TITLE: B-310708; B-310708.2, T. F. Boyle Transportation, Inc., January 29, 2008
BNUMBER: B-310708; B-310708.2
DATE: January 29, 2008
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B-310708; B-310708.2, T. F. Boyle Transportation, Inc., January 29, 2008

   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: T. F. Boyle Transportation, Inc.

   File: B-310708; B-310708.2

   Date: January 29, 2008

   Jonathan T. Cain, Esq., and Helen Guyton, Esq., Mintz Levin, for the
   protester.

   H. Jack Shearer, Esq., Young H. Cho, Esq., and Renee Holland, Esq.,
   Department of Energy; and John W. Klein, Esq., and Kenneth Dodds, Esq.,
   Small Business Administration, for the agencies.

   Charles W. Morrow, Esq., and James A. Spangenberg, Esq., Office of the
   General Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   1. Provision in solicitation that required offeror to demonstrate its
   capability of passing a Department of Energy Office of Transportation
   "Motor Carrier Evaluation Program" audit did not constitute a definitive
   responsibility criterion because it does not contain specific and
   objective standards.

   2. Protest challenging affirmative responsibility determination is denied
   where the protester's allegations do not establish that the contracting
   officer failed to consider available relevant information.

   DECISION

   T. F. Boyle Transportation, Inc. protests the award of a contract to
   Visionary Solutions, LLC under request for proposals (RFP)
   No. DE-RP30-06EW20001, issued by the United States Department of Energy
   (DOE), for transportation of transuranic (TRU) waste. Boyle contends that
   Visionary was improperly determined to be a responsible contractor.

   We deny the protest.

   The DOE operates a "Waste Isolation Pilot Plant" (WIPP) near Carlsbad, New
   Mexico, which is an underground repository for radioactive waste generated
   from the research and production of nuclear weapons at DOE sites. The RFP,
   issued January 6, 2006, sought proposals to provide the facilities,
   personnel, equipment, and services to transport TRU waste from various DOE
   sites to the WIPP across designated highway routes. It contemplated the
   award of two indefinite-delivery indefinite-quantity, fixed-price
   contracts for a base period, with four 12-month and one 2-month option
   periods. One award was based on full and open competition and the other
   award was set aside for small businesses. The award in question here was
   under the set-aside portion of the RFP. The awards were made on a
   best-value basis considering technical and management approach, past
   performance, and price.

   As initially issued, the RFP required the offeror identified for the award
   to undergo a "Motor Carrier Evaluation Program" (MCEP) audit as a
   precondition to receiving the award.[1] RFP sect. M.6. Amendment No. 0004
   to the RFP, issued March 10, deleted this requirement and incorporated the
   following:

     The contractor shall undergo and pass the [MCEP] Audit. The MCEP Audit
     that is conducted by DOE is an extensive audit of all facets of a
     carrier's business operations including an extensive on-site physical
     review of records and equipment. . . . If the Contractor does not pass
     the Audit, the Government reserves the right to terminate the contract
     for default.

   RFP amend. 4, sect. H.21. This amendment also amended the proposal
   instructions to state, "[i]t is the offerors responsibility to demonstrate
   its capability to pass the MCEP Audit through completing and submitting
   the MCEP Audit Prescreening Forms" with its proposal. Id. sect.
   L.27.b.iii. Amendment No. 0006 to the RFP, issued March 23, further
   amended this section of the proposal instructions to add:

     In addition it is the Offeror's responsibility to demonstrate the
     capability of its teaming partners and/or members, if a newly formed
     entity, members of the newly formed entity, and subcontractors
     responsible for transporting TRU waste, to pass the MCEP Audit. Forms
     shall be submitted for the Offeror, its teaming partners and/or members,
     if a newly formed entity, members of the newly formed entity, and
     subcontractors responsible for transporting TRU waste, and shall be
     submitted with the Offeror's proposal.

   RFP amend. 6, sect. L.27.b.iii.

   Three proposals, including Boyle's and Visionary's, were received in
   response to the set-aside portion of the RFP by the March 31, 2006 closing
   date. Following discussions, DOE received final proposal revisions from
   the offerors in November 2006. Visionary's final proposal explained that
   "[a]s a result of finalization of the acquisition [of Interstate Ventures,
   Inc. in September 2006] [Visionary] is now a transportation and logistics
   company operating under the motor carrier operating authority granted by
   the U.S. Department of Transportation (DOT) through USDOT No. 1021543,
   permit number MC 422210-P Interstate Ventures, Inc. (dba Visionary
   Solutions), a Visionary Solutions, LLC wholly owned subsidiary." Agency
   Report, Tab 6, Visionary's Final Proposal (Nov. 9, 2006). vol. IV, at 96.
   Also included in Visionary's final proposal was a revised MCEP screening
   form specifying Interstate Ventures, Inc. d/b/a Visionary Solutions as the
   motor carrier.[2] Id., attach. D.

   The source selection authority (SSA) determined that Visionary's
   lower-priced, technically inferior proposal offered the best value instead
   of Boyle's technically superior, higher-priced proposal. However, the
   contracting officer determined that Visionary was not a responsible
   contractor, finding that that firm had not complied with the limitations
   on subcontracting clause in the RFP because of the business relationship
   between Visionary and Interstate Ventures.[3]

   On March 20, 2007, the matter was referred to the Small Business
   Administration (SBA) for possible issuance of a certificate of competency
   (COC). On April 12, the SBA determined that Visionary was responsible
   based upon that firm's proposal of a corrective action plan. The SBA
   explained:

     [Visionary's] corrective action plan is that 100% of the personnel
     assigned to the WIPP Transportation Services project will be [Visionary]
     employees. This will include all drivers assigned to perform
     transportation services, maintenance personnel and office/clerical
     personnel located at [Visionary's] facility to be located within 70
     miles of the WIPP facility. The WIPP transportation services project
     will be managed by [Visionary's] management. The proposal stated that
     [Visionary] would lease all equipment, including tractors, maintenance
     and ancillary equipment and drivers from the Interstate Ventures . . .
     subsidiary. [DELETED] This modification will ensure that greater than
     51% of all personnel and total cost incurred on the WIPP project are
     directly derived from [Visionary] employees at all times.

   Agency Report, Tab 10, SBA E-mail to Contracting Officer (Apr. 13, 2007).

   Inasmuch as this was a major change to Visionary's proposal, DOE conducted
   further discussions with, and obtained final proposal revisions from,
   Boyle and Visionary. Visionary's final revised proposal included the
   following:

     As of May 1, 2007, Visionary Solutions, LLC has completed the
     acquisition and assimilation of Interstate Ventures Inc., our wholly
     owned subsidiary, into our operations. With the total assimilation of
     Interstate Ventures, Inc. Visionary Solutions, LLC now operates under
     the U.S. Department of Transportation (DOT) permit number MC 422210-P
     and USDOT No. 1021543.

   Agency Report, Tab 11, Visionary's Final Proposal (June 1, 2007), vol. IV,
   at 1. This final proposal revision also contained a revised MCEP
   Prescreening Form and evidence of Visionary's ability to pass a post-award
   MCEP audit.

   After the revised proposals were evaluated, the SSA again determined that
   Visionary's proposal was the best value. The SSA found that even though
   Boyle had a superior technical rating, "the comparative advantage in
   technical and past performance merit of the Boyle proposal is not worth
   the substantial price differential between the two proposals." Contracting
   Officer's Statement at 12. Prior to making the award, the contracting
   officer determined and documented that Visionary was a responsible
   contractor. In so doing, the contracting officer found:

     Visionary has the future capability to pass the DOE MCEP Audit required
     by Section H.21 of the solicitation. This is based on the pre-screening
     evaluation performed by the DOE . . . Office of Transportation. That
     evaluation concluded that Visionary, together with its wholly-owned
     subsidiary Interstate Ventures, Inc., has the capability to pass the DOE
     MCEP audit.

   Agency Report, Tab 14, Responsibility Determination (Sept. 20, 2007), at
   2. DOE made award to Visionary on September 27. After a debriefing, this
   protest followed.

   Boyle argues that Visionary could not demonstrate that it was capable of
   passing the MCEP audit prior to the award due to the fact that Interstate
   Ventures, on whose operating experience Visionary relied, had unacceptably
   high SEA scores, which meant that Visionary was not able to demonstrate
   its ability to pass an MCEP audit. Boyle also contends that Visionary,
   which has no operating experience of its own, could not rely upon
   Interstate Ventures' experience to satisfy this responsibility requirement
   because Visionary's final revised proposal indicated that Interstate
   Ventures would have no role in the performance of the contract services.

   Because the determination that an offeror is capable of performing a
   contract is largely committed to the contracting officer's discretion, GAO
   generally will not consider protests challenging affirmative
   determinations of responsibility except under limited, specified
   exceptions. Bid Protest Regulations, 4 C.F.R. sect. 21.5(c) (2007);
   Verestar Gov't Servs. Group, B-291854, B-291854.2, Apr. 3, 2003, 2003 CPD
   para. 68 at 3-4. The exceptions are protests that allege that definitive
   responsibility criteria in the solicitation were not met and those that
   identify evidence raising serious concerns that, in reaching a particular
   responsibility determination, the contracting officer unreasonably failed
   to consider available relevant information or otherwise violated statute
   or regulation. 4 C.F.R. sect. 21.5(c).

   A definitive responsibility criterion is a specific and objective
   standard, qualitative or quantitative, that is established by a
   contracting agency in a solicitation to measure an offeror's ability to
   perform a contract. Moreover, in order to be a definitive responsibility
   criterion, the solicitation provision must reasonably inform offerors that
   they must demonstrate compliance with the standard as a precondition to
   receiving the award. Public Facility Consortium I, LLC; JDL Castle Corp.,
   B-295911, B-295911.2, May 4, 2005, 2005 CPD para. 170 at 3.

   Contrary to Boyle's contentions, the requirement for an offeror to
   demonstrate in its proposal the capability to pass the MCEP audit by
   completing and submitting MCEP prescreening audit forms is not a
   definitive responsiblity criterion. This provision did not contain a
   specific and objective standard. Moreover, amendment 4 to the RFP
   specifically deleted the requirement that made passing the MCEP audit a
   precondition to the award, and recognized that passing the MCEP audit
   would take place after the award. Thus, this provision only concerns the
   agency's determination of the general responsibility of the awardee, that
   is, its ability to perform the contract consistent with all legal
   requirements. Id.

   As to the other exceptions to our general rule to not consider protests of
   affirmative determinations of responsibility, we will consider protests
   where, for example, the protest includes specific evidence that the
   contracting officer may have ignored information that, by its nature,
   would be expected to have a strong bearing on whether the awardee should
   be found responsible. See Verestar Gov't Servs. Group, supra, at 4;
   Universal Marine & Indus. Servs., Inc., B-292964, Dec. 23, 2003, 2004 CPD
   para. 7 at 2. However, as previously noted, Visionary's final revised
   proposal fully disclosed its relationship with Interstate Ventures, which
   reflected that Intestate Ventures had been acquired and assimilated into
   Visionary's operations, including hiring all drivers as Visionary
   employees who would perform under the contract and that Visionary had been
   granted the authority to operate under Interstate's Ventures' permit
   numbers. Thus, the record shows that the contracting officer was aware of
   the relationship between, Visionary and Interstate Ventures and found that
   Visionary had demonstrated that it was capable of passing the MCEP process
   on the basis of Interstate Venture's status as an approved DOE carrier.
   See Agency Report, Tab 13, DOE E-mail concerning Visionary's MCEP
   Compliance (Aug. 3, 2007). Although Boyle complains that Visionary should
   not be allowed to rely solely on Interstate Venture's status as a
   DOE-approved carrier, we cannot conclude that the contracting officer
   failed to consider all the relevant information in making its
   responsibility determination.[4]

   The protest is denied.

   Gary L. Kepplinger
   General Counsel

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

   [1] The MCEP is a DOE (Office of Transportation) management tool for
   ensuring that DOE field offices and contractors use only qualified
   carriers to transport DOE-owned radioactive materials and hazardous waste.
   Under the MCEP audit, DOE determines safety evaluation area (SEA) values
   for transportation carriers. SEA values are calculated by the Department
   of Transportation Federal Motor Carrier Safety Administration to score
   transportation carriers for safety.

   [2] The initial proposal included MCEP Prescreening Forms identifying
   Interstate Ventures, Inc. as the carrier with the same USDOT and permit
   numbers. However, in September 2006, Visionary had requested a name change
   after acquiring Interstate Ventures, and received approval to operate as
   Interstate Ventures, Inc. d/b/a Visionary Solutions under the same license
   and permit numbers as had been held by Interstate Ventures. Agency Report,
   Tab 6, Visionary's Final Proposal (Nov. 9, 2006), vol. IV, at 64-66.

   [3] The RFP incorporated by reference Federal Acquisition Regulation (FAR)
   sect. 52.219-14, Limitations on Subcontracting, which requires at least 50
   percent of the cost of contract performance incurred for personnel shall
   be expended for employees of the concern. See FAR sect. 52.219-14 (b)(1).

   [4] DOE reports that Visionary passed the MCEP process on the basis of its
   status of Interstate Ventures d/b/a Visionary Solutions. We need not
   address Boyle's contentions questioning whether the agency MCEP audit of
   Interstate Ventures d/b/a Visionary Solutions after the award, instead of
   Visionary, was appropriate because whether the agency conducted an
   appropriate MCEP audit of Visionary is a matter of contract administration
   that is the responsibility of the contracting agency and is not for
   consideration of our Office. Public Facility Consortium I, LLC; JDL Castle
   Corp., supra, at 5.