TransAtlantic Lines, LLC

B-411846.2 Dec 16, 2015 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights TransAtlantic Lines, LLC, a small business located in Greenwich, Connecticut, protests the terms of request for proposals (RFP) No. HTC711-15-R-W002, issued by the U.S. Transportation Command (TRANSCOM) for international cargo transportation. TransAtlantic contends that the RFP's process for booking shipping orders, as well as the RFP's price evaluation criteria, do not comply with the Cargo Preference Act of 1904. The protester also objects that the solicitation does not permit ordering officials to set aside bookings for small businesses. We deny the protest. We deny the protest. View Decision DOCUMENT FOR PUBLIC RELEASE The decision issued on the date below was subject to a GAO Protective Order. This redacted version has been approved for public release. Decision Matter of:  TransAtlantic Lines, LLC File:  B-411846.2 Date:  December 16, 2015 Brian S. Gocial, Esq., Harrison H. Kang, Esq., and Jared M. DeBona, Esq., Blank Rome LLP, for the protester. Michael G. McCormack, Esq., Department of the Air Force, Peter Ries, Esq., and Robert Bowers, Esq., U.S. Transportation Command, for the agency. Pedro E. Briones, Esq., and Nora K. Adkins, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST Protest of a solicitation for award of indefinite-delivery, indefinite‑quantity contracts to both U.S. flag and foreign flag ocean carriers for international, intermodal cargo transportation is denied where the terms of the solicitation and its performance requirements meet the agency’s legitimate need for timely delivery of cargo and are consistent with the Cargo Preference Act of 1904. DECISION TransAtlantic Lines, LLC, a small business located in Greenwich, Connecticut, protests the terms of request for proposals (RFP) No. HTC711-15-R-W002, issued by the U.S. Transportation Command (TRANSCOM) for international cargo transportation.  TransAtlantic contends that the RFP’s process for booking shipping orders, as well as the RFP’s price evaluation criteria, do not comply with the Cargo Preference Act of 1904.  The protester also objects that the solicitation does not permit ordering officials to set aside bookings for small businesses. We deny the protest. BACKGROUND The Cargo Preference Act of 1904, as amended, (CPA) provides that: [o]nly vessels of the United States or belonging to the United States may be used in the transportation by sea of supplies bought for the Army, Navy, Air Force, or Marine Corps.  However, if the President finds that the freight charged by those vessels is excessive or otherwise unreasonable, contracts for transportation may be made as otherwise provided by law.  Charges made for the transportation of those supplies by those vessels may not be higher than the charges made for transporting like goods for private persons. 10 U.S.C. § 2631(a).[1]  The Act is implemented by DFARS subpart 247.5, Ocean Transportation by U.S. Flag Vessels, and section 247.5 of the DFARS Procedures, Guidance, and Information (PGI).  See DFARS § 247.573(b)(2); PGI § 247.573(b)(2).  PGI section 247.5 requires that solicitations for contracts that are principally for ocean transportation must provide a preference for U.S. flag vessels in accordance with the CPA.  PGI § 247.573(b)(2)(iii)(A).  PGI section 247.5 also prohibits the award of such contracts to a foreign flag vessel carrier, unless the agency has determined that:  U.S. flag vessels are not available; the U.S. flag carrier proposed freight charges to the government that are higher than it charges to private persons for transportation of like goods; or the proposed freight charges for U.S. flag vessels are excessive or otherwise unreasonable.  PGI § 247.573(b)(2)(iv). The RFP was issued on May 12, 2015, using the commercial item procedures of Federal Acquisition Regulation (FAR) part 12, and provides for the award of indefinite-delivery, indefinite‑quantity (IDIQ) contracts (for a base year and 2 option years) to U.S. and foreign flag ocean carriers for international transportation of DOD‑related cargo.  See RFP at 4-7, 10, 62, 251; Contracting Officer Statement at 4; Agency Report (AR), Tab 2, Acquisition Plan, at 10 (stating that the procurement is a FAR part 12 acquisition).[2]  The RFP states that multiple awards will be made on a lowest‑priced, technically acceptable basis using FAR § 15.101-2 procedures and that proposals will be evaluated under four evaluation factors:  technical, past performance, small business proposal, and price.[3]  See RFP at 62‑64.  The solicitation instructs offerors to submit separate proposals for each evaluation factor, and states that the non-price factors will be evaluated on an acceptable/unacceptable (i.e., pass/fail) basis.  Id. at 57. Of significance here, the RFP states that U.S.