• LinkedIn
  • Google +
  • Twitter
  • Facebook

+1-571-223-6845

Bid Protest Weekly
  • Home
  • Bid Protest Ed Center
    • WHAT is a bid protest?
    • WHO can file a bid protest
    • DO I need an Attorney?
    • WHY Should you file a bid protest?
    • WHEN Must you file a bid protest?
    • WHERE can you file a bid protest?
    • READING the RFP
  • Blog
  • Topics
  • About Us
  • Contact Us

Abba International, Inc. et al., B-311225.4, February 2, 2009

  • By GCPC GovCon Legal Team
  • February 2, 2009
  • Bid Protest JurisdictionRate Tenders

Link: GAO Opinion

Agency: Department of the Army

Disposition: Protest denied in part, dismissed in part.

__________________________________________________________________________________________________________________

GAO Digest:

  1. 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.
  2. 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.

Share

Related Posts

Matter of Sea Box, Inc.

January 19, 2022

How to Protest without Antagonizing

May 16, 2016

CFS-KBR Marianas Support Services, LLC; Fluor Federal Solutions LLC January 2, 2015

March 31, 2015

In Matter of AeroSage LLC, AeroSage, LLC “AeroSage” protested the Department of Justice’s Bureau of Prisons

August 21, 2014

Comments are closed

Search Bid Protest Weekly

Need help with a bid protest?

Call us at: 703-556-0411 Or fill out this form:

Categories

  • 8(a) Sole Source Awards
  • Acknowledging Amendments
  • Adequately Written Proposal
  • Adverse Agency Action
  • Adverse Impact Analysis
  • Agency Tender
  • Alternate or Previously-Approved Product
  • Ambiguity in Solicitation
  • Attorney's Fees
  • Bad Faith in Evaluation
  • Below-Cost Offer
  • Best Value
  • Beyond the Scope
  • Bias
  • Bid and Proposal Costs
  • Bid Bond
  • Bid Compliance
  • Bid Protest Decisions
  • Bid Protest Jurisdiction
  • Bid Protests
  • Bidding Best Practices
  • Blanket Purchase Agreement
  • Blanket Purchase Order
  • Blog Articles
  • Bona Fide Needs Rule
  • Brand Name or Equal
  • Broad Agency Announcement
  • Brooks Act
  • Bundling or Consolidation
  • Buy American Act
  • Cancellation of a Solicitation
  • Capability of Contractor
  • CCR Registration
  • Certificate of Competency (COC)
  • Certification Requirements
  • Changes Clause
  • Clarifications
  • Clear and Convincing Evidence
  • Clearly Meritorious Protest
  • Clerical Error
  • Commercial Item Acquisition
  • Competitive Range
  • Compliance
  • Conflict of Interest
  • Construction Design-Build
  • Construction Services
  • Contract Administration
  • Contract Modifications
  • Contracting Preference
  • Contractor Responsibility
  • Corporate Capability
  • Corrective Action
  • Cost Accounting System
  • Cost Evaluation
  • Cost Realism
  • Cost Reimbursement Contract
  • Cost-Technical Trade-Off
  • Customary Commercial Practice
  • CVE
  • DCAA Audit
  • Debriefing
  • Default Termination
  • Deficient Price Proposal
  • Delivery Order jurisdiction
  • Delivery Schedule
  • Designated Employee Agent
  • Disclosure of Price
  • Disclosure of Source Selection-Sensitive Information
  • Discussions
  • Disqualification
  • Documentation of Evaluation
  • Domestic Production Requirement
  • Education Center Articles
  • Electronic Filing
  • Evaluation Criteria
  • Evaluations
  • Events
  • Executive Order Compliance
  • Experience of Contractor
  • Experience Requirement
  • Fair Market Price
  • FASA
  • FedBizOpps
  • Federal Prison Industries (FPI)
  • Filing Deadlines
  • Final Evaluation
  • Final Proposal Revisions
  • Financial Responsibility
  • Fixed Price Contract
  • Former Government Employees
  • FSS Contract
  • GAO Bid Protest Review
  • GAO Jurisdiction
  • GAO Standard of Review
  • Government Contracts
  • Government Office Closings
  • Government Surplus Material
  • GSA Lease
  • HUBZone
  • ID/IQ
  • In-Sourcing
  • Incentive Fee
  • Inclement Weather Delay
  • Incomplete Proposal
  • Incorporation by Reference
  • Incumbent Capture
  • Incumbent Status
  • Independent Government Estimate (IGE)
  • Individual Environmental Report
  • Industrial Mobilization
  • Innovations
  • Interested Party
  • Invitation for Bid
  • Invited Contractor
  • Javits-Wagner-O'Day Act
  • Joint Venture
  • Key Personnel
  • Labor Hours
  • Labor Rate Pricing
  • Late Proposals
  • Late Submissions
  • Level of Effort
  • Licensing Requirements
  • Limitation on Subcontracting
  • Liquidated Damages
  • Lost Proposal
  • Lowest Price Technically Acceptable
  • Mail-Box Rule
  • Management Planning
  • Market Research
  • MAS Contracts
  • Material Misrepresentation
  • Material Solicitation Amendment
  • Material Solicitation Terms
  • Meaningful Discussions
  • Micro-Purchase Threshold
  • Minimum Requirements
  • Misleading Discussions
  • Mistake
  • Mitigation Strategy
  • Multiple Awards
  • NAICS Code
  • National Security
  • Negotiation
  • News
  • Non-Procurement Instruments
  • Novations
  • Offeror Representations
  • OMB Circular A-76
  • Option Exercise
  • Oral Presentations
  • Organizational Conflict of Interest (OCI)
  • Page Limitations
  • Past Performance
  • Past Performance Information Retrieval System (PPIRS)
  • Performance Based Standards
  • Permits and Responsibilities
  • Personal Conflicts of Interest
  • Post-Award Changes to the Contract
  • Post-Protest Re-Evaluations
  • Practicable Alternative
  • Pre-Award Protest
  • Pre-award vs. Post-award Requirements
  • Pre-Qualification of Offerors
  • Pre-Solicitation Notice
  • Prejudice
  • Price Calculation Error
  • Price Calculation Error
  • Price Evaluation
  • Price of FSS Task Order Quote
  • Price Realism
  • Price Reasonableness
  • Price Reduction
  • Procurement Announcement
  • Procurement Integrity
  • Product Testing
  • Proposal Acceptance Period
  • Proposal Detail
  • Proposal Evaluation
  • Proposal Extension
  • Proposal Standards
  • Proposals
  • Protest Terms of Solicitation
  • Protester Comments
  • Public-Private Competition
  • Randolph-Sheppard Act (RSA)
  • Rate Tenders
  • Re-Certification of Size Status
  • Reconsideration
  • Reevaluation
  • Reevaluation Standards
  • Reimbursement of Protest Costs
  • Rejection of Proposal
  • Relaxation or Waiver of Requirement
  • Relevancy of Past Performance
  • Reliance on the Proposal
  • Remedies
  • Requirements Contract
  • Responsibility
  • Responsiveness
  • Restricted Competition
  • Resumes
  • Revision of Proposal
  • Revision of Proposals
  • Risk
  • Rule of Two
  • SBA Status protest
  • Scope of GAO Review
  • SDVOSB Set-Asides
  • Significant Issue Exception
  • Simplified Acquisition Procedures
  • Site Visit
  • Size Determination
  • Size Protest
  • Small Business Innovation Research (SBIR) Program
  • Small Business Set-Asides
  • Small Business Subcontracting Goals
  • Sole-Source Award
  • Solicitation Amendment
  • Solicitation Requirements
  • Source Approval
  • Source Selection Authority
  • Source Selection Decision
  • Source Selection Plan
  • Sources Sought Notice
  • Staffing Plan
  • State and Local Requirements
  • Status of Forces Agreement (SOFA)
  • Subcontract Protest
  • Subcontractor Experience
  • Suspension and Debarment
  • Taking Exception to RFP Requirements
  • Task Orders
  • Teaming Agreement
  • Technical Acceptability
  • Technical Evaluation
  • Technical Evaluation
  • Termination of Award
  • Terms of the Solicitation
  • Timeliness of Protest
  • Timely Filing
  • Timely Performance
  • Timely Proposal Submission
  • Trade Agreement Act
  • Unbalanced Pricing
  • Unduly Restrictive Terms
  • Unequal Access to Information
  • Unequal Treatment of Offerors
  • Uniform Time Act of 1996
  • Unstated Evaluation Criteria
  • Unusual and Compelling Urgency
  • Use of Appropriated Funds
  • Veterans First
  • VIP Database
  • VOSB Set Asides
  • Wage Determination

Get Help


Talk to an
attorney who
specializes
in bid protests:

+1-571-223-6845
Email

Keep up to date
on bid protest
decisions and
policies:

© 2022 Bid Protest Weekly

  • LinkedIn
  • Google +
  • Twitter
  • Facebook
  • Home
  • Bid Protest Ed Center
  • Blog
  • Topics
  • About Us
  • Contact Us
  • Home
  • Bid Protest Ed Center
    • WHAT is a bid protest?
    • WHO can file a bid protest
    • DO I need an Attorney?
    • WHY Should you file a bid protest?
    • WHEN Must you file a bid protest?
    • WHERE can you file a bid protest?
    • READING the RFP
  • Blog
  • Topics
  • About Us
  • Contact Us
  • LinkedIn
  • Google +
  • Twitter
  • Facebook

+1-571-223-6845