TITLE: Yoosung T&S, Ltd.�, B-291407, November 15, 2002
BNUMBER: B-291407
DATE: November 15, 2002
**********************************************************************
Yoosung T&S, Ltd. , B-291407, November 15, 2002
Decision
Matter of: Yoosung T&S, Ltd.
File: B-291407
Date: November 15, 2002
Byoung Kook Min, First Law Offices of Korea, for the protester.
Lt. Col. Thomas Hong and Maj. David T. Crawford, Department of the Army,
for the agency.
Tania Calhoun, Esq., and Christine S. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
Protest that contracting agency improperly evaluated protester's proposal
as technically unacceptable is denied where the record shows the
evaluation was reasonable and consistent with the solicitation's
evaluation criteria; protester is not an interested party to challenge the
agency's nonresponsibility determination since it would not be in line for
award even if its protest were sustained.
DECISION
Yoosung T&S, Ltd. protests the award of a contract to Hanjin
Transportation under request for proposals (RFP) No. DAJB03-02-R-0104,
issued by the U.S. Army Contracting Command Korea to obtain general cargo
and explosive truck services for the United States Forces Korea. Yoosung
argues that the Army improperly found its proposal technically
unacceptable and improperly determined that it was not a responsible
prospective contractor.
We deny the protest.
The RFP anticipated the award of a fixed-price requirements contract to
obtain transportation services for the movement of general cargo and/or
explosives originating within various Army movement control teams to any
point in Korea. The Army currently acquires these services under two
separate contracts, one of which is held by Yoosung; this RFP combines the
requirements of both contracts.
Award was to be made to the responsible offeror submitting the
lowest-priced, technically acceptable offer that satisfied all of the
solicitation's terms and conditions. RFP at 98. To be considered
technically acceptable, offerors were to submit technical proposals
addressing four technical factors--quality control plan/safety plan, past
performance, management capability/staffing, and equipment vehicle
list/insurance liability--in sufficient detail to demonstrate their full
understanding of the requirements. Id. at 96-98.
The Army received proposals from 10 firms. The requiring activity
evaluated the proposals and found that Hanjin's was the only one that was
technically acceptable. Yoosung's proposal was found technically
unacceptable under three of the four technical factors and technically
unacceptable overall. The contracting officer nonetheless asked the
requiring activity's quality assurance branch (QAB) to conduct preaward
surveys of the five lowest-priced offerors, including Hanjin and
Yoosung.[1]
The QAB found Yoosung's technical knowledge unsatisfactory because it
failed to demonstrate an understanding of acceptable practices and
procedures, particularly those associated with safety requirements
concerning ammunition, explosives, and related dangerous material. The
QAB also found Yoosung's production capability unsatisfactory because its
project manager failed to demonstrate adequate knowledge in the area of
general and hazardous material transportation; the firm failed to
demonstrate its ability to provide adequate vehicle resources; and the
firm's proposed safety plan and quality control objectives failed to
address specific safety issues concerning ammunition transportation. The
QAB concluded that the performance risks were very high and recommended
that award not be made to Yoosung. Based upon the preaward survey
results, the contracting officer found that the only offeror to whom award
could be made was Hanjin. The contracting officer found Yoosung to be
nonresponsible for the reasons identified by the QAB and notified Yoosung
of this finding on September 16.
On September 23, Yoosung filed identical protests with the agency and this
Office in which it argued that the Army's nonresponsibility determination
lacked a sufficient basis and was not made in good faith. Citing
differences between its and Hanjin's pricing for certain line items,
Yoosung also asserted that Hanjin's pricing was unbalanced. Finally,
Yoosung requested the results of the technical evaluation. On September
28, the Army denied Yoosung's protest, advising the firm of the technical
evaluation results and restating the basis for its nonresponsibility
determination.
Yoosung first argues that the Army improperly found its proposal
technically unacceptable, contending that its proposal contained
sufficient information to meet the solicitation's requirements.[2]
The evaluation of technical proposals is primarily the responsibility of
the contracting agency. SDS Int'l, Inc., B-279361 et al., June 8, 1998,
98-2 CPD P: 7 at 3. In reviewing an agency's technical evaluation, we
will not reevaluate the proposals; we will only consider whether the
agency's evaluation was reasonable and consistent with the solicitation's
evaluation criteria and with all applicable procurement statutes and
regulations. Herndon Science and Software, Inc.,
B-245505, Jan. 9, 1992, 92-1 CPD P: 46 at 3. A protester's disagreement
with the agency's judgment is not sufficient to establish that the agency
acted unreasonably. Id. As the following examples indicate, Yoosung has
given us no basis to question the reasonableness of the agency's
evaluation.
Under the RFP's quality control/safety plan factor, offerors were required
to establish, implement, and maintain a complete quality control plan.
Each quality control plan was required to specify how to correct a
deficiency; to provide a source of qualified vehicle maintenance and safe
operation; to provide a preventive accident plan; and to provide a
performance plan. RFP at 96. The Army evaluated Yoosung's proposal as
technically unacceptable because it did not include a plan to correct
deficiencies, a preventive accident plan, or a performance plan. Yoosung
argues that it assigned the quality control duties to an individual who is
a certified quality controller, and that it has been maintaining its own
automobile repair center to keep the vehicles in good operating condition
during performance of its prior contract. Protester's Comments at 4.
These arguments do not address the Army's concerns that Yoosung's proposal
failed to meet the solicitation's requirements, and we have no basis to
find the agency's evaluation unreasonable.
Likewise, under the management capability/staffing factor, offerors were
required to name a project manager with experience in operations involving
the movement of trucking services who must have the ability to speak,
read, write, and converse in English. Offerors were also required to
provide an organizational structure and a training plan. RFP at 97-98.
The Army evaluated Yoosung's proposal as technically unacceptable because
it did not address its proposed project manager's English capabilities,
and because it did not provide a training plan. Yoosung, which concedes
that its project manager and his assistants *are not very fluent in [the]
English language,* Protest at 2, argues that its project manager has been
working on contracts such as these for more than 25 years and that it has
never experienced any management and staffing problems. Again, these
arguments do not address the Army's concerns that Yoosung's proposal
failed to meet the solicitation's requirements, and we have no basis to
find the agency's evaluation unreasonable.
Since we find that the Army reasonably evaluated Yoosung's proposal as
technically unacceptable, we need not address its arguments that the Army
improperly found it nonresponsible. In order to maintain a protest in our
Office, a firm must be an interested party, that is, an actual or
prospective bidder or offeror whose direct economic interest will be
affected by the award of or failure to award a contract.
4 C.F.R. S: 21.0(a). A protester is not an interested party where it
would not be in line for award were its protest to be sustained. Green
Shop, Inc., B-278125, Dec. 1, 1997, 97-2 CPD P: 154 at 2. Yoosung is
ineligible for award because the Army reasonably found its proposal
technically unacceptable. Even if the Army were to determine that Yoosung
was a responsible prospective contractor, Hanjin, which submitted the only
technically acceptable offer,[3] would still be in line for award.
The protest is denied.
Anthony H. Gamboa
General Counsel
------------------------
[1] It is not clear why the contracting officer requested a preaward
survey or made a responsibility determination with respect to Yoosung.
Responsibility determinations are to be made with regard to *prospective
contractors,* Federal Acquisition Regulation (FAR) Subpart 9.1, and
Yoosung's submission of a technically unacceptable proposal meant that it
was not a *prospective contractor* here.
[2] The Army asserts that GAO lacks jurisdiction to hear the protest
because the procurement is being funded by the Republic of Korea and not
with appropriated funds, citing 4 C.F.R. S: 21.5(g) (2002), which provides
that GAO shall dismiss a protest of a procurement by agencies other than
federal agencies. Our Office decides bid protests concerning alleged
violations of the procurement statutes and regulations by federal
agencies, 31 U.S.C. S: 3552 (2000), and we have held that this authority
is based on whether the procurement is conducted by a federal agency and
is not dependent upon whether appropriated funds are involved. Artisan
Builders,
B- 220804, Jan. 24, 1986, 86-1 CPD P: 85 at 2. The record shows that this
procurement was conducted by the Army, a federal agency; we therefore have
jurisdiction to hear the protest.
[3] With respect to Yoosung's allegation that Hanjin submitted unbalanced
pricing, the Army's report pointed out that a comparison between the
prices of Yoosung and Hanjin was not evidence of unbalanced pricing. The
Army further noted that unbalanced pricing is permitted as long as the
contracting officer does not find an unacceptable risk to the government,
FAR S: 15.404-1(g)(2), and that the contracting officer found that any
variations in pricing here were acceptable. Yoosung's comment that the
evidence *speaks for itself,* Protester's Comments at 2, does not rebut
the agency's position and we deem this allegation to have been abandoned.
Datum Timing, Div. of Datum Inc., B-254493, Dec. 17, 1993, 93-2 CPD P: 328
at 5.