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
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[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.