TITLE: B-310759; B-310759.2, Tiger Truck LLC, February 7, 2008
BNUMBER: B-310759; B-310759.2
DATE: February 7, 2008
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B-310759; B-310759.2, Tiger Truck LLC, February 7, 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: Tiger Truck LLC

   File: B-310759; B-310759.2

   Date: February 7, 2008

   David P. Metzger, Esq., and Kristen E. Ittig, Esq., Arnold & Porter LLP,
   for the protester.

   James H. Roberts, III, Esq., and Carrol H. Kinsey, Jr., Esq., Van Scoyoc
   Kelly PLLC, and Henry P. Schrenker, Esq., The Schrenker Law Firm, for Mag
   International, Inc., an intervenor.

   Lee W. Crook, III, Esq., and Erica Stigall, Esq., General Services
   Administration, for the agency.

   Jennifer D. Westfall-McGrail, Esq., and Edward Goldstein, Esq., Office of
   the General Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   1. Protest that successful vendor did not furnish a quotation for utility
   trucks with features requested by the agency such as E-85 (ethanol)
   engines and automatic transmissions is denied where it was clear from the
   successful vendor's quotation that it was offering trucks with the
   specified features.

   2. Where request for quotations required past performance references from
   customers who had purchased vehicles of "the same or similar makes and
   models" as those solicited, vendors were not restricted to submitting
   references from customers who had previously purchased vehicles identical
   to those solicited.

   DECISION

   Tiger Truck LLC protests the General Services Administration's (GSA)
   issuance of a task order for utility trucks and vans to Mag International,
   Inc. pursuant to request for quotations (RFQ) No. QSDACEB-Z4-07-2320. The
   protester argues that Mag's quotation should have been rejected as
   technically unacceptable.

   We deny the protest.

   The RFQ was issued by GSA's Federal Acquisition Service to acquire
   vehicles on behalf of the Department of the Air Force. The solicitation
   sought quotations for the delivery of five types of utility trucks and
   vans to over 70 different locations both in and outside the United
   States.[1] The utility vehicles have a maximum speed of 25 m.p.h. and are
   not designed for use on commercial roadways or interstate highways; that
   is, they are for use on base only. The RFQ furnished a technical
   description for each type of vehicle, which defined required features of
   the vehicles such as their rated load capacity, gross weight rating, prime
   mover (i.e., engine) type, transmission type, and seating capacity. The
   solicitation also identified several customized options that the
   Government might request on particular vehicles. Of relevance to this
   protest, these options included an E-85 (ethanol) engine (in place of the
   standard gas engine) and an automatic transmission.[2] Pricing
   spreadsheets identified the optional features to be included on the
   vehicles ordered; the locations to which the vehicles were to be
   delivered, and the number of vehicles to be delivered to each location.

   The solicitation provided for issuance of an order to the vendor
   submitting the lowest priced technically acceptable quotation. The RFQ
   defined the following standards for determining technical acceptability:

        1.      Technical conformance to the Government's Specifications.

           a.      Conformance to DLA [National Stock Number] Configuration
           Data Sheet

           b.      Proper Identification of the current manufacturing Country
           of Origin.

        2.      Delivery of ALL [vehicles] within 120 Calendar Days After
        Approval of 1^st Article Inspection.

        3.      Past Performance References

           a.      Contractor shall submit a minimum of five (5)
           past-performance references with current contact information
           (including office phone number and email addresses).

           b.      Reference list shall consist entirely of former and
           current customers who have purchased the same or similar makes and
           models of the [vehicles] requested in the solicitation.

        4.      Manufacturer's Warranty Terms shall include a minimum of
        full-coverage for 12,000 miles AND 12 months from date of Government
        Acceptance, whichever event occurs sooner.

   RFQ amend. PA04, at 2 and 12.

   Three vendors submitted quotations prior to the August 31, 2007 due date.
   The agency's technical evaluators determined the quotations of both Tiger
   and Mag to be technically acceptable and the quotation of the third vendor
   to be technically unacceptable. Mag quoted a total price of $6,776,001,
   whereas Tiger quoted a price of $9,218,377. Because Mag's quotation was
   technically acceptable and lower in price than Tiger's, the agency
   selected Mag to receive the order. The order was issued on September 21.

   On September 27, Tiger filed an agency-level protest objecting to issuance
   of the order to Mag. By decision dated October 25, the contracting officer
   dismissed in part and denied in part the protest. On November 5, Tiger
   protested to our Office.

   In its protest, Tiger alleged that Mag "does not and cannot produce"
   vehicles that meet the RFQ's requirements pertaining to seating capacity,
   or that incorporate E-85 engines and/or automatic transmissions. Protest
   at 7. Accordingly, Tiger concluded that the agency must have waived its
   request for these features in evaluating Mag's quotation for technical
   acceptability.[3] In support of its allegation, the protester asserted
   that Mag had not in the past sold vehicles incorporating the above
   features.

   The agency addressed these issues in a detailed manner in its report,
   citing evidence in support of its finding that Mag had complied with the
   above features. Specifically, the agency highlighted specification and
   requirements charts Mag had included in its quotation (the former
   summarized the specifications of the vehicles offered by Mag, while the
   latter listed the RFQ's technical requirements for each vehicle and stated
   whether or not the vehicle offered by Mag complied with each requirement).
   Tiger, however, in its comments did not take issue with or attempt to
   rebut the agency's position and arguments that Mag had offered vehicles
   with the required seating capacities and with the option of an automatic
   transmission. In addition, except as to the required cargo vans, Tiger did
   not take issue with or attempt to rebut the agency's position that Mag had
   offered the option of an E-85 engine on all vehicle types. Accordingly, we
   consider Tiger to have abandoned all of the foregoing arguments.[4] CM
   Mfg., Inc., B-292370, Mar. 2, 2004, 2004 CPD para. 69 at 3.

   Tiger, however, continued to argue that the cargo vans offered by Mag
   failed to offer the option of an E-85 engine. In support of its argument,
   the protester correctly pointed out that neither the specification chart
   nor the requirements chart for Mag's cargo van represented that the E-85
   engine was available as an option.[5] The agency responded that Mag had
   made clear on its pricing spreadsheets that it was offering vehicles with
   E-85 engines where requested. The agency explained that in response to
   each line item requesting a cargo van with an E-85 engine, Mag had quoted
   a price for a vehicle that it identified as a C-Mag Utility Cargo Van
   "with E-85." We think that this was sufficient to make clear that Mag was
   offering pricing for cargo vans with E-85 engines where requested and that
   the agency's evaluation in this regard was reasonable.

   Next, Tiger argues that the agency's evaluation of Mag's past performance
   was flawed. According to Tiger, the RFQ required each vendor to submit
   five past performance references from customers who had previously
   purchased from it vehicles identical to those solicited here, that is,
   trucks with E-85 engines and automatic transmissions, and that Mag failed
   to provide the required references.

   The evaluation of past performance, including the agency's determination
   of the relevance and scope of a vendor's performance history to be
   considered, is a matter of agency discretion that we will not find
   improper unless it is unreasonable, inconsistent with the solicitation
   criteria or procurement statute or regulation, or undocumented. Standard
   Commc'ns., Inc., B-296972, Nov. 1, 2005, 2005 CPD para. 200 at 5. Here,
   there simply is no basis for the protester's argument that the agency was
   required under the solicitation to consider only past performance
   references from customers who had previously purchased vehicles identical
   to those under the RFQ. Rather, the solicitation explicitly permitted
   references from customers who had purchased "similar" makes and models.
   RFQ amend. PA04, at 2 and 12. Consistent with the RFQ, the agency
   determined that the past performance references submitted by Mag were for
   sufficiently similar vehicles, and the protester has not demonstrated that
   this determination was unreasonable.

   The protester also argues that the agency failed to document adequately
   its evaluation of vendors' past performance. In support of this
   contention, Tiger notes that the only documentation in the record
   pertaining to the evaluation of Mag's past performance consisted of the
   following:

     Robins AFB, GA [deleted]

     Vandenburg AFB, CA [deleted]

     Camp Pendleton, CA [deleted]

     The vendor provided fourteen (14) prior past performance references. A
     random sample of 3 references were selected to be contacted. Question
     topics to be asked included overall quality of the vehicle, and level of
     satisfaction with the purchase. Prior customers gave an acceptable
     approval rating of the Utility Vehicles.

   AR, Tab 16. The protester contends that the documentation is deficient
   because it furnishes "no indication of what vehicles Mag provided at the
   three selected sites, or what response was received from the three
   individuals referenced for those three sites." Supplemental Protest and
   Comments, Dec. 17, 2007, at 10. The protester further argues that the
   documentation is deficient in that it fails to demonstrate that the agency
   reasonably considered the similarity of Mag's prior contracts in its
   evaluation.

   We recognize that the contemporaneous narrative description of the
   agency's past performance evaluation is sparse; however, given the limited
   scope of the past performance information sought by the agency, and the
   fact that there was to be no comparative assessment of vendors' past
   performance under the evaluation scheme here--past performance was merely
   evaluated on a pass/fail basis--we conclude that the contracting officer's
   documentation was sufficient and supports the reasonableness of the
   agency's evaluation of Mag's past performance. While the protester argues
   that there is no evidence that the contracting officer in fact inquired as
   to the similarity of the vehicles previously furnished by Mag to those
   solicited, it is clear from the record that the agency obtained
   information from Mag's past performance references regarding their ratings
   on experience with Mag "utility vehicles," which are the same general type
   of vehicles sought under the RFQ. Moreover, the record demonstrates that
   the past performance inquiries reflects that the customers' viewed Mag's
   performance as "acceptable." As a consequence, we have no basis to sustain
   the protest in this regard.

   Finally, in a supplemental protest filed on November 12, 2007, Tiger
   argued that GSA should have disqualified Mag's quotation from
   consideration because Mag utilizes a Chinese company as a subcontractor in
   the manufacture of its vehicles, Harbin Hafei Motor Co., Ltd., which is
   "integrally entwined" with a company (the China National Aero-Technology
   Import and Export Company (CATIC)) that the Department of State has banned
   from receiving federal contracts pursuant to the Iran and Syria
   Nonproliferation Act, Pub. L. 106-178, 114 Stat. 38 (2000), as amended by
   Pub. L. 109-112, 119 Stat. 2366 (2005).[6] We dismiss this ground of
   protest as untimely.

   Our Bid Protest Regulations contain strict rules for the timely submission
   of protests. Under these rules, as a general matter, protests based on
   other than alleged solicitation improprieties must be filed no later than
   10 calendar days after the protester knew, or should have known, of the
   basis for protest, whichever is earlier. 4 C.F.R. sect. 21.2(a)(2) (2007).
   Our timeliness rules reflect the dual requirements of giving parties a
   fair opportunity to present their cases and resolving protests
   expeditiously without unduly disrupting or delaying the procurement
   process. Dominion Aviation, Inc.--Recon., B-275419.4, Feb. 24, 1998, 98-1
   CPD para. 62 at 3.

   Here, the record clearly reflects that as of July 5, 2007, Tiger was aware
   of Mag's use of Harbin Hafei in the manufacture of its utility trucks. See
   AR, Tab 5-A. Tiger, therefore should have known of Mag's alleged
   ineligibility for award when it learned of the September 21 order to Mag
   and at the time it filed its September 27 agency-level protest. Tiger,
   however, did not raise this issue until November 12, in a supplemental
   protest to our Office, nearly 2 months later, and more than 10 days after
   Tiger was on notice of this basis for protest.[7]

   The protest is denied.

   Gary L. Kepplinger
   General Counsel

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

   [1] The five types of vehicles sought were utility trucks with standard
   cabs (pricing for a total of 329 requested), utility trucks with crew cabs
   (190 requested), utility cargo vans (194 requested), heavy duty utility
   trucks with standard cabs (56 requested), and heavy duty utility trucks
   with crew cabs (3 requested).

   [2] E-85 engines were requested on 221 of the 329 trucks with standard
   cabs, on 69 of the 190 trucks with crew cabs, on 103 of the 194 vans, and
   on all of the heavy duty trucks. Automatic transmissions were requested on
   171 of the trucks with standard cabs, 58 of the trucks with crew cabs, 81
   of the vans, and all of the heavy duty trucks.

   [3] The required seating capacity for each of the five vehicle types was
   "two-three." RFQ amend. PA04, at 4-8.

   [4] The protester also alleged in its initial protest that the heavy duty
   utility trucks offered by Mag failed to meet the RFQ's technical
   requirements pertaining to rated load capacity and vehicle gross weight
   rating. While Tiger's protest did not include any factual support for its
   allegation, the agency demonstrated in its report that the heavy duty
   trucks offered by Mag were in compliance with the above requirements.
   Again, Tiger did not address these issues in its comments and we therefore
   conclude that these arguments were abandoned as well.

   [5] Under the RFQ, vendors merely had to self-certify compliance with the
   various vehicle requirements and specified options. Contracting Officer's
   Statement at 12.

   [6] Tiger did not raise this argument in its agency-level protest.

   [7] Tiger contends that this basis of protest is timely because it did not
   learn that Mag's subcontractor was a banned entity until November 6, 2007.
   According to Tiger, uncovering such information took "time and effort"
   through its own investigation, which it "diligently pursued." Tiger's
   Comments on Supplemental AR, Dec. 26, 2007, at 4. Beyond general
   assertions regarding the difficult nature of piecing together information
   regarding Mag's subcontractor Harbin Hafei, and its own due diligence,
   Tiger has failed to provide any evidence to support a finding that it
   should not have recognized Mag's ineligibility when it learned of the
   agency's decision to place the order with Mag, nor has Tiger provided any
   evidence suggesting that it did in fact initiate its investigation of
   Mag's subcontractor in a timely and diligent manner. As a consequence,
   there is no basis for our office to conclude that Tiger's protest in this
   regard was timely filed.