United
States, 59 Fed. Cl. at 117 (emphasis in original); see
also CGS Adm’rs, LLC v. United States,
110 Fed. Cl. 431, 450 (2013) (stating that “past
performance evaluations in this type of procurement are accorded a ‘triple whammy of
deference’” (quoting Overstreet Elec. Co., Inc. v. United
States, 59 Fed. Cl. at 117)),
appeal dismissed, 89 Fed. App’x 741 (Fed. Cir. 2004); Plasan N. Am., Inc. v. United
States, 109 Fed. Cl. at 572; Tech Sys., Inc. v. United States,
98 Fed. Cl. 228, 243
(2011). Nonetheless, although highly deferential, the court’s review of an agency’s past
performance evaluation is neither an automatic endorsement of the agency’s actions
nor tolerant of observable mistakes. Moreover, each past performance evaluation is
reviewed on a fact-specific basis.
Protestor challenges TRANSCOM’s rating of Global Auto Logistics’ two past
performance ratings as “Relevant.” Protestor contends that it is not Global Auto
Logistics that performed the efforts discussed in the references, but rather Trans Global
Auto Logistics Europe, which protestor alleges is a “separate legal entity with different
ownership.” Protestor maintains that “an agency may only attribute to the offeror the
past performance of an affiliate where the proposal demonstrates that the resources of
the affiliate will be provided or relied upon for contract performance such that the
affiliate will have meaningful involvement in contract performance,” citing in support
Femme Comp, Inc. v. United States, 83 Fed. Cl. at 747. Protestor claims that “neither
TRANSCOM nor Intervenor has disputed the plain fact that Trans Global-Europe is a
separate legal entity from, and not just a branch office of, Trans Global, and it is
nowhere identified in Intervenor’s proposal,” by name. Protestor notes that the
63
“Intervenor's proposal does not even reference Trans Global-Europe, let alone commit
Trans Global-Europe's unidentified workforce, facilities or other resources to the
performance of any part of the GPC III Contract.” Protestor further contends that “the
vague references to having a European branch office cannot be reasonably construed
as referring specifically to Trans Global Logistics Europe because there are no less than
six different European ‘partners’ named on the website of Trans Global Auto
Logistics.”15 Therefore, according to protestor, TRANSCOM had no basis on which to
conclude that Trans Global Auto Logistics Europe was “an entity having involvement
with Intervenor's team or future contract performance.” Protestor also cites to Health Net
Federal Services, LLC, B-401652.3, 2009 WL 3843162 (Comp. Gen. Nov. 4, 2009), in
which the protestor alleges the GAO held that an “agency improperly considered the
past performance of corporate affiliates where the proposal provided no insight
regarding which specific entities had performed the contracts referenced in the past
performance proposal.” Protestor also cites to IAP World Services, Inc.; EMCOR
Government Services, Inc., B-407917.2,
2013 WL 3817472 (Comp. Gen. July 10,
2013), and Perini/Jones, Joint Venture, B-285906,
2000 WL 33741037 (Comp. Gen.
Nov. 1, 2000), for the proposition that a mere statement by a subsidiary’s parent cannot
bind the subsidiary to perform on a contract.
In response, defendant argues that, “[t]he awardee’s proposal plainly identified
Global Auto Logistics with its sister company, Trans Global Auto Logistics, as a
subcontractor,” and that the two companies “had entered into a teaming agreement.”
Defendant admits that “[p]erhaps at the outset the awardee could have stated more
clearly the relationship between Global Auto Logistics and Trans Global Auto Logistics,”
but that, in any event, International Auto Logistics’ responses to the evaluation notices
made clear that Trans Global Auto Logistics has a “firm and lasting commitment to
support its sister company Global Auto Logistics,” and that Global Auto Logistics “will
have at its complete disposal TGAL's vast resources.” Defendant further maintains that
the third entity, Trans Global Auto Logistics Europe, also “figures prominently in the
awardee’s proposal,” through references to Trans Global Auto Logistics’ European
branch offices. Defendant further notes that, in the International Auto Logistics proposal,
“[t]he awardee identified Mr. Joachim ‘Joe’ Wetz as both General Manager of Trans
Global Auto Logistics and Vice President of its European operations.” Defendant argues
that, therefore, it was “not unreasonable for the evaluators to conclude that Trans
Global Auto Logistics Europe is simply the European branch of Trans Global Auto
Logistics repeatedly referenced in the awardee’s proposal.” Additionally, defendant
points out that at the GAO, International Auto Logistics provided affidavits from Ms.
Lester and Mr. Wetz affirming that “Trans Global Auto Logistics Europe is a ‘subsidiary’
of Trans Global Auto Logistics,” with all of its resources made available to both Global
Auto Logistics and Trans Global Auto Logistics. Defendant maintains that these
15
Protestor notes that “Trans Global's website identifies six different European
‘Partners,’ including: Trans Global-Europe in Germany; TransGlobal Logistics UK in the
United Kingdom; Amphion Global Logistics in Greece; International Transport Co SRL
in Italy; B&B Expedite BV in The Netherlands; and Complete Marine Freight in Spain.”
(emphasis in original).
64
commitments, made in the intervenor’s proposal, in the evaluation notice responses,
and at the GAO, were sufficient to allow TRANSCOM to consider Trans Global Auto
Logistics Europe’s past performance references when evaluating intervenor’s proposal.
Defendant relies on the GAO decision in the above captioned protest, as well as
the GAO decision in IAP World Services, Inc.; EMCOR Government Services, 2013 WL
3817472, for the proposition that, when assessing a past performance reference, “‘[t]he
relevant consideration is whether the resources of the parent or affiliated company—its
workforce, management, facilities, or other resources—will be provided or relied upon
for contract performance such that the parent or affiliate will have meaningful
involvement in contract performance.’” (quoting
id. at *6) (emphasis in original).
Defendant adds that, in IAP World Services, Inc.; EMCOR Government Services, the
GAO wrote: “‘[I]t is appropriate to consider an affiliate’s performance record where the
affiliate will be involved in the contract effort or where it shares management with the
offeror,’” but also noted that “‘it is inappropriate to consider an affiliate’s record where
that record does not bear on the likelihood of successful performance by the offeror.’”
(quoting id.) (emphasis in original). Defendant also quotes from Femme Comp Inc. v.
United
States, 83 Fed. Cl. at 747, for the proposition that an affiliated company’s past
experience can be attributed when the proposal demonstrates that the “‘resources of
the parent or affiliated company will affect the performance of the offeror.’”
Intervenor agrees with defendant’s arguments, and adds, once again, citing
Femme Comp, 83 Fed. Cl. 704, that “the procuring agency need not explicitly make a
determination on the relationship where there is no reason to question it,” (citing
id. at
746), and “‘[t]he fact that the [affiliated] corporations were not expressly listed as
subcontractors is immaterial; there is no requirement that an offeror must designate its
affiliated corporations as subcontractors in order to officially commit their resources to
the performance of a contract.’” (quoting
id. at 747) (modification in original). Intervenor
further contends that “[a] company is not required to team with its affiliates where the
affiliate’s assets and resources will be made available during contract performance,”
again citing to Femme Comp for support. Intervenor supports defendant’s position that,
based on the record, “International’s proposal clearly demonstrated both: (1) Global
Auto Logistics’/Trans Global Auto Logistics’ affiliation with Trans Global Logistics
Europe; and (2) Global Auto Logistics’/Trans Global Auto Logistics’ intent to use Trans
Global Logistics Europe in contract performance.” The intervenor also notes, “Global
Auto Logistics/Trans Global Auto Logistics did not distinguish between the U.S. and
European affiliates.”
Evaluations of past performance are governed by FAR 15.305 (2013), which
instructs that agency personnel, “should take into account past performance information
regarding predecessor companies, key personnel who have relevant experience, or
subcontractors that will perform major or critical aspects of the requirement when such
information is relevant to the instant acquisition.” FAR 15.305(2)(iii). As a Judge of this
court held in Femme Comp, “‘[a]n agency properly may attribute the experience or past
performance of a parent or affiliated company to an offeror where the firm's proposal
demonstrates that the resources of the parent or affiliated company will affect the
65
performance of the offeror.’” Femme Comp Inc. v. United States, 83 Fed. Cl. at 747
(quoting Hot Shot Express, Inc., B-290482,
2002 WL 1831022, at *2 (Comp. Gen. Aug.
2, 2002)); see also Linc Gov’t Servs., LLC v. United
States, 96 Fed. Cl. at 722. The
GAO has also explained in Hot Shot Express that where
no provision in the solicitation precludes offerors from relying on the
resources of their corporate parent or affiliated companies in performing
the contract, and an offeror represents in its proposal that resources of a
related company will be committed to the contract, the agency properly
may consider those resources in evaluating the proposal.
Hot Shot Express, Inc., 2002 WL 1831022, at *2 (citing Physician Corp. of Am., B-
270698,
1996 WL 191140 (Comp. Gen. Apr. 10, 1996)). In PlanetSpace, Inc. v. United
States, the rationale behind allowing the source selection authority discretion in
choosing whether or not to evaluate the affiliate or parent was explained as follows:
At the outset, it is important to note that what does or does not constitute
“relevant” past performance falls within the SSA's [source selection
authority’s] considered discretion. See FAR 15.305(a)(2)(ii) (“The [SSA]
shall determine the relevance of similar past performance information.”). . .
The Office of Federal Procurement Policy's (“OFPP”) guidance to
agencies is in accord, encouraging agencies to consider the past
performance of key management personnel and subcontractors to “reduce
[ ] the chance of needing to neither reward nor penalize an offeror with no
other relevant past performance information” under FAR 15.305(a)(2)(iv).
Best Practices for Collecting and Using Current and Past Performance
Information, ch. 3 (Office of Fed. Procurement Policy, et al. 2000) (internal
quotation marks omitted).
PlanetSpace, Inc. v. United States, 92 Fed. Cl. at 539.
In the above captioned protest, International Auto Logistics gave sufficient
information in its proposal and later responses to the evaluation notices to allow
TRANSCOM to reasonably conclude that Trans Global Auto Logistics would be working
with Global Auto Logistics to perform the GPC III contract, if the contract were to be
awarded to the intervenor. When listing subcontractors in its proposal, International
Auto Logistics mentioned the two companies together, as “Trans Global Auto
Logistics/Global Auto Logistics.” In its description of the subcontractor, International
Auto Logistics made clear that Global Auto Logistics and Trans Global Auto Logistics
“share[] common ownership” and that Global Auto Logistics “was formed as a special
purpose company, with the goal of participating in bidding and obtaining support
contracts with the U.S. Government. GAL relies on TGAL and its principals for its past
performance.” Therefore, it was reasonable for TRANSCOM to conclude that both
companies proposed were to be involved as subcontractors in the GPC III contract
performance, even if other parts of the proposal named only Global Auto Logistics as
the subcontractor. In addition, in response to an evaluation notice from TRANSCOM,
66
International Auto Logistics attached a letter from Trans Global Auto Logistics, stating,
in relevant part:
This letter confirms Trans Global Auto Logistics (TGAL) firm and lasting
commitment to support its sister company Global Auto Logistics (GAL)
both of which are controlled by Kay Lester to the fullest extent. GAL will
have at its complete disposal TGAL's vast resources in the areas of;
freight forwarding,2nd [sic] POV movement, NVOCC (Non-Vessel Owning
Common Carrier), warehousing, trucking, global operations network,
systems, operational transportation logistics policies and procedures,
human resources, and financial backing to meet any challenge and insure
GAL compliance with the requirements as defined under the GPCIII PWS.
This letter further supports the agency’s determination that Trans Global Auto Logistics
would have “meaningful involvement” in Global Auto Logistics’ proposed contract
performance, see Linc Gov’t Servs., LLC v. United States, 96 Fed. Cl. at 722, and
demonstrates “that the resources of the parent or affiliated company will affect the
performance of the offeror.” See Femme Comp Inc. v. United
States, 83 Fed. Cl. at 747
(internal quotation omitted).
International Auto Logistics’ proposal does not explicitly mention Trans Global
Auto Logistics Europe, although the proposal does state that Trans Global Auto
Logistics has “European offices,” and that Mr. Wetz, one of the key personnel
committed to the GPC III effort is General Manager and Vice President of the
“Transglobal Auto Shipping European Branch.” The first time Trans Global Auto
Logistics Europe is mentioned as a separate entity from Trans Global Auto Logistics in
the record is in protestor’s comments to the agency report during the GAO protest. At
the GAO, International Auto Logistics also submitted an affidavit by Ms. Lester stating:
Trans Global Logistics Europe (“TGALE”), GmbH, is a subsidiary of TGAL.
TGALE was formed in 2005 to provide TGAL’s customer base with a
variety of support throughout Europe, including port handling, customs
clearance services, general freight handling, trucking/ inland transportation
and logistics support throughout Europe. I am a principal of TGALE. I have
been intimately involved with TGALE since its formation. . . . Having fully
developed the infrastructure, I continue to manage all day-to-day
operations with my partner Joachim Wetz. TGALE will make all of its
resources and assets available to GAL and TGAL in the performance of
the GPC III contracting effort, particularly in light of TGAL’s anticipated
contractual role in performing the aforementioned services in and
throughout Europe.
In addition, International Auto Logistics submitted an affidavit from Mr. Wetz, stating:
Trans Global Logistics Europe GmbH (“TGALE”) is a subsidiary of TGAL. I
am the General Manager of Trans Global Logistics Europe GmbH
67
(“TGALE”) and manage day-to-day operations with my business partner
Sandra K. Lester. TGALE was formed in 2005 to provide TGAL’s
customer base general freight trucking and transportation, inland
transportation, and logistics support through Europe. TGALE will make all
of its resources and assets available to GAL and TGAL in performance of
the GPC III contracting effort, particularly in light of TGAL’s anticipated
contractual role in performing the aforementioned services in and
throughout Europe.
Protestor argues that intervenor’s affidavits at the GAO represent “post hoc
rationalizations” that are “inappropriate to overcome the APA standard of review.” The
parties’ submissions to the GAO, however, may be considered by this court. See 31
U.S.C. § 3556 (2012) (In any action in front of the United States Court of Federal
Claims, “the reports required by sections 3553 (b)(2) [the agency’s report to the GAO in
a bid protest] and 3554 (e)(1) [the United States Comptroller General’s report to
Congress in instances where an agency does not submit to recommendations from the
GAO] of this title with respect to such procurement or proposed procurement and any
decision or recommendation of the Comptroller General under this subchapter with
respect to such procurement or proposed procurement shall be considered to be part of
the agency record subject to review.”); Glenn Def. Marine (ASIA), PTE Ltd. v. United
States, 720 F.3d at 911 n.8 (“All of the materials submitted to the GAO are part of the
administrative record before the Court of Federal Claims. 31 U.S.C. § 3556. In a case
involving a post-award conflict of interest investigation and analysis, this court noted
that courts ‘reviewing bid protests routinely consider . . . evidence developed in
response to a bid protest.’” (quoting Turner Constr. Co. v. United
States, 645 F.3d at
1386)) (modifications in original).
In the protest currently before the court, although the affidavits submitted to the
GAO further clarify the agency’s and intervenor’s arguments, there was, in fact,
sufficient information available to the agency at the time of award included in the
proposal and in the intervenor’s responses to the evaluation notices, such that the
agency’s consideration of Trans Global Auto Logistics’ European affiliate or branch
office’s past performance was not arbitrary or capricious. Protestor argues that Trans
Global Auto Logistics Europe is a separate entity and therefore its resources cannot
automatically be committed to the GPC III effort. Protestor states that, “[t]he most recent
(and only) list of shareholders available from the corporate registry in Germany reflects
that as of 2007 TGLE was owned 25% each by TGAL, MIRASCON
Versicherungsmakler GmbH, Mr. Frank Hollmann, and Mr. Joachim Wetz,” indicating
that Ms. Lester (through Trans Global Auto Logistics) and Mr. Wetz together own fifty
percent of Trans Global Auto Logistics Europe. Protestor contends that “this ‘common
management’” is insufficient, because “a subsidiary corporation is defined as ‘a
corporation in which a parent corporation has a controlling share.’” (quoting Black’s Law
Dictionary 394 (9th ed. 2009)). According to the solicitation, “Subsidiary means an entity
in which more than 50 percent of the entity is owned-- (1) Directly by a parent
corporation; or (2) Through another subsidiary of a parent corporation.” Whether or not
Trans Global Auto Logistics Europe is a “subsidiary” of Trans Global Auto Logistics
68
does not affect TRANSCOM’s analysis, however. The past performance of affiliates
also can be attributed to intervenor’s proposal if their resources are committed to the
contract. See Femme Comp Inc. v. United States, 83 Fed. Cl. at 747; IAP World Servs.,
Inc.; EMCOR Gov’t Servs.,
2013 WL 3817472, at *6. Trans Global Auto Logistics
Europe is an affiliate of Trans Global Auto Logistics. See FAR 2.101 (“Affiliates means
associated business concerns or individuals if, directly or indirectly-- (1) Either one
controls or can control the other; or (2) A third party controls or can control both.”). Ms.
Lester and Mr. Wetz represented at the GAO that they run the “day-to-day” operations
of Trans Global Auto Logistics Europe, and protestor’s filing indicates that the two own
fifty percent of the entity. Additionally, at the GAO, protestor described Mr. Wetz as
Trans Global Auto Logistics Europe’s “sole director,” therefore having control of
management. Furthermore, “there is no requirement that an offeror must designate its
affiliated corporations as subcontractors in order to officially commit their resources to
the performance of a contract.” Femme Comp Inc. v. United
States, 83 Fed. Cl. at 747.
Instead, the FAR indicates that the source selection authority “should take into account
. . . subcontractors that will perform major or critical aspects of the requirement when
such information is relevant to the instant acquisition.” FAR 15.305(a)(2)(iii). Based on
the intervenor’s proposal, it was reasonable for the source selection authority to find that
Global Auto Logistics’ European resources would be committed to the contract if
awarded to the intervenor, and, therefore, to consider Trans Global Auto Logistics
Europe’s past performance references. Moreover, Ms. Lester’s and Mr. Wetz’s
representation as fifty percent of Trans Global Auto Logistics Europe’s shareholders,
and Mr. Wetz as the European entity’s sole director, reasonably indicates that Trans
Global Auto Logistics Europe’s resources would be committed to the intervenor’s GPC
III effort, if International Auto Logistics was awarded the contract.
Protestor attempts to rely on Femme Comp Inc. v. United States to argue that
International Auto Logistics’ decision not to mention the legal entity’s name, Trans
Global Auto Logistics Europe, is a reason not to consider it’s past performance
references. The Femme Comp court, however, allowed a subsidiary’s past performance
to be considered even though the exact relationship with the contractor was not
specifically described in the proposal. The Femme Comp court stated that the
“[a]lthough Systems Research's [the awardee’s] proposal refers repeatedly to Galaxy,
Touchstone, and Spectrum, none of the three corporations were identified as
subcontractors that were committed to perform under an awarded contract.” Femme
Comp Inc. v. United States, 83 Fed. Cl. at 721, 745 (internal citations omitted). The
Femme Comp court, relying on the GAO’s viewpoint from Hot Shot Express, Inc.,
2002
WL 1831022, nonetheless recognized that:
[T]he Army could have reasonably concluded that Systems Research's
proposal demonstrated that the resources of Spectrum and Touchstone
would affect Systems Research's performance on the contract. Both
corporations are included in the narrative portion of Systems Research's
proposal in such a way as to suggest that they would play a role in
Systems Research's contract performance. The fact that the corporations
were not expressly listed as subcontractors is immaterial; there is no
69
requirement that an offeror must designate its affiliated corporations as
subcontractors in order to officially commit their resources to the
performance of a contract.
Femme Comp Inc. v. United States, 83 Fed. Cl. at 747. Additionally, the Femme Comp
court stated:
Systems Research's response that all of Galaxy's employees were its own
employees strongly implies that Galaxy was Systems Research's
subsidiary corporation. As such, the Army could have reasonably
concluded that Systems Research's proposal demonstrated that Galaxy's
resources would affect Systems Research's performance on the contract.
Accordingly, the Army properly considered Galaxy's experience and past
performance when evaluating Systems Research's proposal.
Id. International Auto Logistics’ proposal stated that Trans Global Auto Logistics would
use European branch offices, and discussed its resources available in Europe. Although
International Auto Logistics did not specifically identify that the European branch which
would be involved in contract performance was, by name, Trans Global Auto Logistics
Europe, the government was not arbitrary and capricious when it concluded that Trans
Global Auto Logistics Europe’s experience and resources were relevant to the
intervenor’s past performance evaluation for the GPC III contract.
Protestor’s reliance on the GAO decisions it cites also is unavailing. Protestor
contends that Health Net provides that agencies cannot consider the past performance
of “corporate affiliates where the proposal provided no insight regarding which specific
entities had performed the contracts referenced in the past performance proposal.” In
Health Net, the GAO was not concerned with a lack of clarity as to the corporate
relationship, but instead whether the entities involved in the past performance reference
would actually perform as part of an awarded contract. The GAO opinion stated:
Given the repeated use of the general reference to “Aetna” throughout
AGHP's [Aetna Government Health Plans, LLC’s, the awardee’s] proposal,
the PAG (performance assessment group) did not know the specific roles,
if any, the various Aetna entities would have in performance of the T–3
effort. Nor did the PAG have any insight regarding which specific Aetna
entities had performed the contracts referenced in AGHP's past
performance proposal; therefore, the PAG could not know what role, if
any, the entities that had performed the prior contracts would have in
performance of AGHP's T–3 contract. Given this lack of information,
TMA's [the Department of Defense TRICARE Management Activity’s]
reliance on past performance by “Aetna” in its assessment of AGHP
effectively attributed to AGHP the past performance of other Aetna
corporate entities based on the mere fact of their corporate affiliation.
Absent some more definitive indications of what entities performed what
contracts and what roles they would have in performing the T–3 effort,
70
there was no basis for TMA to consider, let alone give credit in the
evaluation for, the “generic” Aetna past performance submitted with its
proposal.
Health Net Fed. Servs., LLC, 2009 WL 3843162, at *12. As opposed to offering the
unnamed Aetna affiliates as in the Health Net case, Trans Global Auto Logistics
specifically offered the experience of its “European offices,” over which it had significant
ownership and management control. Moreover, International Auto Logistics emphasized
Mr. Wetz’s role in GPC III performance, as the “Vice President of European Operations”
for Trans Global Auto Logistics.
The GAO decision in IAP World Services, Inc.; EMCOR Government Services,
2013 WL 3817472, also is distinguishable from protest currently before the court. In IAP
World Services, Inc.; EMCOR Government Services, the GAO faulted the agency for
providing past performance references from entities that may not actually participate in
the contract. See IAP World Servs., Inc.; EMCOR Government Services,
2013 WL
3817472, at *7. The GAO stated: “We disagree with the Navy that it could attribute to J
& A [World Service, LLC] the experience and past performance of separate corporate
affiliates that were not proposed to perform any work or to otherwise provide resources
under the contract.”
Id. The same was true in Perini/Jones, Joint Venture, in which the
GAO sustained a protest, in part, because the awardee’s past performance rating came
from an affiliate and the GAO found “nothing in BRS's proposal that purports to offer the
workforce, management, facilities or other resources of KBR for purposes of performing
the contract.” See Perini/Jones, Joint Venture,
2000 WL 33741037, at *5–6. With
respect to International Auto Logistics’ proposal, TRANSCOM gave past performance
credit to an entity that was reasonably seen by the source selection authority as
intending to perform on the contract, based on the International Auto Logistics proposal,
even if the entity was not named in the proposal by its full name, Trans Global Auto
Logistics Europe, but instead referred to as Trans Global Auto Logistics’ “European
offices.” As opposed to the GAO cases offered above, there is sufficient evidence in the
record that International Auto Logistics “purports to offer the workforce, management,
facilities or other resources” of Trans Global Auto Logistics Europe towards the
performance of the contract, as was verified in the affidavits submitted by the intervenor
to the GAO. See
id. at *5.
An agency “may attribute the experience or past performance of a parent or
affiliated company,” if the offeror merely, in the proposal or otherwise, “‘demonstrates
that the resources of the parent or affiliated company will affect the performance of the
offeror.’” Femme Comp Inc. v. United States, 83 Fed. Cl. at 747 (quoting Hot Shot
Express, Inc.,
2002 WL 1831022, at *2). As the protestor acknowledges in discussing its
allegations with respect to [redacted] and [redacted], an individual contractor or
subcontractor may be composed of hundreds of legal entities, and it would create a
heavy burden to require every individual entity that is to be involved in a proposed
contract to independently certify its involvement, and an equally heavy burden on the
agency to verify each entity. Instead, as long as the proposal or evaluation notice
makes it clear “that the resources of the parent or affiliated company will affect the
71
performance of the offeror,” the past performance references of the parent or affiliate
can be acknowledged. See id. In the International Auto Logistics proposal, Global Auto
Logistics made specific mention of its facilities and resources in Europe, which it
proposed to use to operate the European vehicle processing centers it would become
responsible for under the contract, if awarded. Therefore, the source selection authority
had a reasonable basis upon which to consider the past performance of Trans Global
Auto Logistics Europe, and the agency’s decision to do so was not arbitrary or
capricious.
In passing, protestor, in the facts section of its motion for judgment on the
administrative record, asserts that “Intervenor's proposal did not include International
Auto Processing as a subcontractor,” and, therefore, implies, without further addressing
the argument, that TRANSCOM improperly allowed International Auto Logistics to rely
on the past performance references of its parent organization, International Auto
Processing, in its past performance proposal. As discussed above, however, “‘[a]n
agency properly may attribute the experience or past performance of a parent or
affiliated company to an offeror where the firm's proposal demonstrates that the
resources of the parent or affiliated company will affect the performance of the offeror.’”
Femme Comp Inc. v. United States, 83 Fed. Cl. at 747 (quoting Hot Shot Express, Inc.,
2002 WL 1831022, at *2). In its proposal, International Auto Logistics made clear that
the resources of International Auto Processing will be committed to intervenor’s GPC III
performance. The proposal stated: “IAL has at its disposal, complete access to IAP’s
[International Auto Processing’s] robust resources, including port and vehicle
processing expertise, rail and trucking networks, IT systems, quality and training
processes, and commercial business best practice techniques.” In addition,
TRANSCOM issued an evaluation notice after its initial review of intervenor’s proposal,
asking intervenor to “confirm that International Auto Logistics (IAL) will have full access
to the resources of International Auto Processing (IAP) . . . .” In response, intervenor
provided an August 14, 2013 letter from Mr. Miller, President and Chief Executive
Officer of International Auto Processing, stating: “This letter confirms International Auto
Processing's (lAP) firm and lasting commitment to support its wholly-owned subsidiary
International Auto Logistics (IAL) to the fullest extent,” and provided further details on
the relationship between the two companies. Therefore, TRANSCOM was not arbitrary
and capricious in determining that this was sufficient to confirm International Auto
Processing’s commitment of resources to GPC III performance, or in considering the
parent company’s past performance references.
Next, protestor argues that Global Auto Logistics’ past performance references
should not have been counted at all, because, International Auto Logistics does not
specify how much each subcontractor would earn on the contract, and, according to
protestor, “Global [Auto Logistics] was proposed to perform no more than $3–4 million
per year of the contract's scope, equating to less than two percent of the annual
contract value.”16 Protestor contends that “[t]he RFP provided that: ‘Past performance
16
Protestor estimates in its submission to the court that the proposal indicated that
International Auto Logistics is assigning 2.2% of total contracted dollars to WOSB or
72
regarding predecessor companies or principal subcontractors that will perform major or
critical aspects of this requirement will be weighted the same (equally as important) as
the past performance information for the offeror.’” (emphasis in original). Protestor
alleges that TRANSCOM made no effort to determine whether any subcontractor, in
particular, Global Auto Logistics, was a “principal” subcontractor performing “major” or
“critical” aspects of the contract, yet TRANSCOM decided that Global Auto Logistics’
“two Relevant references were ‘[m]ost significant and of greatest consideration.’”
According to protestor, International Auto Logistics was improperly awarded a
“Satisfactory Confidence” past performance rating. In support, protestor again cites to
Health Net Federal Services, LLC, 2009 WL 3843162, which protestor alleges is an
example of a case in which the GAO sustained a protest of a contractor’s past
performance rating when the “subcontractor’s role was limited to a relatively small
portion of the contract.”
In response, defendant contends that “[t]he solicitation [for the GPC III contract]
did not define ‘principal subcontractor’ or ‘major’ or ‘critical’ aspects of the requirement.”
Therefore, according to defendant, the solicitation allows for past performance
references of subcontractors that will “perform major or critical ‘aspects,’ not a major or
critical ‘percentage,’ of the solicitation’s requirements.” Defendant argues that “[t]he
awardee proposed Global Auto Logistics/Trans Global Auto Logistics to operate vehicle
processing centers (VPC) and vehicle storage facilities (VSF), provide over-the-road
(OTR) transport inside and outside the contiguous U.S. (CONUS and OCONUS), and
perform customs clearance work. These services are not ancillary. They are the
performance work statement’s core requirements.” (internal citations omitted).
Defendant also disputes protestor’s allegation that Global Auto Logistics is proposed to
earn only $3-4 million per year, stating that “Global Auto Logistics/Trans Global Auto
Logistics will operate nearly all of the awardee’s vehicle processing centers in Europe,”
and that those vehicle processing centers “are worth significantly more than $3-4
million.” Defendant also separately estimates in its motion for judgment on the
administrative record that “Global Auto Logistics/Trans Global Auto Logistics will
operate under the contract at roughly $8.8 million for the first full year of contract
performance,” and that the facilities Global Auto Logistics will operate can generate up
to $14 million a year, “depending upon the volume of vehicle inspections and
processing.” Protestor, in response, notes that defendant’s calculation “is based on the
firm-fixed prices that TRANSCOM will pay Intervenor,” (emphasis in original), and that
intervenor would take out a percentage, reducing what the subcontractor would actually
earn. Intervenor supports and repeats defendant’s arguments, and adds that: “Not only
is the evaluation scheme American attempts to inject not in the Solicitation, but to apply
it would result in a ‘competition’ that only American could win and therefore violate the
purpose of the Competition in Contracting Act.”
As an initial matter, protestor has not provided sufficient evidence that Global
Auto Logistics is projected to earn only $3–4 million per year on the contract. It is
women-owned small business, equal to approximately $3–4 million a year, and that
Global Auto Logistics is a woman-owned small business.
73
correct that International Auto Logistics advertises Global Auto Logistics in its proposal
as a “woman-owned small business,” and states in a separate chart within the proposal
that women-owned small businesses are anticipated to receive between $3–4 million of
the overall contract per year. At the same time, however, Global Auto Logistics is slated
in the proposal to operate five contractor owned and operated vehicle processing
centers internationally, two vehicle storage facilities within the United States, and twelve
government owned but contractor operated vehicle processing centers in Europe.
Except for the one chart protestor points to, the calculations extrapolated from the
solicitation, although only projections, suggest that Global Auto Logistics and its
affiliates would earn, or at least generate as revenue for International Auto Logistics,
more than the $3–4 million from the GPC III contract if awarded. In addition, even
assuming the validity of protestor’s factual assertions, defendant’s analysis suggests
that Global Auto Logistics’ individual earnings, as a subcontractor, may reflect only a
small portion of what the intervenor will earn from TRANSCOM due to Global Auto
Logistics’ services under the GPC III contract. Even if Global Auto Logistics were to
take in only $3–4 million a year, its references would still be permissible given the
critical role Global Auto Logistics is anticipated to play in contract performance.17
17
Protestor also projects that another of intervenor’s subcontractors, SDV Command
Source, is only going to earn “approximately $1.6-2.1 million” per year on the contract if
awarded, “which equates to approximately 1.2 percent of the total annual contract
value.” Protestor alleges that, therefore, “TRANSCOM should not have considered SDV
Command's past performance at all because it is not proposed as a ‘principal
subcontractor.’” Protestor reaches this projection, as it does with respect to Global Auto
Logistics, by relying on the intervenor’s proposal’s indication that International Auto
Logistics is assigning 1.2% of all subcontracting dollars to “SDVOSB [Service-Disabled
Veteran-Owned Small Business],” and noting that SDV Command Source fits that
category in the proposal. Defendant does not attempt to project SDV Command
Source’s earning potential off the GPC III contract if awarded, but, instead states that
“the awardee has proposed SDV Command Source to operate vehicle processing
centers in Georgia, Missouri, and Puerto Rico and a vehicle storage facility in South
Carolina. As noted above, plaintiff’s restrictive definition of ‘principal subcontractor’ is
not found in the solicitation.” (internal citation omitted). SDV Command Source is slated
in the proposal to operate three vehicle processing centers and one vehicle storage site.
According to intervenor’s proposal, the revenue generated from just the three vehicle
processing centers alone will be more than what protestor alleges SDV Command
Source will earn on the contract per year. In addition, even if protestor’s analysis of SDV
Command Source’s earnings under the contract is correct, as is discussed more below,
TRANSCOM still was not arbitrary and capricious in categorizing SDV Command
Source as a “major subcontractor.” Moreover, since SDV Command Source’s
references were rated as “Somewhat Relevant” to the GPC III solicitation, it appears
from the record the references were not given as much weight as Global Auto Logistics’
two “Relevant” references. As noted by the source selection authority in her decision
document, the two “Relevant” Global Auto Logistics references were treated as “[m]ost
significant and of greatest consideration” in determining intervenor’s overall past
performance confidence rating.
74
The parties’ arguments conflate what is really a two-part analysis. Part one is
whether a reference can be considered. Part two is how much weight should be given a
particular reference. The solicitation states:
The offeror shall submit no more than three past performance references
for each major subcontractor, public or private, for which each
subcontractor has performed services within the previous three calendar
years similar in nature to the services described in this solicitation.
(emphasis in original). Therefore, as a threshold matter, for a subcontractor’s past
performance references to be considered by TRANSCOM in the first place, the
subcontractor must be a “major subcontractor.” “The interpretation of a solicitation, as
that of contract provisions generally, is a question of law which courts review de novo.”
CBY Design Builders v. United States, 105 Fed. Cl. at 327 (citing NVT Techs., Inc. v.
United
States, 370 F.3d at 1159, and Banknote Corp. of Am., Inc. v. United
States, 365
F.3d at 1353). Determining the ambiguity of a solicitation is likewise a question of law.
NVT Techs., Inc. v. United
States, 370 F.3d at 1159 (citing Interwest Constr. v. Brown,
29 F.3d 611, 614 (Fed. Cir. 1994)). “In determining whether rival interpretations of a
solicitation are reasonable, the court must ‘begin with the plain language of the
document.’” Furniture by Thurston v. United States,
103 Fed. Cl. 505, 512 (2012)
(quoting Banknote Corp. of Am., Inc. v. United
States, 365 F.3d at 1353 (citing Coast
Fed. Bank, FSB v. United States,
323 F.3d 1035, 1038 (Fed. Cir. 2003))). Furthermore,
“[w]hen interpreting a solicitation, the [solicitation] must be considered as a whole and
interpreted in ‘a manner that harmonizes and gives reasonable meaning to all of its
provisions.’” CBY Design Builders v. United
States, 105 Fed. Cl. at 327 (quoting
Banknote Corp. of Am., Inc. v. United
States, 365 F.3d at 1353, and NVT Techs., Inc. v.
United
States, 370 F.3d at 1159); see also Cohen Fin. Servs., Inc. v. United
States, 110
Fed. Cl. at 277.
When the terms of a solicitation are clear and unambiguous, there is no need to
resort to extrinsic evidence for its interpretation. See CBY Design Builders v. United
States, 105 Fed. Cl. at 327 (citing Banknote Corp. of Am., Inc. v. United
States, 365
F.3d at 1353); see also Precision Pine & Timber, Inc. v. United States,
596 F.3d 817,
824 (Fed. Cir.), reh'g and reh'g en banc denied (Fed. Cir.), cert. denied,
131 S. Ct. 997
(2011); Teg–Paradigm Envtl., Inc. v. United States,
465 F.3d 1329, 1338 (Fed. Cir.
2006) (“When the contract's language is unambiguous it must be given its ‘plain and
ordinary’ meaning and the court may not look to extrinsic evidence to interpret its
provisions.” (quoting Coast Fed. Bank, FSB v. United
States, 323 F.3d at 1038)); Barron
Bancshares, Inc. v. United States,
366 F.3d 1360, 1375 (Fed. Cir. 2004) (“If the terms of
a contract are clear and unambiguous, they must be given their plain meaning—
extrinsic evidence is inadmissible to interpret them.”). “A solicitation term is ambiguous if
‘more than one meaning is reasonably consistent with [its] language.’” Furniture by
Thurston v. United
States, 103 Fed. Cl. at 511 (quoting Grumman Data Sys. Corp. v.
Dalton, 88 F.3d at 997) (modification in original). The United States Court of Appeals for
the Federal Circuit has stated that, “[t]o show an ambiguity [in contract language,] it is
75
not enough that the parties differ in their respective interpretations of a contract term.”
NVT Techs., Inc. v. United States, 370 F.3d at 1159. In order to demonstrate ambiguity,
the interpretations offered by both parties must “‘fall within a “zone of reasonableness.”’”
Id. (quoting Metric Constructors, Inc. v. NASA,
169 F.3d 747, 751 (1999) (citations
omitted)); see also Ace Constructors, Inc. v. United States,
499 F.3d 1357, 1361 (Fed.
Cir. 2007) (“[I]n interpreting a solicitation, ‘[it] is ambiguous only if its language is
susceptible to more than one reasonable interpretation. . . . If the provisions of the
solicitation are clear and unambiguous, they must be given their plain and ordinary
meaning.’” (quoting Banknote Corp. of Am., Inc. v. United
States, 365 F.3d at 1353)).
The parties have different interpretations of the meaning of “major,” as applied to
the word “subcontractor.” Although protestor admits in its filings that “[t]he term ‘major
subcontractor’ was not defined by the RFP,” protestor argues “major” has a dollar
component to it, and, therefore, only large-dollar subcontractors’ past performance
references should have been considered by TRANSCOM; yet, protestor does not
suggest what dollar value would be large enough. Defendant and intervenor both assert
that “major” should be interpreted broadly, to include “aspects” of a subcontractor’s
participation, such as the types of responsibilities the parties are proposed to undertake.
Looking at the solicitation as a whole, the court agrees that a broader interpretation of
“major subcontractor” is appropriate. Although protestor is asking the court to take a
more restrictive, price-based view of the term “major,” there is no indication in the
solicitation that price alone was meant to determine what constitutes a “major
subcontractor.” Instead, as intervenor points out, “[r]ather than requiring the Agency to
measure past performance in specific percentages and dollar values, the Solicitation
required it to perform a qualitative analysis of each offeror's past performance and
assign a rating.”
The term “major subcontractor” does not appear to be defined in the FAR, and is
assigned a variety of meanings in a variety of solicitations, sometimes involving money,
sometimes not. See, e.g., Standard Commc’ns, Inc. v. United States, 101 Fed. Cl. 723,
728 (2011) (“The assessment was conducted by analyzing ‘the quality, relevancy[,] and
recency’ of the offeror's and its major subcontractors' past performances in the
government contract arena. The Solicitation specifically identified as significant to its
analysis past contracts greater than $100,000 for the provision of services similar to
those to be provided pursuant to the T4 Program.” (internal citation omitted; modification
in original)); Femme Comp Inc. v. United
States, 83 Fed. Cl. at 711 (the solicitation
defining major subcontractor as “a subcontractor that [was] anticipated to perform 20%
of the total contract earned revenue,” “must have been responsible for, or performed,
two or more of the functional areas listed in the Performance Work Statement, and must
have had at least nine months of experience on the contract . . . .” (internal quotations
omitted; modification in original)); Info. Tech. & Applications Corp. v. United States,
51
Fed. Cl. 340, 352 (2001) (“While the Comptroller General in Oceanometrics [
1998 WL
309917 (Comp. Gen. June 9, 1998)] does not define what constitutes a ‘major or critical
aspect’ of a contract, it is the court's view that the percentage of the work proposed to
be performed is one consideration and not the dispositive factor in determining whether
the proposed effort of the subcontractor is a major or critical aspect of the work.”), aff’d,
76
316 F.3d 1312 (Fed. Cir.), reh’g and reh’g en banc denied (Fed. Cir. 2003); Landoll
Corp., B-291381,
2002 WL 32056925, at *5 (Comp. Gen. Dec. 23, 2002) (The GAO
accepted “the evaluators' belief that the subcontractor would be ‘responsible for critical
design functions,’ and that although WASP [Watkins Aircraft Support Products, Inc.]
stated that the subcontractor's work expressed as a percentage of total project dollars
would be very small, the subcontractor's role ‘would in fact be vital to WASP's success
or failure in the UMT [universal munitions trailer] effort.’” (internal citations omitted)).
Accordingly, the term “major subcontractor” has been defined in a variety of ways
specific to the context of the particular procurement at issue. Although the solicitation at
issue before the court does not offer a definition of the term “major subcontractor,” the
following words do appear in the solicitation: “Past performance regarding predecessor
companies or principal subcontractors that will perform major or critical aspects of this
requirement will be weighted the same (equally as important) as the past performance
information for the offeror.” This language seems to suggest that the term “major” refers
to an “aspect” of the work to be provided, not just a price or dollar value calculation. The
fact that Global Auto Logistics, pursuant to the International Auto Logistics proposal, will
be responsible for the operation of five contractor owned and operated vehicle
processing centers internationally, two vehicle storage facilities within the United States,
and twelve government owned, but contractor operated vehicle processing centers in
Europe, provides a rational basis by which the source selection could have considered
Global Auto Logistics a “major subcontractor,” vital to the success or failure of the
International Auto Logistics effort. See Landoll Corp., 2002 WL 32056925, at *5. On the
other hand, protestor’s view that “major” must refer predominantly to price appears
unsupported by a review of the solicitation.
Apart from whether or not Global Auto Logistics’ past performance references
should have been evaluated in the first instance, protestor also opposes the weight that
these references were given. The solicitation stated: “Past performance regarding
predecessor companies or principal subcontractors that will perform major or critical
aspects of this requirement will be weighted the same (equally as important) as the past
performance information for the offeror.” In the Source Selection Decision Document,
the source selection authority further stated:
Although IAL has no Very Relevant references, its Relevant references
are considered significant as they include all required services with the
exception of storage. Most significant and of greatest consideration was
the Very Good – Exceptional performance of IAL’s subcontractors on two
Relevant efforts of similar scope and magnitude of effort and complexity
as this solicitation, which included CONUS and OCONUS operations,
providing/arranging for inland and ocean transportation, customer service,
and POV processing, representing all performance areas noted in the
solicitation except for long-term storage. The Government also considered
the Satisfactory-Exceptional past performance on the Somewhat Relevant
references, which considered together, reflect successful performance of
all of the services required by this solicitation, including long-term storage.
77
Protestor argues that the source selection authority gave more weight to Global Auto
Logistics’ past performance references than to International Auto Logistics’ other
“Somewhat Relevant” references, which was in violation of the solicitation’s
requirements. The court does not dispute protestor’s contention that the source
selection authority found Global Auto Logistics’ past performance references “[m]ost
significant and of greatest consideration,” but does not agree that TRANSCOM was in
violation of the requirements of the solicitation.
TRANSCOM reasonably awarded International Auto Logistics a “Satisfactory
Confidence” rating, based, in part, on the two Global Auto Logistics “Relevant” past
performance references, both indicating “Very Good to Exceptional” performance on the
efforts discussed in the references, along with the intervenor’s remaining fourteen
“Somewhat Relevant” past performance references. As stated by the United States
Court of Appeals for the Federal Circuit, “[a]t the outset, it is important to note that what
does or does not constitute ‘relevant’ past performance falls within the [Source
Selection Authority's] considered discretion.” Glenn Def. Marine (ASIA), PTE Ltd. v.
United States, 720 F.3d at 911 (quoting PlanetSpace, Inc. v. United
States, 92 Fed. Cl.
at 539 (modification in original). “Further, the FAR entrusts the critical determination of
‘what does or does not constitute “relevant” past performance to the SSA's considered
discretion.’” Linc Gov’t Servs., LLC v. United
States, 96 Fed. Cl. at 718 (quoting
PlanetSpace v. United
States, 92 Fed. Cl. at 539 (citing FAR 15.305(a)(2)(ii))).
“‘[D]etermining the relative merits of the offerors' past performance is primarily a matter
within the contracting agency's discretion.’” Todd Constr., L.P. v. United States, 88 Fed.
Cl. at 247 (quoting Clean Venture, Inc.,
2000 WL 253581, at *3); Seaborn Health Care,
Inc. v. United
States, 101 Fed. Cl. at 48; Commissioning Solutions Global, LLC,
B-401553,
2009 WL 3634337, at *3 (Comp. Gen. Oct. 6, 2009) (“[T]he contracting
agency has the discretion to determine the relevance and scope of the performance
history to be considered, and our Office will not question the agency's judgment unless
it is unreasonable or inconsistent with the terms of the solicitation or applicable
procurement statutes and regulations.”). Moreover, in general, “‘“when evaluating an
offeror's past performance, the [Source Selection Authority] may give unequal weight, or
no weight at all, to different contracts when the [Source Selection Authority] views one
as more relevant than another.”’” Glenn Def. Marine (ASIA), PTE Ltd. v. United
States,
720 F.3d at 911 (quoting Linc Gov’t Servs., LLC v. United
States, 96 Fed. Cl. at 718
(quoting SDS Int'l, Inc. v. United
States, 48 Fed. Cl. at 769)) (modification in original);
see also E.W. Bliss Co. v. United
States, 77 F.3d at 449; Plasan N. Am., Inc. v. United
States, 109 Fed. Cl. at 573 (“‘[A]n agency, in evaluating past performance, can give
more weight to one contract over another if it is more relevant to an offeror's future
performance on the solicited contract.’” (quoting Forestry Surveys & Data v. United
States,
44 Fed. Cl. 493, 499 (1999)); Tech Sys., Inc. v. United
States, 98 Fed. Cl. at
259; Univ. Research Co., LLC v. United
States, 65 Fed. Cl. at 507 (“An agency could, of
course, choose to give greater weight to contracts it found to be more relevant than
others . . . .”). The court also notes that its review is “‘“only to ensure that it [the
evaluation] was reasonable and consistent with the stated evaluation criteria and
applicable statutes and regulations, since determining the relative merits of the offerors'
78
past performance is primarily a matter within the contracting agency's discretion.”’”
Vanguard Recovery Assistance v. United States, 101 Fed. Cl. at 784 (quoting Todd
Constr., L.P. v. United
States, 88 Fed. Cl. at 247 (quoting Clean Venture Inc.,
2000 WL
253581, at *3). The solicitation states that “[t]he relevancy of each contract reference
will be considered in the overall confidence assessment rating for the offeror.” The
solicitation further states that “[i]n evaluating past performance, the Government will
give greater consideration to information on those contracts deemed most relevant to
the effort described in this RFP.” The source selection authority, therefore, was able to
rely on Global Auto Logistics’ references even more than those of the prime contractor’s
references, given the “Somewhat Relevant” rating for the prime contractor and the
“Relevant” rating for Global Auto Logistics.
The protestor contends that TRANSCOM’s decision to give weight to Global Auto
Logistics’ “Relevant” references despite the subcontractor’s allegedly small size
disagrees with the GAO’s opinion in Health Net Federal Services, LLC, 2009 WL
3843162. Protester asserts that, in Health Net, the GAO found that even if “the past
performance of a subcontractor was relevant,” “the subcontractor's past performance
could not rationally justify the offeror's rating because the subcontractor's role was
limited to a relatively small portion of the contract.” Protestor appears to argue that even
though two of Global Auto Logistics’ past performance references received a rating of
“Relevant,” because Global Auto Logistics was proposed to perform an allegedly small
portion of the overall contract, the source selection authority should not have found both
references “[m]ost significant and of greatest consideration” when determining
International Auto Logistics’ overall past performance confidence rating. Health Net
Federal Services, LLC, however, is distinguishable from the above captioned case. The
GAO, in Health Net, stated:
Moreover, we conclude that the agency's consideration of the relevant
past performance of AGHP's [Aetna Government Health Plans, LLC’s, the
awardee’s] subcontractor, WPS [Wisconsin Physicians Services], could
not have reasonably justified AGHP's past performance rating. To the
extent WPS had “relevant” and “exceptional” past performance, WPS's
role in performance was limited to [Deleted] of the many T–3 functional
requirements, [Deleted]. This left AGHP, as the prime contractor,
responsible for all other T–3 requirements, including [Deleted]. Thus, while
AGHP, through WPS, demonstrated relevant experience for [Deleted]
under the RFP, a significant portion of the contract was to be in the hands
of AGHP, which had only “somewhat relevant” experience.
Id. at *14 (redactions in original). The GAO’s decision in Health Net does not contradict
this court’s consistently-held view that “‘an agency, in evaluating past performance, can
give more weight to one contract over another if it is more relevant to an offeror's future
performance on the solicited contract.’” Plasan N. Am., Inc. v. United States, 109 Fed.
Cl. at 573 (quoting Forestry Surveys & Data v. United
States, 44 Fed. Cl. at 499); see
also Glenn Def. Marine (ASIA), PTE Ltd. v. United
States, 720 F.3d at 911; Linc Gov’t
Servs., LLC v. United
States, 96 Fed. Cl. at 718; SDS Int'l, Inc. v. United States, 48 Fed.
79
Cl. at 769. Indeed, the solicitation at issue in Health Net indicated, just like in the GPC
III solicitation, that the greatest weight was to be given to references and information
“‘determined to be the most relevant and significant.’” Id. (internal citation omitted).
What seemed to trouble the GAO in Health Net were fact-specific issues such as
the Department of Defense’s decision to give Aetna the highest past performance rating
possible, based primarily or solely on Aetna’s reference of very small size. Id. The GAO
stated: “In sum, based on the fact that AGHP's past performance submitted for
evaluation was with respect to contracts that were small fractions of the size of the T–3
effort, TMA's decision to assign AGHP the highest past performance rating of ‘High
Confidence’ is not supported by the record.”
Id. at *16. The GAO, after completing its
review, found that none of the past performance references provided by Aetna were
more than “Somewhat Relevant,” and the GAO was concerned by the poor quality of
Aetna’s references, all of which were of a small size:
Whether it was reasonable to consider some of the contracts even
“somewhat” relevant given that their beneficiary populations were a small
fraction of the size of the beneficiary population covered by the T–3
contract is itself questionable. At a minimum, absent some further support
in the record, it was not reasonable to give AGHP the highest past
performance rating in reliance on the “exceptional” performance ratings
associated with the prior contracts of such smaller size.
Id. at *14. Moreover, in the Health Net solicitation, size played an important factor in
determining a past performance reference’s relevance: “According to the SSEG [Source
Selection Evaluation Guide], ‘[r]elevance would increase as the size of the historical
efforts increase.’” Health Net Fed. Servs., LLC,
2009 WL 3843162, at *4 (internal
citation omitted). In the above captioned case, as discussed in detail below, although
TRANSCOM gave considerable weight to the past performance references from Global
Auto Logistics, the agency also considered fourteen other Somewhat Relevant
references, some of which were for very large dollar denomination contracts.
Furthermore, the solicitation in the current case did not indicate that size was of the
same critical importance as in the Health Net case. In addition, TRANSCOM only
awarded International Auto Logistics an overall past performance rating of “Satisfactory
Confidence,” which is not the highest confidence rating available. TRANSCOM’s overall
past performance rating decision, therefore, appears more reasonable than the
Department of Defense’s rating decision in Health Net.
Protestor next argues that even if Global Auto Logistics’ references could be
considered and given the weight they were given by the source selection authority, she
incorrectly rated the two Global Auto Logistics past performance references “Relevant.”
Protestor points to the solicitation’s definition of a “Relevant” past performance rating,
which stated: “‘[p]resent/past performance effort that involves similar scope and
magnitude of effort and complexities this solicitation requires.’” Protestor contends that
“[t]his definition includes three conjunctive parts: ‘similar scope’ and ‘similar magnitude’
and ‘similar complexity,’” (emphasis in original), yet when rating two of Global Auto
80
Logistics’ past performance references, according to protestor, “TRANSCOM only
considered similarities in the respective performance areas of the contracts (i.e., the
scope of work) and did not give any consideration to the low dollar values and
comparatively low levels of complexity.” Protestor alleges:
The record reflects that the past performance evaluation was a
mechanical process by which the evaluators simply identified whether
each contract reference included the following service elements: CONUS
performance, OCONUS performance, vehicle processing, arranging for
ocean transportation, providing ocean transportation, arranging for inland
transportation, providing inland transportation, customer service and
storage.
According to protestor, “[i]f all but one of these elements were identified by the
evaluators, then the reference received a rating of Relevant,” regardless of similarity in
magnitude or similarity in complexity.
Defendant responds that protestor’s reading of the solicitation is too narrow, and
claims that “plaintiff’s suggested reading of the solicitation criteria would effectively
transform the solicitation into a sole-source procurement.” Defendant argues that, “the
evaluators were free to take a more holistic approach.” According to defendant, “[t]his
Court and the Federal Circuit have consistently and recently held that the determination
of whether a contract is relevant in a past performance evaluation is within the agency’s
discretion.” Defendant asks the court not to focus on the price of the past performance
references, because first, “most important, the solicitation did not commit the agency to
a dollar-value threshold for scope, magnitude of effort, or complexity,” second, because
the contract is being performed with a number of subcontractors, and third, because
“the services are readily available in the commercial marketplace, even if on a smaller
scale than plaintiff’s current operation.” Intervenor supports the defendant’s position,
and, quoting from the solicitation, indicates that the solicitation defined “‘relevancy,’” not
according to a “specific percentage of work at a specific minimum dollar value,” but as
“based on, but not limited to, the similarities between a given past
performance effort and this solicitation in terms of the following for
CONUS and/or OCONUS operations: POV processing, arranging for or
providing ocean transportation, arranging for or providing inland
transportation, customer service, and storage.”
In addition to the solicitation defining a past performance reference to be
“Relevant” when the “[p]resent/past performance effort involved similar scope and
magnitude of effort and complexities this solicitation requires,” the solicitation stated:
Relevancy in regard to scope and magnitude of effort and complexity will
be assessed based on, but not limited to, the similarities between a given
past performance effort and this solicitation in terms of the following for
CONUS and/or OCONUS operations: POV processing, arranging for or
81
providing ocean transportation, arranging for or providing inland
transportation, customer service, and storage.
The solicitation also indicates: “In assigning an overall confidence assessment for each
offeror, the Government will consider at a minimum: POV processing, arranging for or
providing ocean transportation, arranging for or providing inland transportation,
customer service, storage, overall performance on small business utilization,” but did
not mention price. The broad definitions of “Relevant” allowed the agency flexibility to
determine relevance. The solicitation allowed the agency to make its relevancy
determination, “based on, but not limited to, the similarities between a given past
performance effort and this solicitation” in the five areas of “POV processing, arranging
for or providing ocean transportation, arranging for or providing inland transportation,
customer service, and storage.” The parties created and submitted a joint, comparative
chart, which suggested that a reference was credited as “Very Relevant,” “Somewhat
Relevant,” or “Not Relevant,” based in part on how many of the five areas of work the
past performance reference covered, as well as two additional evaluation parameters:
whether the past performance reference covered work inside the continental United
States, and outside the continental United States. It appears from a review of the joint
submission that a past performance reference was in part credited as “Very Relevant” if
it covered all seven evaluative parameters, “Relevant” if it covered six of seven
evaluative parameters, and “Somewhat Relevant” if it included activity in three to five of
seven evaluative parameters, although the record indicates that, overall, the agency
took a more nuanced approach than indicated by the parties’ summary charts. The
agency did not have to make a relevancy determination based solely or even primarily
on price or size. See J.C.N. Constr., Inc. v. United States, 107 Fed. Cl. at 515; Tech
Sys., Inc. v. United
States, 98 Fed. Cl. at 259 (noting that while the agency “could make
contract size dispositive for relevance, there is no external requirement that it do so”);
see also TestVonics Inc., B-406700.3,
2012 WL 6098422, at *4 (Comp. Gen. Dec. 4,
2012) (“In light of the fact that the contract called for the manufacture of units having
virtually all of the technical characteristics of the units to be furnished under the contract
to be awarded . . . the fact that the contract being evaluated was for the manufacture of
fewer units during a shorter period of time does not provide a basis for our Office to find
the agency's conclusion unreasonable,” in assigning the reference contract a rating of
“relevant.”).
Global Auto Logistics’ first past performance reference was Trans Global Auto
Logistics’ contract with Allied International/Sirva, for the processing of personally-owned
vehicles for the Canadian defense forces in Europe (Allied contract). TRANSCOM’s
rationale for Global Auto Logistics’ rating of “Relevant” was: “Reference provided
includes providing/arranging for ocean & inland transportation, customer service, POV
processing, and CONUS/OCONUS performance but does not include storage.”
Protestor claims, however, that “TRANSCOM's evaluators incorrectly identified the
scope of work under the Allied Contract. It did not include all of the service elements
except storage. Specifically, Intervenor's proposal explained that the Allied Contract was
limited to ‘vehicle’ processing in Europe of both inbound and outbound Canadian
Department of Defense service member [privately-owned vehicles],” and did not cover
82
performance in the continental United States. (emphasis and modification in original).
Additionally, protestor argues that while “Intervenor's proposal claims the work under
the Allied Contract included arranging ocean transportation as part of the POV
processing, there is no indication that the Allied Contract included providing ocean
transportation.” (emphasis in original). Defendant responds that both continental United
States and outside of continental United States experience was not needed, and
similarly, both providing for and arranging for ocean transport was not required, for a
rating of “Relevant” under TRANSCOM’s rating scheme. Additionally, defendant claims
that the Allied contract past performance questionnaire indicated that the effort
“included CONUS operations.”
The past performance questionnaire regarding the Allied International contract
was filled out by Pat Amirault from “Sirva Inc / Allied Internatiuonal [sic].” Initially,
protestor contends that the past performance questionnaire is unreliable as a source by
which to determine what performance areas a past performance reference covered,
because “the evaluation record makes clear that the questionnaires were completed by
commercial customers that did not understand them.” The record before the court is
insufficient to agree with protestor’s conclusion. It is unlikely that, for example, Pat
Amirault would have mistaken whether or not Trans Global Auto Logistics worked within
the continental United States on the Allied International contract. Nor can one conclude
from the record that Pat Amirault simply checked all the boxes “Exceptional” without
looking at the questions, especially since for the questions regarding storage, Mr.
Amirault responded “N/A” instead of giving a rating. (emphasis in original). Although
International Auto Logistics’ proposal did not explicitly indicate that any of the work for
the Allied contract was performed within the continental United States, the proposal
stated that Trans Global Auto Logistics was handling “[c]omplete transportation
services” for the Canadian defense forces. The questionnaire for the reference included,
under “[l]ocation (countries) where service was performed under this contract,” “USA.”
Additionally, where the questionnaire indicated, “[c]ontractor was capable of
coordinating CONUS inland shipments between multiple origins and destinations on an
ongoing basis within required delivery dates,” Mr. Amirault checked the box marked
“Exceptional.” (emphasis in original). The record, therefore, provides evidence that
supports the agency’s decision to credit the reference with work in the continental
United States.
The protestor also contends that intervenor only arranged for, but did not provide,
ocean transport. The solicitation only asked for past performance experience related to
“arranging for or providing ocean transportation,” however, and did not require both.
(emphasis added). From a review of the agency past performance evaluations, the
agency appears to have grouped together “providing/arranging” when reviewing the
ocean transportation evaluation parameter. The agency, therefore, was not
unreasonable or inconsistent when it decided to attribute this reference with
“providing/arranging for” ocean transportation, even if Trans Global Auto Logistics only
had arranged for ocean transportation under the contract.
83
Protestor also questions Global Auto Logistics’ second “Relevant” past
performance reference, the Volkswagen Logistics contract, as being arbitrarily rated.
TRANSCOM’s rationale for the rating of “Relevant” for this contract was the same as for
the Allied International contract: “Reference provided includes providing/arranging for
ocean & inland transportation, customer service, POV processing, and
CONUS/OCONUS performance but does not include storage.” Regarding the
Volkswagen Logistics contract, protestor claims that there were no continental United
States operations under this contract, and that there was no ocean transportation at all
under the contract, but that, “TRANSCOM has given past performance credit for
providing and arranging ocean transportation for the second of these services even
though Trans Global-Europe is merely a customer of VW-Logistics on that part of the
contract.” Protestor also argues that the Volkswagen Logistics contract was too small to
be “Relevant” because it only was for $650,000.00 a year, and that TRANSCOM was
inconsistent to allow this reference to be rated “Relevant” but to downgrade other
offerors’ past performance reference which were of similar value.18
As with the Allied International contract, the past performance questionnaire for
the Volkswagen Logistics contract indicates that operations inside the continental
United States were part of the contract. The questionnaire mentioned “USA” as a
“‘[l]ocation (countries) where service was performed under this contract.” Under the
question, “[c]ontractor was capable of coordinating CONUS inland shipments between
multiple origins and destinations on an ongoing basis within required delivery dates,” the
Volkswagen Logistics respondent checked the box marked “Very Good.” (emphasis in
original). This is sufficient to support TRANSCOM’s decision to attribute continental
United States performance to this reference.
The protestor contends that Trans Global Auto Logistics did not arrange or
provide for ocean transport under the Volkswagen Logistics contract. Although Trans
Global Auto Logistics is also moving Volkswagen privately-owned vehicles under a
contract, Trans Global Auto Logistics separately, or in conjunction, also appears to have
arranged for ocean transportation with Volkswagen Logistics of other privately-owned
vehicles. The Volkswagen response to the past performance questionnaire stated:
“Trans Global provides an outstanding service to VW-Group, as well as being a
valuable customer to VW-Logistics, as a forwarder booking and shipping POVs on VW-
Logistics chartered vessels.” This indicates that Trans Global Auto Logistics still does
the work of arranging for ocean shipping, even if it is with “VW-Logistics chartered
vessels.” As the agency remarked in its agency response to protestor’s GAO protest,
“[t]he Volkswagen vessel is no different than any other ocean vessel, it just happens
TGAL [Trans Global Auto Logistics] also has a contract to move Volkswagen POVs, and
18
In particular, protestor points to TRANSCOM’s evaluation of a “$300,000 - $500,000”
reference for TranLogistics, LLC, a subcontractor to the American Presidential Lines
proposal, regarding which TRANSCOM stated: “References were considered SR
[Somewhat Relevant] because they covered all 5 performance areas. However, they
were not considered R [Relevant] because of their low dollar value.”
84
also uses space on these chartered vessels to move POVs of U.S. and Canadian
Service members as well.”
Although there is no evidence that TRANSCOM felt price was a key determining
factor as to whether or not a subcontractor was a “major subcontractor,” TRANSCOM
did generally downgrade a past performance reference if the references reflected an
amount of revenue that was low, although this was most often in conjunction with
another issue, such as the reference also covering experience in a small number of
performance areas relevant to the GPC III contract. For example, TRANSCOM rated
the past performance references of another International Auto Logistics subcontractor,
VPC of Fayetteville, as “Not Relevant” in part because the references, for less than
$4,000.00 each, were “very low dollar value in comparison to this Solicitation,” and only
covered a limited number of performance areas. TRANSCOM also rated as “Not
Relevant” another reference from an International Auto Logistics subcontractor, Posey
Transport Group, which was worth up to $319,530.00 in one year, in part as being “a
low dollar value in comparison to this Solicitation,” but also because the reference
covered only a few performance areas:
Reference provided includes providing/arranging inland transportation and
customer service in the western United States only. The reference does
not include providing/arranging ocean transportation, POV processing,
storage, OCONUS performance, and was a low dollar value in comparison
to this Solicitation.
Based on a review of the record, only for a single subcontractor, TranLogistics, LLC, a
subcontractor to another offeror, American Presidential Lines, did TRANSCOM make
the statement that revenue was the reason for a reference’s rating downgrade: “All 3
references [of TranLogistics] are rated ‘SR’ [Somewhat Relevant] and are low dollar
($300,000 - $500,000) and involve automobiles. . . . References were considered SR
[Somewhat Relevant] because they covered all 5 performance areas. However, they
were not considered R [Relevant] because of their low dollar value.” Upon review, the
record indicates that TRANSCOM uniformly decided that “references in the $300,000-
$500,000 range” would typically receive a rating of “Somewhat Relevant,” unless the
reference also covered very few performance areas. The record does not clarify
whether this limit was per year or over the life cycle of the contract. Regardless, the
Volkswagen contract, for $650,000.00 per year, would have been outside the range in
which TRANSCOM considered a past performance reference to be of “low dollar
value.”19
19
The court notes that one of protestor’s eighteen past performance reference is a
reference for Transcar, GmbH (reference W564KB-12-D-0014). TRANSCOM, in its
review of the reference, indicated that the reference was for a “low dollar value” of
$356,878.24. Protestor’s proposal additionally indicated that the annual revenue of the
reference was €269,477.00, with the lifecycle earnings only reaching €274,902.00.
Protestor’s Transcar reference, also, according to TRANSCOM’s review, only covered
two performance areas.
85
TRANSCOM, in its interim evaluation of Global Auto Logistics’ past performance
references, gave recognition to Global Auto Logistics’ key personnel, stating: “TGAL’s
key personnel (Kay Lester, Tony Lester, and Joe Wetz) have prior experience with GPC
II and similar related service and are available to GAL in performance under this
contract.” Protestor, however, objects to TRANSCOM’s consideration of key personnel,
arguing that “the solicitation did not provide that past performance evaluation credit
would be given for the experience of ‘key personnel,’ and there is nothing in the
solicitation that required resumes to be submitted.” The FAR, however, specifically
suggests that agencies should consider “key personnel who have relevant experience”
when making past performance decisions. See FAR 15.305(2)(iii). In the past, Judges
of this court have held: “Given that procurement officials are usually ‘given great
discretion in determining what references to review in evaluating past performance,’ the
SSA's consideration of the experience of intervenor's key personnel does not appear
improper.” SDS Int’l v. United States, 48 Fed. Cl. at 771 (quoting Seattle Sec. Servs.,
Inc. v. United States,
45 Fed. Cl. 560, 567 (2000)); see also Supreme Foodservice
GmbH v. United
States, 112 Fed. Cl. at 431; PlanetSpace, Inc. v. United States, 92 Fed.
Cl. at 539 (discussing evaluation of “key personnel” under the FAR). Moreover, there is
nothing in the solicitation that prohibited the consideration of key personnel by the
agency when evaluating past performance.
Protestor next questions TRANSCOM’s decision to rate another fourteen
International Auto Logistics past performance references as “Somewhat Relevant,” and
claims that “the Source Selection Authority also reached an erroneous conclusion that
the various Intervenor references that were assigned Somewhat Relevant ratings, when
‘considered together . . . reflect successful performance of all of the services[20] required
by this solicitation, including long-term storage.’” (modification in original). Protestor
contends that in three “performance areas” the source selection authority “naively”
concluded that International Auto Logistics could complete the assigned tasks based on
the strength of intervenor’s past performance references. According to the protestor,
these performance areas were “Vehicle Processing Services,” “Inland Transportation
Services,” and “Ocean Transportation Services.” (emphasis in original) For each
performance area, protestor attempts to show, not necessarily that the individual past
performance references were incorrectly rated, but instead, that, in total, the
intervenor’s references covering a given performance area were not sufficient for
TRANSCOM to rationally conclude that there is “a reasonable expectation” that
intervenor could perform on the contract.
Defendant did not respond to protestor’s allegations individually, but argues
generally:
Plaintiff’s argument is an exaggeration and once again reflects its efforts
to essentially transform the solicitation into a sole source award to the
incumbent. The evaluators recognized that these “somewhat relevant”
past performance efforts were not the “same” as the solicitation’s
20
These “services” are also referred to as “performance areas” elsewhere in the record.
86
requirements, but the record demonstrates the awardee’s “somewhat
relevant” past efforts involved some of the scope and magnitude of effort
and complexities the solicitation requires.
(emphasis in original). Defendant also maintains that: “Plaintiff’s mere disagreement is
not enough, however, to overturn the agency’s decision.” Intervenor adds that
“American [Auto Logistics] insists (incorrectly) that the terms ‘relevant’ and ‘somewhat
relevant’ require the Agency to determine relevancy solely on the basis of a comparison
of dollar values and percentage of Solicitation requirements the contractor performed,
while ignoring key differences between ‘very relevant’ work and work that is only
‘relevant’ or ‘somewhat relevant.’”
The core of protestor’s argument is that the agency erred in its technical analysis
of whether or not the intervenor’s past performance references, in total, allowed for a
“reasonable expectation that the offeror will successfully perform the required effort.”
Protestor repeatedly asserts that the intervenor’s technical attributes are insufficient and
that TRANSCOM was arbitrary and capricious in its evaluation. For example, related to
vehicle processing services, protestor claims that International Auto Logistics “does not
operate a vehicle processing center that is comparable to the privately-owned vehicle
processing requirements in the Performance Work Statement Sections 1.3.3, 1.3.4 and
1.3.7, and its outdoor lot is certainly not comparable to the Performance Work
Statement Section 1.3.6 requirements (providing secure indoor facility and monthly
maintenance requirements).” Initially, the court notes that protestor is arguing about
intervenor’s technical proposal, attempting to dispute the agency’s conclusion that
intervenor’s “[p]roposal clearly meets the minimum requirements of the solicitation,” as
identified in the performance work statement. Intervenor’s technical proposal has not
been challenged by protestor. To the extent protestor is arguing that the agency’s past
performance determination was improper because the agency’s technical determination
regarding a particular past performance reference was incorrect, determinations on
such technical matters deserve deference from the court, and the court should not
easily overturn an agency’s reasoned conclusion. It is not the court’s role to determine
whether the evaluations were perfect or even as good as they could be, or, in its
opinion, the best technical solution to the problem the agency is trying to solve, as long
as the requirements of the solicitation are met. “‘“If the court finds a reasonable basis for
the agency’s action, the court should stay its hand even though it might, as an original
proposition, have reached a different conclusion as to the proper administration and
application of the procurement regulations.”’” Weeks Marine, Inc. v. United States, 575
F.3d at 1371 (quoting Honeywell, Inc. v. United
States, 870 F.2d at 648 (quoting M.
Steinthal & Co. v.
Seamans, 455 F.2d at 1301)); see also Motor Vehicle Mfrs. Ass’n v.
State Farm Mut. Auto. Ins.
Co., 463 U.S. at 43 (“The scope of review under the
‘arbitrary and capricious’ standard is narrow and a court is not to substitute its judgment
for that of the agency.” (citation omitted)). “[D]isagreement with evaluations, ‘no matter
how vigorous, fall far short of meeting the heavy burden of demonstrating that the
findings in question were the product of an irrational process and hence were arbitrary
and capricious.’” Tech Sys., Inc. v. United
States, 98 Fed. Cl. at 243 (quoting Banknote
Corp. of Am. v. United
States, 56 Fed. Cl. at 384).
87
Regarding the intervenor’s fourteen “Somewhat Relevant” references, to
determine if the references provided a rational basis for TRANSCOM’s overall past
performance rating decision, the agency in the Source Selection Evaluation Board
report concluded that, even discounting Global Auto Logistics’ two “Relevant”
references: “the Satisfactory-Exceptional past performance on the SR [Somewhat
Relevant] references, which considered together, reflect successful performance of all
of the services required by this solicitation (CONUS and OCONUS operations, POV
processing, arranging for/providing ocean and inland transportation, customer service,
and storage).” The source selection authority also stated in the Source Selection
Decision Document: “Because IAL and its subcontractors combined have provided
numerous references to demonstrate successful performance in individual performance
areas as required by the solicitation, the Government has a reasonable expectation the
offeror will successfully perform the required effort; therefore, a Confidence Assessment
Rating of Satisfactory Confidence was assigned.” Protestor takes issue with this
assessment, with respect to three performance areas: vehicle processing, ocean
transportation, and inland transportation.
TRANSCOM credited under the performance area “Vehicle Processing Services”
all three of International Auto Logistics’ “Somewhat Relevant” past performance
references and all four of SDV Command Source’s “Somewhat Relevant” references,
not including Global Auto Logistics’ two “Relevant” references. (emphasis in original).
Protestor contends, however, that, under the GPC III contract, International Auto
Logistics will be responsible for six vehicle processing centers, but that its references
“reflect no experience in the operation of a processing center that involves
individualized handling and processing of hundreds of vehicles per week dropped off or
picked up by service members, a process that is far more personalized and complicated
than that used by International Auto Processing for its commercial customers at the
Brunswick, GA facility.” Therefore, according to protestor, “[b]ased on an accurate
interpretation of the relevancy ratings requiring an assessment of scope and magnitude
of effort and complexity of each reference as compared to the RFP requirements,
International Auto Processing's past performance warranted no better than a Not
Relevant rating.” (emphasis in original). International Auto Logistics’ proposal, and
related past performance questionnaire responses, emphasized that the central activity
of intervenor’s references was the processing of vehicles. Regarding intervenor’s first
reference, the “MBUSA [Mercedes Benz USA]” contract, intervenor stated in its
proposal that it “unloads, inspects, and processes POVs for outgoing ocean vessels,”
and handles “over 200,000 POVs annually,” bringing in at least $2,893,562.00 in
2012.21 The past performance questionnaire filled out by International Auto Logistics
and sent to Mercedes Benz USA listed under the “Brief Description of Work Performed,”
“[r]eceive, inspect, document, wash, provide and manage truck areas, paint and body
21
In intervenor’s proposal, intervenor stated that it earned $8.1 million on the Mercedes
Benz USA contract in 2012, and $9.9 million in 2013. In the past performance
questionnaire, however, International Auto Logistics stated that the value of the contract
in 2012 was only $2,893,562.00, with no information on 2013 values.
88
repairs, customer service, performance reporting.” (emphasis in original). Regarding
intervenor’s second reference, for a “General Motors” contract, according to its
proposal, intervenor “coordinates inland truck transportation, unloads vehicles, performs
in/out processing,” as well as “inspect[s] each vehicle for damage upon arrival.” The
proposal indicates that the contract is for $800,000.00 annually. Although the past
performance questionnaire in the record does not contain a description of the work
performed, Scott McMillan, the respondent to the questionnaire for “General Motors,”
stated that “IAP provides port processing services out of Brunswick, Georgia. Although
one of our smaller providers (approximately 19K units annually), they do a very good job
processing our vehicles.”
Regarding intervenor’s third reference, a contract with Hyundai Glovis America,
intervenor states in its proposal that “IAP receives POVs from vessels, performs in/out
processing,” “inspect[s] each vehicle for damage upon arrival,” and installs accessories
and customizes vehicles. The proposal further notes that “Glovis and its customers,
Hyundai and Kia, have been so pleased with the level of quality service provided by IAP
that Hyundai has allowed IAP to process its vehicles for over 25 years. In 2012, these
manufacturers shipped over 170,000 vehicles through IAP facilities.” The contract is for
approximately $13 million a year, according to both intervenor’s proposal and the past
performance questionnaire. The questionnaire respondent, Glenn Clift, President and
CEO of Glovis America, stated that “IAP is a member of GLOVIS America’s 2012 Club
Elite Program in recognition of their ability to meet or exceed performance standards in
Automotive Port Processing.”
Protestor argues that “International Auto Processing does not operate a vehicle
processing center that is comparable to the privately-owned vehicle processing
requirements in the Performance Work Statement Sections 1.3.3, 1.3.4 and 1.3.7, and
its outdoor lot is certainly not comparable to the Performance Work Statement Section
1.3.6 requirements (providing secure indoor facility and monthly maintenance
requirements).” Protestor’s contention that intervenor’s facilities do not meet the
requirements of the performance work statement is directed at TRANSCOM’s rating of
intervenor’s technical proposal; Subfactor 2 – Technical Approach, as Acceptable,
which means that the “[p]roposal clearly meets the minimum requirements of the
solicitation.” Before this court, protestor has not challenged the determination that
intervenor’s technical proposal was rated as “Acceptable.” Moreover, the GPC III
solicitation does not require that intervenor’s past performance references had to match
the GPC III solicitation’s particular performance work statement requirements.
Intervenor’s past performance references as the prime contractor are
supplemented by SDV Command Source’s past performance references, which include
vehicle processing. Protestor never challenges the validity of the references
themselves, but instead contends that “the value of SDV Command's total performance
under the GPC III Contract (operating three of the 19 contractor-owned and operated
facilities and one of seven storage facilities) is only estimated by Intervenor to be 1.2%
of the annual contract dollars.” According to protestor, TRANSCOM, therefore, should
not have considered SDV Command's past performance at all because it is not
89
proposed as a ‘principal subcontractor.’” As discussed above, however, the court has
reason to be skeptical of protestor’s calculation of how much any one of intervenor’s
subcontractors will earn. That SDV Command Source will operate three vehicle
processing centers and one vehicle storage facility provides a reasonable basis upon
which TRANSCOM could consider the subcontractor a “major subcontractor,” and
consider its past performance references. One of SDV Command Source’s four past
performance references was for a $55,356,885.16 life-cycle contract for the United
States Army Installation Management Command, in which SDV Command Source,
according to the past performance questionnaire, “[e]stablished and operated six (6)
Vehicle Processing Centers (VPCs) and eight (8) Vehicle Storage Facilities (VSFs).”
(emphasis in original). SDV Command Source was given a “Very Good” rating by the
respondent from the United States Army in response to the questionnaire statement
indicating: “Contractor provided vehicle inspection and corresponding documentation of
vehicle condition prior to acceptance and upon delivery, including pre-existing and
newly incurred damage.” (emphasis in original). Another of SDV Command Source’s
references was for a $7,522,453.04 life-cycle contract with the United States Army at
Fort Carson, in which the company, according to the past performance questionnaire,
“[e]stablish[ed] and operate[d] Vehicle Processing Centers (VPCs) and either collocated
or separate Vehicle Storage Facilities (VSFs).” (emphasis in original). The respondent
to the past performance questionnaire from Fort Carson marked “Exceptional” in
response to both statements on the questionnaire regarding privately-owned vehicle
processing: “Contractor provided management/coordination to receive and schedule
POV shipments between multiple destinations within delivery dates required;” and
“[c]ontractor provided vehicle inspection and corresponding documentation of vehicle
condition prior to acceptance and upon delivery, including pre-existing and newly
incurred damage.” (emphasis in original). SDV Command Source also presented a third
past performance reference, for a $16,673,677.91 contract with the United States Joint
Base Lewis, in which SDV Command Source established and operated vehicle
processing centers and performed other vehicle processing services, including
maintenance and inspections. The questionnaire respondent representing Joint Base
Lewis marked “Exceptional” in response to the two statements in the questionnaire
related to privately-owned vehicle processing.22 (emphasis in original).
There are imperfections in intervenor’s, and its subcontractor’s, past performance
references. In all of International Auto Logistics’ three past performance questionnaires,
the respondents marked “Unknown” in response to the two statements related to
22
As discussed below, TRANSCOM, using its Past Performance Information Retrieval
System, identified and considered a fourth reference the agency determined also
covered processing of personally-owned vehicles. TRANSCOM stated that the
reference was for a contract in which SDV Command Source was a “[p]rime contractor
providing complete inprocessing storage services for the Dept of the Army POVs,” and
that the reference indicated “Very Good to Exceptional performance.” The record,
however, does not contain other information as to the reference, such as the specific
work involved or size of the contract.
90
“Privately-Owned Vehicle (POV) Processing.”23 (emphasis in original). In SDV
Command Source’s past performance questionnaire related to the approximately $55
million United States Army life-cycle contract, the respondent indicated in its comments
that the focus of the contract was not about vehicle processing, but, instead, noted that:
“SDV’s contract with IMCOM was for long-term POV storage only. However, SDV did
dray POVs to/from SDV’ [sic] vehicle processing centers and SDV storage locations.”
These inconsistencies, however, are far from fatal to TRANSCOM’s determination. As
noted above, the court accords significant discretion to agencies in past performance
determinations, especially those in which the determinations are highly technical in
nature. See Glenn Defense Marine (ASIA), PTE Ltd. v. United States, 720 F.3d at 911;
Turner Constr. Co., Inc. v. United
States, 645 F.3d at 1383; Tech Sys., Inc. v. United
States, 98 Fed. Cl. at 243; L-3 Commc’ns EOTech, Inc. v. United
States, 83 Fed. Cl. at
650 (“The deference afforded to an agency’s decision must be even greater when a trial
court is asked to review a technical evaluation.”); Beta Analytics Int’l, Inc. v. United
States, 67 Fed. Cl. at 395; see also E.W. Bliss Co. v. United
States, 77 F.3d at 449
(noting that protestor’s arguments “deal with the minutiae of the procurement process in
such matters as technical ratings and the timing of various steps in the procurement,
which involve discretionary determinations of procurement officials that a court will not
second guess”). The agency only need demonstrated “rational reasoning and
consideration of relevant factors.” See Weeks Marine, Inc. v. United
States, 575 F.3d at
1368-69 (quotations omitted); Overstreet Elec. Co., Inc. v. United
States, 59 Fed. Cl. at
117. The record supports TRANSCOM’s decision that International Auto Logistics’ and
SDV Command Source’s references were sufficient in “scope and magnitude of effort
and complexity” as to warrant a “Somewhat Relevant” past performance rating. These
references, when considered together, offered a rational basis for TRANSCOM to
conclude that there is a “reasonable expectation that the offeror will successfully
perform the required” processing of personally-owned vehicles under the GPC III
program.
Under “Ocean Transportation Services,” TRANSCOM considered the “Somewhat
Relevant” past performance references of two of intervenor’s subcontractors, Liberty
Global Logistics, and Horizon Lines, apart from Global Auto Logistics’ two “Relevant”
references. (emphasis in original). Protestor does not contend that Liberty Global
Logistics’ or Horizon Lines’ references are irrelevant to ocean transportation, and admits
that “ocean container shipping is Horizon's line of business.” The protestor states, “[t]he
issue here is not whether those contracts encompassed similar performance areas.”
Instead, protestor takes issue with “the vast difference in ‘scope’ and ‘complexity,’
including whether Liberty and Horizon have sufficient assets to meet the GPC III
requirement to transport more than 4,000 privately-owned vehicles per month within the
applicable Required Delivery Date time frames.” Protestor claims that “Liberty has only
two roll-on/roll-off vessels, which is significantly fewer than the five to eight roll-on/roll-off
vessels that Plaintiff will use under its negotiated agreements with its sister company,”
and that “Horizon only operates container ships.” Protestor argues without support that
23
“Unknown” is defined in the questionnaire as: “No record of past performance or the
record is inconclusive.” (emphasis in original).
91
container ships are worse and more expensive for transporting cars, because they hold
fewer vehicles, and that Horizon Lines’ fifteen owned or leased container ships would
be unable to make up the transport capability of protestor’s roll-on/roll-off carriers, which
can carry “thousands of cars.” Protestor contends that “[b]ased at least in part on
questionable ‘market research’ that it may be possible to transport six vehicles in a
container, TRANSCOM did not question whether the Liberty and Horizon assets would
be sufficient to meet the GPC III requirements.”
Once again, protestor is attempting to dispute the agency’s conclusion that
intervenor’s “[p]roposal clearly meets the minimum requirements of the solicitation.” As
noted above, protestor’s technical proposal has not been challenged by protestor.
Based on the record before the court, there is no reason to conclude that the resources
intervenor has committed to the project would be insufficient to meet the GCP III
program requirements. Moreover, the performance work statement allows for “arranging
for” ocean transportation, and does not require that it all be provided in-house. To the
extent protestor argues that intervenor’s past performance references are insufficient to
warrant an overall past performance rating of “Satisfactory Confidence,” protestor has
not persuaded the court. Liberty Global Logistics’ first past performance reference was
for a TRANSCOM Surface Deployment and Distribution Command contract shipping
military vehicles and other cargo around the world using “U.S. Flag roll-on/roll-off”
vessels.24 This contract, according to the proposal and past performance questionnaire,
was for approximately $50 million annually, equal to almost half of what International
Auto Logistics proposed charging for all transportation services for the first complete
year of GPC III performance, i.e. $116,525,049.85. TRANSCOM rated Liberty Global
Logistics as “Exceptional” in response to all the statements in the questionnaire related
to ocean transportation. (emphasis in original). This reference provides a rational basis
by which TRANSCOM could conclude that there is a “reasonable expectation that the
offeror will successfully perform” the ocean shipping effort required by the GPC III
statement of work. See Weeks Marine, Inc. v. United States, 575 F.3d at 1368–69;
Overstreet Elec. Co., Inc. v. United
States, 59 Fed. Cl. at 117. Moreover, TRANSCOM
also considered, and gave credit to, intervenor for another Liberty Global Logistics past
performance reference, for a shipping contract with Uniworld International, Inc. worth
$5.5 million annually. In the past performance questionnaire, Liberty Global Logistics
was rated between “Satisfactory” and “Exceptional” in regards to ocean transportation
services provided under the contract. (emphasis in original).
From the record, it appears that the TRANSCOM source selection authority did
not consider the third past performance reference intervenor submitted on behalf of
Liberty Global Logistics, for a contract with the Ford automotive company for $25 million
a year. Nor was the one past performance reference intervenor provided for Horizon
Lines, for a $2.9 billion contract with TRANSCOM, in which “Horizon currently provides
transport of light vehicles in support of USTRANSCOM solicitation Regional Domestic
24
This TRANSCOM contract was for the delivery of military vehicles under the “USC-6”
program, apparently separate from the GPC III contract for the delivery of personally-
owned vehicles at issue in the above captioned case.
92
Contract – 05 (RDC-05) in the Alaska and Hawaii markets,” considered. Neither
reference appeared in the agency’s initial or interim past performance evaluations,
although, in front of the GAO, the agency loosely referred to these references: “Both
carriers also provided extensive past performance in the area of shipping and handling
POVs.” TRANSCOM’s correspondence documentation indicated that, on July 18, 2013,
“[t]he past performance team decided there was sufficient information to assign a rating
without this PPQ, so the request for Mr. Carpenter to complete a PPQ was retracted.
However, he was told if he would like to submit on LGL's [Liberty Global Logistics’]
behalf he could.” TRANSCOM’s correspondence documentation also indicated that “Mr.
Carpenter responded via e-mail on 7/29/2013 at 1:57PM stating his legal counsel will
not allow him to complete the questionnaire.” The record before the court indicates that
“[n]o PPQs were received for Horizon.”
TRANSCOM, however, gathered an additional past performance reference for
Liberty Global Logistics, and three past performance references for Horizon Lines, using
the agency’s Past Performance Information Retrieval System. As stated in the agency’s
interim past performance evaluation, the Liberty Global Logistics reference TRANSCOM
collected, and one of the three Horizon Line references, were for contracts “providing
international cargo transportation and distribution services using common contract
ocean carriers offering regularly scheduled commercial liner service.” Horizon Lines’
remaining two references were stated to be for contracts “providing port to port and end
to end ocean transportation services” between Alaska, Hawaii, and the continental
United States. Three of the four references indicated “Satisfactory” performance,
although the last Horizon Lines reference indicated “Unsatisfactory to Satisfactory
performance.” Horizon Lines’ performance concerns were resolved through intervenor’s
response to an evaluation notice, which indicated, in part, a “reenergized Horizon Lines
being an ALPHA carrier meeting RDD 98.7% of the time with an ITV [In-Transit
Visibility] percentage of 97.0%. This performance level continues with the supporting
evidence in our proposal reflecting Horizon’s 100% 90-day rolling performance rating.”
Under “Inland Transportation Services,” the third performance area for which
protestor alleges intervenor’s past performance record is lacking, TRANSCOM credited
intervenor with two “Somewhat Relevant” references from Liberty Global Logistics, three
Somewhat Relevant references from Horizon Lines, four “Somewhat Relevant”
references from SDV Command Source, and one “Somewhat Relevant” reference from
Posey Transport Group, apart from the two “Relevant” references from Global Auto
Logistics. (emphasis in original). Protestor’s argument does not discuss the references
from Liberty Global Logistics, Horizon Lines, and SDV Command Source, considers the
past performance references of those subcontractors intervenor stated provided “OTR
[over-the-road]” transportation services in a summary chart on page fifty-two of
intervenor’s proposal. A review of the record, however, indicates that TRANSCOM
considered the past performance references from all four subcontractors as arranging
for or providing inland transportation services. The sole subcontractor with a “Somewhat
Relevant” reference related to inland transportation services, according to protestor, is
Posey Transport Group. Protestor claims that “[i]t was simply unreasonable for the
Agency to conclude there is a reasonable expectation of successful performance of the
93
vast CONUS and OCONUS inland transportation requirements based on one
subcontractor's experience on a single contract performing trucking transportation
services for new vehicles only in the United States.”
It was appropriate for TRANSCOM to credit the past performance of Liberty
Global Logistics, Horizon Lines, and SDV Command Source towards inland
transportation. Although the chart on page fifty-two of intervenor’s proposal provided a
more summary and less detailed overview, the text of intervenor’s proposal described
Liberty Global Logistics as providing transportation “between U.S. and international
destinations via truck, air, sea and rail. LGL provides a wide array of point-to-point
logistics and transportation services to meet common and unique shipping needs.”
Intervenor also described Liberty Global Logistics as providing “door-to-door
movements for the Department of Defense.” TRANSCOM attributed inland
transportation to Liberty Global Logistics’ past performance reference for the $50 million
contract with the Surface Deployment and Distribution Command. Intervenor’s proposal
indicated that Liberty Global Logistics conducted “Inland Transport” for this contract,
including a “surface move” of military vehicles. (emphasis in original). The respondent
for the past performance questionnaire for this reference rated Liberty Global Logistics
as “Exceptional” in response to all the statements under the category of inland
transportation. (emphasis in original).
It also was appropriate for TRANSCOM to credit the past performance of SDV
Command Source towards inland transportation. Regarding SDV Command Source’s
contract with the United States Army Installation Management Command, worth
$55,356,885.16 over its life cycle, intervenor’s proposal stated:
SDV’s POV Storage contract involved arranging for inland transport of
POV vehicles. For these activities, we coordinated carrier scheduling and
movement of vehicles in-processed at each of the VPCs and designated
POV storage sites. We also coordinated carrier scheduling and movement
of vehicles from VSFs to designated VPCs upon return of a service
member. In general, we coordinated transport with carriers, conducted a
joint inspection with the carrier (using the DOD Form 788) and oversaw all
vehicle loading and dispatch.
The respondent to the past performance questionnaire for this reference marked
“Unknown” in response to the statements on inland transportation, but commented later
on in the questionnaire that: “Answered 1B and section 2 [inland transportation] as
unknown because SDV’s contract with IMCOM was for long-term POV storage only.
However, SDV did dray POVs to/from SDV’ [sic] vehicle processing centers and SDV
storage locations. SDV always did a very good job of coordinating movements of POVs
to and from storage.” (emphasis in original). Intervenor also indicated in its proposal that
SDV Command Source arranged for inland transportation as part of the Fort Carson
and Joint Base Lewis contracts, worth approximately $7.5 million and $16 million life-
cycle respectively. For the Fort Carson reference, the respondent to the past
performance questionnaire marked “Exceptional” in response to three of five of the
94
statements in the questionnaire on inland transportation. (emphasis in original),
although the respondent to the past performance questionnaire for the Joint Base Lewis
contract commented “NOT APPLICABLE” in response to the same statements in the
questionnaire.
In addition to the references from Liberty Global Logistics and SDV Command
Source, TRANSCOM did consider one reference from Posey Transport Group, which it
considered to be “Somewhat Relevant” to the solicitation’s requirements, a contract to
transport vehicles for AT&T. Intervenor stated in its proposal that Posey Transport
Group operates as a “vehicle transport operation servicing the entire continental United
States and Canada.” According to the past performance questionnaire, under this
contract, Posey Transport Group “[m]anaged the transportation of new vehicles entering
service from sedans and service trucks/vans to bucket trucks. Also managed the
transportation of used surplus vehicle relocation and specialty equipment relocation.”
According to the intervenor’s proposal and related past performance questionnaire, the
contract was worth $3,516,452.00 in 2012. The respondent for AT&T rated Posey as
“Exceptional” in response to four out of the five questionnaire statements under the
topic of inland transportation. (emphasis in original).
The references from Liberty Global Logistics, SDV Command Source, and Posey
Transport Group discussed above, in total, provide a rational basis for the agency’s
“reasonable expectation that the offeror will successfully perform the required” inland
transportation effort for the GPC III program.25 The record does not support protestor’s
contention that the agency “lacked any rational basis” for its actions, Overstreet Elec.
Co., Inc. v. United States, 59 Fed. Cl. at 117 (emphasis in original), or was otherwise
“‘unreasonable or inconsistent with the terms of the solicitation or applicable statutes or
regulations.’” Fort Carson Support Servs. v. United
States, 71 Fed. Cl. at 598 (quoting
Consol. Eng'g Servs. v. United
States, 64 Fed. Cl. at 637).26
Protestor’s analysis also improperly assumes that Global Auto Logistics’ three
past performance references should be disregarded. Global Auto Logistics’ past
performance references, according to TRANSCOM, covered “providing/arranging for
ocean & inland transportation, customer service, POV processing, and
CONUS/OCONUS performance but does not include storage.” Within the three
25
In addition to the above, one past performance reference from Liberty Global
Logistics, three past performance references from Horizon Lines, and one past
performance reference from SDV Command Source, all of which originated from the
agency’s Past Performance Information Retrieval System, were indicated by
TRANSCOM to cover inland transportation. Protestor does not challenge their validity.
26
The GAO’s analysis of the same challenged determinations was in line with the
court’s analysis. The GAO stated, “[w]e have reviewed each of the challenged
references, and find that the record supports the agency’s relevancy determination as
well as the agency’s conclusion that, collectively, all of the references provided the
agency with satisfactory confidence that IAL would successfully perform the contract.”
95
“performance areas” at issue, the references provided by the intervenor for Global Auto
Logistics serve to further buttress the other “Somewhat Relevant” references provided
by the intervenor, and further substantiate TRANSCOM’s “reasonable expectation that
the offeror will successfully perform the required effort.” The court also notes that the
solicitation did not require that the awardee have, at the moment of award, all of the
resources required to perform the GPC III contract. As the agency correctly stated in
front of the GAO, “[w]hat Protester fails to understand is the solicitation did not require
offerors to demonstrate ownership of ‘a national and international fleet of car carriers,’
or currently employ ‘the necessary pool of drivers.’ Rather the solicitation called for
experience in ‘arranging for or providing inland transportation.’” (internal citations
omitted).
In sum, based on the record before the court, the source selection authority, Ms.
Jorgenson, reached her decision to award a rating of “Satisfactory Confidence” to
International Auto Logistics based on a thorough review of the offeror’s past
performance references as a whole, not on any one reference. The source selection
authority noted that, “IAL and its subcontractors combined have provided numerous
references to demonstrate successful performance in individual performance areas as
required by the solicitation.” In addition, the agency’s overall review of the offerors’ past
performance proposals was thorough. The agency made multiple charts to compare the
different references, conducted three stages of review, followed up on issues in
between the different stages of review with evaluation notices, developed a record of its
correspondence with the offerors, and discussed at length the rationale behind each
offeror’s final, overall past performance rating. After this review, the agency concluded
that the intervenor had a “reasonable expectation” of success in the GPC III effort. The
evidence before the court does not support protestor’s assertion that intervenor would
have only a low expectation, or no expectation of successful contract performance.
Even if the court were to believe that a particular lower confidence rating might have
been a better determination, “[i]f the court finds a reasonable basis for the agency’s
action, the court should stay its hand even though it might, as an original proposition,
have reached a different conclusion as to the proper administration and application of
the procurement regulations.” Weeks Marine, Inc. v. United States, 575 F.3d at 1371
(quotations omitted). The solicitation at issue in this case leaves significant discretion to
the source selection authority to define the evaluation terms, as well as to assess what
falls within “POV processing,” “arranging for or providing ocean transportation,” and
“arranging for or providing inland transportation.” After review of the extensive record,
the court finds that the agency’s individual ratings of “Somewhat Relevant,” assigned to
International Auto Logistics’ fourteen past performance references, have a reasonable
basis in the record before the court, and that the intervenor deserves a “Satisfactory
Confidence” overall past performance rating. A review of the record offers a rational
basis for the agency’s determination that there is a “reasonable expectation that the
offeror will successfully perform” the GPC III contract.
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Integrated Assessment & Performance Price Tradeoff
Protestor also contends that, even if TRANSCOM was reasonable in giving
International Auto Logistics an overall “Satisfactory Confidence” past performance
rating, “the integrated assessment itself is unreasonable and contrary to the RFP.”
According to the solicitation, the agency’s “integrated assessment” was to reflect the
agency’s overall review of an offeror’s proposal, and was to be conducted after ratings
were given for each of the five individual business, technical, past performance, small
business utilization, and price evaluation factors. The source selection authority’s
integrated assessment focused primarily on how the various offerors’ performance and
price proposals compared between offerors, an evaluation described in the solicitation
as the “Performance Price Tradeoff.” According to the Source Selection Decision
Document, “[t]he integrated assessment takes into consideration the potential tradeoffs
in terms of performance confidence assessment ratings and price. Ratings for technical
subfactors are not factored into this confidence assessment rating because the factors
were rated on an Acceptable/Unacceptable basis and all offerors’ proposals were rated
as Acceptable.” The solicitation provided guidance for the offerors on how the
performance price tradeoff was to be conducted:
This is a competitive best value source selection. The Government will
conduct a Performance Price Tradeoff (PPT) source selection in which
competing offerors' past performance history will be evaluated on a basis
approximately equal to cost or price considerations. Award will be made to
the offeror who is deemed responsible IAW [in accordance with] FAR Part
9, who submits an acceptable business proposal, technical proposal, and
small business proposal, and is judged, based on their past performance
and total evaluated price, to represent the best value to the
Government. . . . However, the Government will not pay a price premium
that it considers to be disproportionate to the benefits associated with the
proposed margin of service superiority.
Protestor takes issue with how TRANSCOM conducted the performance price
tradeoff between International Auto Logistics and American Auto Logistics, alleging that
the agency abandoned “the RFP's criteria that made price equal to past performance,”
in the tradeoff, and, instead, “decided that ‘the value between Satisfactory Confidence
and Substantial Confidence ratings regarding actual contract performance is reduced to
an extent by the general commercial nature of the contract and the prevalence of the
required services in the commercial marketplace.’” According to protestor, “[t]here is no
statutory or regulatory authority to support the Source Selection Authority's reliance on
the commercial nature of the contract to diminish—if not eliminate—the role that past
performance was supposed to play in the source selection process.” Protestor notes
that “[t]here are countless items that would clearly meet the FAR definition of a
‘commercial item,’ but that does not mean they are easy to manufacture.” Protestor also
claims that the source selection authority impermissibly, and inconsistent with the
solicitation’s evaluation criteria, “concluded that ‘the primary margin of service
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superiority represented in AAL's [Protestor’s] higher past performance score is not in
specific performance areas, but rather contract integration.’” (modification in original).
Protestor, in addition, claims that the source selection authority failed to consider that
the price differential between the two offers may not be as large as indicated, because,
“although the contract is fixed price, the resulting award will be an Indefinite-
Delivery/Indefinite Quantity contract, wherein minor differences in prices could fluctuate
depending on ordered quantities.”
Defendant responds that the source selection authority was correct to consider
the “commercial nature” of the contract, as well as to conclude that the protestor’s
“margin of service superiority” was in contract integration, and that there is limited “risk
inherent in selecting the awardee instead of the incumbent.” Defendant asserts the FAR
encouraged the agency to “consider ‘the relative differences between proposals, their
strengths, weaknesses and risks . . . .’” (quoting Halter Marine, Inc. v. United States, 56
Fed. Cl. 144, 170 (2003)). Defendant further contends that the source selection
authority “did not ignore the smaller magnitude of the awardee’s past performance
efforts, nor the risks inherent in choosing a contractor with a lower past performance
rating, but reasoned the awardee could successfully scale up its operation because of
the common, commercial nature of the services.” According to defendant:
[P]laintiff’s argument ignores the salient point that neither statute, nor
regulation, nor the solicitation prohibits the source selection authority from
taking into account the prevalence of the solicited services in the
commercial market in her analysis of the risk . . . . Here the source
selection authority did precisely what she was supposed to do—exercise
business judgment and balance risk to make an informed tradeoff
decision.
Intervenor adds that “[t]he Court must afford the Source Selection Authority who
exercises independent judgment tremendous discretion in deciding which offeror
represents the best value to the government,” citing FAR 15.308 (2013).
FAR 15.308 instructs source selection authorities as follows:
The source selection authority's (SSA) decision shall be based on a
comparative assessment of proposals against all source selection criteria
in the solicitation. While the SSA may use reports and analyses prepared
by others, the source selection decision shall represent the SSA's
independent judgment. The source selection decision shall be
documented, and the documentation shall include the rationale for any
business judgments and tradeoffs made or relied on by the SSA, including
benefits associated with additional costs. Although the rationale for the
selection decision must be documented, that documentation need not
quantify the tradeoffs that led to the decision.
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FAR 15.308. The requirements of FAR 15.308 have been described as follows:
First, the regulation requires the agency to make a business judgment as
to whether the higher price of an offer is worth the technical benefits its
acceptance will afford. See, e.g., TRW, Inc. [v. Unisys Corp.], at 1327;
Dismas Charities, Inc., 61 Fed. Cl. [191, 203 (2004)]. Doing this, the
decisional law demonstrates, obliges the agency to do more than simply
parrot back the strengths and weaknesses of the competing proposals—
rather, the agency must dig deeper and determine whether the relative
strengths and weaknesses of the competing proposals are such that it is
worth paying a higher price. Second, in performing the tradeoff analysis,
the agency need neither assign an exact dollar value to the worth
associated with the technical benefits of a contract nor otherwise quantify
the non-cost factors. FAR § 15.308 (“the documentation need not quantify
the tradeoffs that led to the decision”); Widnall v. B3H Corp., 75 F.3d
1577, 1580 (Fed. Cir. 1996). But, this is not to say that the magnitude of
the price differential between the two offers is irrelevant—logic suggests
that as that magnitude increases, the relative benefits yielded by the
higher-priced offer must also increase. See Beneco Enters., Inc., 2000
C.P.D. ¶ 69, 1999 WL 1713451, at *5 (1999). To conclude otherwise,
threatens to “minimize[ ] the potential impact of price” and, in particular, to
make “a nominal technical advantage essentially determinative,
irrespective of an overwhelming price premium.” Coastal Sci. and Eng'g,
Inc., 89–2 C.P.D. ¶ 436, 1989 WL 237564, at *2 (1989); see also
Lockheed Missiles & Space Co., 4 F.3d at 959–60. Finally—and many
cases turn on this point—the agency is compelled by the FAR to
document its reasons for choosing the higher-priced offer. Conclusory
statements, devoid of any substantive content, have been held to fall short
of this requirement, threatening to turn the tradeoff process into an empty
exercise. Indeed, apart from the regulations, generalized statements that
fail to reveal the agency's tradeoff calculus deprive this court of any basis
upon which to review the award decisions. See Johnson Controls World
Servs., 2002 WL 1162912, at *6; Satellite Servs., Inc., 2001 C.P.D. ¶ 30,
at *9–11; Si–Nor, Inc., 2000 C.P.D. ¶ 159, 1999 WL 33210196, at *3
(1999).
Serco Inc. v. United States, 81 Fed. Cl. at 496–97; see also Croman Corp. v. United
States,
106 Fed. Cl. 198, 220 (2012) (citing to the framework discussed in Serco), aff’d,
724 F.3d 1357 (Fed. Cir.), reh’g and reh’g en banc denied (Fed. Cir. 2013). A Judge of
this court has stated that, under FAR 15.308, “[w]hen assessing differences between
proposals, the SSA should take into consideration not only the proposals' adjectival
ratings but also information on advantages and disadvantages of the proposals.
‘Looking beyond the adjectival ratings is necessary because proposals with the same
adjectival ratings are not necessarily of equal quality.’” Mil-Mar Century Corp. v. United
States,
111 Fed. Cl. 508, 553 (2013) (quoting Femme Comp Inc. v. United
States, 83
Fed. Cl. at 758); see also AM Gen., LLC v. United States,
115 Fed. Cl. 653, 699 (2014)
(“This court has also recognized the limitation of a bare evaluation rating, and the need,
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in certain circumstances, to go beyond the evaluation rating to understand the value
provided by the proposal.”).
A protestor bears a significant burden to demonstrate error in a source selection
authority’s best-value trade-off analysis, because, as discussed above, procurement
officials have a very high degree of discretion when it comes to best value
determinations. See Galen Med. Assocs., Inc. v. United States, 369 F.3d at 1330
(because “the contract was to be awarded based on ‘best value,’ the contracting officer
had even greater discretion than if the contract were to have been awarded on the basis
of cost alone”); CHE Consulting, Inc. v. United
States, 552 F.3d at 1354 (“Procurement
officials have substantial discretion to determine which proposal represents the best
value for the government.” (quotation omitted)); Banknote Corp. of Am. Inc. v. United
States, 365 F.3d at 1355; Optimization Consulting, Inc. v. United
States, 115 Fed. Cl. at
89; Amazon Web Servs., Inc. v. United
States, 113 Fed. Cl. at 110 (“Contracting officers
are afforded ‘an even greater degree of discretion when the award is determined based
on the best value to the agency.’” (quoting Galen Med. Assocs., Inc. v. United
States,
369 F.3d at 1330)); Supreme Foodservice GmbH v. United
States, 109 Fed. Cl. at 382.
Courts allow agencies such a high degree of discretion in best value
determinations because it is necessarily a subjective process. The determination of
which offer represents the “overall best value to the government” involves layers of
decision-making and judgment calls regarding which proposals offer the overall highest
technical merit, and what technical advantages are worth a higher price. Any decision to
contract is “inherently a judgmental process which cannot accommodate itself to
absolutes, at least not without severely impairing the quality of the judgment called for.”
Sperry Flight Sys. Div. v. United States, 212 Ct. Cl. at 339, 548 F.2d at 921; see also
Comprehensive Health Servs., Inc. v. United States,
70 Fed. Cl. 700, 721 (2006).
At multiple points in the Source Selection Decision Document, the source
selection authority discussed, and compared, the past performance and price offerings
submitted by International Auto Logistics and American Auto Logistics. In the section
evaluating International Auto Logistics’ proposal, under a subsection titled “Integrated
Assessment,” (emphasis in original), the source selection authority stated:
IAL did not present past performance of the same scope as the
Government requirement or AAL’s past performance. However, while the
scope was not the same, the Government notes IAL’s past performance
includes largely the same commercial services conducted by AAL (with
the exception of performing under a single contract) and includes services
IAL demonstrated it has and currently performs in the commercial
marketplace. Adding volume to a commercial service already being
performed presents less risk than adding a new service. IAL’s past
performance provides the Government satisfactory confidence that it has
the experience that would enable IAL to expand current commercial efforts
to meet the Government requirements.
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While the Government may award to a higher rated, higher priced offeror,
where it determines that the superior past performance of the higher
priced offeror outweighs the associated price premium, the
aforementioned commercial qualities of the requirements impact the
extent to which the Government is willing to trade-off increased cost for
higher-rated past performance. IAL’s TEP [Total Evaluated Price] is the
lowest submitted by any offeror and is $38,301,734.66 below the next
lowest offer. While the solicitation permits the Government to award to an
offeror with a higher price where superior past performance of the higher
priced offeror outweighs the cost difference, the Government will not pay a
price premium that it considers disproportionate to the benefits associated
with the proposed margin of service superiority. The incumbent’s superior
past performance, when compared to the price and past performance
proposals of IAL, does not warrant awarding at the higher proposed price.
Therefore, IAL’s proposal represents the best overall value to the
Government. Additional rationale for this tradeoff are detailed in the next
section.
The source selection authority continued the comparison when reviewing American
Auto Logistics’ proposal. The source selection authority stated:
While the solicitation permits the Government to award to an offeror with a
higher price, where superior past performance of the higher priced offeror
outweighs the cost difference, the Government will not pay a price
premium that it considers disproportionate to the benefits associated with
the proposed margin of service superiority. In the present case, AAL’s
higher past performance does not outweigh the $38,301,734.66 price
premium. A distinguishing difference in the past performance rating of AAL
and IAL is that AAL’s performance occurred under a single contract, and
was of the same scope and magnitude as the solicited requirement. On
the other hand, IAL demonstrated performance of similar or the same
tasks [sic] under separate contracts, and was not the same scope and
magnitude of the solicited requirement. In other words, both proposals
demonstrated successful performance of essentially the same commercial
services, but only AAL’s performance was under a single contract with
similar scope. In order to award to AAL, the Government would be
required to trade-off a $38,301,734.66 price premium for award to an
offeror whose past performance score is higher because it performed the
same recent and relevant commercial services under a single contract
versus multiple contracts. Under the current Global POV Contract, AAL
performs the work of a third-party logistics provider and is responsible for
dividing and managing work between its subcontractors. The experience
of providing logistics services for the same work (of greater scope) under
a single contract versus multiple commercial contracts (of lesser scope),
for purposes of actual contract performance, is not significant enough to
justify the higher price. Awarding to AAL, with a $38,301,734.66 higher
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price would represent a price premium disproportionate to the benefits
associated with the proposed margin of service superiority. As detailed
above, the primary margin of service superiority represented in AAL’s
higher past performance score is not in specific performance areas, but
rather contract integration, which in the current commercial marketplace is
not worth the $38,301,734.66 price premium. Therefore, AAL does not
represent the best value to the Government.
In making its “SOURCE SELECTION DECISION,” (emphasis and capitalization
in original), the source selection authority maintained:
In accordance with the solicitation, which indicated that past performance
would be evaluated on a basis approximately equal to price, I have
determined that the additional cost of $38,301,734.66 is not proportionate
to the benefit associated with the higher past performance rating which
was based on the fact that AAL had successfully performed the current
effort for the services required under this solicitation under a single
contract.
Underpinning TRANSCOM’s performance price tradeoff and integrated
assessment, and the source selection authority’s ultimate conclusion, is the agency’s
conclusion that the services to be performed under the GPC III effort are “commercial
item[s].” See FAR 12.101(b). In her source selection decision, the source selection
authority stated that, “[a]dding volume to a commercial service already being performed
presents less risk than adding a new service,” and that “the aforementioned commercial
qualities of the requirements impact the extent to which the Government is willing to
trade-off increased cost for higher-rated past performance.” Moreover, the solicitation
was structured as a commercial item acquisition. The solicitation incorporated by
reference “Contract Terms and Conditions--Commercial Items” pursuant to FAR 12.301
(2013) and 52.212-4 (2013). Solicitations for commercial items are governed under FAR
Part 12, which sets forth streamlined procedures and special evaluation requirements.
See FAR 12.000 (2013) (“This part prescribes policies and procedures unique to the
acquisition of commercial items. It implements the Federal Government's preference for
the acquisition of commercial items contained in Title VIII of the Federal Acquisition
Streamlining Act of 1994 (Public Law 103-355) by establishing acquisition policies more
closely resembling those of the commercial marketplace and encouraging the
acquisition of commercial items and components.”); FAR 12.203 (2013) (“The
contracting officer may use the streamlined procedure for soliciting offers for
commercial items prescribed in 12.603.”); FAR 12.602 (2013) (“When evaluation factors
are used, the contracting officer may insert a provision substantially the same as the
provision at 52.212-2, Evaluation--Commercial Items, in solicitations for commercial
items . . . .”); Streamlined Solicitation for Commercial Items, FAR 12.603 (2013) (“When
a written solicitation will be issued, the contracting officer may use the following
procedure to reduce the time required to solicit and award contracts for the acquisition
of commercial items. This procedure combines the synopsis required by 5.203 and the
issuance of the solicitation into a single document.”). The different, streamlined
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procedures for the acquisition of commercial items give agency personnel discretion in
what they can refer to in coming to a past performance determination. See Use of Past
Performance, FAR 12.206 (2013) (“Contracting officers should consider past
performance data from a wide variety of sources both inside and outside the Federal
Government in accordance with the policies and procedures contained in subpart 9.1,
section 13.106 [for simplified acquisitions], or subpart 15.3 [for negotiated acquisitions],
as applicable.”). Although protestor alleges in its brief that defendant erred in
“Overemphasizing the Commercial Nature of the GPC III Service Elements,”
(capitalization in original; emphasis removed), protestor does not directly challenge
TRANSCOM’s decision to determine that the GPC III solicitation was a “commercial
item” acquisition under the FAR.
Defendant conducted a market research survey, as is suggested in the FAR and
in the Defense Federal Acquisitions Regulations Supplement (DFARS), FAR Part 200 et
seq., regarding whether personally-owned vehicle processing and transport are
commercial items. See FAR 12.202 (2013) (“Market research (see 10.001) is an
essential element of building an effective strategy for the acquisition of commercial
items and establishes the foundation for the agency description of need (see part 11),
the solicitation, and resulting contract.”); DFARS 212.102 (2013) (“(a)(i) When using
FAR part 12 procedures for acquisitions exceeding $1 million in value . . . the
contracting officer shall-- (A) Determine in writing that the acquisition meets the
commercial item definition in FAR 2.101 or meets the criteria at FAR 12.102(g)(1); (B)
Include the written determination in the contract file . . . .”); see also FAR 10.001 (2013)
(“Agencies must . . . [c]onduct market research appropriate to the circumstances . . . .”);
FAR 10.002 (2013) (discussing procedures for market research). Defendant stated in its
May 18, 2012 market research report:
The work associated with the GPC II contract was determined a
“commercial item” under the Federal Acquisition Regulation (FAR) at
subpart 2.101. FAR subpart 2.101 defines a service as a commercial item
when it is “a type offered and sold competitively in substantial quantities in
the commercial marketplace based on established catalog or market
prices for specific tasks performed or specific outcomes to be achieved
and under standard commercial terms and conditions.” The GPC II was
awarded following FAR Part 12 (Acquisition of Commercial Items)
procedures. The GPC III requirement is the continuation of the work
performed under the GPC II contract and it too is determined a
commercial item. This determination agrees with the market survey where
four (4) of the five (5) [80%] of the RFI [request for information]
respondents agreed that the services associated with this effort are
commercial. These RFI respondents provide the transportation and/or
storage of vehicles as a service commonly offered to the general public, in
substantial quantities, and at competitive market prices.
The incumbent contractor’s response states that the services sought
under the GPC III requirement are not commercial. The basis for its
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response is that the incumbent does not offer the same services
commercially. The incumbent’s interpretation, however, does not preclude
the services from being “commercial” under the FAR definition. As noted
above, 80% of the companies which responded to the RFI concluded that
the services were commercial (See, Attachment 1). Because the services
fall within the definition in FAR 2.101 and it is very probable the needs of
the Government can be met through the commercial market, it has been
determined that this requirement is “commercial.” (See, FAR 2.101 and
DFARS 212.102).
(brackets in original).
Under FAR 2.101(b)(6), a “commercial item” includes:
Services of a type offered and sold competitively in substantial quantities
in the commercial marketplace based on established catalog or market
prices for specific tasks performed or specific outcomes to be achieved
and under standard commercial terms and conditions.
FAR 2.101(b)(6). Pursuant to the FAR, “[c]atalog price means a price included in a
catalog, price list, schedule, or other form that is regularly maintained by the
manufacturer or vendor, is either published or otherwise available for inspection by
customers, and states prices at which sales are currently, or were last, made to a
significant number of buyers constituting the general public.” FAR 2.101(b)(6)(i). Under
the same regulation, “[m]arket prices means current prices that are established in the
course of ordinary trade between buyers and sellers free to bargain and that can be
substantiated through competition or from sources independent of the offerors.” FAR
2.101(b)(6)(ii). According to the TRANSCOM May 18, 2012 market research report, the
agency concluded that the GPC III effort was commercial in nature because, “four (4) of
the five (5) [80%] of the RFI respondents agreed that the services associated with this
effort are commercial,” and, also, “[t]he GPC III requirement is the continuation of the
work performed under the GPC II contract and it too is determined a commercial item.”
(first brackets in original). Defendant’s market research report covered five companies.
See Advanced Am. Constr., Inc. v. United States, 111 Fed. Cl. 205, 226 (2013) (“[T]he
agency enjoys substantial discretion in determining how much and what type of market
research is ‘appropriate to the circumstances’ for the purpose of ‘[d]etermin[ing] if
sources capable of satisfying the agency's requirements exist.’” (quoting FAR
10.001(a))); Assessment and Training Solutions Consulting Corp. v. United States,
92
Fed. Cl. 722, 725, 731 (2010) (“The court agrees with defendant that the Contracting
Officer had discretion under the relevant regulations to conduct market research
‘appropriate to the circumstances.’ The regulations note that the extent of the market
research will vary depending on a number of factors and direct agencies not to request
‘more than the minimum information necessary’ when conducting market research.”
(quoting FAR 10.001(b), 10.002(b) (internal citations omitted)). In Assessment and
Training Solutions Consulting Corp. v. United States, a Judge of this court upheld a
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small business market research report that only garnered nine responses, only four of
which were from small businesses. See generally id.
Specifically regarding the GPC III contract, the respondents to the market survey
generally offered support to the agency’s determination that a commercial item
designation was appropriate. In general, the respondents’ comments to the agency
support the agency’s determination. For example, [redacted], one of the market
research respondents, stated that “[t]he specific services included within the scope of
this bid are of a type and quantity transacted in the commercial marketplace. Vehicle
handling, storage, transportation and repair work are all services performed and
achieved under commercial terms and conditions.” Another respondent to the market
survey, [redacted], commented that “storage and transporting of vehicles is a service
that is offered, sold and available to the general public by specific companies and
independent contractors on a commercial basis.” In addition, according to the agency,
the prior GPC II contract was operated under the terms of a commercial item contract,
with no indication in the record of any issues arising as a result. The statements of the
industry respondents, and the agency’s prior experience with the GPC II contract, offer
a reasonable basis in the record for the agency to have concluded that the GPC III
scope of services are, as the FAR states, “offered and sold competitively in substantial
quantities in the commercial marketplace based on established catalog or market prices
for specific tasks performed or specific outcomes to be achieved and under standard
commercial terms and conditions.” See FAR 2.101(b); Kasten v. Saint-Gobain
Performance Plastics Corp.,
131 S. Ct. 1325, 1335 (2011) (“These agency views are
reasonable. They are consistent with the Act. The length of time the agencies have held
them suggests that they reflect careful consideration, not ‘post hoc rationalizatio[n].’
Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co.,
463 U.S. 29, 50,
103 S. Ct. 2856,
77 L. Ed. 2d 443 (1983). And they consequently add
force to our conclusion.” (citing Skidmore v. Swift & Co.,
323 U.S. 134, 140 (1944));
Amer. Airlines, Inc. v. United States,
551 F.3d 1294, 1302 (Fed. Cir. 2008) (“The
government is correct that the reasonableness of an agency interpretation is supported
when it has been consistent over time.” (citing as an example Good Samaritan Hosp. v.
Shalala,
508 U.S. 402, 417 (1993))), reh’g granted, 319 F. App’x 914 (Fed. Cir. 2009);
see also Bevevino v. United States,
99 Fed. Cl. 461, 471 (2011) (the court “noting the
broad deference afforded an agency's interpretation of its own regulation, especially
where that interpretation has been consistent over time” (citing Gose v. United States
Postal Serv.,
451 F.3d 831, 837 (Fed. Cir.), reh’g denied (Fed. Cir. 2006))).
After the May 18, 2012 market research report was published, additional
responses from industry were sought through an October 25, 2012 request for
information e-mail, proposing the question “Vehicle Processing Centers Network (VPC).
Is there a commercial alternative to the VPC network?” One of intervenor’s
subcontractors in its GPC III proposal, Boyle Transportation, indicated that, “[t]here isn't
a commercial network that can handle the volume and seasonality of the GPC. Most
commercial systems handle only a few cars a day, at most, and certainly doesn't [sic]
have the storage capability to handle this contract.” SDV Command Source, another of
intervenor’s subcontractors, stated that “[m]ixing this program with a commercial
105
program could and most likely would reduce the extremely high level of service.”
Intervenor’s parent company, International Auto Processing, also noted that “currently
99 % of all revenue generated at the current VPC network is generated from the GPC
making it virtually an exclusive network. . . . Most commercial alternatives would not
have the excess space or acreage needed handle [sic] the GPC, negating most of or all
cost advantage.” International Auto Processing, however, stated, in that same
response, that “[t]here are potentially multiple commercial networks that might work.”
[Redacted], another respondent, stated in response to the same question that “there is
the option of using a completely commercial solution for this requirement.” Also in the
record is a comment from [redacted] that: “We think there is a lot of merit in exploring
existing commercial infrastructure as an alternative to contractors setting up and
maintaining separate VPC’s outside of a commercial structure.” In sum, the agency’s
conclusion that the contract was for a commercial item under FAR 2.101 was
reasonable based on the record before the agency. See Weeks Marine, Inc. v. United
States, 575 F.3d at 1371; Assessment and Training Solutions Consulting Corp. v.
United
States, 92 Fed. Cl. at 725, 731.
Given that the GPC III effort was considered a commercial item transaction under
the FAR, this court reviews the agency’s performance price tradeoff to see if it was
arbitrary and capricious, and if it relied on factors that were not intended to be
considered in the solicitation. See Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto.
Ins. Co., 463 U.S. at 43. Although the solicitation specified that past performance would
be weighed “approximately equal to cost or price considerations,” the solicitation did not
specify further how the government would come to a final, “best value,” “Performance
Price Tradeoff” determination. The solicitation’s rather broad language left the source
selection authority discretion to consider factors that would affect the performance price
tradeoff, including her “business judgment[s]” under FAR 15.308. See FAR 15.308
(“The source selection decision shall be documented, and the documentation shall
include the rationale for any business judgments and tradeoffs made or relied on by the
SSA, including benefits associated with additional costs.”). Such business
determinations, as stated in the Source Selection Decision Document, can include
whether or not the “commercial nature” of the contract reduces the risk of poor
performance, and whether “[a]dding volume to a commercial service already being
performed presents less risk than adding a new service.”
The record indicates that the source selection authority and the Source Selection
Advisory Council considered the impact of the commercial nature of the services
provided on International Auto Logistics’ ability to perform the GPC III contract. The
Source Selection Advisory Council stated:
However, the difference between these two ratings is mitigated to an
extent by the general commercial nature of the contract. Offerors have
access to the existing shipping lanes for ocean transportation using the
Government’s Universal Services Contract (USC) and Regional Domestic
Contracts (RDC); many of the OCONUS VPCs are Government-provided;
warehousing, vehicle processing space, line-haul services, and the IT
requirements are also commercially available.
106
The source selection authority further stated:
This includes access to existing shipping lanes for ocean transportation,
including the use of the Government’s Universal Services Contract (USC)
and Regional Domestic Contracts (RDC); the Government-provided
vehicle processing center facilities in many of the OCONUS locations; the
availability of commercial warehousing and vehicle processing center
space, availability of commercial line-haul services to and from the major
POV processing centers, and the basic, commercial-based IT
requirements.
“While price differential may be taken into account to determine a best value
award, ‘it is not solely dispositive; we must consider all the surrounding circumstances.’”
See, e.g., Overstreet Elec. Co., Inc. v. United States, 59 Fed. Cl. at 120 (quoting Alfa
Laval Separation, Inc. v. United
States, 175 F.3d at 1368); see also E.W. Bliss Co. v.
United
States, 77 F.3d at 449; Emax Fin. & Real Estate Advisory Servs., LLC,
B-408260,
2013 WL 3872144, at *6 (Comp. Gen. July 25, 2013) (citing American Med.
Info. Servs., B-288627,
2001 WL 1382255, at *1 (Comp. Gen. Nov. 7, 2001). In a
performance price tradeoff, courts will be careful when overruling an agency’s business
or technical judgment. See Galen Med. Assocs., Inc. v. United
States, 369 F.3d at 1330;
Sperry Flight Sys. Div. v. United
States, 212 Ct. Cl. at 339, 548 F.2d at 920–21;
Overstreet Elec. Co., Inc. v. United
States, 59 Fed. Cl. at 120; Omega World Travel v.
United
States, 54 Fed. Cl. at 578. Based on the record before the court, the source
selection authority properly balanced price and past performance, and considering her
reasonable determination that the risk of poor performance with the intervenor was low,
in part due to the commercial nature of the activity, the source selection authority was
not irrational when she found that American Auto Logistics’ superior performance rating
“in the current commercial marketplace is not worth the $38,301,734.66 price premium.”
The solicitation affirmatively states that the government “will not pay a price premium
that it considers to be disproportionate to the benefits associated with the proposed
margin of service superiority.” This statement gives the source selection authority
discretion to consider other factors that could help in her determination of what is a
“disproportionate” price premium, as well as what is an offeror’s “margin of service
superiority.” The source selection authority was, therefore, within the solicitation’s
requirements when she concluded, based on her business judgment, that “[a]warding to
AAL, with a $38,301,734.66 higher price would represent a price premium
disproportionate to the benefits associated with the proposed margin of service
superiority.”27
27
Protestor’s claim that the source selection authority failed to consider that “prices
could fluctuate depending on ordered quantities,” also does not undermine the source
selection authority’s decision. The agency was not under an obligation to consider
speculative fluctuations in price when coming to its final determination. The solicitation
only required the source selection authority to examine the “total evaluated price” in her
final, integrated assessment, with the total evaluated price representing a fixed price
value defined within the solicitation. Nonetheless, the source selection authority
recognized when coming to her final source selection decision that the “[a]ctual
107
Working with Debarred or Suspended Contractors
In a hearing before this court, petitioner alleged that International Auto Logistics
had subcontracted with “a fairly notoriously debarred company,” referred to at the
hearing as Agility International or Agility Defense and Government Services, to perform
under the contract if awarded. As defendant and intervenor repeatedly note in their
filings, this allegation was not formally made in protestor’s complaint. Protestor’s
allegations and defendant’s responses at times raise more questions than answers.
According to protestor, protestor’s counsel discovered on February 5, 2014, that entities
operating under the names “Agility International” and “Agility Defense & Government
Services” were soliciting to fill management positions for vehicle processing centers
connected to performance of the GPC III contract. Protestor alleges that this discovery
indicates that either one or both of the alleged Agility entities is acting as a
subcontractor to International Auto Logistics for performance of the GPC III contract.
Protestor indicates that it informed TRANSCOM of its discovery two days before the
court hearing. To support its contention, protestor provided website images of vehicle
processing center management job postings, allegedly related to the GPC III program,
originating from either Agility International or Agility Defense & Government Services
websites. The alleged job postings protestor provided in its filings are summarized as
follows:
A job posting from Agility Logistics,28 viewed on December 15, 2013, for a
“Vehicle Processing Center Manager” for the locations of “BH (Primary),”
“Madison, AL 35758 US” “KR-27 KR,” “KR-11 KR,” “KR,” and “GU.”29 Under “Job
Description,” it was stated: “THESE POSITIONS ARE CONTINGENT ON
WINNING THE CONTRACT.” (capitalization in original). The posting
“SUMMARY” stated: “As a component of the United States Transportation
Command (USTRANSCOM), the Military Surface Deployment and Distribution
Command (SDDC) manages Department of Defense (DoD) sponsored
shipments of privately-owned vehicles (POVs) belonging to military service
members and DoD Civilian employees. This requirement is for complete
difference in cost to the Government is dependent on POV shipping and storage volume
during contract performance.”
28
Although the name of the specific Agility entity posting the job offerings is unclear, the
corporate logo at the top of the job posting websites states “Agility,” with the phrase “A
New Logistics Leader” following in smaller font below. (emphasis in original). The job
postings appear to have been placed on the website domain
https://agilitylogistics.mua.hrdepartment.com.
29
Although the documents themselves do not make clear what the acronyms mean,
based on context, it appears these acronyms refer to: Bahrain, Guam, Madison,
Alabama, and South Korea (Korean Republic). For all Agility Logistics job posts, under
“Job Type” it was stated “Non-U.S. Job.”
108
transportation and processing services for the area of Bahrain, Guam, Seoul,
South Korea, Taegu, South Korea.” (capitalization in original). The summary also
indicated that the position would serve “as the Agility DGS, Inc. [Defense &
Government Services] secondary interface/representative for communications
with the customer.”
A job posting from Agility Logistics, viewed on December 15, 2013, for a “VPC
Assistant SiteManager [sic]” for the locations of “GU (Primary),” “BH,” “Madison,
AL 35758 US” “KR-27 KR,” and “KR-11 KR.” Under “Job Description,” it was
stated: “THESE POSITIONS ARE CONTINGENT ON WINNING THE
CONTRACT.” (capitalization in original). The posting “SUMMARY” stated: “As a
component of the United States Transportation Command (USTRANSCOM), the
Military Surface Deployment and Distribution Command (SDDC) manages
Department of Defense (DoD) sponsored shipments of privately-owned vehicles
(POVs) belonging to military service members and DoD Civilian employees. This
requirement is for complete transportation and processing services for the area
of Guam, Bahrain, Seoul. South Korea, and Daegu, South Korea.” (capitalization
in original). The summary also indicated that the position would serve “as the
Agility DGS, Inc. secondary interface/representative for communications with the
customer.”
A job posting from Agility Logistics, viewed on January 1, 2014, for a “VPC
Assistant Site Manager,” for the locations of “CAP BH (Primary),” “NOR BH,”
“CEN BH,” and “SOU BH.” This posting does not reference a contract with
TRANSCOM, but does indicate that the applicant “[m]ust be able to access US
Military installations.” The summary also indicated that the position would serve
“as the Agility DGS, Inc. secondary interface/representative for communications
with the customer.”
A job posting from Agility Logistics, viewed on January 1, 2014, for a “Vehicle
Processing Center Manager,” for the locations of KR-11 KR (Primary),” and “KR-
27 KR.” This posting does not reference a contract with TRANSCOM, but does
indicate that the applicant “[m]ust be able to access US Military installations.” The
summary also indicated that the position would serve “as the Agility DGS, Inc.
secondary interface/representative for communications with the customer.”
A job posting from Agility Logistics, viewed on January 1, 2014, for a “VPC
Assistant Site Manager,” for the locations of KR-11 KR (Primary),” and “KR-27
KR.” This posting does not reference a contract with TRANSCOM, but does
indicate that the applicant “[m]ust be able to access US Military installations.” The
summary also indicated that the position would serve “as the Agility DGS, Inc.
secondary interface/representative for communications with the customer.”
A job posting from Agility Logistics, viewed on January 1, 2014, for a “Vehicle
Processing Center Manager,” for the location of “KR-27 KR (Primary).” This
posting does not reference a contract with TRANSCOM, or directly reference
109
work with the United States military. The summary does not indicate any joint
role with Agility Defense & Government Services.
The results of a search of job postings from Agility Logistics, viewed on January
21, 2014, showing results for “Vehicle Processing Center Manager,” and/or
“VPC Assistant Site Manager,” for the locations of “KR-27 KR,” “KR-11 KR,”
“CAP BH,” “NOR BH,” “CEN BH,” “SOU BH,” “MUH BH,” “GU,” “MT GU,” “SR
GU,” “IN GU,” “BA GU,” “AT GU,” “MA GU,” and “TM GU.” (emphasis in original).
A job posting, undated, from “Agility Defense & Government Services” soliciting
for a “Vehicle Processing Manager” and “Vehicle Processing Center Assistant
Manager” for Hagatna, Guam. (emphasis in original). The positions were stated
to be “Contingent Upon Winning Contract.” The posting was indicated to be
placed on the website http://guam.jobs.
Protestor also alleges that International Auto Logistics has ties to Agility through
its key personnel, which, according to the protestor, the intervenor is intentionally hiding.
According to protestor,
Mr. Tipton, who was employed by Plaintiff’s parent company from April
2003 to September 2008, worked for an Agility company from 2008 until
joining Intervenor in June 2012. Mr. Tipton's resume in Intervenor's
proposal contains no reference to his four-year employment with Agility,
and his Linkedln profile reflects this four-year employment gap.
(internal citations omitted). Protestor also notes that another International Auto Logistics
executive, Rod Mallette, also worked for Agility prior to coming over to International
Auto Logistics. In support, protestor appended to its February 21, 2014 filing a copy of
Mr. Tipton’s and Mr. Mallette’s LinkedIn profiles, which indicate that Mr. Mallette was a
“Global Account Manager” for “Agility Logistics” from “2008–2010.” (emphasis in
original). Protestor alleges that Agility International and Agility Defenses & Government
Services are debarred contractors, and, therefore, International Auto Logistics’ alleged
contracting with them is in violation of procurement regulations.
FAR 9.405 (2013) states in relevant part:
(a) Contractors debarred, suspended, or proposed for debarment are
excluded from receiving contracts, and agencies shall not solicit offers
from, award contracts to, or consent to subcontracts with these
contractors, unless the agency head determines that there is a compelling
reason for such action (see 9.405–1(b), 9.405–2, 9.406–1(c), 9.407–1(d),
and 23.506(e)). Contractors debarred, suspended, or proposed for
debarment are also excluded from conducting business with the
Government as agents or representatives of other contractors.
110
(b) Contractors included in the SAM [System for Award Management]
Exclusions as having been declared ineligible on the basis of statutory or
other regulatory procedures are excluded from receiving contracts, and if
applicable, subcontracts, under the conditions and for the period set forth
in the statute or regulation. Agencies shall not solicit offers from, award
contracts to, or consent to subcontracts with these contractors under
those conditions and for that period.
...
(d)(1) After the opening of bids or receipt of proposals, the contracting
officer shall review the SAM Exclusions.
...
(4) Immediately prior to award, the contracting officer shall again review
the SAM Exclusions to ensure that no award is made to a listed
contractor.
FAR 9.405; see also FAR 9.405-2 (2013) (stating that “contracting officers shall not
consent to subcontracts with such contractors unless the agency head states in writing
the compelling reasons for this approval action”).
In order to support its claim that Agility International and Agility Defense and
Logistics are ineligible contractors, and were so at the time of the award of the GPC III
contract, protestor provided a copy of a May 16, 2012 letter from Walter Thomas,
Special Assistant for Contracting Integrity, of the United States Defense Logistics
Agency, to the “Agility Public Warehousing Company, K.S.C.,” of Sulaibiya, Kuwait. The
letter, located in protestor’s filings but not in the Administrative Record, discusses the
circumstances involved, stating:
On behalf of the Defense Logistics Agency (DLA), on and after November
16, 2009, the Suspension and Debarment Official (SDO) suspended The
Public Warehousing Company KSC (also known as Agility) (PWC/Agility)
and more than 120 of its affiliates from Government contracting and from
directly or indirectly receiving the benefits of federal assistance programs
or from purchasing surplus Government property under the Federal
Property and Management Regulations. Since that time, additional
affiliates of PWC/Agility have been identified. Therefore, I have initiated
this action pursuant to the authority of, and the debarment procedures
contained in, the Federal Acquisition Regulation (FAR) Subpart 9.4. For
your information, FAR Subpart 9.4, the Defense FAR Supplement
(DFARS) 209.4, and 2 C.F.R. Part 1125 may be located on the Internet at
http://www.acq.osd.mil/dpap/dars/dfarspgi/current/index.html and
https://www.acquisition.gov/Far/.
111
The letter continued:
Pursuant to FAR 9.407-1(c), suspension may be extended to affiliates of a
contractor, as defined in FAR 9.403 ("Affiliates."). Because PWC/Agility is
the parent of the attached companies, which are listed by address and
DUNs [sic] numbers [Dunn & Bradstreet Numbers], they are each
suspended based on their affiliation with PWC/Agility, a criminally indicted
company. These suspensions are temporary pending the completion of
the legal proceedings against PWC. This letter constitutes written notice to
each of the affiliates pursuant to FAR Subpart 9.407-1 (c)(2).
Along with the letter, protestor attached a list of company DUNS identification
numbers, allegedly representing the list of entities listed as suspended pursuant to the
letter from the Defense Logistics Agency. Among this list are numerous United States
entities under the names “AGILITY INTERNATIONAL, INC.,” and “AGILITY
LOGISTICS, CORP.” (capitalization and emphasis in original). The list does not contain
any United States entities under the name Agility Defense and Government Services.
To supplement this list, protestor appends a February 20, 2014 list of entities allegedly
found from a search of the System for Award Management by protestor, using the
search term, “Agility Defense & Government Services.” (emphasis in original). The
list contains, in relevant, part two Virginia and two Guam entities under the name
“AGILITY DEFENSE & GOVERNMENT SERVICES, INC.,” listed as excluded as of
November 16, 2009 and January 6, 2010 respectively. (capitalization in original). The
same list also contains two Madison, Alabama entities under the name “Agility Defense
and Government Services, Inc.,” with DUNS number 788495232, that are not listed as
excluded. In addition, protestor appended a list of entities allegedly found from a
February 21, 2014 search of the System for Award Management, using the search
terms “agility” and “international.” (emphasis in original). That last list contains, in
relevant part, a Kuwaiti entity under the name “Agility Logistics International BV,” and
two United States, New York entities under the name “Agility Logistics Corp aka Agility
GIL” listed as excluded from contracting. This list, however, also includes one
Alexandria, United States, Virginia entity under the name “AGILITY INTERNATIONAL
INC.,” with DUNS number 155340052, listed as not excluded from contracting.
(capitalization in original).
Despite the obvious, potential evidentiary issues raised by protestor’s attachment
of website images as exhibits and informal submission of documents, defendant and
intervenor have not formally objected to the introduction of protestor’s exhibits into the
protest. Intervenor, however, contends that it “cannot address the purported
announcements that Plaintiffs [sic] counsel asserts to have been found on the Internet.”
Defendant does not provide new facts to counter protestor’s allegations, but maintains
that “IAL’s proposal did not include the company at issue, Agility Defense &
Government Services (Agility) or any of its affiliates, divisions, or branches.” Defendant
also maintains that “IAL has unequivocally stated to the agency, U.S. Transportation
Command, and the Court that it does not intend to subcontract with any entity affiliated
with Agility to perform the contract at issue in this case.” Defendant claims that the job
112
postings protestor refers to “had been deleted and were not active on February 6,
2014,” and were otherwise only contingent upon winning the contract. Defendant also
notes that, “[c]ounsel for intervenor provided the Government two DUNS numbers for
two Agility affiliates: 788495232 (Taos Industries, Inc.)[30] and 155340052 (Agility
International, Inc.). The Government searched the System for Award Management
(SAM), and found that neither DUNS number is associated with a suspended or
debarred Agility affiliate.” (footnote omitted). Defendant does admit, however, that the
job posting related to the vehicle processing center in Hagatna, Guam “directed job
applicants to apply at an office of a suspended Agility affiliate.”
Intervenor presents its own version of events. According to intervenor:
On November 16, 2009, the Public Warehousing Company was indicted
by the U.S. Government, and suspended from government contracting.
Over the course of the next several days, hundreds of the Public
Warehousing Company's affiliates were also suspended, including Agility
Defense and Agility International. Agility Defense and Agility International
have never been accused of any wrongdoing, and no legal proceedings
have ever been initiated against them.
(emphasis in original). Intervenor claims that, after two years, “Agility Defense and
Agility International filed suit in the United States District Court for the Northern District
of Alabama (No.5:11-cv-04111-CLS)” to challenge their suspensions. According to
intervenor, on December 19, 2012, the United States District Court for the Northern
District of Alabama “ordered the suspensions terminated,” which the government did on
December 21, 2012. In support, intervenor attaches a December 21, 2012 letter, signed
by Joyce White Vance, United States Attorney, Northern District of Alabama, United
States Department of Justice, addressed to Maynard Cooper & Gale, P.C., the counsel
of record in the current case, stating:
In accordance with the Court's Order entered December 19, 2012, please
see the enclosed two screen shots from the government's Excluded
Parties List computer system (now System for Award Management)
showing that the plaintiffs’ suspensions from government contracting have
been lifted and that the plaintiffs have been removed from the Excluded
Parties List.
The System for Award Management screen shots provided by intervenor show two
System for Award Management entries, for “TAOS INDUSTRIES, INC.,” DUNS number
788495232,31 and “AGILITY INTERNATIONAL INC.,” with DUNS number 155340052,
30
Intervenor indicates that “Agility Defense was formerly known as Taos Industries, Inc.
The DUNS number assigned to the former Taos Industries is now assigned to Agility
Defense.”
31
This is the same DUNS number reflected in protestor’s filing as belonging to “Agility
Defense and Government Services, Inc.”
113
indicating no exclusions from government contracting. (capitalization in original).
Protestor has not objected to the court’s consideration of these exhibits.
According to intervenor, the government successfully appealed, and in the
appellate decision Agility Defense & Government Services, Inc., et al., v. United States
Department of Defense, et al., 739 F.3d 586 (11th Cir. 2013), “[o]n December 31, 2013,
the Eleventh Circuit reversed the District Court and rendered judgment in favor of the
government.” According to intervenor, “prior to the issuance of the Eleventh Circuit's
mandate, Agility Defense and Agility International filed a Petition for Panel Rehearing or
in the Alternative, for Rehearing En Banc.” Intervenor claims that, because appellate
proceedings were ongoing as of the date of the intervenor’s filing: “As of the date of this
filing, Agility Defense and Agility International are not suspended, nor have they been
since December 21, 2012. Thus, Intervenor could have lawfully subcontracted with
Agility Defense and/or Agility International at any time since December 21, 2012 up to
and including this date [February 28, 2014].”32 (internal citations omitted).
Regarding the specifics of the relationship between the Agility entities and
intervenor, intervenor states that, after being awarded the GPC III contract, “Mr. Rich
Brooks, who is the president of Agility Defense and Agility International - - the non-
excluded entities identified in the Appendix - - requested Intervenor's consideration of a
potential subcontract for a limited amount of the work required by the subject contract.”
Intervenor maintains that, “[a]lthough Intervenor did consider Mr. Brooks' request and
discuss the same with him, Intervenor never entered into a subcontract (or other
business relationship) with Agility Defense, Agility International or any of their affiliates.”
The intervenor further indicates: “The day before the hearing on February 7, 2014,
Intervenor learned that Plaintiff had written the Agency and raised the issue of
Intervenor's potential subcontract with Agility Defense and/or Agility International.”
According to the intervenor, “[u]pon learning of the same, Intervenor made the final
decision to terminate any discussions with Mr. Brooks and to reject any subcontract or
other business relationship with Agility Defense, Agility International or any of their
affiliates.” In addition, intervenor’s counsel represented the same at the hearing, when
counsel stated: “‘Agility does not have a subcontract with [Intervenor]. We spoke with
the president of [Intervenor] yesterday to confirm that. There is no subcontract in place,
and there is no subcontract being entertained at this time.’” (modifications in original).
Intervenor also stated: “To avoid all doubt, Intervenor states that it has not entered into
a subcontract or other business relationship with Agility Defense, Agility International or
any of its affiliates, and that it does not intend to do so.” As to protestor’s claim that
intervenor’s counsel had potentially inside knowledge of the issue because it
represented the Agility entities in the Eleventh Circuit, intervenor’s counsel disclaimed
knowledge, stating that “undersigned counsel serve Intervenor and their other clients,
including certain Agility entities, solely as their lawyers. Undersigned counsel are not
32
Although not determinative to the court’s opinion, the court notes that, after
intervenor’s filing, the petition for rehearing was denied and the Eleventh Circuit’s
mandate issued on April 9, 2014.
114
involved in all of the business transactions conducted by Intervenor, Agility, or their
other clients.”
According to the District Court decision in Agility Defense and Government
Services, Inc. v. United States Department of Defense, Civ. No. CV–11–S–4111–NE,
2012 WL 2480484, at *1 (N.D. Ala., June 26, 2012):
Agility Defense and Government Services, Inc., and Agility International,
Inc., commenced this action against the United States Department of
Defense, Secretary of Defense Leon E. Panetta, the Defense Logistics
Agency, and the Director of the Defense Logistics Agency, Vice Admiral
Mark D. Harnitchek, seeking declaratory and injunctive relief to lift
plaintiffs' suspension from government contracting.
The United States District Court for the Northern District of Alabama, in Agility Defense,
explained that “[t]he genesis of this action lies in plaintiffs' corporate relationship to
Public Warehousing Company, K.S.C. (‘PWC’), a Kuwaiti corporation that specializes in
logistics.” Id. at *2. The District Court explained that after the Public Warehousing
Company was indicted for fraud related to food contracts for the United States military,
“numerous other PWC subsidiaries were suspended, including plaintiff Agility on
November 23, 2009. The subsidiaries, including plaintiffs, were not accused of any
involvement in the wrongdoing for which PWC was indicted; rather the sole basis for
their suspension was their status as affiliates of PWC.”
Id. at *3 (footnotes omitted). In
the United States District Court for the Northern District of Alabama case, the two Agility
entities that brought suit appear to be the same Madison, Alabama Agility Defense &
Government Services company, and the Alexandria, Virginia Agility International
company, that, as reflected in protestor’s submissions to this court, are currently not
listed as excluded from contracting on the System for Award Management:
Plaintiff Agility Defense and Government Services, Inc. (“DGS”) is a
Delaware corporation with its principal place of business in Madison
County, Alabama, and an indirect subsidiary of PWC. There are three
layers of subsidiaries between PWC and DGS. Plaintiff Agility
International, Inc. (“Agility”) is a Delaware corporation with its principal
place of business in Alexandria, Virginia, and a direct subsidiary of DGS;
therefore, it also is an indirect subsidiary of PWC.
Id. at *2 (footnotes omitted). The plaintiffs in Agility Defense argued that FAR 9.407-4(b)
(2013) prohibited a suspension of longer than eighteen months. See Agility Def. and
Gov’t Servs., Inc. v. United States Dept’ of Def.,
2012 WL 2480484, at *7–8. The District
Court concluded “that the interpretation of the regulation proposed by plaintiffs is the
correct one. That is, no contractor may be suspended for greater than eighteen months
unless legal proceedings are initiated against that contractor itself, regardless of the
basis for the initial decision to suspend the company.”
Id. at *10. The District Court
ordered the termination of their suspensions, and, from the parties’ exhibits, it appears
that the government complied shortly thereafter.
115
The United States Department of Defense appealed, and on December 31, 2013,
the United States Court of Appeals for the Eleventh Circuit found for the United States
Department of Defense in Agility Defense & Government Services. v. United States
Department of Defense, 739 F.3d at 589. The Eleventh Circuit reasoned:
The central issue in this appeal is whether the United States or its
agencies must initiate legal proceedings against an affiliate of an indicted
government contractor to toll the 18–month time limit on the suspension of
the affiliate even though the affiliate was suspended solely on account of
its affiliate status. The regulation states, “In no event may a suspension
extend beyond 18 months, unless legal proceedings have been initiated
within that period.” 48 C.F.R. § 9.407–4(b). The agency argues that we
must interpret “legal proceedings” as legal proceedings against the
indicted government contractor. The affiliates argue that we must interpret
“legal proceedings” as legal proceedings against the suspended affiliate of
the indicted government contractor. We agree with the agency.
Id. at 589. The appellate court did not remand to the district court, but instead, stated:
“We REVERSE the summary judgment in favor of the affiliates, Agility Defense and
Agility International, and RENDER a judgment in favor of the defendants.”
Id. at 592
(capitalization and emphasis in original). On February 13, 2014, as indicated by
intervenor, the Agility entities filed a petition for rehearing en banc. See Appellees’
Petition for Reh’g or, in the Alternative, Reh’g En Banc, Agility Def. & Gov’t Servs. v.
United States Dep’t of Def., No. 13-10757 (11th Cir. Feb. 13, 2014). On March 31,
2014, the Eleventh Circuit denied the petition. See Order Denying Petition(s) for Reh’g
and Petition(s) for Reh’g En Banc, Agility Def. & Gov’t Servs. v. United States Dep’t of
Def., No. 13-10757 (11th Cir. Mar. 31, 2014). The mandate by the Eleventh Circuit
issued on April 9, 2014. See Mandate of Judgment, Agility Def. & Gov’t Servs. v. United
States Dep’t of Def., No. 13-10757 (11th Cir. Apr. 9, 2014).33 A review of the parties’
filings and the record before the court, however, indicates that as of the award date of
the GPC III contract, October 24, 2013, both these Agility entities were allowed to
contract with the government. At the time of the procurement award, the decision from
the United States District Court for the Northern District of Alabama in Agility Defense
still stood. At the time of the award, even if International Auto Logistics had agreed to
subcontract with Agility International or Agility Defense and Government Services, there
would have been no violation of the FAR at that time. The FAR itself only requires that
the agency, when making a final procurement decision, examine to see if a contractor is
debarred or suspended before or at the time of award. See FAR 9.405(d)(4)
33
It appears that Agility International, DUNS number 155340052, and Agility Defense
and Government Services, DUNS number 788495232 are again excluded from
government contracting in the System for Award Management. See Exclusion
Summary, Agility International, Inc., Sys. Award Mgmt., available at www.sam.gov (last
visited June 23, 2014); Exclusion Summary, Agility Defense and Government Services,
Inc., Sys. Award Mgmt., available at www.sam.gov (last visited June 23, 2014).
116
(“Immediately prior to award, the contracting officer shall again review the SAM
Exclusions to ensure that no award is made to a listed contractor.”). At the time the
agency selected intervenor as the contract awardee, Agility International, DUNS number
155340052, and Agility Defense and Government Services, DUNS number 788495232,
were not debarred or suspended from government contracting. The court does not
reach the question of whether or not International Auto Logistics did in fact form a
business relationship with any Agility entity at the time of award. Although not
dispositive in the instant protest, the agency is on notice of the potential issue and will
have to monitor the intervenor’s performance, including that of its subcontractors, to be
in conformance with the FAR and the contract requirements, as it must with all its
contractors.
CONCLUSION
As previously communicated to the parties, the government’s past performance
determination and final integrated assessment were not arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with law. Protestor’s requests for a
temporary restraining order and preliminary injunction are DENIED. Defendant’s and
intervenor’s cross-motions for judgment on the administrative record are GRANTED.
The Clerk of Court shall enter JUDGMENT consistent with this opinion.
IT IS SO ORDERED.
s/Marian Blank Horn
MARIAN BLANK HORN
Judge
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