United States Government Accountability Office 

Washington, DC 20548 

Comptroller General

of the United States

 

Decision 

Matter of: Abba International, Inc. et al.

File: B-311225.4 

Date: February 2, 2009 

Alan F. Wohlstetter, Esq., Denning & Wohlstetter, for the protester. 

Vera Meza, Esq., and Bruce D. Ensor, Esq., Department of the Army, for the agency. 

Katherine I. Riback, Esq., and James A. Spangenberg, Esq., Office of the General 

Counsel, GAO, participated in the preparation of the decision. 

DIGEST 

1. Pursuant to the bid protest authority granted GAO under the Competition in 

Contracting Act of 1984, GAO will consider a protest of the terms of a request for 

competitive rate tenders for transportation services, even though they are not 

subject to the Federal Acquisition Regulation, where the responses will form the 

basis for placement of government bills of lading for the services; however, GAO will 

not consider issues relating to the agency’s decision not to include certain traffic 

channels in the request for rate tenders since this involves the exercise of the 

agency’s business judgment and executive branch policy. 

2. As a general rule, solicitations must contain sufficient information to allow 

offerors to compete intelligently and on a relatively equal basis, although there is no 

requirement that a solicitation contain such detail as to completely eliminate all risk 

or remove all uncertainty from the mind of every prospective offeror. 

DECISION 

Abba International, Inc. and 14 other firms protest the terms of a solicitation issued 

by the Department of the Army, United States Transportation Command, soliciting 

rate tenders from eligible Department of Defense (DoD) approved transportation 

service providers (TSP) to transport household goods, unaccompanied baggage and 

boat shipments between designated rate areas (traffic channels) through government 
bills of lading (GBL) under the Defense Personal Property System (DPS).1

 

We deny the protest in part and dismiss it in part. 

The DPS is the computerized web-based system that supports the Surface 

Deployment and Distribution Command (SDDC) household goods transportation 

program called the Families First Program, which seeks to automate and simplify the 

personal property moves, in particular permanent change of station (PCS), for 

applicable personnel. The DPS was developed to improve the competitive nature of 

the DoD household goods program, and is a computerized system with the ability to 

accept rates filed by TSPs, award shipments to TSPs through the issuance of GBLs, 

provide counseling to military service members and employees relating to their PCS, 

and verify invoices. This new transportation system involves the receipt of rate 

tenders where no level of traffic, number of shipments, or level of tonnage is 

guaranteed to any carrier for any specific traffic channel. Agency Report (AR) at 2. 

Under the DPS, qualified TSPs are solicited to tender rates for each traffic channel, 

and the TSPs are evaluated for each traffic channel on the basis of their rates 

submitted for that traffic channel and their past performance quality score as 

determined by the agency, both of which are used to calculate a best value score 

(BVS) for each TSP for each traffic channel. The TSPs’ BVSs are then ranked from 

highest to lowest for each traffic channel, and placed in quartiles. The TSPs whose 

BVSs place in the highest quartile (the highest 25 percent) are placed into the first 

quartile, and are distributed shipments prior to any TSP whose BVS places in the 

second quartile (the next 25 percent) in that traffic channel, and so on. The TSPs are 

then provided an opportunity to view their BVSs and quartile placement in the DPS. 

The TSPs who believe that their BVS are in error are then permitted to contact the 

agency at the close of rate filing, discuss their concerns, and, in instances where 

mistakes are discovered, have them corrected. Once the BVSs are calculated and 

those scores are ranked both by quartiles as well as within a specific quartile, the 

competitive rate filing process is considered final and complete for that rate cycle. 

AR at 2-3. 

 

1

 The firms protesting this solicitation are: Abba International Inc. of Everett 

Washington; Arpin International Group of East Greenwich, Rhode Island; Approved 

Forwarders, Inc. of San Diego, California; BINL, Inc. of Long Beach, California; 

Cartwright International, Inc. of Grandview, Missouri; Covan International, Inc. of 

Midland City, Alabama; Crystal Forwarding, Inc. of Carlsbad, California; Genesis Van 

Lines, LLC of Memphis, Tennessee; Hetco Van Lines, Inc. of Springfield, Virginia; Jet 

Forwarding, Inc. of Torrance, California; Old Glory Van Lines, LLC of Memphis, 

Tennessee; Silver Ridge Forwarding, Inc. of San Diego, California; Stevens Van Lines, 

Inc. d/b/a Stevens Worldwide Van Lines of Saginaw, Michigan; Suddah Van Lines, 

Inc. of Jacksonville, Florida; and Volunteer Van Lines, LLC of Memphis, Tennessee. 

Page 2 B-311225.4 
The agency has been attempting to implement this program for some years. 

Ultimately, on March 14, 2008, the agency issued a revised request for rate tenders 

from the TSPs that were to be submitted from March 17 through March 25.2

 This 

request, which for purposes of clarity we will call the initial request, advised that 

TSPs were required to submit tenders for any channels that the TSP wished to 

service. These rates were applicable for shipments from March 31, 2008 through 

May 14, 2009. However, the initial request also advised that agency shipments 

involving (or between) 18 identified transportation offices would be initially rolled 

out, with the remainder of the sites to be rolled out at a later date during the solicited 

rate period.3

The terms of the initial request for “round two” rates were protested on March 25 by 

a number of TSPs on a number of grounds, including that the agency had not 

provided sufficient or required information to allow them to submit the rate tenders.4

Rate tenders from the TSPs in response to the initial request were received and 

evaluated according to the evaluation scheme and a BVS for each traffic channel was 

calculated for each TSP. On or about April 2, the TSPs were provided with the 

opportunity to question or challenge any of the BVSs received.5 The agency then 

ranked the BVSs for all TSPs who submitted rates within a given traffic channel, and 

placed the ranked scores into quartiles, which determined the prospective awardees. 

On May 5, the parties entered into a settlement agreement wherein certain TSPs 

agreed to the initial rollout of the DPS at the 18 identified sites. The parties also 

agreed that “[i]f the Government rolls-out the remaining sites, the Government will 

allow rates to be re-filed by TSPs for the remaining sites prior to an expected 

roll-out.” AR, exh. 2, Settlement Agreement (May 5, 2008), at 1. The settlement 

agreement also noted that “TSPs shall not be permitted to refresh their rates for the 

initial 18 roll-out sites.” Id. Based on this settlement agreement, the protesting TSPs 

withdrew their protests. 

 

2

 This request was for “round two” rates; the “round one” rates were solicited and 

submitted from February 11 through February 22, 2008. Rates could be submitted by 

the TSPs during either round. 

3

 The initial request indicates that roll out of the remaining sites would begin in 

May 2008 and be completed no later September 30, following successful 

implementation of the initial 18 sites. 

4

 The initial request for “round one” rates was also protested on February 7, 2008. 

5

 The agency noted that no TSP who submitted rates in response to the initial request 

challenged or protested any calculated BVS for any traffic channel relating to the 

18 initial sites. AR at 3. 

Page 3 B-311225.4 
There were delays in implementing the DPS. On August 19, the first GBL was issued 

to move household goods under this DPS between 2 of the 18 identified sites. AR, 

exh. 7, Declaration of Branch Chief, Personal Property Information and Business 

Integration of SDDC (Nov. 26, 2008). The complete roll-out of the DPS for shipments 

involving the 18 identified sites did not occur until November 19. www.move.mil. 

The agency states that it is “on track to roll-out DPS world-wide in early 2009.” Id.

On October 20, the agency issued a “second” request for rate tenders from the TSPs 

for certain “pure traffic channels,” that is, channels that neither originated from nor 

terminated at the 18 initial roll-out sites. This second request required TSPs to 

submit rates for the “pure traffic channels” from November 11 to November 22 for 

round one and from December 4 to December 12 for round two. These rates would 

be effective for these channels until May 14, 2009. The second request further stated 

that “channels covered by the initial 18 sites roll-out will not re-file rates until the 

annual rate cycle” (that is, effective May 15, 2009). 

The protesters filed this protest on October 27 arguing that the second request for 

revised rates was “arbitrarily severely limited to a small number of traffic channels” 

because it did not allow for revised rate tenders involving the 18 initially rolled-out 

sites, Protest at 2, and that the second request was otherwise improper because it 

did not provide sufficient or required information to allow the TSPs to submit 

revised rate tenders on any of the channels encompassed by the DPS. 

The Army initially argues that our Office does not have jurisdiction to decide this 

protest because the DPS is a technology computer system that accepts and 

processes government rate tenders from qualified TSPs, and the acquisitions are 

exempt from the Federal Acquisition Regulation (FAR). 

The Competition in Contracting Act of 1984 (CICA), 31 U.S.C. § 3551 (2000), which 

established the bid protest jurisdiction of our Office, defines “protests” as including 

objections to solicitations for bids or proposals for proposed contracts as well as 

objections to proposed or actual awards of such contracts. We have found that this 

definition encompasses objections to agency actions that result in the “award” of 

instruments that are not in themselves contracts, such as basic order agreements, 

which become binding when an order is issued, or a rate tender, which becomes 

binding when a GBL issued. Humco, Inc., B-244633, Nov. 6, 1991, 91-2 CPD ¶ 431 

at 3; recon. denied, Department of State--Recon., B-244633.2, Apr. 2, 1992, 92-1 CPD 

¶ 339 at 3. Moreover, we have recognized the term “procurement” as used in CICA 

can include the process of acquiring transportation services by the government, even 

though the acquisition of such services is generally exempt from the FAR. Federal 

Transport, Inc.--Recon., B-233393.3, June 1, 1989, 89-1 CPD ¶ 542 at 3. Thus, 

transportation services procured by and provided to the government are subject to 

our bid protest jurisdiction, where the agency obtains these services by means of a 

Page 4 B-311225.4 
procurement.6

 Humco, Inc., supra, at 2-4; recon. denied, Department of State--

Recon., supra, at 2; Federal Transport, Inc.--Recon., supra. Because the request for 

competitive rate tenders under protest here will form the basis for the placement of 

GBLs for transportation services, our Office will consider the protests of the terms of 

this request, except as explained below. Humco, Inc., supra, at 2-4; recon. denied, 

Department of State--Recon., supra, at 2. 

The protesters argue that the agency improperly did not allow the TSPs to submit 

revised rate tenders for the channels involving the 18 initially rolled-out sites. For 

example, the protesters contend that, due to the substantial delay in making awards 

under the first request, the rates are “no longer relevant due to changes in the 

procurement [e.g., the tender of service containing terms and conditions of the 

services that was part of the solicitation was not issued until the rates in response to 

the initial request for rate tenders were submitted, the agency removed the provision 

for a date range for delivery7

], increases in the cost of fuel and ocean transportation 

and unfavorable dollar fluctuations, as well as increases in the [Consumer Price 

Index] which have occurred since that time and since the date the Settlement 

Agreement was entered into.” Protesters’ Response to Agency Summary Dismissal 

Request (Nov. 7, 2008), at 4; Protesters’ Comments at 10-13. In addition, the 

protesters assert that they were apprised by the Army that the Air Force, which 

provided a significant volume of shipments under the previous transportation 

program, would not participate in the roll-out involving the 18 initial sites, and that 

the agency has now announced that the Air Force will participate in this roll-out. 

The protesters argue that the TSPs for the channels involving the 18 initially 

rolled-out sites should be given an opportunity to refresh their rates for the initial 

solicitation because of “the government’s delay in the performance of the Families 

First warrants that TSPs be accorded the opportunity to reflect in their bids cost 

changes which occurred during the delay.” Protesters’ Comments at 10. The 

protesters also assert that the agency had not published in the Federal Register the 

Business Rules applicable to the DPS when the initially requested rate tenders were 

 

6

 This is in contrast to the issuance of a GBL for “spot movements,” where the agency 

elects to issue a GBL under a tender for a one-time routing under informal 

procedures without issuing any type of solicitation or conducting a formal source 

selection; these orders are not reviewed by our Office. See Humco, Inc., supra, at 4; 

Federal Transport, Inc.--Recon., supra; Moody Bros. of Jacksonville, Inc.; Troika Int’l 

Ltd., B-238844, June 12, 1990, 90-1 CPD ¶ 550 at 3. 

7

 The protesters state that they were advised, prior to the closing date for receipt of 

the round one offers under the initial solicitation, that deliveries could be made 

within a delivery window, but the DPS could not accommodate this feature and now 

requires that delivery be accomplished by a specified date. 

Page 5 B-311225.4 
submitted, and that the TSPs should be permitted to revise their rates based upon 

the finally published Business Rules.8 Protest at 3; Protesters’ Comments at 6. 

These complaints all concern the agency’s decision as to what services should be 

acquired under the procurement at issue and what services will not be included. We 

will not consider these complaints because we view the agency’s decision as one 

involving the exercise of the agency’s business judgment and executive branch 

policy in determining what transportation services should be acquired through this 

procurement. Cf. Firetech Automatic Sprinkler, B-295882, May 4, 2005, 2005 CPD 

¶ 146 at 2 (GAO will generally not consider agency decisions to obtain services 

in-house instead of under a procurement because this involves a matter of executive 

branch policy, except in limited cases where the agency uses the procurement 

system to determine to obtain the services in-house or through contracting). In this 

case, the agency had already obtained rate tenders for the traffic channels involving 

the 18 indicated sites that are effective through May 14, 2009, and we find no legal 

requirement for the agency through the procurement in question here to allow TSPs 

to update these rate tenders that are in effect, even though this procurement 

provided for TSPs to update their rates for other traffic channels.9 

The protesters nevertheless argue that the Army breached the settlement agreement 

entered into between the parties at the time of the earlier protests. The protesters 

maintain that they are only prohibited by the settlement agreement from re-filing 

rates for moves between the 18 identified sites and that under the settlement 

agreement they should be allowed to re-file rates for traffic channels that originate at 

or terminate at one of the 18 initial sites and involve a new site. Protesters’ 

Comments at 2-3. In contrast, the agency argues that its actions during this 

procurement have been consistent with the settlement agreement and that the 

 

8

 The Business Rules were published in the Federal Register on November 3, before 

the rates for the second solicitation were required to be filed, from November 11 to 

November 22 for round one, and December 4 to December 12 for round two. 73 Fed. 

Reg. 65,297 (Nov. 3, 2008). The agency notes that, prior to its publication in the 

Federal Register, the Business Rules were the Operational Business Rules and in 

Appendix U in the Defense Transportation Regulations. AR, exh. 8, SDDC WebsiteDPS Business Rules; exh. 9, DTR Appendix U. 

9

 While the protesters assert that the duty to update the rate tenders for the traffic 

channels involving the 18 indicated sites exists because no contracts came into 

existence through the issuance of GBLs until November 19 (after this protest was 

filed), it has provided no persuasive legal authority that supports this proposition. 

The case cited by the protesters, Department of Energy--Recon., et al., B-246977.2 

et al., July 14, 1992, 92-2 CPD ¶ 20 at 4 (agency required to amend a solicitation 

where the requirements materially changed after receipt of proposals), involved the 

application of FAR § 15.206(a), which does not apply to the acquisition of 

transportation services. 

Page 6 B-311225.4 
protesters in its request for relief in this protest are simply asking that the GAO 

permit them to breach the settlement agreement. Agency Summary Dismissal 

Request (Nov. 5, 2008), at 3. 

The agency’s alleged violation of the settlement agreement is not a valid basis of 

protest. Our bid protest jurisdiction as established by CICA is limited to deciding 

protests “concerning an alleged violation of a procurement statute or regulation.” 

31 U.S.C. § 3552. Thus, in cases such as this, we will not consider an argument 

concerning compliance with a settlement agreement except to the extent the protest 

asserts that an alleged breach resulted in a prejudicial violation of procurement laws 

or regulations. American Mktg. Assocs., Inc.--Recon., B-274454.4, May 14, 1997, 97-1 

CPD ¶ 183 at 2-3. The protesters here have not shown that the agency’s alleged 

breach of the settlement agreement resulted in a violation of procurement laws or 

regulations. Therefore, to the extent that the protesters’ arguments are based on an 

alleged violation of the settlement agreement, they will not be considered by our 

Office.10

 

The protesters also raise a variety of issues that concern the terms of the solicitation 

of revised rates for the “pure traffic channels” that are within our Office’s 

jurisdiction. As a general rule, solicitations must contain sufficient information to 

allow offerors to compete intelligently and on an equal basis. However, there is no 

legal requirement that a solicitation contain such detail as to completely eliminate all 

risk or remove all uncertainty from the mind of every prospective offeror. Braswell 

Servs. Group, B-276694, July 15, 1997, 97-2 CPD ¶ 18 at 2-3. 

Specifically, the protesters argue that Business Rule 2.19 which governs this program 

requires that the agency furnish the TSPs with shipment and tonnage data for the 

“last two completed rate cycles using the new domestic and international channels” 

and that this information has not been provided. AR, exh. 8, SDDC Website-DPS 

Business Rules, at 12 (emphasis added); Protest at 3; Protesters’ Comments at 7. The 

agency responds that this historical data was already available to TSPs on the SDDC 

website for the last two full cycles under the previous computer program for both 

the Domestic GBL Records and International GBL Records. Regarding future cycles 

under the DPS, which the agency contends is the subject of Business Rule 2.19, the 

agency states that the shipments under the DPS have only just begun, so there is no 

data. The Army maintains that it will provide a report to all qualified TSPs 

 

10 To the extent that these protest grounds regarding the traffic channels involving 

the 18 indicated sites concern apparent solicitation improprieties of the initial 

solicitation, they were required to be protested before rates were due under the 

initial solicitation in order to be considered timely under our Bid Protest 

Regulations. 4 C.F.R. § 21.2(a)(1) (2008). The fact that the protesters elected to 

withdraw those protest grounds based on the settlement agreement provides no 

basis for waiver of our timeliness requirements. 

Page 7 B-311225.4 
Page 8 B-311225.4 

concerning tonnage data, once shipments are awarded under DPS. AR at 5. Since 

the data requested is not available because the DPS has only begun to be 

implemented, we find no obligation to provide data that does not exist.11

The protesters also complain that the invoice and payment computer modules have 

not been tested and proven to work. The agency reports that both modules have 

been fully approved for implementation and the DPS is already awarding shipments. 

This is essentially a contention that the assertedly unproven modules somehow place 

undue risk on the TSPs in preparing their rate tenders. On this record, we have no 

basis to find that the agency has imposed an undue risk on the TSPs. See AirTrak 

Travel et al., B-292101 et al., June 30, 2003, 2003 CPD ¶117 at 12-16. 

The protesters finally claim that under the first solicitation certain TSPs were 

rejected under the initial solicitation for their “off-peak” rates solely because the 

peak rates submitted were beyond a competitive range of prices, and that storage in 

transit rates were improperly used as a factor to calculate the BVS of TSPs. Protest 

at 4. As indicated above, on or about April 2, the TSPs were provided the 

opportunity to question or challenge any of the BVSs received. Thus, these protest 

challenges are untimely under our Bid Protest Regulations because they were not 

filed within 10 days after the basis of protest were known or should have been 

known.12 4 C.F.R. § 21.2(a)(2). 

The protest is denied in part and dismissed in part. 

Gary L. Kepplinger 

General Counsel 

 

11 The protesters make a similar argument that the agency has not provided historical 

data regarding the volume of shipments which had a portion going into 

non-temporary storage, which the agency can acquire either under the older 

acquisition system for the movement of household goods or the DPS. Here too, the 

agency does not have to provide data that does not exist. 

12 To the extent that these protesters anticipate that allegedly improper action may be 

taken in evaluating and ranking the rates tenders under the second solicitation, this 

protest is speculative and premature, and therefore not for our consideration at this 

time. See Sun Chem. Corp., B-288466 et al., Oct. 17, 2001, 2001 CPD ¶ 185 at 13. To 

the extent that the protesters contend that the “competitive range” may not be 

properly determined under the second solicitation, such protest ground would be 

similarly premature.