American Auto Logistics, Lp v. United States

In the United States Court of Federal Claims

No. 14-102C

June 24, 2014

Redacted Version Issued for Publication: July 31, 20141

* * * * * * * * * * * * * * * * * * * *

*

AMERICAN AUTO LOGISTICS, LP

*

Protestor, *

*

v. * United States Transportation

* Command; Past Performance

UNITED STATES, Evaluation; Performance Price

*

Defendant, * Tradeoff; Commercial

* Marketplace; Global Privately-

v. * Owned Vehicle Contract.

INTERNATIONAL AUTO LOGISTICS, *

LLC *

*

Defendant-Intervenor. *

* * * * * * * * * * * * * * * * * * *

Timothy Sullivan, Law Offices of Thompson Coburn, LLP, Washington, D.C., for

protestor. With him was Katherine S. Nucci, Thompson Coburn, LLP, Scott F. Lane,

Thompson Coburn, LLP, and Jayna Marie Rust, Thompson Coburn, LLP, of counsel.

J. Byran Warnock, Trial Attorney, Commercial Litigation Branch, Civil Division,

United States Department of Justice, Washington, D.C., for defendant. With him were

Martin F. Hockey, Jr., Assistant Director, Robert E. Kirschman, Jr., Director,

Commercial Litigation Branch, Civil Division, and Stuart F. Delery, Assistant Attorney

General, Civil Division. Also with him were J. Toby Harryman, Agency Counsel, United

States Transportation Command, and Christopher S. Cole, Trial Attorney, Air Force

Legal Operations Agency, of counsel.

Jon Davidson Levin, of counsel, Law Offices of Maynard, Cooper, & Gale, PC,

for defendant-intervenor. With him were Gary L. Rigney, Maynard, Cooper, & Gale,

PC, W. Brad English, Maynard, Cooper, & Gale, PC, and J. Andrew Watson, III,

Maynard, Cooper, & Gale, PC, of counsel.

1

This opinion was issued under seal on June 24, 2014. The parties were asked to

propose redactions prior to public release of the opinion. This opinion is issued with

some of the redactions that the parties proposed. Some additional redactions, although

not proposed by the parties, are added in the interest of consistency. Words which are

redacted are reflected with the following notation: “[redacted].”

OPINION

HORN, J.

Protestor, American Auto Logistics, LP, filed a post-award bid protest on

February 5, 2014, challenging the award by the United States Transportation Command

(TRANSCOM) of a procurement contract, for “transportation and storage services with

respect to privately-owned vehicles” of military service members and Department of

Defense civilian employees, to International Auto Logistics, LLC. The contract was

awarded under solicitation HTC711-13-R-R003, also known as the Global Privately-

Owned Vehicle Contract III (GPC III) solicitation. International Auto Logistics intervened

in the protest. Before bringing suit in this court, protestor filed a post-award protest with

the Government Accountability Office (the GAO), which was denied. Protestor alleges in

this court that “TRANSCOM’s evaluation of IAL’s [International Auto Logistics’] past

performance proposal submitted in response to the RFP [Request for Proposal] was

unreasonable and contrary to applicable law and the terms of the RFP,” and that

TRANSCOM’s source selection decision, favoring International Auto Logistics’ lower

price over American Auto Logistics’ higher past performance rating, “was unreasonable

and contrary to applicable law and the terms of the RFP.” In a hearing before this court,

protestor also alleged that, in order to perform the awarded contract, International Auto

Logistics proposed to subcontract with “a fairly notoriously debarred company,” with

protestor alleging the name of the debarred or suspended company to be Agility

International or Agility Defense and Government Services.

Protestor seeks “injunctive and declaratory relief prohibiting TRANSCOM and IAL

[International Auto Logistics] from proceeding with performance of the GPC III Contract

awarded to IAL,” a finding that the source selection authority’s decision was “arbitrary

and capricious, an abuse of discretion, and contrary to the RFP's criteria and applicable

law,” and an order from the court “requiring TRANSCOM to conduct a new evaluation

of IAL's past performance proposal and make a new source selection decision in strict

accordance with the RFP and applicable law.” Defendant agreed to stay further

performance of the TRANSCOM contract awarded to International Auto Logistics for a

brief period of time in order to allow the litigation to proceed. The court issued an oral

decision to the parties denying protestor’s motion for injunction relief. This opinion

reduces to writing the prior oral decision delivered to the parties.

FINDINGS OF FACT

TRANSCOM describes itself in its GAO agency report as:

responsible for the movement of Department of Defense (DoD) personnel

and cargo worldwide in support of peace, wartime, and contingency

operations. As part of its mission, USTRANSCOM supports the

requirement of its Component Command, the Military Surface Deployment

and Distribution Command (SDDC), for complete transportation services

for the movement of privately-owned vehicles (POVs) belonging to U.S.

2

Military Service Members and civilian employees of U.S. Government

globally.

In the GAO agency report, TRANSCOM indicated that its component command, the

United States Army Military Surface Deployment and Distribution Command, provides

“receipt, delivery, and processing of POVs, arranging for ocean transportation, customs

clearance and agriculture inspections, transportation between vehicle processing

centers (VPCs) and ports,” as well as long-term storage. See also Component

Commands, About USTRANSCOM, U.S. Transp. Command,

http://www.transcom.mil/about/cocom.cfm (last modified Feb. 8, 2012). It appears that

“[a]s part of its mission, USTRANSCOM supports the requirement[s] of its Component

Command,” the Military Surface Deployment and Distribution Command. Protestor

maintains that it has performed these services for fifteen years for TRANSCOM under

two contracts, the Global Privately-Owned Vehicle Contract I (GPC I), and then the

Global Privately-Owned Vehicle Contract II (GPC II).

According to defendant’s agency report to the GAO: “Because the GPCII contract

was 10 years old, the Agency conducted extensive market research, including

numerous opportunities for industry engagement, to determine the best commercial

solution for the GPCIII requirement.” Defendant further maintained in its agency report

that on November 14, 2011, the agency made a request for information in preparation

for the GPC III solicitation as part of this market research. The request for information,

titled “Global Privately Owned Vehicle (POV) Contract (GPC III) Request for

Information,” stated:

USTRANSCOM is seeking information to determine the availability and

technical capability of the business community to provide complete

logistics of transportation and storage services of Privately Owned

Vehicles (POVs) belonging to U.S. service members and DOD civilian

employees worldwide. The overall scope of this program is to provide for

the receipt, processing, transportation, storage, and delivery of vehicles at

Continental United States (CONUS) and Outside the Continental United

States (OCONUS) locations worldwide.

Services include operating multiple vehicle processing centers (VPCs) in

CONUS and OCONUS to receive/deliver customers' POVs, preparing

POVs for shipment, and ensuring all necessary agriculture and customs

clearances are accomplished; arranging for and/or providing ocean and

inland transportation of the POVs between VPCs and other designated

locations; providing information on the status and location of POV

shipments as well as other program information; resolving POV loss

and/or damage claims with customers, and with the Government; and

storage to include maintenance of POVs.

Global Privately Owned Vehicle (POV) Contract (GPC III) Request for Information,

FedBizOps.Gov (Nov. 14, 2011, 11:23 a.m.),

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https://www.fbo.gov/index?s=opportunity&mode=form&tab=core&id=f6c51b361ab6fb97

9c21d6e428361c41&_cview=1. The request for information issued by TRANSCOM

inquired, in part:

Is the work associated with this contract [GPC III] considered "commercial"

as defined at Federal Acquisition Regulation (FAR) 2.101(services [sic] of

a type offered and sold competitively in substantial quantities in the

commercial marketplace based on established catalog or market prices for

specific tasks performed or specific outcomes to be achieved and under

standard commercial terms and conditions)? Please provide your

rationale.[2]

The record before the court indicates that on December 12, 2011, five companies

responded to the request for information, with four respondents responding affirmatively

to the above question. [Redacted] responded: “Yes. All of our POV Storage work has

been performed under a Government Contract.” [Redacted] stated:

[Redacted] considers the work associated with this contract as commercial

based on the definition provided in FAR 2.101. The specific services

included within the scope of this bid are of a type and quantity transacted

in the commercial marketplace. Vehicle handling, storage, transportation

and repair work are all services performed and achieved under

commercial terms and conditions. The company performs many of these

services within its other commercial contracts today.

Another respondent, [redacted], stated: “Yes. The storage and transporting of vehicles

is a service that is offered, sold and available to the general public by specific

companies and independent contractors on a commercial basis.” [Redacted] remarked

that “[d]ue to the definition of a ‘commercial item’ held within the Federal Acquisition

Regulation (FAR), this contract would be considered ‘commercial.’” (quoting FAR

2.101(b)). Protestor, American Auto Logistics, responded, however, that it “does not

consider the work associated with this contract as ‘commercial’ as defined in FAR

2.101. AAL [American Auto Logistics] solely supplies its services to the Military Surface

Deployment and Distribution Command and does not participate in the commercial

market.”

Subsequently, TRANSCOM published a “MARKET RESEARCH REPORT” for

the “Global Privately Owned Vehicle Contract (GPC) III,” dated May 18, 2012.

(emphasis and capitalization in original). The government’s market research report

stated:

The Global Privately-Owned Vehicle Contract III (GPC III) requirement

includes (1) operating multiple vehicle processing centers (VPCs) in the

2

As explained more fully below, the term “commercial item” is defined in 48 C.F.R.

§ 2.101 (2013).

4

Continental United States (CONUS) and Outside of the Continental United

States (OCONUS) to receive and/or deliver customers' POVs, (2)

preparing POVs for shipment, and ensuring all necessary agriculture and

customs clearances are accomplished; (3) arranging for and/or providing

ocean and inland transportation of the POVs between VPCs and other

designated locations; (4) providing information on the status and location

of POV shipments as well as other program information; (5) resolving POV

loss and/or damage claims with customers and with the Government; and

(6) storing POVs in accordance with this contract. Although the movement

of POVs is worldwide, the long term storage of POVs will happen in

CONUS.

The May 18, 2012 market research report further stated that “[t]he objective of this

market research report is to gather and analyze information on all aspects of logistics

required in the movement and/or storage of privately-owned vehicles (POVs) which are

the property of U.S. service members and/or civilians.” The market research report

continued:

USTRANSCOM posted a Request for Information (RFI) to FedBizOpps

(FBO) on 14 November 2011. A market research questionnaire was

included for data collection and analysis purposes. . . . In addition, a

review of Internet sources, historical acquisition information, previous

market research from the 2003 SDDC Contracting Center for the GPC II,

was undertaken to locate sources.

Using the findings from the November 14, 2011 request for information in its

market research report, TRANSCOM made a positive determination as to the

commercial nature of the work involved within the GPC III program:

The work associated with the GPC II contract was determined a

“commercial item” under the Federal Acquisition Regulation (FAR) at

subpart 2.101. FAR subpart 2.101 defines a service as a commercial item

when it is “a type offered and sold competitively in substantial quantities in

the commercial marketplace based on established catalog or market

prices for specific tasks performed or specific outcomes to be achieved

and under standard commercial terms and conditions.” The GPC II was

awarded following FAR Part 12 (Acquisition of Commercial Items)

procedures. The GPC III requirement is the continuation of the work

performed under the GPC II contract and it too is determined a

commercial item. This determination agrees with the market survey where

four (4) of the five (5) [80%] of the RFI respondents agreed that the

services associated with this effort are commercial. These RFI

respondents provide the transportation and/or storage of vehicles as a

service commonly offered to the general public, in substantial quantities,

and at competitive market prices.

5

The incumbent contractor’s response states that the services sought

under the GPC III requirement are not commercial. The basis for its

response is that the incumbent does not offer the same services

commercially. The incumbent’s interpretation, however, does not preclude

the services from being “commercial” under the FAR definition. As noted

above, 80% of the companies which responded to the RFI concluded that

the services were commercial (See, Attachment 1). Because the services

fall within the definition in FAR 2.101 and it is very probable the needs of

the Government can be met through the commercial market, it has been

determined that this requirement is “commercial.” (See, FAR 2.101 and

DFARS 212.102).

(brackets in original). The market research report also discussed TRANSCOM’s findings

regarding other elements of the GPC III solicitation, including the pricing arrangement,

period of performance and performance incentives, contractor transition, technical

requirements, and small business concerns. The report came to the following

conclusions:

As a result of the market research, a determination has been made that

the Government needs can be met through the commercial marketplace.

Therefore, it has been determined this requirement is commercial. The

requirement will have a firm-fixed price (FFP) CLIN structure and will be a

commercial services contract under FAR Part 12 --Acquisition of

Commercial Items-- and the Government will solicit bids on a full and open

competitive basis.

After issuing the May 18, 2012 market research report, on October 25, 2012,

another request for information was submitted via e-mail, by Ms. Marie T. Pendergast, a

contracting officer for TRANSCOM, under the subject heading “Market Research -

Global Privately Owned Vehicle (POV) Contract (GPC III).” Eight companies responded

to the e-mail request for information, including the protestor, as well as International

Auto Processing, the parent company of intervenor, International Auto Logistics. The

other companies that responded were [redacted]. Under the topic of pricing,

TRANSCOM asked: “How can the Government simplify the pricing structure?” Three

respondents, [redacted], [redacted], and [redacted], indicated in separate, but identical

responses, that the current arrangement “is as simple as possible,” while [redacted]

stated it “is simpler that [sic] what is done commercially,” and [redacted] stated that “the

current structure of a VPC to VPC rate provides the best value to the government.”

American Auto Logistics, [redacted] and [redacted] did not respond to the question.

TRANSCOM also asked about: “Vehicle Processing Centers Network (VPC). Is

there a commercial alternative to the VPC network? How can the Government simplify

POV processing?” To the first question, American Auto Logistics responded, “[s]hould

the Government desire to simplify POV processing, it would need to balance the

benefits of simplification to the consequences of Quality of Life and Quality Assurance

objectives of the program . . . .” [Redacted] indicated “[t]here is, but your service level

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would not be the same,” and [redacted] stated “[t]here isn't a commercial network that

can handle the volume and seasonality of the GPC. Most commercial systems handle

only a few cars a day, at most, and certainly doesn't have the storage capability to

handle this contract.” [Redacted] stated, “[m]ixing this program with a commercial

program could and most likely would reduce the extremely high level of service.”

[Redacted] and [redacted] both made separate responses, but stated, in identical

language, that “[t]here are potentially multiple commercial networks that might work.”

Both also stated, “[h]owever, currently 99 % of all revenue generated at the current VPC

network is generated from the GPC making it virtually an exclusive network. . . . Most

commercial alternatives would not have the excess space or acreage needed [sic]

handle the GPC, negating most of or all cost advantage,” and that “[m]ost foreign VPCs

are GOCOs [Government-Owned, Contractor-Operated]. An alternative to a commercial

solution could be to make the US VPC’s [sic] GOCOs.” [Redacted] responded, “[w]hile

there is the option of using a completely commercial solution for this requirement,

[redacted] believes this would reduce the level of service currently provided.” [Redacted]

indicated that it uses a commercial VPC, but, with regards to the TRANSCOM Privately-

Owned Vehicle Contract, “[t]he issue we see is finding the land within the port area to

handle the operation.” [Redacted] offered no response to this question. On December

12, 2012, TRANSCOM sent a follow up e-mail to members of the industry, stating:

“Previously, we asked for information on any commercial alternatives to the VPC

network currently in place. More specifically, we are seeking input on the concept of

door-to-door service which is more commercial in nature.” [Redacted], in its response,

noted that: “We think there is a lot of merit in exploring existing commercial

infrastructure as an alternative to contractors setting up and maintaining separate VPC’s

[sic] outside of a commercial structure.”

On November 27, 2012, TRANSCOM held a “Global POV Contract III Industry

Day” to discuss the GPC III solicitation, which was attended by some of the industry

participants which had responded to the prior requests for information. From the

minutes of the event provided in the record, American Auto Logistics and [redacted],

among others, sent a joint delegation, and [redacted] and [redacted] sent a joint

delegation. The “Industry Day” meeting included a “Procurement & Requirements

Overview” with Ms. Pendergast, the TRANSCOM contracting officer, a question and

answer session, and individual breakouts. (emphasis in original). In one of the “Industry

Day” presentations, the slides of which are in the record, TRANSCOM listed a

“Requirements Snap Shot,” which stated: “Contractor shall provide all personnel,

supervision, training, and equipment necessary to perform PWS [Performance Work

Statement] tasks for shipment and storage of POVs globally.” The expected

transportation volume of privately-owned vehicles was estimated in the presentation to

be “[a]pproximately 66,500 a year,” with “[a]pproximately 8,500 POVs in storage at a

time.” The presentation also made clear that the upcoming solicitation would be a firm

fixed price contract and a best value source selection. The minutes from the “Industry

Day” meeting also reflect that TRANSCOM was asked, but was unable to clarify at that

time, what factors would be used to determine “best value.” Subsequently, the agency

issued draft performance work statements. Both performance work statements

discussed the technical requirements offerors were to meet under GPC III.

7

On February 12, 2013, TRANSCOM issued an “ACQUISITION PLAN” for the

“GLOBAL PRIVATELY OWNED VEHICLE CONTRACT III (GPC III).” (emphasis and

capitalization in original). The acquisition plan discussed the proposed technical and

price requirements for the GPC III solicitation, and gave the background of the prior

GPC I and GPC II contracts. Under “Capability or Performance,” the acquisition plan

stated, “[t]he Government will require the contractor to deliver POVs on time to the

correct destination for 98% of shipments per month,” and “[t]he contractor is required to

achieve a satisfactory or better overall customer service level on 95% of comment cards

submitted.” (emphasis in original). Under “Trade-offs” (emphasis in original), the

document stated:

The Government will conduct a Past Performance Price Tradeoff (PPT)

source selection in which competing offerors' past performance history will

be evaluated on a basis approximately equal to cost or price

considerations. Each offeror’s business proposal, technical proposal, and

small business subcontracting plan will be evaluated on an

Acceptable/Unacceptable basis.

Under “Source Selection Procedures” in the ACQUISITION PLAN, TRANSCOM

stated, “[c]ompeting offerors’ past performance history will be evaluated on a basis of

importance approximately equal to price.” (emphasis in original).

On February 25, 2013, TRANSCOM issued a “SOURCE SELECTION PLAN

FOR GLOBAL PRIVATELY-OWNED VEHICLE CONTRACT III.” (emphasis and

capitalization in original). Under “Planned Acquisition Approach,” TRANSCOM stated

that the government would “evaluate using a Past Performance Price Tradeoff (PPT)

source selection approach in accordance with the mandatory DoD Source Selection

Procedures, with past performance and price considered approximately equal.”

(emphasis in original). A document contained in the record, titled “ACQUISITION

STRATEGY PANEL,” also stated that the source selection process would be “Best

Value Source Selection using Past-Performance/ Price Tradeoff (PPT) procedures,”

with “[p]ast performance and price considered approximately equal.” (emphasis and

capitalization in original). Another document in the record, titled “ACQUISITION OF

SERVICES,” dated March 20, 2013, also made similar statements regarding the GPC III

solicitation performance and price tradeoff. (emphasis and capitalization in original).

The solicitation at issue in the above captioned case, solicitation HTC711-13-R-

R003, was issued on May 1, 2013 by TRANSCOM. It was amended ten times. The

administrative record contains the “[c]onformed” solicitation, which is the version this

court considers and references in this opinion. The conformed solicitation, which

includes all ten amendments, required submission of “signed and dated offers on or

before 12:00 pm Central Time on 15 July 2013.”3 (emphasis in original).

3

The ninth amendment to the solicitation was dated July 1, 2013, fifteen days before

proposals were due. The tenth and final amendment to the solicitation was dated

8

The performance work statement, attachment 1 to the solicitation, described the

scope of work required under the solicitation:

1.2. Scope of Work. The contractor shall provide all personnel,

supervision, training, and equipment necessary to perform all tasks as

identified in the PWS for shipments and storage of POVs globally in

accordance with the Defense Transportation Regulation (DTR), Joint

Travel Regulations (JTR), Joint Federal Travel Regulations (JFTR), and all

applicable regulations. The contractor shall assume all responsibility,

liability, and costs for receipt/delivery, processing, and transportation of

the POV from point of receipt to final delivery. The contractor's

responsibilities include, but are not limited to: (1) operating multiple vehicle

processing centers (VPCs), preparing POVs for shipment, and ensuring all

necessary agriculture and customs clearances are accomplished; (2)

arranging for and/or providing inland and ocean transportation of the

POVs; (3) providing Intransit Visibility (ITV) of POV shipments; (4) storage

of POVs; and (5) resolving POV loss and/or damage claims.

(emphasis in original). The performance work statement also explained that, “[t]he

contractor shall operate Vehicle Processing Centers (VPCs) and Quality of Life Sites

(QoLs) in accordance with Appendices A,” including “construction, upkeep, purchase,

lease or rental of any commercial structure, land, or equipment for CO/CO [contractor-

owned and contractor-operated] facilities.”4 In the performance work statement,

TRANSCOM listed the following performance objectives in chart form:

August 27, 2013, six weeks after the proposals was due. The cover sheet to the tenth

amendment indicated that the amendment made only minor changes which are not

relevant to the current dispute before this court. The tenth amendment stated,

specifically, that “[t]he purpose of this [tenth] Amendment is to correct the evaluation

language in the Addendum to FAR 52.212-2 for Technical Subfactor 1 - Transition

Plan.” Protestor’s counsel in the February 7, 2014 hearing alleged, however, “the tenth

amendment here changed the evaluation language somewhat, and that’s the language

you have to focus on with respect to the past performance evaluation.”

4

Appendix A of the solicitation listed nineteen CO/CO vehicle processing centers,

located in the United States and abroad, as well as fifteen government-owned, but

contractor-operated vehicle processing centers, fourteen located outside of the United

States, and one in Guam. Appendix A also listed four Quality of Life sites, all located

outside of the United States.

9

PWS [Performance Work

Statement] PARA PERFORMANCE

PERFORMANCE OBJECTIVE [Paragraph] THRESHOLD

Transport POVs within RDDs 1.3.5.1. & Attachment 4 to

98% per month

[Required Delivery Dates] the contract

Resolve claims directly with

customers using on-site 1.3.11. 95% per quarter

settlement process

Settle claims within 90 days from

1.3.11. 99% per quarter

the date the claim was filed

Rated satisfactory or better for

overall customer service on 1.3.10. 95% per month

comment cards submitted

Adhere to VISA [Voluntary

Intermodal Sealift Agreement] 4.0 100% of shipments

preferences

(emphasis and capitalization in original).

The contract was projected to cover two base periods of, first, ten months, 5 and

then, one year. There also were three option years and an additional, optional, six-

month extension described in the solicitation. The solicitation further specified, “[t]he

total duration of this contract, including the exercise of any options under this clause,

shall not exceed 65 months (includes the 6 month extension).” (emphasis in original).

The record contains two independent government cost estimates, which include

an estimated cost to the government for each period of performance of the GPC III

contract. The cost estimates were both broken down into the following seven

categories: “Full Service,” “Partial Service,” “Ocean Transportation,” “Homeport Move,”

“Storage,” “Door to Door,” and “Out of Pocket.” In a March 6, 2013 estimate, the

government estimated that the cost to the government of the GPC III effort would be

$1,348,114,177.44 for the maximum 65 month term of the contract. In an October 4,

2013 estimate, the government estimated that the cost to the government of the GPC III

effort would be $1,189,863,420.21 for the maximum term of the contract. The October

4, 2013 estimate was used in the government’s final “price analysis,” signed October

17, 2013.

The solicitation stated that “[t]he Government will award a contract resulting from

this solicitation to the responsible offeror whose offer conforming to the solicitation will

be most advantageous to the Government, price and other factors considered.”

According to the solicitation, “[t]he following factors shall be used to evaluate offers:”

5

The record indicates that amendment seven to the solicitation, issued June 25, 2013,

changed the period of performance of the solicitation’s first base period from eleven

months to ten months. The solicitation, as amended, indicated that the first base period

of performance would be from December 1, 2013 to September 30, 2014.

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(1) Business Proposal

(2) Technical Proposal

(A) Subfactor 1 – Transition Plan

(B) Subfactor 2 – Technical Approach

(C) Subfactor 3 – Information Assurance & Cyber Security

(3) Past Performance Proposal

(4) Small Business Proposal

(A) Subfactor 1 – Small Business Subcontracting Plan

(B) Subfactor 2 – Small Business Utilization Strategy

(5) Price Proposal

The solicitation also described TRANSCOM’s evaluation strategy:

This is a competitive best value source selection. The Government will

conduct a Performance Price Tradeoff (PPT) source selection in which

competing offerors' past performance history will be evaluated on a basis

approximately equal to cost or price considerations. Award will be made to

the offeror who is deemed responsible IAW [in accordance with] FAR Part

9, who submits an acceptable business proposal, technical proposal, and

small business proposal, and is judged, based on their past performance

and total evaluated price, to represent the best value to the Government.

This may result in an award to a higher rated, higher priced offeror, where

the decision is consistent with the evaluation factors and the Source

Selection Authority (SSA) reasonably determines that the superior past

performance of the higher priced offeror outweighs the cost difference.

However, the Government will not pay a price premium that it considers to

be disproportionate to the benefits associated with the proposed margin of

service superiority.

The solicitation continued: “The Government intends to evaluate proposals and award a

single contract after conducting discussions with offerors whose proposals have been

determined to be within the competitive range.” TRANSCOM reiterated, in response to a

question from industry, that it “intends to conduct discussions with offerors whose

proposals have been determined to be within the competitive range.”

The business proposal was to be “evaluated to determine whether it complies

with all terms and conditions of the solicitation. Business proposals will be rated as

Acceptable or Unacceptable.” Both the technical and small business proposals were to

be “evaluated as Acceptable or Unacceptable at the subfactor level.” If any subfactor for

either the technical or small business proposals were “rated as Unacceptable” that

particular proposal section would be rated as “Unacceptable.”

Regarding the price proposal, the solicitation stated that a “Total Evaluated Price”

would be determined based on a number of factors and formulas, and that “[t]he

summation of the extended prices for the base period, all options, and the 6-month

11

extension will constitute the TEP [Total Evaluated Price].” The solicitation also stated,

“[i]n order to be considered for award, the Total Evaluated Price (TEP) must be

determined fair, reasonable, and realistic,” and that TRANSCOM would conduct price

reasonableness and realism evaluations as well as separately check for “[u]nbalanced

pricing.” Protestor has not contested the government’s evaluation of any offerors’

business, technical, small business, or pricing proposals.

According to the solicitation, an offeror’s past performance proposal would be

evaluated along a scale:

Using the Past Performance questionnaires submitted by the offeror’s

references , [sic] the offeror’s Past Performance proposal, and other

information independently obtained from Government or commercial

sources (i.e. Past Performance Information Retrieval System, Federal

Awardee Performance and Integrity Information System, electronic

Subcontracting Reporting System (eSRS), Questionnaires tailored to the

circumstances for this acquisition, through Defense Contract Management

Agency channels, or through interviews with Program Managers,

Contracting Officer Representatives and Contracting Officers), the

Government will assign an overall confidence assessment for each

offeror. The purpose of the past performance evaluation is to allow the

Government to assess the offeror’s ability to perform the effort described

in this RFP, based on the offeror’s demonstrated past performance. Each

Past Performance effort will be evaluated on the basis of recency and

relevancy.

The solicitation explained that the government first would “perform an

independent assessment” of the individual past performance references submitted by

the offerors, “determining the recency and then the relevancy of each past performance

effort. To be considered a recent effort, the effort must be currently ongoing or have

been performed within 3 years of proposal submission.” (emphasis in original).

According to the solicitation, the ratings given to each past performance reference were

to be as follows:

RATING DESCRIPTION

Very Relevant Present/past performance effort involved

essentially the same scope and magnitude of

effort and complexities this solicitation

requires.

Relevant Present/past performance effort involved

similar scope and magnitude of effort and

complexities this solicitation requires.

Somewhat Relevant Present/past performance effort involved some

of the scope and magnitude of effort and

complexities this solicitation requires.

12

Not Relevant Present/past performance effort involved little

or none of the scope and magnitude of effort

and complexities this solicitation requires.

The solicitation stated:

Relevancy in regard to scope and magnitude of effort and complexity will

be assessed based on, but not limited to, the similarities between a given

past performance effort and this solicitation in terms of the following for

CONUS and/or OCONUS operations: POV processing, arranging for or

providing ocean transportation, arranging for or providing inland

transportation, customer service, and storage.

The solicitation also stated:

The offeror shall submit no more than three past performance references

for the offeror (prime contractor), public or private, for which the offeror

has performed services within the previous three calendar years similar in

nature to the services described in this solicitation. The offeror shall

submit no more than three past performance references for each major

subcontractor, public or private, for which each subcontractor has

performed services within the previous three calendar years similar in

nature to the services described in this solicitation.

(emphasis in original). For each past performance reference provided, TRANSCOM

instructed offerors to “send out a Past Performance Questionnaire (Attachment L-1) to

each of the offeror’s references identified in a proposal, along with a request for the

reference to complete the questionnaire and return it to the Government by the date

specified for receipt of offers.”

The solicitation explained that, after individually rating each past performance

reference, “overall Past Performance Confidence Assessment ratings will be assigned

to each offeror using the following definitions:”

RATING DESCRIPTION

Substantial Confidence Based on the offeror’s recent/relevant

performance record, the Government has a

high expectation that the offeror will

successfully perform the required effort.

Satisfactory Confidence Based on the offeror’s recent/relevant

performance record, the Government has a

reasonable expectation that the offeror will

successfully perform the required effort.

Limited Confidence Based on the offeror’s recent/relevant

performance record, the Government has a

low expectation that the offeror will

successfully perform the required effort.

13

No Confidence Based on the offeror’s recent/relevant

performance record, the Government has no

expectation that the offeror will be able to

successfully perform the required effort.

Unknown Confidence (Neutral) No recent/relevant performance record is

available or the offeror’s performance record is

so sparse that no meaningful confidence

assessment rating can be reasonably

assigned.

The solicitation also stated that “[t]he relevancy of each contract reference will be

considered in the overall confidence assessment rating for the offeror,” and that “[i]n

assigning an overall confidence assessment for each offeror, the Government will

consider at a minimum: POV processing, arranging for or providing ocean

transportation, arranging for or providing inland transportation, customer service,

storage, overall performance, and small business utilization.” The solicitation also stated

that “[i]n evaluating past performance, the Government will give greater consideration to

information on those contracts deemed most relevant to the effort described in this

RFP.” Additionally, the solicitation stated that: “Past performance regarding predecessor

companies or principal subcontractors that will perform major or critical aspects of this

requirement will be weighted the same (equally as important) as the past performance

information for the offeror.”

The record contains a document with questions asked by industry about the

solicitation. Among the relevant questions, one industry member asked whether “[t]he

past performance evaluation weighting gives the most consideration to relevancy of

past performance, meaning that only the incumbent, as the sole provider of these

services for the past 15 years, will benefit from the price benefit of the tradeoff.” The

government responded: “In this source selection, past performance and price will be

weighted approximately equally. Recency and relevancy of each past performance

effort provided will be considered in the overall confidence assessment rating.”

American Auto Logistics’ proposal was dated July 15, 2013 and described the

protestor’s asserted advantage as “our unmatched experience as contractor of the

Global POV Contract, during which we have established an exclusive network of

facilities, transportation assets, and processes to provide the highest level of customer

service for Service Members . . . .” In its proposal, American Auto Logistics listed under

“The AAL Team Advantage” its “10 years excellent past performance on GPC II,”

“99.4% RDD compliance,” “99.8% customer satisfaction ratings of Excellent/Good,”

“[e]stablished global network of proven subcontractors and affiliates,” “[e]stablished and

exclusive VPC and storage facilities,” “[p]roven and efficient claims site settlement

process,” “[p]roprietary and copyrighted logistics management system with enhanced

functionality to meet or exceed GPC III requirements,” “[e]ffective utilization of qualified

Small Business concerns,” and “[o]pen, collaborative working environment with

USTRANSCOM and GPC program stakeholders.” (emphasis in original). American Auto

Logistics provided a graphic that identified major parts of the “AAL Team:”

14

American Auto Logistics explained in its proposal that it would work with six

“major subcontractors,”6 each of which “played critical support roles in providing the

highest level of GPC support during the past decade,” and each of which “are our

current subcontractors in GPC II.” The following is a summary of American Auto

Logistics’ descriptions of its “major subcontractors,” as discussed in its proposal:

American Auto Logistics’ Major Subcontractors

Subcontractor Description

American Roll-on American Roll-on Roll-off Carrier, “a related company to AAL, is a

Roll-off Carrier vessel operating company and provides Ro-Ro liner services in the

U.S. and internationally.”

American Logistics American Logistics Network, “another related company to AAL,

Network operates a number of VPCs, as well as four storage facilities in the

U.S.”

AP Logistics AP Logistics “is a 50/50 joint venture between ALN [American

Logistics Network] and Pasha established to operate our two Alaska

VPCs.”

Matson Terminals Matson Terminals “manages the Honolulu, Hawaii, VPC, which is the

highest volume full service VPC in the program.”

6

Although at the start of its past performance proposal American Auto Logistics stated

that it has “five major subcontractors,” later on, under its “BRIEF OVERVIEW OF OUR

GPC III MAJOR SUBCONTRACTORS,” American Auto Logistics discussed six

companies, all six of which are described in the accompanying chart. (emphasis and

capitalization in original).

15

The Pasha Group7 The Pasha Group “manages CONUS and OCONUS VPCs, and

provides inland distribution. Pasha also manages POV storage

operations in the states of California and Washington for AAL.”

Transcar “Transcar, a related company to AAL, is responsible for operations in

Europe and has been an AAL partner in the GPC since the inception

of the P5 program in 1994.”

American Auto Logistics stated in its proposal that, “[a]ll major subcontractors are

exclusive to AAL for the life of the GPC III contract.”

American Auto Logistics stated in its small business proposal that, “for the GPC II

contract term to date, AAL has awarded $288 million, representing 45.2% of

subcontracted dollars to small business,” and that “[o]ur Small Business Subcontracting

Plan (Subfactor 1) complies fully with FAR 52.219-9.” American Auto Logistics’ final,

offered, “Total Evaluated Price” was $957,535,151.41. (emphasis in original).

The winning bid was submitted by International Auto Logistics, the intervenor in

this protest, and was dated July 1, 2013. International Auto Logistics explained that it “is

a wholly owned subsidiary of International Auto Processing, Inc. (IAP),” and that:

IAL was established in 2012 as a special-purpose company to source

government bid opportunities, including GPC III. IAL has at its disposal,

complete access to IAP’s robust resources, including port and vehicle

processing expertise, rail and trucking networks, IT systems, quality and

training processes, and commercial business best practice techniques.

IAP has been active in the POV processing business since 1986 and has

processed over 4 million vehicles since its inception.[8]

International Auto Logistics stated in its proposal that, “[o]ur GPC III approach

provides high standards of services to each and every SM [service member]. Our

approach improves overall vehicle processing center (VPC) and vehicle storage

facilities (VSF), reduces vehicle damage, and mitigates legal liability providing SDDC a

best value solution at the lowest cost.” International Auto Logistics highlighted its “Team

7

Although not listed as a “major subcontractor” by American Auto Logistics, the

protestor presented past performance references for a seventh subcontractor, Pasha

Hawaii Transport Lines. According to American Auto Logistics’ proposal, Pasha Hawaii

Transport Lines was created from The Pasha Group in order to “provide new and

competitive service for the movement of rolling stock between the Pacific Coast and

Hawaii.” According to American Auto Logistics, “PHTL [Pasha Hawaii Transport Lines]

has carried 12,091 military POVs for AAL in support of GPC II on our U.S. Flag Jones

Act qualified vessel; we anticipate that 3,865 additional vehicles will load onto PHTL

vessels during the peak summer months of 2013.”

8

Elsewhere the proposal states that International Auto Processing “has processed over

6,000,000 vehicles since its inception.”

16

IAL” approach, stating that, “Team IAL’s key personnel have over 100 years combined,

highly-relevant experience with the GPC Program, starting with the P5 Pilot Program

(94-98), GPC I (98-03), GPC II (03-13), U.S. Flag Ocean Privately Owned Vehicle

(POV) Shipping and Trucking, U.S. Army Installation Management Command (IMCOM)

Deployment Storage, and 2nd POV programs.”

International Auto Logistics further stated in its proposal that “Team IAL consists

of prime offeror International Auto Logistics (IAL), and the following subcontractors:”

 Liberty Global Logistics, LLC

 Horizon Lines, Inc.

 Trans Global Auto Logistics Inc./Global Auto Logistics, LLC

 SDV Command Source, LLC

 Posey Transport Group

 Boyle Transportation

 Vehicle Processing Center of Fayetteville, Inc. (VPC of Fayetteville)

 North American Consulting & Services Company

 Lincoln Properties

International Auto Logistics continued:

Each Team IAL member was handpicked on the basis of experience and

successful performance on highly-relevant GPC, POV, or automotive

processing efforts. Out [sic] team includes experienced U.S. Flag/VISA

and Jones Act participants. In addition, the key personnel that lead our

team have extensive GPC, POV, automobile processing and

transportation experience.

The court summarized International Auto Logistics’ descriptions of its “Team IAL”

subcontractors, as follows:

International Auto Logistics’ “Team IAL” Subcontractors

Subcontractor Description Responsibility

Area for GPC III

Liberty Global Liberty Global Logistics “has been a “US Flag ocean

Logistics USTRANSCOM/SDDC transportation partner since shipping and

February 2009 and transports cargo between U.S. POV logistics”

and international destinations via truck, air, sea and

rail.”

Horizon Lines “Horizon is comprised of two primary operating “VPC operations

subsidiaries. Horizon Lines, LLC, owns or leases a and US Flag

fleet of 15 U.S.-flag container ships and 5 port Jones Act ocean

terminals linking the continental United States with shipping;” Horizon

Alaska, Hawaii, Micronesia and Puerto Rico. Lines was proposed

Horizon Logistics, LLC, offers customized logistics to operate the

17

solutions to shippers from a suite of transportation vehicle processing

and distribution management services, information center in Honolulu,

technology developed by Horizon Services Group, Hawaii.

as well as intermodal trucking and warehousing

services provided by Sea-Logix.”

Trans Global “Global Auto Logistics, LLC (GAL) is a woman- “VPC and VSF

Auto owned small business concern located in a [vehicle storage

Logistics/Global HUBZone and shares common ownership with facility] operations,

Auto Logistics Trans Global Auto Logistics, Inc. (TGAL). TGAL OTR [over-the-road]

was established June 2002 and has offices in CONUS/OCONUS

Texas, Florida, Germany, the U.K., and France transport and

. . . .” “TGAL is a licensed NVOCC [Non-Vessel customs clearance

Operating Common Carrier] and freight forwarder, Services;” Global

and was originally formed to facilitate Global 2nd Auto Logistics was

POV movements that were not included as part of proposed to operate

the GPC programs. . . . TGAL transports seventeen vehicle

automobiles and all types of military, industrial and processing centers

infrastructure cargo types.” “GAL was formed as a and two vehicle

special purpose company, with the goal of storage facilities.9

participating in bidding and obtaining support

contracts with the U.S. Government. GAL relies on

TGAL and its principals for its past performance.”

“For more than 11 years, in the U.S. and in

conjunction with our European offices, we have

been serving U.S. Service Members by facilitating

the shipment of their 2nd POVs.”

SDV Command SDV is a “Veteran’s Administration CVE [Center for “VPC and

Source Veterans Enterprise] certified, Service-Disabled VSF operations;”

Veteran-Owned Small Business (SDVOSB) . . . . SDV Command

SDV’s mission is to provide employment Source was

9

According to the International Auto Logistics proposal, Global Auto Logistics was

proposed to operate the contractor-owned and operated vehicle processing centers in

or near Dallas, Texas, San Diego, California, Brandon, United Kingdom, and Rota,

Spain. Intervenor’s proposal also stated that Global Auto Logistics would manage a

contractor-owned and operated vehicle processing center in “Ausano, Italy,” however,

the court could not identify a city by that name. The solicitation, as well as American

Auto Logistics’ proposal, however, indicate that this vehicle processing center is to be

located in “Aviano, Italy.” The International Auto Logistics proposal also stated that “[a]ll

GO/COs [will be] operated by GAL except Guam, Taegu & Seoul (operated by IAL) and

Ankara [operated by North American Consulting Services Company];” which consists of

twelve government-owned, contractor-operated vehicle processing centers in Europe,

located, according to the solicitation, in or near: Chievres, Belgium, Schinnen, the

Netherlands, Baumholder, Germany, Boeblingen, Germany, Grafenwoehr, Germany,

Kaiserslautern, Germany, Schweinfurt, Germany, Spangdahlem, Germany, Wiesbaden,

Germany, Naples, Italy, Sigonella, Italy, and Vicenza, Italy. Global Auto Logistics also

was proposed to operate the Arlington, Texas, and Lacey, Washington vehicle storage

facilities.

18

opportunities to service-disabled Veterans and their proposed to operate

family members through work on Government the Atlanta,

(Federal, State and local) and select private sector Georgia, St. Louis,

contracts,” “most recently in processing, storing, Missouri, and San

maintaining and out-processing POVs for Soldiers Juan, Puerto Rico

deployed to Iraq, Afghanistan, and other selected vehicle processing

AORs [Areas of Responsibility].” “As the prime centers. It was

contractor on the U.S. Army Installation proposed to

Management Command (IMCOM) POV Storage – manage the

West Region contract, SDV Command Source Kingstree, South

operated VPC and Vehicle Storage Facilities (VSF) Carolina vehicle

at seven (7) locations/installations in five (5) storage facility.

western States.”

Posey Transport “Posey Transport Group (Posey) provides vehicle “OTR CONUS

Group transport services across the continental United transport.”

States and Canada.” (emphasis removed).

“Beginning in 2010, Posey provided POV transport

services as a subcontractor to SDV Command

Source (also a Team IAL member company) under

an Army IMCOM contract.

Posey’s services include relocation services for

auto dealerships, specialty vehicle manufacturers,

and individuals. Our truck brokering services are

built on an extensive network of carrier and driver

resource.”

Boyle “Boyle Transportation is the premier Transportation “VPC and VSF

Transportation Protective Services provider to the DOD and operations;” Boyle

defense industry shippers of security-sensitive Transportation was

cargo.” Its capabilities include “operation of a VPC proposed to operate

and three VSF sites for the Global POV Contract II, the Charleston,

and servicing approximately 3,000 vehicles each South Carolina

month.” Boyle Transportation also provides vehicle processing

consulting services related to “VPC and storage center, and the

facility operations for IMCOM requirements.” Graniteville, South

Carolina vehicle

storage facility.

VPC of VPC of Fayetteville provides “POV storage “VPC

Fayetteville solutions for service members,” and “ensure[s] and VSF

each vehicle is indoors, protected from the operations;” VPC of

elements and vandalism, and monitored 24 hours a Fayetteville was

day. VPC of Fayetteville is experienced in military proposed to operate

affairs and specializes in assisting service the Winnsboro,

members.” (emphasis removed). South Caroline

vehicle storage

facility.

North American North American Consulting Services “has provided “VPC operations

Consulting vehicle processing, transportation, and customer and OTR transport

Services services since 2003.” (emphasis removed), with (Turkey);” North

“[o]ver 35 years of experience operating VPCs and American

19

coordinating transportation of items.” (emphasis Consulting Services

removed). “NACS provides OCONUS vehicle was proposed to

processing and over the road transportation operate the Incirlik,

services, as well, focusing on markets in Turkey.” Turkey, Izimir,

Turkey, and Ankara,

Turkey vehicle

processing centers.

It also was

proposed to operate

the Pomona,

California, and

Chino, California

vehicle storage

facilities.

Lincoln Property “Lincoln offers a full range of asset management, “[R]eal estate

Company property management, and construction advisory and agent

management services.” “Lincoln’s experience services.”

relevant to GPC III includes the identification,

qualification, assessment and leasing of over 1.2

million sq. ft. of vehicle processing and storage

facilities under an IMCOM POV Storage – West

contract.” “As part of the proposal development

process, Lincoln advised and assisted Team IAL in

identifying and selecting every CO/CO VPC and

storage location we have proposed . . . .”

Didlake10 Didlake is an “AbilityOne directed subcontractor Didlake was

providing Norfolk, VA VPC operations.” “Didlake proposed to operate

offers new, life-enriching opportunities for people the Norfolk, Virginia

with disabilities.” vehicle processing

center.

Unlike American Auto Logistics, International Auto Logistics spent a significant

portion of its proposal discussing its proposed personnel as “very relevant and

applicable to the Government’s assessment of our team’s past performance.”

According to International Auto Logistics, that included “team member company

personnel performing and/or supporting major or critical elements of the GPC III

contract.” In its proposal, International Auto Logistics profiled eighteen individuals from

“Team IAL,” including Doug Tipton, the president of International Auto Logistics, and a

Senior Vice President of the parent company, International Auto Processing, who “was

an executive for 5 years with American Shipping & Logistics, Inc., the parent of the

incumbent American Auto Logistics, Inc. (AAL).” The International Auto Logistics

proposal noted that, “as Executive Vice President and COO [Chief Operating Officer] of

AAL, Mr. Tipton traveled to over 75% of the current VPCs and storage sites while

10

Didlake was not included as a subcontractor in the list of subcontractors on the first

page of intervenor’s past performance proposal, and no past performance references

were offered for Didlake. Didlake was included, however, elsewhere in the intervenor’s

proposal.

20

Program Manager for the GPC II.” Additionally, the proposal noted that Rob Miller, the

“Chairman of International Auto Logistics,” is the President and Chief Executive Officer

of the intervenor’s parent company, International Auto Processing. The proposal also

profiled the leadership of many of the subcontractors of “Team IAL.” Of particular

relevance, International Auto Logistics profiled three members from Global Auto

Logistics and Trans Global Auto Logistics. The proposal profiled Kay Lester, president

and owner of both Global Auto Logistics and Trans Global Auto Logistics. The proposal

stated Ms. Lester has “30+ years experience in the field of POV handling, transportation

and shipping for Commercial Customers,” and “13+ years experience in setting up

VPCs.” The proposal also profiled Anthony Lester, stating that he is the Vice President

of Trans Global Auto Logistics [TGAL], and that “Tony has been with TGAL since its

inception in 1997, providing management and logistics of 2nd POV door to door

shipments for U.S. Military force members both Domestic and Overseas.” In addition,

International Auto Logistics profiled Joachim Wetz, the “TGAL General Manager, Vice

President of European Operations,” and “General Manager and VP of Transglobal Auto

Shipping European Branch.” The proposal stated that Mr. Wetz has “30+ years

experience in POV – shipping, customer service, and claims handling,” and

“[o]perational experience with GPC I and GPC II with TRANSCAR (subcontractor of

AAL).”

International Auto Logistics also submitted a small business proposal, in which it

described its small business utilization strategy, stating, “[w]e have assigned a GPC III

Subcontract Plan Administrator (SPA) to ensure we meet our obligations under FAR

52.219-9, Small Business Subcontracting.” The proposal also noted that “Team IAL is a

Small Business and Veteran Participation Leader—We Exceed Small Business

and Veteran-owned Small Business Subcontracting Goals.” (emphasis in original).

International Auto Logistics indicated in a chart in its proposal that its goal was to award

24.6% of its total contract dollars to small businesses, as follows:

In its pricing proposal, International Auto Logistics offered “[z]ero transition cost

pricing,” and claimed it would spread capital costs over the life of the award in order to

remain cost competitive with the incumbent American Auto Logistics. (emphasis in

21

original). After TRANSCOM’s initial review of proposals, International Auto Logistics

updated its price proposal in response to a notice from TRANSCOM that certain line

items in the initial pricing proposal “appear to be high (unfair and unreasonable) as

evaluated using the techniques set forth in FAR 15.404-1(b)(2).” International Auto

Logistics’ final, offered, “Total Evaluated Price” was $919,233,416.75. (emphasis in

original).

According to the record, five offerors submitted proposals in response to the

GPC III solicitation: International Auto Logistics, American Auto Logistics, [redacted],

[redacted], and [redacted]. According to a TRANSCOM “SOURCE SELECTION

EVALUATION BOARD (SSEB) TEAM TRAINING” document, a Source Selection

Evaluation Board was to first conduct initial evaluations in order to establish a

competitive range. (capitalization and emphasis in original). Then, initial evaluation

notices would be sent to offerors and discussions would be conducted, after which the

government would accept revised interim proposals. After submission of the revised

interim proposals, offerors would have one more chance to submit final proposal

revisions, after which the Source Selection Evaluation Board would complete its report.

Following the issuance of the Source Selection Evaluation Board report, the Source

Selection Advisory Council would perform a comparative analysis, if required.

Thereafter, the source selection authority would make her final source selection

decision.

The Source Selection Evaluation Board rated the final business, technical, and

small business proposals for all five offerors as Acceptable. The Source Selection

Evaluation Board also determined that the final Total Evaluated Prices for American

Auto Logistics and International Auto Logistics were “fair, reasonable, and realistic.”

Neither of these conclusions by TRANSCOM are disputed in the case before the court.

According to the record and parties’ joint submission, American Auto Logistics

submitted eighteen past performance references, two for American Auto Logistics as

the prime contractor, and sixteen for its proposed subcontractors. Both of American

Auto Logistics’ past performance references were rated as “Very Relevant.” The past

performance questionnaires for American Auto Logistics’ references indicated

“Exceptional” performance for one reference, and “Very Good to Exceptional”

performance for the other. American Auto Logistics’ subcontractor, The Pasha Group,

submitted one past performance reference, which was also rated as “Very Relevant,”

and the “[p]ast performance questionnaire indicated overall Exceptional Performance”

related to that effort. The government reviewed six past performance references for

Matson Terminals, one of which was rated as “Very Relevant.” For that reference, the

“[p]ast performance questionnaire indicated overall Very Good Performance.” Of the

remaining fourteen references, thirteen were rated as “Somewhat Relevant,” with the

government indicating between satisfactory and exceptional performance for those

efforts. One reference, from Transcar, reference “W564KB-12-D-0014 James D’Attlo,”

was rated by the government as “Not Relevant.” All of American Auto Logistics’

eighteen references were also determined to be “recent,” meaning that they were

“currently ongoing or have been performed within 3 years of proposal submission.” In

22

coming to an overall past performance rating for American Auto Logistics, the Source

Selection Evaluation Board stated the following:

Most significant and of greatest consideration was AAL’s two Very Good –

Exceptional past performance references for its Very Relevant (VR)

current contract providing all of the same services required (POV

processing, arranging for/providing ocean and inland transportation,

customer service, storage), with both CONUS and OCONUS operations,

under a single long term contract of the same magnitude and scope as

required in this solicitation. Also considered significant and given

substantial consideration was the Very Good - Exceptional past

performance of two of AAL’s subcontractors on VR efforts providing all of

the same services required (POV processing, arranging/providing ocean

and inland transportation, customer service, and storage), with both

CONUS and OCONUS operations, under a single contract of the same

magnitude and scope as required in this solicitation. The Government also

considered, though less significantly, the Satisfactory-Exceptional past

performance on the SR [Somewhat Relevant] references, which

considered together, reflect further successful performance of all of the

services required by this solicitation (POV processing, arranging

for/providing ocean and inland transportation, customer service, and

storage) with both CONUS and OCONUS operations. Overall, the offeror’s

past performance for all efforts considered reflect Satisfactory –

Exceptional ratings, with the performance on the VR references rated Very

Good to Exceptional. The Government also considered AAL’s

documented Very Good past performance in Small Business

Subcontracting Utilization. A Confidence Assessment Rating of

Substantial Confidence was assigned as the Government has a high

expectation the offeror will successfully perform the required effort.

The source selection authority agreed with the Source Selection Evaluation Board to

award American Auto Logistics a “Substantial Confidence” overall past performance

rating, the highest possible rating, and noted that “the Government has a high

expectation AAL will successfully perform the required effort.” TRANSCOM’s choice to

give American Auto Logistics a past performance rating of “Substantial Confidence” also

is not in dispute in the above captioned case.

Regarding International Auto Logistics, as part of its initial past performance

evaluation, TRANSCOM reviewed twenty-six past performance references, some

submitted by International Auto Logistics, and some identified by the agency through its

Past Performance Information Retrieval System. The Source Selection Evaluation

Board, after conducting its initial review, identified three potential issues related to past

performance. First, the Source Selection Evaluation Board noted that for one of

International Auto Logistics’ subcontractors, Horizon Lines, a past performance

reference found by the agency had a low performance rating: “The Government

considered that Horizon, one of IAL’s subcontractors, has Unsatisfactory ratings on one

23

reference, however pending IAL’s response to the EN [Evaluation Notice], this rating is

of minimal concern.” Additionally, TRANSCOM noted that International Auto Logistics’

“evaluated performance is through its parent company, International Auto Processing

(IAP). Evaluation Notice (EN IAL-0009) will be sent to verify the relationship specific to

this contract between IAL and IAP.” TRANSCOM also noted that Global Auto Logistics,

another of intervenor’s subcontractors, “shares common ownership with Trans Global

Auto Logistics (TGAL) and relies on TGAL for their past performance record. Evaluation

Notice (EN IAL-0010) will be sent to verify the relationship specific to this contract

between GAL and TGAL.”

International Auto Logistics responded to the three evaluation notices issued by

TRANSCOM. In response to the evaluation notice regarding Horizon Lines,

International Auto Logistics attached additional documents which it stated “shows a

reenergized Horizon Lines being an ALPHA carrier meeting RDD 98.7% of the time with

an ITV [In-Transit Visibility] percentage of 97.0%. This performance level continues with

the supporting evidence in our proposal reflecting Horizon’s 100% 90-day rolling

performance rating.” International Auto Logistics also stated:

IAL noted in its vendor prequalification audits that in mid-2012 Horizon put

in place new procedures and timely RDD reporting mechanisms that

clearly showed exemplary performance measurements in the later time

window. Horizon operationally addressed weaknesses in the

USTRANSCOM-cited CPAR for break bulk cargo by initiating a procedure

for monitoring and reporting Gate Out and Delivery events in 2012, the

effects of which corrected the issue and improved service statistics on this

cargo.

Finally, International Auto Logistics mentioned that “[a]ll Team IAL subcontractors must

meet or exceed IAL performance metrics and quality standards on the GPC III contract,”

and that they will be closely monitored. As a result, the Source Selection Evaluation

Board stated: “Offeror's revised proposal is sufficient to address the concerns of this

EN. EN is closed.”

In response to the evaluation notice on the relationship between International

Auto Processing and International Auto Logistics, International Auto Logistics

responded with a letter from Robert Miller, “President & CEO” of International Auto

Processing, stating in relevant part:

This letter confirms International Auto Processing's (lAP) firm and lasting

commitment to support its wholly-owned subsidiary International Auto

Logistics (IAL) to the fullest extent. IAL will have at its complete disposal

lAP's robust resources, port and vehicle processing expertise, rail, and

trucking networks, IT systems, quality and ISO9001 certified programs

and processes, commercial best practices and techniques, Human

Resources, and financial backing to meet any challenge and ensure

24

compliance with the requirements as defined under the GPCIII PWS

[Performance Work Statement].

Many of the lAP Board and Management team such as myself, President

of lAP, Vince Watson, CFO, Steve Robbins, VP Operations (and over 18

years with lAP), both IAP/IAL Board members, as well as many of our

departmental leaders and team members are on-call and will be sharing

their skills, knowledge, operation techniques and experience in the training

process as well as being "on-call" should additional support be required.

The lAP and IAL team are highly aware of the customer's need in a

contract transition. lAP pledges to IAL its complete support.

International Auto Logistics also separately pointed to parts of its proposal that indicated

that it would be able to take advantage of International Auto Processing’s “‘robust

resources, including port and vehicle processing expertise, rail and trucking networks,

IT systems, quality and training processes, and commercial business best practice

techniques,’” as well as “IAP’s human resources and financial backing.” (emphasis in

original). As a result of this response, the Source Selection Evaluation Board stated:

“Offeror's revised proposal is sufficient to address the concerns of this EN. EN is

closed.”

In response to the evaluation notice on the relationship between Trans Global

Auto Logistics and Global Auto Logistics, International Auto Logistics attached a letter

from Trans Global Auto Logistics, stating in relevant part:

This letter confirms Trans Global Auto Logistics (TGAL) firm and lasting

commitment to support its sister company Global Auto Logistics (GAL)

both of which are controlled by Kay Lester to the fullest extent. GAL will

have at its complete disposal TGAL's vast resources in the areas of; [sic]

freight forwarding,2nd [sic] POV movement, NVOCC (Non-Vessel Owning

Common Carrier), warehousing, trucking, global operations network,

systems, operational transportation logistics policies and procedures,

human resources, and financial backing to meet any challenge and insure

GAL compliance with the requirements as defined under the GPCIII PWS.

Although Ms. Lester, the president and owner of both entities, did not sign the letter,

Aldo Flores, who identified himself as the General Manager of Trans Global Auto

Logistics, stated: “I represent I am fully authorized to confirm Kay [Lester] and her

companies [sic] resources will be at full disposal toward the successful performance of

responsibilities to the magnitude required under the scope of the solicitation PWS.” The

International Auto Logistics proposal also stated:

[A]ll of TGAL’s key personnel as outlined in the proposal such as Kay

Lester, Tony Lester and Joe Wetz, all with unquestioned prior GPC and

similar related service as well as their supportive team members will be on

25

hand and on call to assist GAL. From training, to quality operational

processes and procedures, Ocean and Inland Logistics and more.”

In response, the Source Selection Evaluation Board stated: “Offeror's revised proposal

is sufficient to address the concerns of this EN. EN is closed.”

After receiving responses from International Auto Logistics as well as other

offerors, the Source Selection Evaluation Board conducted its interim evaluation.

TRANSCOM discussed International Auto Logistics’ responses to the agency’s

evaluation notices:

One EN was issued to afford IAL the opportunity to respond to adverse

past performance information to which IAL responded by providing a

satisfactory explanation as to the adverse past performance. IAL

responded by stating Horizon lines has made improvements to their

performance and is currently an “ALPHA” carrier (defined as eligible for all

cargo bookings, Preferred Contractor for Unit Move Cargo) and meets

their RDD 98.7% of the time and has an ITV percentage of 97%. Both

unsatisfactory ratings are of minimal concern since Horizon has corrected

its performance and is currently performing above average. Two additional

ENs were issued to verify the relationship between IAL and IAP as well as

GAL and TGAL for the purposes of past performance information in IAL’s

proposal. IAL responded by providing information sufficient to confirm the

relationships between itself and IAP as well as GAL and TGAL for the

purpose of past performance information for this solicitation. Additional

information was also received from IAL’s past performance references

during this time. After evaluation of all new information noted above,

however, it was determined the overall impact was not significant enough

to affect IAL’s past performance rating. Therefore, IAL’s past performance

confidence assessment remained Satisfactory Confidence.

As part of the interim evaluation, the Source Selection Evaluation Board

summarized its review of each of International Auto Logistics’ past performance

references in a chart in the interim evaluation report, starting with the prime contractor’s

past performance references. International Auto Logistics provided three past

performance references, which were performed by its parent company, International

Auto Processing. TRANSCOM summarized the references as follows:

Reference Description of Effort Performance Recent Relevancy Rationale for Performance

or Contract Evaluated Areas (Y/N) Rating Relevancy Rating Comments

No.

MBUSA Prime contractor receiving, POV Y SR Reference provided includes Past Performance

(Mercedes inspecting, documenting, Processing, 1/1/07 – [Somewhat customer service, short term questionnaire

Benz USA) washing, providing and Storage, 12/31/12 Relevant] storage, and POV processing indicated overall

Ted managing truck areas, Customer but does not include Exceptional

Boudalis painting and body repairs, Service arranging/providing ocean & Performance.

customer service, inland transportation, longterm Reference stated

performance reporting, and storage, or OCONUS they would award

interim storage at the VPC performance. future contract.

in Brunswick, GA.

26

General Prime contractor receiving, POV Y SR Reference provided includes Past Performance

Motors inspecting, documenting, Processing, 10/1/07 customer service, short term questionnaire

Scott washing, providing and Storage, – storage, and POV processing indicated overall

McMillan managing truck areas, Customer 12/31/17 but does not include Very Good

painting and body repairs, Service arranging/providing ocean & Performance.

customer service, inland transportation, longterm Reference stated

performance reporting, and storage, or OCONUS they would award

interim storage at the VPC performance. future contract.

in Brunswick, GA.

[Hyundai] Prime contractor providing POV Y SR Reference provided Past Performance

Glovis new/finished vehicle processing, 2010- includes customer questionnaire

America, processing and storage in customer 2012 service, storage, and indicated overall

Inc. the US. service, POV processing but Very Good

Glenn Clift storage does not include Performance.

arranging/providing Reference stated

ocean & inland they would award

transportation or future contract.

OCONUS

performance.

TRANSCOM stated: “In summary, IAL’s performance record includes CONUS

operations and demonstrates Very Good-Exceptional performance in POV processing,

storage and customer service.”

TRANSCOM next examined International Auto Logistics’ subcontractors’ past

performance references, in the order they appear in the above list of subcontractors.

Regarding the subcontractor, Liberty Global Logistics, TRANSCOM summarized the

three references submitted for the subcontractor as follows:

Reference Description of Effort Performance Recent Relevancy Rationale for Performance

or Contract Evaluated Areas (Y/N) Rating Relevancy Rating Comments

No.

HTC711- Prime contractor providing Providing/ Y SR Reference provided includes Past Performance

09-D- international cargo arranging for 1/1/09 – providing/arranging for ocean & questionnaire

0039 transportation and ocean & 2/29/12 inland transportation, customer indicated overall

Bill distribution services using inland service, and CONUS/OCONUS Exceptional

Lindquist common contract ocean transportation, performance but does not Performance.

carriers offering regularly customer include POV processing and Reference stated

scheduled commercial liner service storage. they would award

service. future contract.

Uniworld Prime contractor providing Providing/ Y SR Reference provided includes Past Performance

Ross carriage of vehicles and arranging for 1/1/11 - providing/arranging for ocean questionnaire

Shrourou heavy equipment via ocean ocean Present transportation, customer service, indicated overall

transportation from US East transportation, and CONUS/OCONUS Exceptional

Coast to various customer performance but does not Performance.

destinations in the service include POV processing, Reference stated

Mediterranean, Red Sea, providing/arranging inland they would award

and Arabian Gulf. transportation, or storage. future contract.

27

HTC711- Prime contractor providing Providing/ Y SR Reference provided includes PPIRS [Past

09-D- international cargo arranging for 04/01/11 providing/arranging for ocean & Performance

0039 transportation and ocean & – inland transportation, customer Information

Kim distribution services using inland 09/30/12 service, and CONUS/OCONUS Retrieval System]

Crossen common contract ocean transportation, performance but does not indicated

carriers offering regularly customer include POV processing and Satisfactory

scheduled commercial liner service storage. performance.

service. Reference stated

they would award

future contract.

TRANSCOM stated: “In summary, LGL’s [Liberty Global Logistics’] performance record

covers CONUS and OCONUS operations and demonstrates Satisfactory-Exceptional

performance in providing/arranging for inland and ocean transportation and customer

service.”

Next, TRANSCOM reviewed Horizon Line’s past performance references, as follows:

Reference Description of Effort Performance Recent Relevancy Rationale for Performance

or Contract Evaluated Areas (Y/N) Rating Relevancy Rating Comments

No.

HTC711- Prime contractor Providing/arranging Y SR Reference provided includes PPIRS indicated

11-09-D- providing international for ocean & inland 1/30/09 providing/arranging for ocean Satisfactory

0037 cargo transportation and transportation – & inland transportation, and performance.

Kim distribution services using 9/30/12 CONUS/OCONUS Reference stated

Crossen common contract ocean performance but does not they would award

carriers offering regularly include POV processing, future contract.

scheduled commercial storage, and customer service.

liner service.

HTC711- Prime contractor Providing/arranging Y SR Reference provided includes PPIRS indicated

11-D-R012 providing port to port and for ocean & inland 12/1/11 providing/arranging for ocean Satisfactory

Kim end to end ocean transportation – & inland transportation, and performance.

Crossen transportation services 11/30/12 CONUS/OCONUS Reference stated

between CONUS and performance but does not they would award

Alaska/Hawaii. include POV processing, future contract.

storage, and customer service.

HTC711- Prime contractor Providing/arranging Y SR Reference provided includes PPIRS indicated

11-D-W004 providing port to port and for ocean & inland 08/01/11 providing/arranging for ocean Unsatisfactory to

Kim end to end ocean transportation – & inland transportation, and Satisfactory

Crossen transportation services 11/30/12 CONUS/OCONUS performance.

to/from Alaska/Hawaii performance but does not Reference stated

and CONUS. include POV processing, they might or

storage, or customer service. might not award

future contract.

TRANSCOM commented that “No PPQs [completed Past Performance

Questionnaires] were received for Horizon,” and therefore, all of Horizon Line’s

references came from a search of TRANSCOM’s Past Performance Information

Retrieval System. TRANSCOM provided some additional discussion regarding Horizon

Line’s “Unsatisfactory to Satisfactory performance” rating with regards to reference

HTC711-11-D-W004, the third past performance reference in the above chart. The

agency stated:

In the area of on-time delivery, the report noted that Horizon met the

Required Delivery Date for 64 of 95 pieces moved during this period of

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performance and no cargo movement was measured for Dec 2011, Feb

through Jun 2012, and Sep 2012 due to incomplete submission of EDI

codes. Additionally, Horizon’s overall ITV percentage was 56% and the

Contracting Officer stated she might or might not award to Horizon today

given the choice. Horizon was given “Charlie” ratings for both areas

(defined as eligible for cargo bookings at a reduced preference).

Evaluation Notice (EN IAL-0008) was issued to provide IAL an opportunity

to respond to Horizon’s adverse past performance. IAL responded by

stating Horizon lines has made improvements to their performance and is

currently an “ALPHA” carrier (defined as eligible for all cargo bookings,

Preferred Contractor for Unit Move Cargo) and meets their RDD 98.7% of

the time and has an ITV percentage of 97%. Both unsatisfactory ratings

are of minimal concern since Horizon has corrected its performance and is

currently performing above average. Additionally, IAL has established

performance metrics for its subcontractors which will be managed via its

TRAX system to ensure on-time performance and complete in-transit

visibility. In summary, Horizon’s performance record covers CONUS and

OCONUS operations and demonstrates Unsatisfactory - Satisfactory

performance in providing/arranging for inland and ocean transportation,

with an acceptable resolution to the Unsatisfactory performance.

TRANSCOM next examined Global Auto Logistics, which submitted three past

performance references, all performed through Trans Global Auto Logistics. Two of the

references were determined by TRANSCOM to be “Relevant,” making them the highest

rated International Auto Logistics references in terms of relevance. The first reference

stated, “TGAL, a sub-contractor to Allied International/Sirva under their contract with the

Canadian Government, is responsible for complete POV processing in Europe of both

inbound and outbound Canadian Department of Defense service member POVs.” The

reference mentioned that, “TGAL has established multiple agencies in Geilenkirchen,

Heidelberg, Hamburg, Berlin, Munich, Rome and Naples” in carrying out its assigned

role. The subcontract with Allied International/Sirva was stated to be for $2 million

annually, $10 million over its life cycle.

The second Global Auto Logistics reference was one in which Trans Global Auto

Logistics asserted it provides “VW-Logistics with complete transportation and relocation

services for their Group-employee’s global moves (i.e. VW, Porsche, Audi, Skoda,

Seat), to and from one of their global Plants or Regional headquarters.” The reference

stated that the contract is for “$650,000 annually (estimated),” and also mentioned that,

“VW-Logistics provides Trans Global with allocated and sufficient space on their

chartered RO/RO – vessels, to facilitate the timely shipping of our volume of Canadian

Forces 1st and 2nd POV program, as well as for the U.S.-Service-Members 2nd POVs.”

TRANSCOM rated only two of the three references provided:

29

Reference Description of Effort Performance Recent Relevancy Rationale for Performance

or Contract Evaluated Areas (Y/N) Rating Relevancy Rating Comments

No.

W6447- Subcontractor providing Providing/arranging Y R Reference provided includes Past performance

ILEA08-35 complete transportation for ocean & inland 2008 - [Relevant] providing/arranging for ocean questionnaire

Pat services of POVs for transportation, Present & inland transportation, indicated overall

Amirault service members of the customer service, customer service, POV Exceptional

Canadian Department of POV processing processing, and Performance.

National Defense for CONUS/OCONUS Reference stated

shipments between performance but does not they would award

Canada/US and Europe. include storage. future contract.

Volkswagen Prime contractor Providing/arranging Y R Reference provided includes Past performance

Logistics providing transportation for ocean & inland 2006 - providing/arranging for ocean questionnaire

Andree and relocation services transportation, Present & inland transportation, indicated overall

Brinkmann for shipment of private customer service, customer service, POV Very Good to

vehicles worldwide POV processing processing, and Exceptional

including additional CONUS/OCONUS Performance.

services required locally performance but does not Reference stated

by host nation countries. include storage. they would award

future contract.

The third Global Auto Logistics reference, for the contract with Hoegh Auto

Liners, referenced a $1.5 million annual effort, in which, Trans Global Auto Logistics is

“[p]roviding ocean transportation services between U.S., Europe, West Africa, Middle

East, and Australia.” The agency did not evaluate the Global Auto Logistics reference

regarding the contract with Hoegh Auto Liners. The agency indicated that when it tried

to contact Hoegh Auto Liners:

Spoke to Mr. McKown on 8/26/2013 @ 1:50PM. He explained the

relationship between his company and TGAL is that TGAL buys vessel

space from Hoegh Auto Liners. TGAL is not performing services for

Hoegh Auto Liners, but instead is a customer providing cargo to them to

be shipped. After going over the PPQ with Mr. McKown over the phone, it

was determined he is not the right person to complete a PPQ on behalf of

TGAL.

In the TRANSCOM source selection evaluation notes contained in the record, the

government stated that “[t]he Hoegh reference is not present. Perhaps an EN would be

appropriate, particularly if we’ll do this consistently across the board in other instances,”

and that “[r]eference has been e-mailed twice and called once requesting a PPQ.” The

record does not contain an indication of any further attempt to contact Hoegh in order to

verify Global Auto Logistics’ past performance reference.

Separately, TRANSCOM in its interim evaluation report also noted the strength of

Global Auto Logistics’ key personnel, stating:

TGAL’s key personnel (Kay Lester, Tony Lester, and Joe Wetz) have prior

experience with GPC II and similar related service and are available to

GAL in performance under this contract. Additionally, GAL and TGAL are

both controlled by Kay Lester. GAL will have at its disposal TGAL’s vast

30

resources in the areas of freight forwarding, POV movement, NVOCCs,

warehousing, trucking, global operations, network, systems, operational

transportation logistics policies and procedures, human resources, and

financial backing.

TRANSCOM concluded: “In summary, GAL’s performance record covers CONUS and

OCONUS operations and demonstrates Very Good-Exceptional performance in

providing/arranging for inland and ocean transportation, customer service, and POV

processing.”

TRANSCOM next reviewed the past performance references of SDV Command

Source. TRANSCOM considered the three references provided by intervenor and one

reference TRANSCOM found through its own Past Performance Information Retrieval

System. TRANSCOM stated in its review:

Reference Description of Effort Performance Recent Relevancy Rationale for Performance

or Contract Evaluated Areas (Y/N) Rating Relevancy Rating Comments

No.

W9124J- Prime contractor providing POV processing, Y SR Reference provided includes Past performance

09-D-0017 complete in-processing providing/arranging 7/1/09 – providing/arranging for inland questionnaire

Gerard Storage services for the for inland 6/30/12 transportation, customer indicated overall

Sovie Dept of the Army POVs. transportation, service, storage, and POV Very Good

customer service, processing but does not Performance.

and storage. include providing/arranging Reference stated

for ocean transportation or they would award

OCONUS performance. future contract.

W9124J- Prime contractor providing POV processing, Y SR Reference provided includes Past performance

09-D-0017 complete in-processing providing/arranging 7/1/09 – providing/arranging for inland questionnaire

DO Fort Storage services in for inland 6/30/12 transportation, customer indicated overall

Carson, Colorado for the Dept of transportation, service, storage, and POV Exceptional

CO the Army POVs. customer service, processing but does not Performance.

Jennifer and storage. include providing/arranging Reference stated

DeGraff for ocean transportation or they would award

OCONUS performance. future contract.

W9124J- Prime contractor providing POV processing, Y SR Reference provided includes Past performance

09-D-0017 complete in-processing providing/arranging 7/1/09 – providing/arranging for inland questionnaire

DO Joint Storage services in for inland 6/30/12 transportation, customer indicated overall

Base Washington for the Dept transportation, service, storage, and POV Exceptional

Lewis- of the Army POVs. customer service, processing but does not Performance.

McChord, and storage. include providing/arranging Reference stated

WA for ocean transportation or they would award

Arthur OCONUS performance. future contract.

Dearen

W9124J- Prime contractor POV processing, Y SR Reference provided includes PPIRS indicated

09-D-0017 providing complete in- providing/arranging providing/arranging for inland Very Good to

Angela processing storage for inland transportation, customer Exceptional

Arwood services for the Dept of transportation, service, storage, and POV performance.

the Army POVs. customer service, processing but does not Reference stated

and storage. include providing/arranging they would award

for ocean transportation or future contract.

OCONUS performance.

TRANSCOM concluded: “In summary, SDV’s performance record covers CONUS

operations and demonstrates Very Good to Exceptional performance in

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providing/arranging for inland transportation, customer service, storage, and POV

processing.”

TRANSCOM next evaluated Posey Transport Group. Of the three references,

only one was found to be “Somewhat Relevant,” with the other two determined to be

“Not Relevant.” For the “Somewhat Relevant” reference, TRANSCOM rated the

reference as follows:

Reference Description of Effort Performance Recent Relevancy Rationale for Performance

or Contract Evaluated Areas (Y/N) Rating Relevancy Rating Comments

No.

AT&T Marc Prime contractor Providing/arranging Y SR Reference provided includes Past Performance

Botindari managing the inland 2009 – providing/arranging inland questionnaire

transportation of new transportation, Present transportation and customer indicated overall

vehicles entering service customer service service in US only. The Exceptional

and the transportation of reference does not include Performance.

used surplus vehicle providing/arranging ocean Reference stated

relocation and specialty transportation, POV they would award

equipment relocation. processing, storage, or future contract.

OCONUS performance.

TRANSCOM concluded that: “In summary, Posey’s performance record cover [sic]

CONUS operations only and demonstrates Exceptional performance in

providing/arranging for inland transportation and customer service.”

Of the remaining twelve past references, ten were determined to be not relevant,

and two not recent. The references are summarized below by the court:

Subcontractor Reference TRANSCOM’s Description of Effort TRANSCOM’s Rationale for

or Contract Evaluated Relevancy Rating

No.

Posey Transport TS00010203 “Subcontractor providing POV transport

“Reference provided includes providing/arranging

Group Joe between VPCs and vehicle storage facilities

inland transportation and customer service in the

Adamczyk (VSFs) at operating locations in five US

western United States only. The reference does not

western states. 2009-2010 $107,945; 2010-

include providing/arranging ocean transportation, POV

2011 $319,530; 2011-2012 $53,143.” processing, storage, OCONUS performance, and was a

low dollar value in comparison to this Solicitation.”

Posey Transport Erhard BMW “Prime contractor managing the “Reference provided includes providing/arranging

Group John transportation of dealer to dealer vehicle inland transportation and customer service in United

Kapousis trades and dealer to customer POV States and Canada only. The reference does not include

transportation requests in CONUS and providing/arranging ocean transportation, POV

Canada. 2010 $21,255; 2011 $14,670; processing, storage, OCONUS performance, and was a

2012 $8,830; 2013 $9,900.” low dollar value in comparison to this Solicitation.”

Boyle GSA Ron “Prime contractor moving US National “Reference provided includes providing/arranging

Transportation Siegel Archives via inland transportation for inland transportation and customer service in the United

National Archives Records Administration States only. The reference does not include

with security requirements in CONUS. providing/arranging ocean transportation, POV

$200,000 annually.” processing, storage, OCONUS performance, and was a

low dollar value in comparison to this Solicitation.”

Boyle M&EC Mike “Prime contractor moving nuclear materials, “Reference provided includes providing/arranging

Transportation Eisenhower security, and/or other specified inland transportation and customer service in the United

requirements in CONUS. $120,000.” States only. The reference does not include

providing/arranging ocean transportation, POV

processing, storage, OCONUS performance, and was a

low dollar value in comparison to this Solicitation.”

32

VPC of VPC001 “Prime contractor providing indoor POV “Reference provided includes customer service, storage,

Fayetteville & RV001 storage (including maintenance) for two & POV processing in North Carolina only. The reference

Arthur POVs, one RV, and sold the vehicle in does not include providing/arranging ocean or inland

Goodman Hope Mills, North Carolina. Also provided transportation, OCONUS performance, and was a very

shuttle service to/from airport. $2,279.46 low dollar value in comparison to this Solicitation. This

annually; $6,838.38 life cycle.” reference was a onetime arrangement between the

contractor and an individual.”

VPC of VPC013 “Prime contractor providing indoor POV “Reference provided includes customer service, storage,

Fayetteville & VPC190 storage (including maintenance) and POV processing, and arranging/providing

Michelle shipping for one POV and packing, crating, inland transportation in North Carolina only. The

Bandy storage, and shipping of household goods reference does not include providing/arranging ocean

in Hope Mills, North Carolina. Also provided transportation, OCONUS performance, and was a very

shuttle service to/from airport. $3,085.” low dollar value in comparison to this Solicitation. This

reference was a onetime arrangement between the

contractor and an individual.”

VPC of VPC182 “Prime contractor providing indoor POV “Reference provided includes customer service, storage,

Fayetteville Juan storage (including maintenance) and POV processing, and arranging/providing inland

Villarreal shipping for one POV in Hope Mills, North transportation in North Carolina only. The reference

Carolina. $1,671.03.” does not include providing/arranging ocean

transportation, OCONUS performance, and was a very

low dollar value in comparison to this Solicitation. This

reference was a onetime arrangement between the

contractor and an individual.”

North American GAPS “Individual who developed, established, and “Reference provided is for an individual’s performance

Consulting Donald instituted operational and administrative (Ruhi Guven) as a previous President of (GAPS).

Services Asdell processes and programs to operate vehicle Information provided is not for NACS as a company.”

processing and factory operations as the

President of GAPS. $235,000 annual;

$725,000 life cycle.”

North American City & Port “Prime contractor providing port and [Not recent]

Consulting of Long terminal operations and logistics needs at

Services Beach the port of Long Beach, CA.”

Frank

Colonna

North American A&R “Prime contractor reviewing and updating [Not recent]

Consulting Engineering existing Quality Assurance program to

Services Murat reflect the industry required standards in

Sehidoglu Carson, CA.”

Lincoln Property W9124J- “Subcontractor who researched, negotiated, “Reference provided includes customer service in

Company 09-D-0017 and acquired facilities to support the reference to acquiring facilities in CONUS only. The

Joe contract.” reference does not include providing/arranging ocean or

Adamczyk inland transportation, OCONUS performance, POV

processing, or storage.”

Lincoln Property Cascades “Prime contractor who identified needs and “Reference provided includes customer service in

Company Technologies, criteria to find the person office spaces in reference to acquiring facilities in CONUS only. The

Inc. Washington, D.C. and Northern Virginia.” reference does not include providing/arranging ocean or

Alfredo inland transportation, OCONUS performance, POV

Casta processing, or storage.”

TRANSCOM remarked that Boyle Transportation’s and VPC of Fayetteville’s “Not

Relevant” references were for too low an amount of money. North American Consulting

Services’ one recent reference was remarked as not relevant because it was an

“individual’s performance (Ruhi Guven).” Lincoln Property Company’s two “Not

Relevant” references were remarked as containing too little scope: “The references

includes [sic] customer service for acquiring facilities in CONUS only, but do not include

providing/arranging for inland or ocean transportation, POV processing, storage, or

OCONUS performance.”

33

In reaching an interim past performance confidence determination, the

TRANSCOM evaluators stated:

SUMMARY: The Government considered all of the past performance

above (28 references) in establishing an overall confidence assessment

rating for IAL. IAL had no VR references for the services required

(CONUS and OCONUS operations, POV processing, arranging

for/providing ocean and inland transportation, customer service, and

storage). as they have not performed the services together in a single long

term contract of the same magnitude and scope as required in this

Solicitation. Most significant and of greatest consideration was the Very

Good – Exceptional performance of one of IALs subcontractors on two R

efforts of similar scope and magnitude of effort and complexities as this

solicitation as the efforts covered CONUS and OCONUS operations,

providing/arranging for inland and ocean transportation, customer service,

and POV processing. Only storage was not provided under these similar

efforts. The Government also considered the Satisfactory-Exceptional past

performance on the SR references, which considered together, reflect

successful performance of all of the services required by this solicitation

(CONUS and OCONUS operations, POV processing, arranging

for/providing ocean and inland transportation, customer service, and

storage). The Government considered that Horizon, one of IAL’s

subcontractors, has Unsatisfactory ratings on one reference, however IAL

satisfactorily addressed the adverse past performance and the rating is of

minimal concern. The Government did not consider the ten efforts that

were determined not relevant nor the two determined not recent. The

offeror has no documented past performance in the area of Small

Business Subcontracting Utilization, therefore performance in this area is

unknown and will not be treated favorable [sic] nor unfavorably.

Although IAL has no VR references as they have not performed a single

contract of the same magnitude and scope as required in this Solicitation,

it’ s [sic] R references are considered significant as they include all

required services with the exception of storage. In addition, IAL and its

subcontractors combined have provided sufficient references to

demonstrate successful performance in all individual performance areas

as required by the solicitation. This gives the Government a reasonable

expectation the offeror will successfully perform the required effort.

Therefore, a Confidence Assessment Rating of Satisfactory Confidence

was assigned.

(emphasis and capitalization in original). The record indicates that, after the interim

evaluation discussed above was completed, “[n]o discussions were held, nor revisions

made” by International Auto Logistics regarding its past performance proposal. The

Source Selection Evaluation Board signed and approved its final report on October 15,

2013. In the final report, since International Auto Logistics had made no changes to its

34

past performance evaluation, the Source Selection Evaluation Board maintained its

rating determination from the interim evaluation, and stated: International Auto Logistics’

“past performance confidence assessment remained Satisfactory Confidence.”

The same Source Selection Evaluation Board offered the following final

evaluation for all offerors:

(emphasis in original). American Auto Logistics received a past performance confidence

rating of “Substantial Confidence,” and International Auto Logistics received a past

performance rating of “Satisfactory Confidence.”

The Source Selection Advisory Council submitted its report reviewing the GPC III

solicitation on October 16, 2013. The Source Selection Advisory Council performed an

“integrated assessment” of the various proposals, which “takes into consideration the

potential tradeoffs in terms of performance confidence assessment ratings and price.”

The integrated assessment did not consider technical subfactors, “because the factors

were rated on an Acceptable / Unacceptable basis and all offerors’ proposals were

rated as Acceptable.” In its integrated assessment, the Source Selection Advisory

Council compared International Auto Logistics directly with American Auto Logistics:

IAL received a Satisfactory past performance confidence assessment

rating, offering a lesser level of confidence in successful contract

performance when compared to AAL’s proposal, which received a

Substantial Confidence rating. All services under this requirement for

which past performance information was requested represent commercial

services. The lack of a single reference encompassing all performance

areas resulted in IAL being assigned a lower past performance confidence

assessment rating (Satisfactory Confidence) than AAL (Substantial

Confidence). However, the difference between these two ratings is

mitigated to an extent by the general commercial nature of the contract.

Offerors have access to the existing shipping lanes for ocean

transportation using the Government’s Universal Services Contract (USC)

35

and Regional Domestic Contracts (RDC); many of the OCONUS VPCs

are Government-provided; warehousing, vehicle processing space, line-

haul services, and the IT requirements are also commercially available.

Although IAL’s past performance was not the same scope as the

solicitation or AAL’s past performance, it includes the same commercial

services required with the exception of performing under a single contract.

Adding volume to a commercial service already being performed presents

less risk than adding a new service. IAL’s past performance provides the

Government satisfactory confidence it has the experience that would

enable IAL to expand its current commercial efforts to meet the

Government’s requirements. While the solicitation permits the

Government to award to an offeror with a higher price where superior past

performance of the higher priced offeror outweighs the cost difference, the

Government will not pay a price premium that it considers disproportionate

to the benefits associated with the proposed margin of service superiority.

The incumbent’s superior past performance, when compared to the price

and past performance proposals of IAL, does not warrant awarding at the

higher proposed price. Therefore, IAL’s proposal represents the best

overall value to the Government.

The Source Selection Advisory Council, in making its final recommendation to the

source selection authority, “determined the offeror representing the best value to the

Government, price and other factors considered, is IAL. Award to IAL is recommended.”

The source selection authority, Gail Jorgenson, made the final selection and

signed the Source Selection Decision Document on October 23, 2013. Under the

“Basis for Award,” the Source Selection Decision Document stated:

The Government utilized a variation of the Trade-off Source Selection

Process in accordance with (IAW) the mandatory DOD Source Selection

Procedures. Specifically, the Government conducted a Past Performance

Price Tradeoff (PPT) source selection in which competing offerors’ past

performance history was evaluated on a basis approximately equal to cost

or price considerations. Award will be made to the offeror deemed

responsible IAW FAR Part 9, as supplemented, who submitted an

acceptable Business Proposal, Technical Proposal, and Small Business

Proposal, and is judged, based on their past performance and total

evaluated price, to represent the best value to the Government. Offerors

were notified that this may result in an award to a higher rated, higher

priced offeror, where the decision is consistent with the evaluation factors

and the Government reasonably determines that the superior past

performance of the higher priced offeror outweighs the difference in price.

Offerors were also notified that the Government will not pay a price

premium it considers to be disproportionate to the benefits associated with

the proposed margin of service superiority. Therefore, the Government will

award the contract to the offeror representing the best value, all factors

36

considered in accordance with the solicitation. An integrated assessment

of the source selection team’s evaluations of price and past performance

is described below.

The source selection authority decided to give all the remaining offerors, including

International Auto Logistics, a “Satisfactory Confidence” past performance rating, in

agreement with the recommendations from the Source Selection Evaluation Board. The

source selection authority stated that “the Government has a reasonable expectation

these offerors will successfully perform the required effort.” The source selection

authority discussed International Auto Logistics’ past performance evaluation in further

detail:

The Government considered 26[11] past performance references in

establishing an overall confidence assessment rating for IAL. IAL had no

Very Relevant references for the services required as they have not

performed the required services together in a single long-term contract of

the same magnitude and scope as the current requirement. Although IAL

has no Very Relevant references, its Relevant references are considered

significant as they include all required services with the exception of

storage. Most significant and of greatest consideration was the Very Good

– Exceptional performance of IAL’s subcontractors on two Relevant efforts

of similar scope and magnitude of effort and complexity as this solicitation,

which included CONUS and OCONUS operations, providing/arranging for

inland and ocean transportation, customer service, and POV processing,

representing all performance areas noted in the solicitation except for

long-term storage. The Government also considered the Satisfactory-

Exceptional past performance on the Somewhat Relevant references,

which considered together, reflect successful performance of all of the

services required by this solicitation, including long-term storage. The

offeror has no documented past performance in the area of Small

Business Subcontracting Utilization, therefore performance in this area is

unknown and was treated neither favorable [sic] nor unfavorably. Because

IAL and its subcontractors combined have provided numerous references

to demonstrate successful performance in individual performance areas

as required by the solicitation, the Government has a reasonable

expectation the offeror will successfully perform the required effort;

therefore, a Confidence Assessment Rating of Satisfactory Confidence

was assigned.

11

Although the source selection authority stated in the Source Selection Decision

Document that the government had reviewed twenty-six references for International

Auto Logistics, the Source Selection Evaluation Board stated that it reviewed twenty-

eight past performance references. A joint comparative chart submitted by the parties

also indicates that the government reviewed twenty-eight past performance references

for International Auto Logistics.

37

In discussing International Auto Logistics’ “Integrated Assessment” (emphasis

in original), the source selection authority stated:

All services under this requirement for which past performance information

was requested (POV processing, arranging for or providing ocean

transportation, arranging for or providing inland transportation, customer

service, and storage) represent commercial services, despite the difficulty

for offerors other than the incumbent to produce a single, comprehensive

past performance reference including essentially the same scope and

magnitude of effort and complexities requested in the solicitation. While

the lack of a single reference encompassing all performance areas

resulted in a lower past performance confidence assessment rating, the

value between Satisfactory Confidence and Substantial Confidence

ratings regarding actual contract performance is reduced to an extent by

the general commercial nature of the contract and the prevalence of the

required services in the commercial marketplace. This includes access to

existing shipping lanes for ocean transportation, including the use of the

Government’s Universal Services Contract (USC) and Regional Domestic

Contracts (RDC); the Government-provided vehicle processing center

facilities in many of the OCONUS locations; the availability of commercial

warehousing and vehicle processing center space, availability of

commercial line-haul services to and from the major POV processing

centers, and the basic, commercial-based IT requirements. The

Government also notes IAL’s past performance score reflected the scope

of its past performance. IAL did not present past performance of the same

scope as the Government requirement or AAL’s past performance.

However, while the scope was not the same, the Government notes IAL’s

past performance includes largely the same commercial services

conducted by AAL (with the exception of performing under a single

contract) and includes services IAL demonstrated it has and currently

performs in the commercial marketplace. Adding volume to a commercial

service already being performed presents less risk than adding a new

service. IAL’s past performance provides the Government satisfactory

confidence that it has the experience that would enable IAL to expand

current commercial efforts to meet the Government requirements.

While the Government may award to a higher rated, higher priced offeror,

where it determines that the superior past performance of the higher

priced offeror outweighs the associated price premium, the

aforementioned commercial qualities of the requirements impact the

extent to which the Government is willing to trade-off increased cost for

higher-rated past performance. IAL’s TEP is the lowest submitted by any

38

offeror and is $38,301,734.66[12] below the next lowest offer. While the

solicitation permits the Government to award to an offeror with a higher

price where superior past performance of the higher priced offeror

outweighs the cost difference, the Government will not pay a price

premium that it considers disproportionate to the benefits associated with

the proposed margin of service superiority. The incumbent’s superior past

performance, when compared to the price and past performance

proposals of IAL, does not warrant awarding at the higher proposed price.

Therefore, IAL’s proposal represents the best overall value to the

Government. Additional rationale for this tradeoff are detailed in the next

section.

The source selection authority, within American Auto Logistics’ “Integrated

Assessment” (emphasis in original), also elaborated further as to why the government

had concluded that International Auto Logistics was a better candidate for the GPC III

award:

AAL was the only offeror to receive a Very Relevant past performance

rating on any reference submitted, because only AAL submitted evidence

of providing all of the same services as the current requirement, with

essentially the same scope and magnitude of effort and complexities,

under a single contract. This is due to AAL and its subcontractors’ unique

position of having successfully provided these services for the past 13

years. As a result, AAL received a Substantial Confidence past

performance rating. AAL’s proposed price is $38,301,734.66 higher than

the lowest priced offeror. While the solicitation permits the Government to

award to an offeror with a higher price, where superior past performance

of the higher priced offeror outweighs the cost difference, the Government

will not pay a price premium that it considers disproportionate to the

benefits associated with the proposed margin of service superiority. In the

present case, AAL’s higher past performance does not outweigh the

$38,301,734.66 price premium. A distinguishing difference in the past

performance rating of AAL and IAL is that AAL’s performance occurred

under a single contract, and was of the same scope and magnitude as the

solicited requirement. On the other hand, IAL demonstrated performance

of similar or the same tasks [sic] under separate contracts, and was not

the same scope and magnitude of the solicited requirement. In other

words, both proposals demonstrated successful performance of

essentially the same commercial services, but only AAL’s performance

was under a single contract with similar scope. In order to award to AAL,

the Government would be required to trade-off a $38,301,734.66 price

premium for award to an offeror whose past performance score is higher

12

In a footnote, the source selection authority stated: “All figures represent the price

differences in the TEPs as evaluated. Actual difference in cost to the Government is

dependent on POV shipping and storage volume during contract performance.”

39

because it performed the same recent and relevant commercial services

under a single contract versus multiple contracts. Under the current Global

POV Contract, AAL performs the work of a third-party logistics provider

and is responsible for dividing and managing work between its

subcontractors. The experience of providing logistics services for the

same work (of greater scope) under a single contract versus multiple

commercial contracts (of lesser scope), for purposes of actual contract

performance, is not significant enough to justify the higher price. Awarding

to AAL, with a $38,301,734.66 higher price would represent a price

premium disproportionate to the benefits associated with the proposed

margin of service superiority. As detailed above, the primary margin of

service superiority represented in AAL’s higher past performance score is

not in specific performance areas, but rather contract integration, which in

the current commercial marketplace is not worth the $38,301,734.66 price

premium. Therefore, AAL does not represent the best value to the

Government.

In making its “SOURCE SELECTION DECISION” (emphasis in original), the

source selection authority maintained that:

In accordance with the solicitation, which indicated that past performance

would be evaluated on a basis approximately equal to price, I have

determined that the additional cost of $38,301,734.66 is not proportionate

to the benefit associated with the higher past performance rating which

was based on the fact that AAL had successfully performed the current

effort for the services required under this solicitation under a single

contract.

The source selection authority concluded that “[i]t is, therefore, my decision that the

proposal submitted by IAL represents the best value to the Government.” Contract

HTC711-14-D-R025 was awarded to International Auto Logistics, LLC on October 24,

2013.

American Auto Logistics filed a post-award bid protest at the GAO on November

1, 2013. In its protest to the GAO, American Auto Logistics argued that: (1)

TRANSCOM’s “evaluation of IAL's proposal under the Technical factor was

unreasonable because IAL's technical approach could not have effectively

demonstrated its ability to comply with the PWS requirements . . . ;” (2) “IAL's past

performance rating was unwarranted given its extremely limited and largely irrelevant

experience in providing the required range of services of similar scope, magnitude of

effort, and complexity;” (3) “TRANSCOM's price realism assessment of IAL's proposal

was inadequate because specific elements of IAL's lower pricing cannot reflect a clear

understanding of the requirements . . . ;” (4) “TRANSCOM failed to conduct a

reasonable performance/price tradeoff in making its source selection decision, and

effectively and improperly converted the specified best value tradeoff criteria to a

lowest-priced, technically-acceptable award scheme;” and (5) that TRANSCOM

40

improperly evaluated International Auto Logistics’ technical proposal, because

TRANSCOM “failed to recognize that IAL poses an unacceptable security risk due to its

ties to the Unification Church . . . which has made various investments in North Korea

(Pyonghwa Motors Co., KumGangSan International Group and Botongkang Hotel and

Golf Course in Pyongyang) and have extensive economic ties to the North Korean and

Chinese governments.” In a footnote, American Auto Logistics claimed that “lAP is

owned by Panda Motors, Inc.(also [sic] known and doing business as Panda

Development Company (China)), which is in turn owned and controlled by the

Unification Church.”

TRANSCOM filed its agency report on November 26, 2013. In its response to the

agency report filed at the GAO, American Auto Logistics dropped its first and third

claims, regarding TRANSCOM’s evaluation of International Auto Logistics’ “technical

approach” and TRANSCOM’s price realism analysis. American Auto Logistics

maintained, and elaborated on, its claim that TRANSCOM’s past performance

assessment was flawed, and explained that International Auto Logistics’ two “Relevant”

references for Global Auto Logistics were actually not relevant. Protestor alleged first

that the references were invalid because they came from a sister organization, Trans

Global Auto Logistics Europe,13 not Global Auto Logistics itself. American Auto Logistics

also alleged at the GAO that “[e]ven assuming it was appropriate to consider the past

performance of TGAL-E [Trans Global Auto Logistics Europe], neither the Allied

Contract nor the Volkswagen Contract warranted a “Relevant” rating under the RFP's

definitions.” (footnote omitted). American Auto Logistics also maintained that

TRANSCOM “gave credit to TGAL's key personnel in assigning it Relevant ratings -

even though the RFP’s evaluation criteria do not allow for past performance credit with

respect to key personnel.” Finally, American Auto Logistics maintained that Global Auto

Logistics’ past performance references could not be significant, as, allegedly, “GAL was

proposed to perform no more than $3-4 million per year of the contract's scope,

equating to less than two percent of the total contract value,” and therefore was a minor

subcontractor. American Auto Logistics also questioned the source selection authority’s

13

This is the first instance in the record in which “Trans Global Auto Logistics Europe” is

mentioned as a separate entity from Trans Global Auto Logistics. Earlier, in its proposal,

International Auto Logistics appears to have referred to the entity as its “European

branch” and “European offices.” According to an exhibit filed by protestor during the

GAO protest, protestor claimed that “[t]he most recent (and only) list of shareholders

available from the corporate registry is dated February 2, 2007, lists the following four

entities and individuals as each owning 25% of Trans Global Logistics Europe:”

 Trans Global Logistics Inc. Texas (25%)

 Frank Hollmann (25%)

 MIRASCON Versicherungsmakler GmbH, KoIn (25%)

 Joachim Wetz (25%)

(footnote omitted).

41

conclusion regarding the other “Somewhat Relevant” references in the International

Auto Logistics proposal, focusing in particular on the references regarding the

solicitation of “POV Processing Services,” “Inland Transportation Services,” and “Ocean

Transportation Services.” (emphasis in original). Protestor contended at the GAO that

International Auto Logistics, due to its alleged lack of experience, could give “at best a

‘low expectation,’ that IAL will successfully perform the GPC III requirements.”

In its response to the TRANSCOM agency report, American Auto Logistics also

maintained that, “[i]n view of the numerous flaws in TRANSCOM's evaluation of IAL's

past performance proposal, therefore,” “TRANSCOM's past performance/price tradeoff

and source selection decision were necessarily flawed and unreasonable.” American

Auto Logistics contended that “the SSA's integrated assessment explicitly discounted

the differences in the AAL and IAL past performance ratings from the outset based

merely on the ‘nature of the contract.’” According to American Auto Logistics, “[q]uite

simply, the SSA did not have the authority to reduce the difference between a

Substantial Confidence rating and Satisfactory Confidence rating in the context of

making the award decision based on the commercial nature of the contract.” (emphasis

in original). In addition, American Auto Logistics maintained that “IAL's Significant Ties

To North Korea, China And The Unification Church Are Very Real And Pose

Security Risks,” and attached to its comments a report by Stroz Friedberg LLC,

detailing International Auto Processing’s alleged ties to the Unification Church, North

Korea, and China. (emphasis in original).

International Auto Logistics intervened in the protest at the GAO. International

Auto Logistics submitted comments to the agency report and also provided an affidavit

from Kay Lester of Global Auto Logistics, to explain the relationship between Global

Auto Logistics, Trans Global Auto Logistics, and Trans Global Auto Logistics Europe.

The affidavit stated in relevant part:

I [Kay Lester] am the President and owner of Trans Global Auto Logistics,

Inc., (“TGAL”), a Woman-Owned Small Business (“WOSB”), a position I

have held since 2002. . . . I am also the President and owner of Global

Auto Logistics, LLC (“GAL”), a WOSB, a position I have held since GAL

was formed in early 2013 for the purpose of participating on support

contracts with the U.S. Government. My duties for these companies

consist of overseeing and managing day-to-day and overall operations.

...

Trans Global Logistics Europe (“TGALE”), GmbH, is a subsidiary of TGAL,

TGALE was formed in 2005 to provide TGAL’s customer base with a

variety of support throughout Europe, including port handling, customs

clearance services, general freight handling, trucking / inland

transportation and logistics support throughout Europe. I am a principal of

TGALE. I have been intimately involved with TGALE since its formation.

After forming TGALE, I opened the European office, made all hiring

42

decisions, conducted all training, and negotiated all inland agency, port

services, and inland transportation service agreements. Having fully

developed the infrastructure, I continue to manage all day-to-day

operations with my partner Joachim Wetz. TGALE will make all of its

resources and assets available to GAL and TGAL in the performance of

the GPC III contracting effort, particularly in light of TGAL’s anticipated

contractual role in performing the aforementioned services in and

throughout Europe.

International Auto Logistics also provided an affidavit from Mr. Wetz, which

stated in relevant part:

Trans Global Logistics Europe GmbH (“TGALE”), is a subsidiary of TGAL.

I am the General Manager of Trans Global Logistics Europe GmbH

(“TGALE”) and manage day-to-day operations with my business partner

Sandra K. Lester. TGALE was formed in 2005 to provide TGAL’s

customer base general freight trucking and transportation, inland

transportation, and logistics support through Europe. TGALE will make all

of its resources and assets available to GAL and TGAL in performance of

the GPC III contracting effort, particularly in light of TGAL’s anticipated

contractual role in performing the aforementioned services in and

throughout Europe.

The GAO denied American Auto Logistics’ protest, on January 30, 2014.

Regarding protestor’s past performance claim, the GAO stated that “[t]he evaluation of

past performance, including the agency’s determination of the relevance and scope of

an offeror’s performance history to be considered, is within the sound discretion of the

contracting agency.” Regarding American Auto Logistics’ claim that Global Auto

Logistics’ past performance references were performed allegedly by Trans Global Auto

Logistics Europe, the GAO stated: “It is well settled that an agency may rely on the

performance of a parent or sister company where, as here, resources and key

personnel are anticipated to be relied on during performance.” (citing Serco, Inc., B-

406683, 2012 WL 3298132 (Comp. Gen. Aug. 3, 2012), and Ecompex, Inc., B-

292865.4, 2004 WL 1675519 (Comp. Gen. June 18, 2004)). The GAO further stated

that “IAL emphasized that GAL and its sister company [Trans Global Auto Logistics]

shared common ownership and that the sister company’s president and owner,

European managing partner, and key personnel would be supporting GAL in its

performance of this contract.” (footnote omitted). The GAO also explained that,

“[a]lthough the protester maintains that the European ‘affiliate’ is a separate and distinct

entity from the sister company, the protester’s own evidence shows that the ‘affiliate’

was formed to support and serve the customer base of the sister company.” In addition,

the GAO found no issue with the agency’s consideration of Global Auto Logistics’ past

performance references,

even though the references did not perform all of the work required here

under one contract, and even though GAL is expected to perform only a

43

relatively small portion of the work on the contract. The RFP did not

require that each reference have experience performing all of the required

work, or all of the work under one contract.

The GAO also addressed American Auto Logistics’ “attempts to diminish the relevancy

of several of the somewhat relevant contracts the agency considered in evaluating IAL’s

performance,” stating that:

The protester again bases its complaint on the fact that none of the

referenced contracts involved performing all of the requirements of the

RFP under a single contract. . . . We have reviewed each of the

challenged references and find that the record supports the agency’s

relevancy determination as well as the agency’s conclusion that,

collectively, all of the references provided the agency with satisfactory

confidence that IAL would successfully perform the contract.

Regarding American Auto Logistics’ claim that the performance price tradeoff

was unreasonable, the GAO stated:

At the heart of the protester’s complaints is its belief that the agency is not

justified in selecting a lower priced contractor given the protester’s

superior record of performance. As noted above, the agency disagreed.

. . . As the agency explains, the services procured here were commercial

services that are available in the commercial marketplace. Thus, the IAL

team’s performance under separate smaller contracts, in the agency’s

eyes, was relevant to demonstrating satisfactory performance, and AAL’s

superior performance did not warrant the added cost in the commercial

marketplace.

(footnote omitted). The GAO added, “[i]n sum, we find unobjectionable the agency’s

conclusion that, although the protester had a superior record of performance, that

superiority was not worth a price premium of $38 million.” Finally, the GAO addressed

the claim regarding the Unification Church, North Korea, and China in a footnote, stating

that “[t]he agency responds that it is not aware of any connection between IAL and

North Korea, China, or the Unification Life Church. Further, the agency notes that

protester acknowledges that IAL submitted an acceptable information assurance and

cybersecurity plan,” and that the agency had not violated any laws or regulations in this

regard. (internal citations omitted). The GAO concluded that the “protester’s allegations

regarding IAL’s possible relationships do not provide a basis for our Office to sustain its

protest.”

Protestor filed suit in this court on February 5, 2014, alleging that “TRANSCOM's

past performance evaluation methodology was unreasonable and contrary to the criteria

in the RFP. According to the protestor, TRANSCOM failed to evaluate each past

performance reference provided by IAL and its subcontractors to determine its similarity

in terms of scope, magnitude of effort and complexities to the GPC III solicitation

44

requirements.” Protestor maintains, as it did at the GAO, that “[t]he two Relevant ratings

assigned to the contract references provided for subcontractor GAL/TGAL were

improper and inconsistent with the RFP's criteria . . . .” Moreover, protestor argues in

this court that TRANSCOM “also failed to properly apply the RFP relevancy criteria

when evaluating the past performance references for IAP and several of IAL's other

named subcontractors.”

Protestor also argues:

TRANSCOM's source selection decision was also substantially flawed,

and contrary to the RFP and applicable law, because it diminished the

value of AAL's Substantial Confidence rating, as compared to IAL's

Satisfactory Confidence rating, on the basis that certain of the service

elements of the GPC III requirement are available in the commercial

marketplace, that IAL had demonstrated that is [sic] has and currently

performs all of the GPC III service elements in the commercial

marketplace, and that “adding volume to a commercial service already

being performed presents less risk than adding a new service.”

Although not presented in the complaint, in a hearing before this court, protestor

raised a third protest ground, that International Auto Logistics has subcontracted with an

allegedly “fairly notoriously debarred company,” under the name Agility International or

Agility Defense and Government Services. Protestor subsequently elaborated on its

third ground in writing, stating that “International Auto Logistics, LLC intends to

subcontract with, or otherwise use the services of, an Agility business unit that is

currently on the excluded parties list in the System for Award Management for purposes

of performing certain portions of the GPC III contract at issue in this protest.” Defendant

maintains, in a February 19, 2014 status report, that “Agility is not listed as a

subcontractor in International Auto Logistics’ proposal for the contract at issue,” and

that, “as of February 18, 2014, Agility is not listed as suspended or debarred in the

System for Award Management and is eligible to receive Government contracts.”

Nonetheless, protestor contends that defendant did not perform sufficient research on

the issue, because there are “hundreds of Agility-affiliated companies that have been

suspended from contracting with the U.S. Government,” and that although intervenor’s

counsel claimed that they “knew nothing about what any unspecified Agility entity was

‘doing or why it is doing it,’” intervenor’s counsel “also represent[s] the two Agility

companies that challenged their suspensions before the U.S. District Court for the

Northern District of Alabama.” (footnote omitted).

Protestor sought “injunctive and declaratory relief prohibiting TRANSCOM and

IAL from proceeding with performance of the GPC III Contract awarded to IAL,” and

submitted motions for both a temporary restraining order and preliminary injunction

regarding the GPC III contract. Protestor also sought a finding that the source selection

decision was “arbitrary and capricious, an abuse of discretion, and contrary to the RFP's

criteria and applicable law,” and requested an order from the court “requiring

TRANSCOM to conduct a new evaluation of IAL's past performance proposal and make

45

a new source selection decision in strict accordance with the RFP and applicable law.”

The parties and the court agreed to proceed on an expedited schedule for the above

captioned case. The court issued an oral decision indicating to the parties no injunction

was forthcoming. As noted above, this opinion reduces to writing the oral decision

previously issued to the parties.

DISCUSSION

The Tucker Act grants the United States Court of Federal Claims “jurisdiction to

render judgment on an action by an interested party objecting to a solicitation by a

Federal agency for bids or proposals for a proposed contract or to a proposed award or

the award of a contract or any alleged violation of statute or regulation in connection

with a procurement or a proposed procurement.” 28 U.S.C. § 1491(a)(1) (2012). In

order to have standing to sue as an “interested party” under this provision, a

disappointed bidder must show that it suffered competitive injury or was “prejudiced” by

the alleged error in the procurement process. See Todd Constr., L.P. v. United States,

656 F.3d 1306, 1315 (Fed. Cir. 2011) (To prevail, a bid protester must first “‘show that it

was prejudiced by a significant error’ (i.e., ‘that but for the error, it would have had a

substantial chance of securing the contract).’” (quoting Labatt Food Serv., Inc. v. United

States, 577 F.3d 1375, 1378, 1380 (Fed. Cir. 2009))); Blue & Gold Fleet, L.P. v. United

States, 492 F.3d 1308, 1317 (Fed. Cir. 2007); see also Sci. Applications Int’l Corp. v.

United States, 108 Fed. Cl. 235, 281 (2012); Linc Gov’t Servs., LLC v. United States, 96

Fed. Cl. 672, 693 (2010) (“In order to establish standing to sue, the plaintiff in a bid

protest has always needed to demonstrate that it suffered competitive injury, or

‘prejudice,’ as a result of the allegedly unlawful agency decisions.” (citing Rex Serv.

Corp. v. United States, 448 F.3d 1305, 1308 (Fed. Cir. 2006); Statistica, Inc. v.

Christopher, 102 F.3d 1577, 1580–81 (Fed. Cir. 1996); Morgan Bus. Assocs., Inc. v.

United States, 223 Ct. Cl. 325, 332 (1980); Vulcan Eng’g Co. v. United States, 16 Cl. Ct.

84, 88 (1988))). In order to establish what one Judge on this court has called

“allegational prejudice” for the purposes of standing, the bidder must show that there

was a “substantial chance” it would have received the contract award, but for the

alleged procurement error. See Linc Gov’t Servs., LLC v. United States, 96 Fed. Cl. at

675; Bannum, Inc. v. United States, 115 Fed. Cl. 148, 153 (2014); see also Bannum,

Inc. v. United States, 404 F.3d 1346, 1358 (Fed. Cir. 2005); Galen Med. Assocs., Inc. v.

United States, 369 F.3d 1324, 1331 (Fed. Cir.), reh’g denied (Fed. Cir. 2004); Info.

Tech. & Applications Corp. v. United States, 316 F.3d 1312, 1319 (Fed. Cir.), reh’g and

reh’g en banc denied (Fed. Cir. 2003); Statistica, Inc. v. Christopher, 102 F.3d at 1581;

Hyperion, Inc. v. United States, 115 Fed. Cl. 541, 550 (2014) (“The government

acknowledges that proving prejudice for purposes of standing merely requires

“allegational prejudice,” as contrasted to prejudice on the merits . . . .”); Archura LLC v.

United States, 112 Fed. Cl. 487, 497 (2013); Lab. Corp. of Am. v. United States, 108

Fed. Cl. 549, 557 (2012). Because standing is a jurisdictional issue, this showing of

prejudice is a threshold issue. See Corus Grp. PLC. v. Int’l Trade Comm'n, 352 F.3d

1351, 1357 (Fed. Cir. 2003); Myers Investigative & Sec. Servs., Inc. v. United States,

275 F.3d 1366, 1370 (Fed. Cir. 2002).

46

Protestor, American Auto Logistics, maintains that it has standing as an

interested party under 28 U.S.C. § 1491(b)(1), since “Plaintiff's proposal received the

highest possible past performance rating,” “had the second-lowest evaluated price,” and

was acceptable in all other evaluation areas. Neither defendant nor intervenor challenge

protestor’s standing. Given protestor’s position as the second-lowest offeror in terms of

price and the only offeror with a “Substantial Confidence” past performance rating, the

court agrees that protestor had a substantial chance of winning the solicitation at issue

in the above captioned case if it is able to succeed on the merits of the protest.

Pursuant to Rule 52.1(c) of the Rules of the United States Court of Federal

Claims (RCFC) (2013), which governs motions for judgment on the administrative

record, the court’s inquiry is directed to “‘whether, given all the disputed and undisputed

facts, a party has met its burden of proof based on the evidence in t

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