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.
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.
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
The RFP, issued on
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.
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.
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,
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. 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.
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. Lockheed Eng’g and Mgmt. Servs., Inc.--Recon.,
The protest is denied.
Anthony H. Gamboa
 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).
 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.
 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.
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