TITLE: B-296245; B-296245.2, TransAtlantic Lines, LLC, July 14, 2005
BNUMBER: B-296245; B-296245.2
DATE: July 14, 2005
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B-296245; B-296245.2, TransAtlantic Lines, LLC, July 14, 2005

   DOCUMENT FOR PUBLIC RELEASE
   The decision issued on the date below was subject to a GAO Protective
   Order. This redacted version has been approved for public release.

   Decision

   Matter of: TransAtlantic Lines, LLC 

   File: B-296245; B-296245.2

   Date: July 14, 2005

   Brian A. Bannon, Esq., David A Leib, Esq., and Albert B. Krachman, Esq.,
   Blank Rome LLP, for the protester.

   Marc J. Fink, Esq., Anne E. Mickey, Esq., Heather M. Spring, Esq., and
   Christine Gollatz DeWitt, Esq., Sher & Blackwell, for Strong Vessel
   Operators, LLC, an intervenor.

   Captain Joseph V. Fratarcangeli, Department of the Army, for the agency.

   Susan K. McAuliffe, Esq., and Christine S. Melody, Esq., Office of the
   General Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   1. Protest that awardee's proposal failed to comply with requirement for

   self-sustaining refrigerated containers is denied where agency reasonably
   determined that proposal, which did not take exception to the container
   terms, provided sufficient information to demonstrate firm's intention and
   capability to meet the requirement.

   2. Protest of omission of mandatory subcontracting limitation from
   solicitation is dismissed as untimely where issue is not raised until
   after award is made.

   DECISION

   TransAtlantic Lines, LLC (TAL) protests the award of a contract to Strong
   Vessel Operators, LLC (SVO) under request for proposals (RFP) No.
   W81G4E-04-R-0053, issued by the Department of the Army for regularly
   scheduled cargo transportation services to and from Jacksonville, Florida
   and Guantanamo Bay, Cuba. TAL contends that the awardee's proposal should
   have been rejected as technically unacceptable for failure to comply with
   the solicitation's requirement for self-sustaining refrigerated
   containers. TAL also contends that the award is improper because the
   solicitation failed to include a mandatory subcontracting limitation
   provision.

   We deny the protest.

   The RFP, issued on October 19, 2004, as a small business set-aside for
   commercial items/services, contemplated the award of a fixed-price
   requirements-type contract for a base year and two option years for
   regularly scheduled port-to-port cargo transportation services; award was
   to be made to the firm determined to have submitted the proposal deemed
   most advantageous to the government. RFP at 6, 21. The RFP set out three
   evaluation factors for award: technical capability (with subfactors for
   reliability of service, equipment, management approach, and electronic
   data interchange); past performance (with subfactors for quality of
   service, schedule, business relations, and management of key personnel);
   and price. The technical capability factor was more important than the
   past performance factor, and technical capability and past performance
   combined were approximately equal in importance to price. Id. at 8.

   The RFP set out various generally-worded requirements to be met after
   award. For example, as relevant here, while the RFP contained a
   requirement for the contractor to provide "[s]elf-sustaining refrigerated
   containers, not more than two years old," id. at 37, detailed design
   specifications for the containers, or details of how an offeror should
   propose to meet the self-sustaining aspect of the requirement, were not
   provided in the RFP. A glossary of terms provided as an attachment to the
   solicitation only generally defined the term "self-sustaining" as follows:

   [a] refrigerated container which does not need an external power or fuel
   source, and upon which a self-contained power unit is mounted, either on
   the container or its accompanying chassis. The container is self-sustained
   only while the power unit and its fuel source are mounted.

   Id. attach. 1 at 8.

   Three proposals were received in response to the RFP, discussions were
   conducted, and revised proposals were received and evaluated. The proposal
   of TAL, the incumbent contractor of these services, was rated as very good
   under the technical capability factor and very good for past performance,
   for an overall rating of very good; TAL's evaluated price was [deleted].
   SVO's proposal was rated very good under the technical capability factor
   and excellent for past performance, for an overall rating of very good;
   SVO's evaluated price was $16,118,157. (The third offeror's proposal
   [deleted]; the proposal, therefore, was not considered further for award.)
   Noting the essential technical equality of the TAL and SVO proposals, the
   source selection official determined that price would necessarily become
   the determinative factor for award. Consequently, an award was made to
   SVO, the lower-priced offeror. This protest followed.

   TAL contends that the agency must reject the awardee's proposal for
   failure to comply with the RFP's above-stated requirement for
   self-sustaining refrigerated containers. Specifically, TAL contends that
   SVO provided insufficient information regarding how it intended to meet
   the requirement; according to TAL, it was inadequate for the awardee to
   merely identify the supplier and type of its containers, and state that it
   had leases with suppliers for the required equipment, including individual
   generator sets (gensets) to provide power to the containers in order to
   make them self-sustaining. TAL argues that SVO had to detail how it
   intended to provide self-sustaining containers, by specifying what types
   of gensets were proposed and how it intended to use the gensets during
   performance of the contract.[1]

   In a negotiated procurement, any proposal that fails to conform to
   material terms and conditions of the solicitation is unacceptable and may
   not form the basis for award. Alpha Tech. Servs., B-250878, B-250878.2,
   Feb. 4, 1993, 93-1 CPD para. 104 at 3. The procuring agency has primary
   responsibility for evaluating the technical information supplied by an
   offeror and determining the acceptability of the offeror's proposed item
   or service; we will not disturb such a determination unless it is shown to
   be unreasonable. Alpha Marine Servs., LLC, B-292511.4, B-292511.5, Mar.
   22, 2004, 2004 CPD para. 88 at 4.

   Here, our review of the record, including the evaluation record and the
   awardee's proposal, confirms the reasonableness of the agency's position
   that SVO's proposal adequately met the self-sustaining requirement. As an
   initial matter, there is no indication in the record that SVO took
   exception to the requirement at any time. While an agency may not accept
   at face value an offeror's promise to comply with material requirements
   where there is significant countervailing evidence reasonably known to the
   agency that should create doubt whether the offeror will or can comply
   with the requirements, there is nothing in the record here that provides
   any basis to question the reasonableness of the agency's determination of
   the awardee's intention and capability to meet the self-sustaining
   requirement. See id. Contrary to TAL's suggestion, offerors were not
   required to detail the type of gensets they intended to use to power their
   containers, or how the firm intended to use the gensets it proposed.[2] In
   short, since SVO did not take exception to the requirement, it was not
   required to provide additional detail regarding its proposed approach, and
   otherwise set out in its proposal that it could and would provide
   containers and gensets to meet the self-sustaining requirement, the agency
   reasonably determined that SVO demonstrated the capability to meet the
   referenced requirement in accordance with the RFP's terms.[3] See Citrus 
   College; KEI Pearson, Inc., B-293543 et al., Apr. 9, 2004, 2004 CPD para.
   104 at 3; Rockwell Elec. Commerce Corp., B-286201 et al., Dec. 14, 2000,
   2001 CPD para. 65 at 10-11.

   TAL also contends that the award to SVO is improper because the
   solicitation, a small business set-aside, failed to include a mandatory
   provision regarding limitations on subcontracting. Specifically, the RFP
   omitted the provision at Federal Acquisition Regulation sect. 52.219-14,
   applicable to small business set-aside procurements, that provides that in
   a contract for services (except construction), by submission of its offer
   and execution of a contract, the contractor agrees that at least 50
   percent of the cost of contract performance incurred for personnel will be
   expended for the contractor's own personnel.

   An unsuccessful offeror cannot wait until learning of an adverse award
   determination to file a protest of apparent solicitation improprieties;
   rather, under our Bid Protest Regulations, to be timely, a challenge to an
   apparent solicitation defect must be filed prior to the closing time for
   the receipt of proposals. 4 C.F.R. sect. 21.2(a)(1) (2005). Accordingly,
   to the extent TAL challenges, post-award, the omission of the
   subcontracting limitation from the solicitation, the protest is
   untimely.[4] Lockheed Eng'g and Mgmt. Servs., Inc.--Recon., B-212858.2,
   Feb. 14, 1984, 84-1 CPD para. 193 at 1-2.

   The protest is denied.

   Anthony H. Gamboa

   General Counsel

   ------------------------

   [1] For instance, TAL contends that in order for the containers to be
   self-sustaining, only "clip-on" gensets (i.e., generator sets which attach
   directly to the reefer container) can be used during barge transportation
   if "underslung" gensets (i.e., attached to the chassis the reefer sits
   upon for surface transportation) are removed when the containers are
   loaded on the barge. The protester suggests that SVO will provide only
   underslung gensets because a photograph of containers in the SVO proposal
   fails to show any clip-on gensets on the containers, and SVO's contingency
   plan (submitted for review under a separate evaluation subfactor) does not
   reference the use of clip-on gensets. These arguments are not supported by
   the record. First, as discussed above, offerors were not required to
   describe in detail the power unit (or genset) they intended to meet the
   self-sustaining requirement. Second, the protester's reliance on the lack
   of evidence of clip-on gensets in the photographs in SVO's proposal and
   the absence of a reference to gensets in SVO's contingency plan is not
   persuasive, since the protester's proposal has the same omissions (the
   photographs in TAL's proposal do not show the use of clip-on gensets on
   the containers, and TAL did not provide a contingency plan referencing
   their use).

   [2] We note that elsewhere in the RFP, regarding the agency's requirements
   for leased equipment, the agency only generally describes the required
   power units for refrigerated containers as gensets, without delineating
   any particular type of genset. RFP at 50.

   [3] TAL challenges a supplemental statement by the contracting officer in
   response to the protest, in which he refers to a photograph in SVO's
   proposal as support for the conclusion that SVO met the self-sustaining
   requirement through the use of gensets. According to TAL, the photograph
   in fact does not show the use of gensets. Regardless of this post-protest
   statement, it is clear from the record that the agency reasonably based
   its evaluation of SVO's proposal--including its intention to comply with
   the self-sustaining requirement--on SVO's proposal as a whole, including
   its listing of the containers it intended to supply and the supplier with
   whom it had leases for the gensets.

   [4] In any event, we note that TAL has not demonstrated a necessary
   element of any viable protest--that it has been competitively prejudiced
   by the omission of the subcontracting limitation. See McDonald-Bradley,
   B-270126, Feb. 8, 1996, 96-1 CPD para. 54 at 3; see Statistica, Inc. v.
   Christopher, 102 F.3d 1577, 1581 (Fed. Cir. 1996). TAL argues that, in
   order to comply with the subcontracting limitation, which had been
   required under its prior contract for these services, the firm purchased
   its own vessel and employed the crew, and that if TAL had not done so, it
   could have proposed a substantially lower price under the RFP, as it
   alleges SVO has done, by time-chartering a vessel and subcontracting its
   crew. In response, the agency asserts that TAL's purchase of the vessel
   and hiring of the crew in fact did not increase TAL's price under the RFP
   compared to using a time-chartered vessel and its subcontracted crew.
   Specifically, the contracting officer states that a comparison of TAL's
   proposed prices under the RFP (based on use of a vessel owned and operated
   by TAL) to its proposal for the same services under its incumbent contract
   (which was based on a time-chartered vessel and subcontracted crew), shows
   that, using current cargo projections, the protester was, in fact, able to
   reduce its proposed price under the RFP from its prior pricing.
   Contracting Officer's Statement of Facts at 2. The protester has not
   refuted the agency's position in this regard.