Protest challenging agency’s responsibility determination and evaluation is sustained. This is a companion case to another protest arising out of the same procurement, which GAO also sustained. GAO found that the responsibility determination was flawed because the contracting officer had not resolved a concern regarding extent to which the awardee was relying on an affiliate that had pleaded guilty to criminal antitrust violations. GAO also found that the agency failed to properly document its evaluation of offerors’ oral presentation and conducted unfair discussions concerning the presentations. GAO further determined that the agency engaged in disparate treatment by assigning the awardee strengths for features of its proposal but not assigning the protester strengths for similar features.
DoD’s U.S. Transportation Command (TRANSCOM) issued a solicitation for global relocation services—i.e., moving services—for service members, civilians, Coast Guard members. The solicitation contemplated award of a single IDIQ contract.
Seven offerors submitted proposals, including Connected Global Solutions, LLC and American Roll-on Roll-off Carrier Group, Inc. (ARC). TRANSCOM awarded the contract to ARC, finding that its proposal represented the best value to the agency.
Connected filed a protest challenging the agency’s technical evaluation and conduct of discussions. Another unsuccessful offeror, HomeSafe, LLC,  filed a protest alleging that TRANSCOM had erred in finding ARC a responsible contractor. Specifically, HomeSafe contended that ARC failed to disclose that is parent, Wallenius Wilhelmsen Logistics AS (WWLAS), had a record of criminal antitrust misconduct. In response to the protests, TRANSCOM took corrective action to reevaluate proposals and make a new award decision.
Following reevaluation, TRANSCON again award the contract to ARC, finding that its high-priced proposal offered a superior margin of service and merited the price difference. As part of the corrective action, TRANSCOM also conducted a second assessment of ARC’s responsibility. ARC acknowleged that WWLAS had pleaded guilty to criminal misconduct and paid a fine. Following the guilty plea, WWLAS restructured and renamed itself Wallenius Wilhelmsen Ocean (WWO). ARC informed the agency that its SAM registration had erroneously identified the WWLAS/WWO entity as its parent. Instead, the two companies—ARC and WWO—were siblings, each owned by another company, Wallenius Wilhemsen Logisitics ASA. ARC avowed that WWO would not have any meaningful involvement in the performance and that its resources would not affect ARC’s performance. The contracting officer found that ARC was responsible because WWO was not ARC’s parent and would not be involved in performance.
Connected filed a second protest challenging the award to ARC. As part of this second protest Connected objected to TRANSCOM’s responsibility determination, arguing that the agency failed to consider publicly available information concerning the conviction of ARC’s affiliate for various antitrust violations. Connected asserted that ARC’s parent, Wallenius Wilhelmsen ASA, was also half owner of the WWLAS/WWO entity that pleaded guilty and paid fines for engaging in a conspiracy to fix prices on international cargo shipments. Connected claimed that TRANSCOM failed to consider this information in assessing ARC’s responsibility and summarily concluded that ARC was a separate entity.
GAO found this argument compelling. There was an apparent inconsistency between ARC’s technical proposal and its representations to the contracting officer concerning its relationship with WWO. In its proposal, ARC proposed to draw on the resources of its affiliates. But the company then told the contracting that affiliates with criminal backgrounds, like WWO, would have no meaningful involvement in performance. Faced with the inconsistency, it was incumbent on the contracting officer to further investigate the extent to which ARC would rely on its affiliates. GAO sustained this protest ground because the agency left this inconsistency unresolved.
Aside from the responsibility determination, Connected alleged that TRANSCOM conducted misleading and unequal discussions. Connected claimed the agency failed to lead the company to the portions of its technical proposal that could be improved and instead focused the discussions on price. Additionally, Connected argued that the discussion were unequal because TRANSCOM’s discussions with ARC focused on non-price factors.
But GAO did not find the discussions problematic. The number of evaluation notices sent to Connected and ARC did not differ significantly. Connected received one more technical evaluation notice and two more price notices than ARC. Those difference, given the number of discussion items, were unremarkable. GAO refused to find the discussions unfair.
Connected also contended that TRANSCOM failed to make video or audio recordings of offerors’ oral presentations. As a result, the agency could not demonstrate that it treated offerors fairly in the conduct of discussions following the presentation.
The FAR requires agencies to maintain records of oral presentations to document what the agency relied on in making a source selection. Here, the record contained only two documents, characterized as notes, memorializing the oral presentations. Those notes were sparse and unsigned. The notes did not indicate that the agency ever asked Connected about a significant weakness assessed to is presentation. Thus, there was no contemporaneous record on GAO could rely on in trying to determine whether the significant weakness assessed to Connected was reasonable. GAO sustained the protest as to the documentation of the oral presentation.
Additionally, GAO noted, the existing documentation did not support TRANSCOM’s contention that the conduct of discussions concerning the oral presentations were fair. GAO found that the agency posed questions to ARC that amplified those portions of the proposal that concerned the agency. But TRANSCOM did not give Connected the same opportunity to address portions of its proposal. GAO thus sustained Connected’s protest concerning discussions following the oral presentation.
Connected also challenged various aspects of the technical evaluation. GAO found four of these challenges meritorious. GAO identified three instances of disparate treatment where TRANSCOM assigned strengths to features of ARC’s proposal but failed to assigned strengths for similar features in Connected’s proposal. GAO also found that the agency unreasonably assigned ARC a strength for a purported feature—handling requests for reweighs of household goods—that were not included in ARC’s proposal or documented in the record memorializing the company’s oral presentation.
Finally, Connected challenged the best value tradeoff, arguing that the source selection authority had not conducted a tradeoff, failed to justify ARC’s price premium, and improperly weighed technical capability and price. GAO saw no basis to sustain these specific challenges, but it did find that given the errors in the underlying evaluation, the tradeoff decision was flawed.
Connected is represented by James Y. Boland, Emily A. Unnasch, Christopher G. Greisedieck, and Taylor A. Hillman. The intervenor, ARC, is represented by Kara M. Sacilotto, Tracye Winfrey Howard, Bryan G. Walsh, Samantha S. Lee, Cara L. Lasley, Lindy C. Bathurst, and Adam R. Briscoe of Wiley Rein, LLP. The agency is represented by Erika L. Whelan Retta and Jason Smith of the Air Force. GAO attorneys Kenneth Kilgour and Jennifer D. Westfall-McGrail participated in the preparation of the decision.
