T.F. Boyle Transportation, Inc.
B-310708,B-310708.2, Jan 29, 2008
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.
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.
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.
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.
The DOE operates a Waste Isolation Pilot Plant (WIPP) near
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. 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.
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
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.
[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:
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 (
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 (
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,
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,
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.
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,
The protest is denied.
Gary L. Kepplinger
 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.
 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 (
 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).
 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.