Link: GAO Opinion
Agency: Department of the Army
Disposition: Protest denied in part, dismissed in part.
- Pursuant to the bid protest authority granted GAO under the Competition in Contracting Act of 1984, GAO will consider a protest of the terms of a request for competitive rate tenders for transportation services, even though they are not subject to the Federal Acquisition Regulation, where the responses will form the basis for placement of government bills of lading for the services; however, GAO will not consider issues relating to the agency’s decision not to include certain traffic channels in the request for rate tenders since this involves the exercise of the agency’s business judgment and executive branch policy.
- As a general rule, solicitations must contain sufficient information to allow offerors to compete intelligently and on a relatively equal basis, although there is no requirement that a solicitation contain such detail as to completely eliminate all risk or remove all uncertainty from the mind of every prospective offeror.
General Counsel P.C. Highlight:
The protesters argue that a second request for revised rates was arbitrarily severely limited to a small number of traffic channels because it did not allow for revised rate tenders involving the 18 initially rolled-out sites, and that the second request was otherwise improper because it did not provide sufficient or required information to allow the TSPs to submit revised rate tenders on any of the channels encompassed by the DPS.
The Army initially argues that GAO does not have jurisdiction to decide this protest because the DPS is a technology computer system that accepts and processes government rate tenders from qualified TSPs, and the acquisitions are exempt from the Federal Acquisition Regulation (FAR). GAO states that the Competition in Contracting Act of 1984 (CICA), 31 U.S.C. sect. 3551 (2000), which established the bid protest jurisdiction of our Office, defines protests as including objections to solicitations for bids or proposals for proposed contracts as well as objections to proposed or actual awards of such contracts. GAO has found that this definition encompasses objections to agency actions that result in the award of instruments that are not in themselves contracts, such as basic order agreements, which become binding when an order is issued, or a rate tender, which becomes binding when a GBL issued. Moreover, GAO has recognized the term procurement as used in CICA can include the process of acquiring transportation services by the government, even though the acquisition of such services is generally exempt from the FAR. Thus, transportation services procured by and provided to the government are subject to GAO’s bid protest jurisdiction, where the agency obtains these services by means of a procurement. Because the request for competitive rate tenders under protest here will form the basis for the placement of GBLs for transportation services, GAO will consider the protests of the terms of this request.
However, the complaints all concern the agency’s decision as to what services should be acquired under the procurement at issue and what services will not be included. GAO will not consider those complaints because GAO views the agency’s decision as one involving the exercise of the agency’s business judgment and executive branch policy in determining what transportation services should be acquired through this procurement. In this case, the agency had already obtained rate tenders for the traffic channels involving the 18 indicated sites that are effective through May 14, 2009, and GAO finds no legal requirement for the agency through the procurement in question here to allow TSPs to update these rate tenders that are in effect, even though this procurement provided for TSPs to update their rates for other traffic channels.
The protesters also raise a variety of issues that concern the terms of the solicitation of revised rates for the pure traffic channels that are within GAO’s jurisdiction. GAO states that as a general rule, solicitations must contain sufficient information to allow offerors to compete intelligently and on an equal basis. However, there is no legal requirement that a solicitation contain such detail as to completely eliminate all risk or remove all uncertainty from the mind of every prospective offeror.
Specifically, the protesters argue that Business Rule 2.19 which governs this program requires that the agency furnish the TSPs with shipment and tonnage data for the last two completed rate cycles using the new domestic and international channels and that this information has not been provided. The agency responds that this historical data was already available to TSPs on the SDDC website for the last two full cycles under the previous computer program for both the Domestic GBL Records and International GBL Records. Regarding future cycles under the DPS, which the agency contends is the subject of Business Rule 2.19, the agency states that the shipments under the DPS have only just begun, so there is no data. The Army maintains that it will provide a report to all qualified TSPs concerning tonnage data, once shipments are awarded under DPS. Since the data requested is not available because the DPS has only begun to be implemented, GAO finds no obligation to provide data that does not exist.
The protesters also complain that the invoice and payment computer modules have not been tested and proven to work. The agency reports that both modules have been fully approved for implementation and the DPS is already awarding shipments. This is essentially a contention that the assertedly unproven modules somehow place undue risk on the TSPs in preparing their rate tenders. On this record, GAO has no basis to find that the agency has imposed an undue risk on the TSPs.
The protesters finally claim that under the first solicitation certain TSPs were rejected under the initial solicitation for their off-peak rates solely because the peak rates submitted were beyond a competitive range of prices, and that storage in transit rates were improperly used as a factor to calculate the BVS of TSPs. As indicated above, on or about April 2, the TSPs were provided the opportunity to question or challenge any of the BVSs received. Thus, these protest challenges are untimely under our Bid Protest Regulations because they were not filed within 10 days after the basis of protest were known or should have been known. The protest is denied in part and dismissed in part.