In the United States Court of Federal Claims

No. 14-102C

June 24, 2014

Redacted Version Issued for Publication: July 31, 20141

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

*

*

*

*

*

*

*

*

*

*

*

*

*

*

United States Transportation 

Command; Past Performance 

Evaluation; Performance Price 

Tradeoff; Commercial 

Marketplace; Global PrivatelyOwned Vehicle Contract.

AMERICAN AUTO LOGISTICS, LP

 Protestor,

v.

UNITED STATES,

 Defendant,

v.

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].”
2

O P I N I O N

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 PrivatelyOwned 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. 
3

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.), 
4

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). 
5

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.
6

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 
7

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 PrivatelyOwned 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. 
8

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-RR003, 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 
9

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 [contractorowned 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. 
10

PERFORMANCE OBJECTIVE

PWS [Performance Work 

Statement] PARA 

[Paragraph]

PERFORMANCE 

THRESHOLD

Transport POVs within RDDs 

[Required Delivery Dates]

1.3.5.1. & Attachment 4 to 

the contract 98% per month

Resolve claims directly with 

customers using on-site 

settlement process

1.3.11. 95% per quarter

Settle claims within 90 days from 

the date the claim was filed 1.3.11. 99% per quarter

Rated satisfactory or better for 

overall customer service on 

comment cards submitted

1.3.10. 95% per month

Adhere to VISA [Voluntary 

Intermodal Sealift Agreement] 

preferences

4.0 100% of shipments

(emphasis and capitalization in original). 

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

then, one year. There also were three option years and an additional, optional, sixmonth 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.
11

(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 
12

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.
13

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.
14

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:”
15

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

“major subcontractors,”6each 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 

Roll-off Carrier

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

vessel operating company and provides Ro-Ro liner services in the 

U.S. and internationally.” 

American Logistics 

Network

American Logistics Network, “another related company to AAL, 

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).
16

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.” 
17

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 

Logistics

Liberty Global Logistics “has been a 

USTRANSCOM/SDDC transportation partner since 

February 2009 and transports cargo between U.S. 

and international destinations via truck, air, sea and 

rail.” 

“US Flag ocean 

shipping and

POV logistics”

Horizon Lines “Horizon is comprised of two primary operating 

subsidiaries. Horizon Lines, LLC, owns or leases a 

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

terminals linking the continental United States with 

Alaska, Hawaii, Micronesia and Puerto Rico. 

Horizon Logistics, LLC, offers customized logistics 

“VPC operations 

and US Flag

Jones Act ocean 

shipping;” Horizon 

Lines was proposed 

to operate the 
18

solutions to shippers from a suite of transportation 

and distribution management services, information 

technology developed by Horizon Services Group, 

as well as intermodal trucking and warehousing 

services provided by Sea-Logix.” 

vehicle processing 

center in Honolulu, 

Hawaii. 

Trans Global 

Auto 

Logistics/Global 

Auto Logistics

“Global Auto Logistics, LLC (GAL) is a womanowned small business concern located in a 

HUBZone and shares common ownership with 

Trans Global Auto Logistics, Inc. (TGAL). TGAL 

was established June 2002 and has offices in 

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

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

Operating Common Carrier] and freight forwarder, 

and was originally formed to facilitate Global 2nd 

POV movements that were not included as part of 

the GPC programs. . . . TGAL transports 

automobiles and all types of military, industrial and 

infrastructure cargo types.” “GAL was formed as a 

special purpose company, with the goal of 

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.” 

“VPC and VSF 

[vehicle storage 

facility] operations, 

OTR [over-the-road] 

CONUS/OCONUS 

transport and 

customs clearance

Services;” Global 

Auto Logistics was 

proposed to operate 

seventeen vehicle 

processing centers 

and two vehicle 

storage facilities.9

SDV Command 

Source

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

Veterans Enterprise] certified, Service-Disabled 

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

SDV’s mission is to provide employment 

“VPC and

VSF operations;” 

SDV Command 

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.
19

opportunities to service-disabled Veterans and their 

family members through work on Government 

(Federal, State and local) and select private sector 

contracts,” “most recently in processing, storing, 

maintaining and out-processing POVs for Soldiers 

deployed to Iraq, Afghanistan, and other selected 

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

contractor on the U.S. Army Installation 

Management Command (IMCOM) POV Storage –

West Region contract, SDV Command Source 

operated VPC and Vehicle Storage Facilities (VSF) 

at seven (7) locations/installations in five (5) 

western States.”

proposed to operate 

the Atlanta, 

Georgia, St. Louis, 

Missouri, and San 

Juan, Puerto Rico 

vehicle processing 

centers. It was 

proposed to 

manage the 

Kingstree, South 

Carolina vehicle 

storage facility. 

Posey Transport 

Group

“Posey Transport Group (Posey) provides vehicle 

transport services across the continental United 

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.” 

“OTR CONUS 

transport.”

Boyle 

Transportation

“Boyle Transportation is the premier Transportation 

Protective Services provider to the DOD and 

defense industry shippers of security-sensitive 

cargo.” Its capabilities include “operation of a VPC 

and three VSF sites for the Global POV Contract II, 

and servicing approximately 3,000 vehicles each 

month.” Boyle Transportation also provides 

consulting services related to “VPC and storage 

facility operations for IMCOM requirements.” 

“VPC and VSF 

operations;” Boyle 

Transportation was 

proposed to operate 

the Charleston, 

South Carolina 

vehicle processing 

center, and the 

Graniteville, South 

Carolina vehicle 

storage facility. 

VPC of 

Fayetteville 

VPC of Fayetteville provides “POV storage 

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

each vehicle is indoors, protected from the 

elements and vandalism, and monitored 24 hours a 

day. VPC of Fayetteville is experienced in military 

affairs and specializes in assisting service 

members.” (emphasis removed).

“VPC

and VSF 

operations;” VPC of 

Fayetteville was 

proposed to operate 

the Winnsboro, 

South Caroline 

vehicle storage 

facility.

North American 

Consulting 

Services

North American Consulting Services “has provided 

vehicle processing, transportation, and customer 

services since 2003.” (emphasis removed), with 

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

“VPC operations 

and OTR transport

(Turkey);” North 

American 
20

coordinating transportation of items.” (emphasis 

removed). “NACS provides OCONUS vehicle 

processing and over the road transportation 

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

Consulting Services 

was proposed to 

operate the Incirlik, 

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 

Company

“Lincoln offers a full range of asset management, 

property management, and construction 

management services.” “Lincoln’s experience 

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 . . . .” 

“[R]eal estate 

advisory and agent 

services.”

Didlake10 Didlake is an “AbilityOne directed subcontractor 

providing Norfolk, VA VPC operations.” “Didlake

offers new, life-enriching opportunities for people 

with disabilities.” 

Didlake was 

proposed to operate 

the Norfolk, Virginia 

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.
21

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 
22

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 
23

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 
24

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 
25

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,2

nd [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 
26

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

or Contract

No.

Description of Effort

Evaluated

Performance

Areas

Recent 

(Y/N)

Relevancy

Rating

Rationale for

Relevancy Rating

Performance

Comments

MBUSA 

(Mercedes 

Benz USA)

Ted

Boudalis

Prime contractor receiving,

inspecting, documenting,

washing, providing and

managing truck areas,

painting and body repairs,

customer service,

performance reporting, and

interim storage at the VPC

in Brunswick, GA.

POV

Processing,

Storage,

Customer

Service

Y

1/1/07 –

12/31/12

SR 

[Somewhat 

Relevant]

Reference provided includes 

customer service, short term

storage, and POV processing 

but does not include 

arranging/providing ocean & 

inland transportation, longterm

storage, or OCONUS 

performance.

Past Performance

questionnaire

indicated overall

Exceptional

Performance.

Reference stated

they would award

future contract.
27

General

Motors

Scott

McMillan

Prime contractor receiving,

inspecting, documenting,

washing, providing and

managing truck areas,

painting and body repairs,

customer service,

performance reporting, and

interim storage at the VPC 

in Brunswick, GA.

POV

Processing,

Storage,

Customer

Service

Y

10/1/07 

–

12/31/17

SR Reference provided includes 

customer service, short term

storage, and POV processing 

but does not include 

arranging/providing ocean & 

inland transportation, longterm

storage, or OCONUS

performance.

Past Performance

questionnaire

indicated overall

Very Good

Performance.

Reference stated

they would award

future contract.

[Hyundai] 

Glovis

America,

Inc.

Glenn Clift

Prime contractor providing

new/finished vehicle

processing and storage in

the US.

POV

processing,

customer

service,

storage

Y

2010-

2012

SR Reference provided

includes customer

service, storage, and

POV processing but

does not include

arranging/providing

ocean & inland

transportation or

OCONUS

performance.

Past Performance

questionnaire

indicated overall

Very Good

Performance.

Reference stated

they would award

future contract.

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

or Contract

No.

Description of Effort

Evaluated

Performance

Areas

Recent 

(Y/N)

Relevancy

Rating

Rationale for

Relevancy Rating

Performance

Comments

HTC711-

09-D0039

Bill

Lindquist

Prime contractor providing

international cargo

transportation and

distribution services using

common contract ocean

carriers offering regularly

scheduled commercial liner

service.

Providing/

arranging for

ocean & 

inland

transportation,

customer

service

Y

1/1/09 –

2/29/12

SR Reference provided includes

providing/arranging for ocean & 

inland transportation, customer 

service, and CONUS/OCONUS

performance but does not 

include POV processing and 

storage.

Past Performance

questionnaire

indicated overall

Exceptional

Performance.

Reference stated

they would award

future contract.

Uniworld

Ross

Shrourou

Prime contractor providing

carriage of vehicles and

heavy equipment via ocean

transportation from US East

Coast to various

destinations in the

Mediterranean, Red Sea,

and Arabian Gulf.

Providing/

arranging for

ocean

transportation,

customer

service

Y

1/1/11 -

Present

SR Reference provided includes

providing/arranging for ocean

transportation, customer service,

and CONUS/OCONUS 

performance but does not 

include POV processing, 

providing/arranging inland

transportation, or storage.

Past Performance

questionnaire

indicated overall

Exceptional

Performance.

Reference stated

they would award

future contract.
28

HTC711-

09-D0039

Kim

Crossen

Prime contractor providing

international cargo

transportation and

distribution services using

common contract ocean

carriers offering regularly

scheduled commercial liner

service.

Providing/

arranging for

ocean & 

inland

transportation,

customer

service

Y

04/01/11 

–

09/30/12

SR Reference provided includes

providing/arranging for ocean & 

inland transportation, customer 

service, and CONUS/OCONUS

performance but does not 

include POV processing and

storage.

PPIRS [Past 

Performance 

Information 

Retrieval System] 

indicated

Satisfactory

performance.

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

or Contract

No.

Description of Effort

Evaluated

Performance

Areas

Recent 

(Y/N)

Relevancy

Rating

Rationale for

Relevancy Rating

Performance

Comments

HTC711-

11-09-D0037 

Kim

Crossen

Prime contractor

providing international

cargo transportation and

distribution services using

common contract ocean

carriers offering regularly

scheduled commercial

liner service.

Providing/arranging

for ocean & inland

transportation

Y

1/30/09 

–

9/30/12

SR Reference provided includes

providing/arranging for ocean 

& inland transportation, and

CONUS/OCONUS 

performance but does not 

include POV processing, 

storage, and customer service.

PPIRS indicated

Satisfactory

performance.

Reference stated

they would award

future contract.

HTC711-

11-D-R012

Kim

Crossen

Prime contractor

providing port to port and

end to end ocean

transportation services

between CONUS and

Alaska/Hawaii.

Providing/arranging

for ocean & inland

transportation

Y

12/1/11 

–

11/30/12

SR Reference provided includes

providing/arranging for ocean 

& inland transportation, and

CONUS/OCONUS 

performance but does not 

include POV processing, 

storage, and customer service.

PPIRS indicated

Satisfactory

performance.

Reference stated

they would award

future contract.

HTC711-

11-D-W004

Kim

Crossen

Prime contractor

providing port to port and

end to end ocean

transportation services

to/from Alaska/Hawaii

and CONUS.

Providing/arranging

for ocean & inland

transportation

Y

08/01/11 

–

11/30/12

SR Reference provided includes

providing/arranging for ocean 

& inland transportation, and

CONUS/OCONUS 

performance but does not 

include POV processing, 

storage, or customer service.

PPIRS indicated

Unsatisfactory to

Satisfactory

performance.

Reference stated

they might or

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 
29

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:
30

Reference

or Contract

No.

Description of Effort

Evaluated

Performance

Areas

Recent 

(Y/N)

Relevancy

Rating

Rationale for

Relevancy Rating

Performance

Comments

W6447-

ILEA08-35

Pat

Amirault

Subcontractor providing

complete transportation

services of POVs for

service members of the

Canadian Department of

National Defense for

shipments between

Canada/US and Europe.

Providing/arranging

for ocean & inland

transportation,

customer service,

POV processing

Y

2008 -

Present

R 

[Relevant]

Reference provided includes

providing/arranging for ocean 

& inland transportation, 

customer service, POV 

processing, and 

CONUS/OCONUS 

performance but does not 

include storage.

Past performance

questionnaire

indicated overall

Exceptional

Performance.

Reference stated

they would award

future contract.

Volkswagen

Logistics

Andree

Brinkmann

Prime contractor

providing transportation

and relocation services

for shipment of private

vehicles worldwide

including additional

services required locally

by host nation countries.

Providing/arranging

for ocean & inland

transportation,

customer service,

POV processing

Y

2006 -

Present

R Reference provided includes

providing/arranging for ocean 

& inland transportation, 

customer service, POV 

processing, and 

CONUS/OCONUS 

performance but does not 

include storage.

Past performance

questionnaire

indicated overall

Very Good to

Exceptional

Performance.

Reference stated

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 
31

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

or Contract

No.

Description of Effort

Evaluated

Performance

Areas

Recent 

(Y/N)

Relevancy

Rating

Rationale for

Relevancy Rating

Performance

Comments

W9124J09-D-0017

Gerard

Sovie

Prime contractor providing 

complete in-processing

Storage services for the 

Dept of the Army POVs.

POV processing,

providing/arranging

for inland

transportation,

customer service,

and storage.

Y

7/1/09 –

6/30/12

SR Reference provided includes

providing/arranging for inland

transportation, customer 

service, storage, and POV

processing but does not 

include providing/arranging

for ocean transportation or

OCONUS performance.

Past performance

questionnaire

indicated overall

Very Good

Performance.

Reference stated

they would award

future contract.

W9124J09-D-0017

DO Fort

Carson,

CO

Jennifer

DeGraff

Prime contractor providing 

complete in-processing

Storage services in 

Colorado for the Dept of 

the Army POVs.

POV processing,

providing/arranging

for inland

transportation,

customer service,

and storage.

Y

7/1/09 –

6/30/12

SR Reference provided includes

providing/arranging for inland

transportation, customer 

service, storage, and POV

processing but does not 

include providing/arranging

for ocean transportation or

OCONUS performance.

Past performance

questionnaire

indicated overall

Exceptional

Performance.

Reference stated

they would award

future contract.

W9124J09-D-0017

DO Joint

Base

LewisMcChord,

WA

Arthur

Dearen

Prime contractor providing 

complete in-processing

Storage services in 

Washington for the Dept 

of the Army POVs.

POV processing,

providing/arranging

for inland

transportation,

customer service,

and storage.

Y

7/1/09 –

6/30/12

SR Reference provided includes

providing/arranging for inland

transportation, customer 

service, storage, and POV

processing but does not 

include providing/arranging

for ocean transportation or

OCONUS performance.

Past performance

questionnaire

indicated overall

Exceptional

Performance.

Reference stated

they would award

future contract.

W9124J09-D-0017

Angela

Arwood

Prime contractor

providing complete inprocessing storage

services for the Dept of

the Army POVs.

POV processing,

providing/arranging

for inland

transportation,

customer service,

and storage.

Y SR Reference provided includes

providing/arranging for inland

transportation, customer 

service, storage, and POV

processing but does not 

include providing/arranging

for ocean transportation or

OCONUS performance.

PPIRS indicated

Very Good to

Exceptional

performance.

Reference stated

they would award

future contract.

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

operations and demonstrates Very Good to Exceptional performance in 
32

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

or Contract

No.

Description of Effort

Evaluated

Performance

Areas

Recent 

(Y/N)

Relevancy

Rating

Rationale for

Relevancy Rating

Performance

Comments

AT&T Marc

Botindari

Prime contractor 

managing the 

transportation of new

vehicles entering service 

and the transportation of

used surplus vehicle

relocation and specialty

equipment relocation.

Providing/arranging

inland

transportation,

customer service

Y

2009 –

Present

SR Reference provided includes

providing/arranging inland 

transportation and customer 

service in US only. The 

reference does not include 

providing/arranging ocean 

transportation, POV 

processing, storage, or 

OCONUS performance.

Past Performance

questionnaire

indicated overall

Exceptional 

Performance.

Reference stated

they would award

future contract.

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

or Contract

No.

TRANSCOM’s Description of Effort

Evaluated

TRANSCOM’s Rationale for

Relevancy Rating

Posey Transport 

Group

TS00010203

Joe

Adamczyk

“Subcontractor providing POV transport 

between VPCs and vehicle storage facilities 

(VSFs) at operating locations in five US 

western states. 2009-2010 $107,945; 2010-

2011 $319,530; 2011-2012 $53,143.”

“Reference provided includes providing/arranging

inland transportation and customer service in the 

western United 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.”

Posey Transport 

Group

Erhard BMW

John 

Kapousis

“Prime contractor managing the 

transportation of dealer to dealer vehicle 

trades and dealer to customer POV 

transportation requests in CONUS and 

Canada. 2010 $21,255; 2011 $14,670; 

2012 $8,830; 2013 $9,900.”

“Reference provided includes providing/arranging

inland transportation and customer service in United 

States and Canada 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.”

Boyle 

Transportation

GSA Ron 

Siegel

“Prime contractor moving US National 

Archives via inland transportation for 

National Archives Records Administration 

with security requirements in CONUS. 

$200,000 annually.”

“Reference provided includes providing/arranging

inland transportation and customer service in the United 

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.”

Boyle 

Transportation

M&EC Mike

Eisenhower

“Prime contractor moving nuclear materials, 

security, and/or other specified 

requirements in CONUS. $120,000.”

“Reference provided includes providing/arranging

inland transportation and customer service in the United 

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.”
33

VPC of 

Fayetteville

VPC001

& RV001

Arthur

Goodman

“Prime contractor providing indoor POV 

storage (including maintenance) for two 

POVs, one RV, and sold the vehicle in 

Hope Mills, North Carolina. Also provided 

shuttle service to/from airport. $2,279.46 

annually; $6,838.38 life cycle.”

“Reference provided includes customer service, storage, 

& POV processing in North Carolina only. The reference 

does not include providing/arranging ocean or inland 

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.”

VPC of 

Fayetteville

VPC013

& VPC190

Michelle

Bandy

“Prime contractor providing indoor POV 

storage (including maintenance) and 

shipping for one POV and packing, crating, 

storage, and shipping of household goods 

in Hope Mills, North Carolina. Also provided 

shuttle service to/from airport. $3,085.”

“Reference provided includes customer service, storage, 

POV processing, and arranging/providing

inland transportation in North Carolina only. The 

reference 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.”

VPC of 

Fayetteville

VPC182

Juan

Villarreal

“Prime contractor providing indoor POV 

storage (including maintenance) and 

shipping for one POV in Hope Mills, North 

Carolina. $1,671.03.”

“Reference provided includes customer service, storage, 

POV processing, and arranging/providing inland 

transportation in North Carolina only. The reference 

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 

Consulting 

Services

GAPS

Donald

Asdell

“Individual who developed, established, and 

instituted operational and administrative 

processes and programs to operate vehicle

processing and factory operations as the

President of GAPS. $235,000 annual; 

$725,000 life cycle.”

“Reference provided is for an individual’s performance 

(Ruhi Guven) as a previous President of (GAPS). 

Information provided is not for NACS as a company.”

North American 

Consulting 

Services

City & Port

of Long

Beach

Frank

Colonna

“Prime contractor providing port and 

terminal operations and logistics needs at 

the port of Long Beach, CA.”

[Not recent]

North American 

Consulting 

Services

A&R

Engineering

Murat

Sehidoglu

“Prime contractor reviewing and updating 

existing Quality Assurance program to 

reflect the industry required standards in 

Carson, CA.”

[Not recent]

Lincoln Property 

Company

W9124J09-D-0017

Joe

Adamczyk

“Subcontractor who researched, negotiated, 

and acquired facilities to support the 

contract.”

“Reference provided includes customer service in 

reference to acquiring facilities in CONUS only. The 

reference does not include providing/arranging ocean or 

inland transportation, OCONUS performance, POV 

processing, or storage.”

Lincoln Property 

Company

Cascades

Technologies, 

Inc.

Alfredo

Casta

“Prime contractor who identified needs and

criteria to find the person office spaces in

Washington, D.C. and Northern Virginia.”

“Reference provided includes customer service in 

reference to acquiring facilities in CONUS only. The 

reference does not include providing/arranging ocean or 

inland transportation, OCONUS performance, POV 

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.” 
34

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 
35

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) 
36

and Regional Domestic Contracts (RDC); many of the OCONUS VPCs 

are Government-provided; warehousing, vehicle processing space, linehaul 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 
37

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 SatisfactoryExceptional 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 twentyeight 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. 
38

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 
39

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.”
40

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 
41

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).
42

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 
43

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., B406683, 2012 WL 3298132 (Comp. Gen. Aug. 3, 2012), and Ecompex, Inc., B292865.4, 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 
44

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 
45

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 
46

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). 
47

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 the record.’” Mgmt. & 

Training Corp. v. United States, 115 Fed. Cl. 26, 40 (2014) (quoting A & D Fire Prot., 

Inc. v. United States, 72 Fed. Cl. 126, 131 (2006) (citing Bannum, Inc. v. United States, 

404 F.3d 1356–57)); see also Eco Tour Adventures, Inc. v. United States, 114 Fed. Cl. 

6, 21 (2013); DMS All-Star Joint Venture v. United States, 90 Fed. Cl. 653, 661 (2010). 

The Administrative Dispute Resolution Act of 1996 (ADRA), Pub. L. No. 104-320, 

§§ 12(a), 12(b), 110 Stat. 3870, 3874 (1996) (codified at 28 U.S.C. § 1491(b)(1)–(4) 

(2012)), amended the Tucker Act to establish a statutory basis for bid protests in the 

United States Court of Federal Claims. See Impresa Construzioni Geom. Domenico 

Garufi v. United States, 238 F.3d 1324, 1330–32 (Fed. Cir. 2001). The statute provides 

that protests of agency procurement decisions are to be reviewed under Administrative 

Procedure Act (APA) standards, making applicable the standards outlined in Scanwell 

Laboratories, Inc. v. Shaffer, 424 F.2d 859 (D.C. Cir. 1970), and the line of cases 

following that decision. See, e.g., Res. Conservation Grp., LLC v. United States, 597 

F.3d 1238, 1242 (Fed. Cir. 2010) (“Following passage of the APA in 1946, the District of 

Columbia Circuit in Scanwell Labs., Inc. v. Shaffer, 424 F.2d 859 (D.C. Cir. 1970), held 

that challenges to awards of government contracts were reviewable in federal district 

courts pursuant to the judicial review provisions of the APA.”); Galen Med. Assocs., Inc. 

v. United States, 369 F.3d at 1329 (citing to Scanwell Laboratories, Inc. v. Shaffer for its 

reasoning that “suits challenging the award process are in the public interest and 

disappointed bidders are the parties with an incentive to enforce the law”); Banknote 

Corp. of Am., Inc. v. United States, 365 F.3d 1345, 1351 (Fed. Cir. 2004) (“Under the 

APA standard as applied in the Scanwell line of cases, and now in ADRA cases, ‘a bid 

award may be set aside if either (1) the procurement official’s decision lacked a rational 

basis; or (2) the procurement procedure involved a violation of regulation or procedure.’” 

(quoting Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d at 

1332)); Info. Tech. & Applications Corp. v. United States, 316 F.3d at 1319. The United 

States Court of Appeals for the Federal Circuit has stated that the Court of Federal 

Claims’ jurisdiction over “any alleged violation of statute or regulation in connection with 

a procurement or a proposed procurement,” 28 U.S.C. § 1491(b)(1), “provides a broad 

grant of jurisdiction because ‘[p]rocurement includes all stages of the process of 

acquiring property or services, beginning with the process for determining a need for 

property or services and ending with contract completion and closeout.’” Sys. 
48

Application & Techs., Inc. v. United States, 691 F.3d 1374, 1381 (Fed. Cir. 2012) 

(quoting Res. Conservation Grp., LLC v. United States, 597 F.3d at 1244) (emphasis in 

original); see also Rockies Exp. Pipeline LLC v. Salazar, 730 F.3d 1330, 1336 (Fed. Cir. 

2013), reh’g denied (Fed. Cir. 2014); Distributed Solutions, Inc. v. United States, 539 

F.3d 1340, 1345 (Fed. Cir.) (“[T]he phrase, ‘in connection with a procurement or 

proposed procurement,’ by definition involves a connection with any stage of the federal 

contracting acquisition process, including ‘the process for determining a need for 

property or services.’”), reh’g denied (Fed. Cir. 2008); RAMCOR Servs. Grp., Inc. v. 

United States, 185 F.3d 1286, 1289 (Fed. Cir. 1999) (“The operative phrase ‘in 

connection with’ is very sweeping in scope.”). 

Agency procurement actions should be set aside when they are “arbitrary, 

capricious, an abuse of discretion, or otherwise not in accordance with law,” or “without 

observance of procedure required by law.” 5 U.S.C. § 706(2)(A), (2)(D) (2012);

14 see

 

14 The language of 5 U.S.C. § 706 provides:

To the extent necessary to decision and when presented, the reviewing 

court shall decide all relevant questions of law, interpret constitutional and 

statutory provisions, and determine the meaning or applicability of the 

terms of an agency action. The reviewing court shall—

(1) compel agency action unlawfully withheld or unreasonably delayed; 

and

(2) hold unlawful and set aside agency action, findings, and 

conclusions found to be—

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in 

accordance with law;

(B) contrary to constitutional right, power, privilege, or immunity;

(C)in excess of statutory jurisdiction, authority, or limitations, or 

short of statutory right;

(D)without observance of procedure required by law;

(E) unsupported by substantial evidence in a case subject to 

sections 556 and 557 of this title or otherwise reviewed on the 

record of an agency hearing provided by statute; or

(F) unwarranted by the facts to the extent that the facts are subject 

to trial de novo by the reviewing court.
49

also Orion Tech., Inc. v. United States, 704 F.3d 1344, 1347 (Fed. Cir. 2013); COMINT 

Sys. Corp. v. United States, 700 F.3d 1377, 1381 (Fed. Cir. 2012); Savantage Fin. 

Servs. Inc., v. United States, 595 F.3d 1282, 1285-86 (Fed. Cir. 2010); Weeks Marine, 

Inc. v. United States, 575 F.3d 1352, 1358 (2009); Axiom Res. Mgmt., Inc. v. United 

States, 564 F.3d 1374, 1381 (Fed. Cir. 2009) (noting arbitrary and capricious standard 

set forth in 5 U.S.C. § 706(2)(A), and reaffirming the analysis of Impresa Construzioni 

Geom. Domenico Garufi v. United States, 238 F.3d at 1332); Blue & Gold Fleet, L.P. v. 

United States, 492 F.3d 1308, 1312 (Fed. Cir. 2007) (“[T]he inquiry is whether the 

[government’s] procurement decision was ‘arbitrary, capricious, an abuse of discretion, 

or otherwise not in accordance with law.’” (quoting 5 U.S.C. § 706(2)(A) (2000))); 

Bannum, Inc. v. United States, 404 F.3d at 1351; Eco Tour Adventures, Inc. v. United 

States, 114 Fed. Cl. at 22; Contracting, Consulting, Eng’g LLC v. United States, 104 

Fed. Cl. 334, 340 (2012). “‘In a bid protest case, the agency’s award must be upheld 

unless it is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance 

with law.’” Turner Constr. Co. v. United States, 645 F.3d 1377, 1383 (Fed. Cir.) (quoting 

PAI Corp. v. United States, 614 F.3d 1347, 1351 (Fed. Cir. 2010)), reh’g and reh’g en

banc denied (Fed. Cir. 2011); see also Glenn Def. Marine (ASIA), PTE Ltd. v. United 

States, 720 F.3d 901, 907 (Fed. Cir. 2013); McVey Co. v. United States, 111 Fed. Cl. 

387, 402 (2013) (“The first step is to demonstrate error, that is, to show that the agency 

acted in an arbitrary and capricious manner, without a rational basis or contrary to 

law.”); PlanetSpace, Inc. v. United States, 92 Fed. Cl. 520, 531–32 (2010) (“Stated 

another way, a plaintiff must show that the agency’s decision either lacked a rational 

basis or was contrary to law.” (citing Weeks Marine, Inc. v. United States, 575 F.3d at 

1358)).

In discussing the appropriate standard of review for bid protest cases, the United 

States Court of Appeals for the Federal Circuit specifically has addressed subsections 

(2)(A) and (2)(D) of 5 U.S.C. § 706, see Impresa Construzioni Geom. Domenico Garufi 

v. United States, 238 F.3d at 1332 n.5, but the Federal Circuit has focused its attention 

primarily on subsection (2)(A). See COMINT Systems Corp. v. United States, 700 F.3d 

at 1381 (“We evaluate agency actions according to the standards set forth in the 

Administrative Procedure Act; namely, for whether they are ‘arbitrary, capricious, an 

abuse of discretion, or otherwise not in accordance with law.’” (quoting 5 U.S.C. 

§ 706(2)(A))); Bannum, Inc. v. United States, 404 F.3d at 1351; NVT Techs., Inc. v. 

United States, 370 F.3d 1153, 1159 (Fed. Cir. 2004) (“Bid protest actions are subject to 

the standard of review established under section 706 of Title 5 of the Administrative 

Procedure Act (‘APA’), 28 U.S.C. § 1491(b)(4) (2000), by which an agency’s decision is 

to be set aside only if it is ‘arbitrary, capricious, an abuse of discretion, or otherwise not 

in accordance with law,’ 5 U.S.C. § 706(2)(A) (2000).” (citations omitted)); Banknote 

Corp. of Am., Inc. v. United States, 365 F.3d at 1350 (“Among the various APA 

 

In making the foregoing determinations, the court shall review the whole 

record or those parts of it cited by a party, and due account shall be taken 

of the rule of prejudicial error.

5 U.S.C. § 706.
50

standards of review in section 706, the proper standard to be applied in bid protest 

cases is provided by 5 U.S.C. § 706(2)(A): a reviewing court shall set aside the agency 

action if it is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance 

with law.’” (quoting 5 U.S.C. § 706(2)(A), and citing Advanced Data Concepts, Inc. v. 

United States, 216 F.3d 1054, 1058 (Fed. Cir.), reh’g denied (Fed. Cir. 2000))); Info. 

Tech. & Applications Corp. v. United States, 316 F.3d at 1319 (“Consequently, our 

inquiry is whether the Air Force’s procurement decision was ‘arbitrary, capricious, an 

abuse of discretion, or otherwise not in accordance with law.’ 5 U.S.C. § 706(2)(A) 

(2000).”).

The United States Supreme Court has identified sample grounds which can 

constitute arbitrary or capricious agency action:

[W]e will not vacate an agency’s decision unless it “has relied on factors 

which Congress has not intended it to consider, entirely failed to consider 

an important aspect of the problem, offered an explanation for its decision 

that runs counter to the evidence before the agency, or is so implausible 

that it could not be ascribed to a difference in view or the product of 

agency expertise.”

Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 658 (2007) (quoting 

Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)); 

see also F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502, 552 (2009); SKF USA 

Inc. v. United States, 630 F.3d 1365, 1374 (Fed. Cir. 2011); Ala. Aircraft Indus., Inc.-

Birmingham v. United States, 586 F.3d 1372, 1375 (Fed. Cir. 2009), reh’g and reh’g en

banc denied (Fed. Cir. 2010); In re Sang Su Lee, 277 F.3d at 1342 (“The agency must 

present a full and reasoned explanation of its decision. . . . The reviewing court is thus 

enabled to perform a meaningful review . . . .”); WHR Grp., Inc. v. United States, 115 

Fed. Cl. 386, 398 (2014); Supreme Foodservice GmbH v. United States, 109 Fed. Cl. 

369, 382 (2013) (applying the standard in a bid protest dispute); Linc Gov’t Servs., LLC 

v. United States, 108 Fed. Cl. 473, 489 (2012) (same). The United States Supreme 

Court also has cautioned, however, that “courts are not free to impose upon agencies 

specific procedural requirements that have no basis in the APA.” Pension Benefit Guar. 

Corp. v. LTV Corp., 496 U.S. 633, 654 (1990).

A disappointed bidder has the burden of demonstrating the arbitrary and 

capricious nature of the agency decision by a preponderance of the evidence. See

Grumman Data Sys. Corp. v. Dalton, 88 F.3d 990, 995–96 (Fed. Cir. 1996); Davis Boat 

Works, Inc. v. United States, 111 Fed. Cl. 342, 349 (2013); Contracting, Consulting, 

Eng’g LLC v. United States, 104 Fed. Cl. at 340; Fulcra Worldwide, LLC v. United 

States, 97 Fed. Cl. 523 (2011). The Federal Circuit has made clear that “[t]his court will 

not overturn a contracting officer’s determination unless it is arbitrary, capricious, or 

otherwise contrary to law. To demonstrate that such a determination is arbitrary or 

capricious, a protester must identify ‘hard facts;’ a mere inference or suspicion . . . is not 

enough.” PAI Corp. v. United States, 614 F.3d at 1352 (citing John C. Grimberg Co. v. 

United States, 185 F.3d 1297, 1300 (Fed. Cir. 1999)); see also Turner Constr. Co., Inc. 
51

v. United States, 645 F.3d at 1387; Sierra Nev. Corp. v. United States, 107 Fed. Cl. 

735, 759 (2012); Filtration Dev. Co., LLC v. United States, 60 Fed. Cl. 371, 380 (2004).

Furthermore, to prevail in a bid protest case, the protestor not only must show 

that the government’s actions were arbitrary, capricious, or otherwise not in accordance 

with the law, but the protestor also must show that it was prejudiced by the 

government’s actions. See 5 U.S.C. § 706 (“[D]ue account shall be taken of the rule of 

prejudicial error.”); see also Glenn Def. Marine (ASIA), PTE Ltd. v. United States, 720 

F.3d at 907 (“In a bid protest case, the inquiry is whether the agency's action was 

arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law 

and, if so, whether the error is prejudicial.”); Linc Gov’t Servs., LLC v. United States, 96 

Fed. Cl. at 694–96. Recognizing the two-step analysis of bid protest cases, the United 

States Court of Appeals for the Federal Circuit has stated that:

A bid protest proceeds in two steps. First . . . the trial court determines 

whether the government acted without rational basis or contrary to law 

when evaluating the bids and awarding the contract. Second . . . if the trial 

court finds that the government’s conduct fails the APA review under 5 

U.S.C. § 706(2)(A), then it proceeds to determine, as a factual matter, if 

the bid protester was prejudiced by that conduct.

Bannum, Inc. v. United States, 404 F.3d at 1351; Eco Tour Adventures, Inc. v. United 

States, 114 Fed. Cl. at 22; Archura LLC v. United States, 112 Fed. Cl. at 496. In 

describing the prejudice requirement, the Federal Circuit also has held that:

To prevail in a bid protest, a protester must show a significant, prejudicial 

error in the procurement process. See Statistica, Inc. v. Christopher, 102 

F.3d 1577, 1581 (Fed. Cir. 1996); Data Gen. Corp. v. Johnson, 78 F.3d 

1556, 1562 (Fed. Cir. 1996). “To establish prejudice, a protester is not 

required to show that but for the alleged error, the protester would have 

been awarded the contract.” Data General, 78 F.3d at 1562 (citation 

omitted). Rather, the protester must show “that there was a substantial 

chance it would have received the contract award but for that error.” 

Statistica, 102 F.3d at 1582; see CACI, Inc.-Fed. v. United States, 719 

F.2d 1567, 1574-75 (Fed. Cir. 1983) (to establish competitive prejudice, 

protester must demonstrate that but for the alleged error, “‘there was a 

substantial chance that [it] would receive an award--that it was within the 

zone of active consideration.’”) (citation omitted).

Alfa Laval Separation, Inc. v. United States, 175 F.3d 1365, 1367 (Fed. Cir.), reh’g

denied (Fed. Cir. 1999); see also Glenn Def. Marine (ASIA), PTE Ltd. v. United States, 

720 F.3d at 912; Allied Tech. Grp., Inc. v. United States, 649 F.3d 1320, 1326 (Fed. 

Cir.), reh’g en banc denied (Fed. Cir. 2011); Info. Tech. & Applications Corp. v. United 

States, 316 F.3d at 1319; Impresa Construzioni Geom. Domenico Garufi v. United 

States, 238 F.3d at 1332-33; OMV Med., Inc. v. United States, 219 F.3d 1337, 1342 

(Fed. Cir. 2000); Advanced Data Concepts, Inc. v. United States, 216 F.3d at 1057; 
52

Stratos Mobile Networks USA, LLC v. United States, 213 F.3d 1375, 1380 (Fed. Cir. 

2000).

In Data General Corp. v. Johnson, the United States Court of Appeals for the 

Federal Circuit wrote:

We think that the appropriate standard is that, to establish prejudice, a 

protester must show that, had it not been for the alleged error in the 

procurement process, there was a reasonable likelihood that the protester 

would have been awarded the contract . . . . The standard reflects a 

reasonable balance between the importance of (1) averting unwarranted 

interruptions of and interferences with the procurement process and (2) 

ensuring that protesters who have been adversely affected by allegedly 

significant error in the procurement process have a forum available to vent 

their grievances. This is a refinement and clarification of the “substantial 

chance” language of CACI, Inc.-Fed. [v. United States], 719 F.2d at 1574.

Data Gen. Corp. v. Johnson, 78 F.3d 1556, 1562 (Fed. Cir.), reh’g denied, en banc

suggestion declined (Fed. Cir. 1996); see also Glenn Def. Marine (ASIA), PTE Ltd. v. 

United States, 720 F.3d at 912; Bannum, Inc. v. United States, 404 F.3d at 1353, 1358 

(“The trial court was required to determine whether these errors in the procurement 

process significantly prejudiced Bannum . . . . To establish ‘significant prejudice’ 

Bannum must show that there was a ‘substantial chance’ it would have received the 

contract award but for the [government’s] errors” in the bid process. (citing Info. Tech. & 

Applications Corp. v. United States, 316 F.3d at 1319; Alfa Laval Separation, Inc. v. 

United States, 175 F.3d at 1367; Statistica, Inc. v. Christopher, 102 F.3d at 1581; Data 

Gen. Corp. v. Johnson, 78 F.3d at 1562); Advanced Data Concepts, Inc. v. United 

States, 216 F.3d at 1057 (using a “reasonable likelihood” rule); Stratos Mobile Networks 

USA, LLC v. United States, 213 F.3d at 1380 (using a “substantial chance” test); 

Archura LLC v. United States, 112 Fed. Cl. at 496 (using a “substantial chance” test); 

Info. Scis. Corp. v. United States, 73 Fed. Cl. 70, 96 (2006) (using a “substantial 

chance” test), recons. in part, 75 Fed. Cl. 406 (2007). 

Under an arbitrary or capricious standard, the reviewing court should not 

substitute its judgment for that of the agency, but should review the basis for the agency 

decision to determine if it was legally permissible, reasonable, and supported by the 

facts. See Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. at 43 

(“The scope of review under the arbitrary and capricious standard is narrow and a court 

is not to substitute its judgment for that of the agency.”); see also Turner Constr. Co., 

Inc. v. United States, 645 F.3d at 1383; R & W Flammann GmbH v. United States, 339 

F.3d 1320, 1322 (Fed. Cir. 2003) (citing Ray v. Lehman, 55 F.3d 606, 608 (Fed. Cir.), 

cert. denied, 516 U.S. 916 (1995)). “‘“If the court finds a reasonable basis for the 

agency’s action, the court should stay its hand even though it might, as an original 

proposition, have reached a different conclusion as to the proper administration and 

application of the procurement regulations.”’” Weeks Marine, Inc. v. United States, 575 

F.3d at 1371 (quoting Honeywell, Inc. v. United States, 870 F.2d 644, 648 (Fed. Cir. 
53

1989) (quoting M. Steinthal & Co. v. Seamans, 455 F.2d 1289, 1301 (D.C. Cir. 1971))); 

Norsat Int’l [America], Inc. v. United States, 111 Fed. Cl. 483, 493 (2013); Davis Boat 

Works, Inc. v. United States, 111 Fed. Cl. at 349; HP Enter. Servs., LLC v. United 

States, 104 Fed. Cl. 230, 238 (2012); Vanguard Recovery Assistance v. United States, 

101 Fed. Cl. 765, 780 (2011).

As stated by the United States Supreme Court:

Section 706(2)(A) requires a finding that the actual choice made was not 

“arbitrary, capricious, an abuse of discretion, or otherwise not in 

accordance with law.” To make this finding the court must consider 

whether the decision was based on a consideration of the relevant factors 

and whether there has been a clear error of judgment. Although this 

inquiry into the facts is to be searching and careful, the ultimate standard 

of review is a narrow one. The court is not empowered to substitute its 

judgment for that of the agency.

Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971), abrogated on

other grounds by Califano v. Sanders, 430 U.S. 99 (1977); see also U.S. Postal Serv. v. 

Gregory, 534 U.S. 1, 6-7 (2001); Bowman Transp., Inc. v. Arkansas-Best Freight Sys., 

Inc., 419 U.S. at 285; Co-Steel Raritan, Inc. v. Int’l Trade Comm'n, 357 F.3d at 1309 (In 

discussing the “arbitrary, capricious, and abuse of discretion otherwise not in 

accordance with the law” standard, the Federal Circuit stated that “the ultimate standard 

of review is a narrow one. The court is not empowered to substitute its judgment for that 

of the agency.” (quotation omitted)); In re Sang Su Lee, 277 F.3d at 1342; Advanced 

Data Concepts, Inc. v. United States, 216 F.3d at 1058 (“The arbitrary and capricious 

standard applicable here is highly deferential. This standard requires a reviewing court 

to sustain an agency action evincing rational reasoning and consideration of relevant 

factors.” (citing Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. at 

285)); Lockheed Missiles & Space Co. v. Bentsen, 4 F.3d 955, 959 (Fed. Cir. 1993); 

BCPeabody Constr. Servs., Inc. v. United States, 112 Fed. Cl. 502, 508 (2013) (“The 

court ‘is not empowered to substitute its judgment for that of the agency,’ and it must 

uphold an agency's decision against a challenge if the ‘contracting agency provided a 

coherent and reasonable explanation of its exercise of discretion.’” (quoting Keeton 

Corrs., Inc. v. United States, 59 Fed. Cl. 753, 755 (2004); Axiom Res. Mgmt., Inc. v. 

United States, 564 F.3d at 1381) (internal citations omitted)), appeal withdrawn, 559 F. 

App’x 1033 (Fed. Cir. 2014); Supreme Foodservice GmbH v. United States, 109 Fed. 

Cl. at 382; Alamo Travel Grp., LP v. United States, 108 Fed. Cl. 224, 231 (2012); Gulf 

Grp. Inc. v. United States, 61 Fed. Cl. 338, 351 (2004); ManTech Telecomms. & Info. 

Sys. Corp. v. United States, 49 Fed. Cl. 57, 63 (2001), aff’d, 30 F. App’x 995 (Fed. Cir. 

2002).

According to the United States Court of Appeals for the Federal Circuit:

Effective contracting demands broad discretion. Burroughs Corp. v. United 

States, 617 F.2d 590, 598 (Ct. Cl. 1980); Sperry Flight Sys. Div. v. United 
54

States, 548 F.2d 915, 921, 212 Ct. Cl. 329 (1977); see NKF Eng’g, Inc. v. 

United States, 805 F.2d 372, 377 (Fed. Cir. 1986); Tidewater 

Management Servs., Inc. v. United States, 573 F.2d 65, 73, 216 Ct. Cl. 69 

(1978); RADVA Corp. v. United States, 17 Cl. Ct. 812, 819 (1989), aff’d, 

914 F.2d 271 (Fed. Cir. 1990). Accordingly, agencies “are entrusted with a 

good deal of discretion in determining which bid is the most advantageous 

to the Government.” Tidewater Management Servs., 573 F.2d at 73, 216 

Ct. Cl. 69.

Lockheed Missiles & Space Co. v. Bentsen, 4 F.3d at 958-59; see also Res-Care, Inc. 

v. United States, 735 F.3d 1384, 1390 (Fed. Cir.) (The Department of Labor, “as a 

federal procurement entity, has ‘broad discretion to determine what particular method of 

procurement will be in the best interests of the United States in a particular situation.’” 

(quoting Tyler Constr. Grp. v. United States, 570 F.3d 1329, 1334 (Fed. Cir. 2009))), 

reh’g en banc denied (Fed. Cir. 2014); Grumman Data Sys. Corp. v. Dalton, 88 F.3d at 

995; Kingdomware Techs., Inc. v. United States, 107 Fed. Cl. 226, 231 (2012) 

(“‘Federal procurement entities have “broad discretion to determine what particular 

method of procurement will be in the best interests of the United States in a particular 

situation.”’” (quoting K-Lak Corp. v. United States, 98 Fed. Cl. 1, 8 (2011) (quoting Tyler 

Constr. Grp. v. United States, 570 F.3d at 1334))).

Similarly, the Federal Circuit further has indicated that:

Contracting officers “are entitled to exercise discretion upon a broad range 

of issues confronting them in the procurement process.” Impresa 

Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 

1332 (Fed. Cir. 2001) (internal quotation marks omitted). Accordingly, 

procurement decisions are subject to a “highly deferential rational basis 

review.” CHE Consulting, Inc. v. United States, 552 F.3d 1351, 1354 (Fed. 

Cir. 2008) (internal quotation marks omitted). Applying this highly 

deferential standard, the court must sustain an agency action unless the 

action does not “evince[ ] rational reasoning and consideration of relevant 

factors.” Advanced Data Concepts, Inc. v. United States, 216 F.3d 1054, 

1058 (Fed. Cir. 2000) (alterations added).

PAI Corp. v. United States, 614 F.3d at 1351; see also Weeks Marine, Inc. v. United 

States, 575 F.3d at 1368-69 (“We have stated that procurement decisions ‘invoke[ ] 

“highly deferential” rational basis review.’ Under that standard, we sustain an agency 

action ‘evincing rational reasoning and consideration of relevant factors.’” (quoting CHE 

Consulting, Inc. v. United States, 552 F.3d at 1354 (quoting Advanced Data Concepts, 

Inc. v. United States, 216 F.3d at 1058))); Cohen Fin. Servs., Inc. v. United States, 112 

Fed. Cl. 153, 162 (2013); McVey Co., Inc. v. United States, 111 Fed. Cl. at 402. 

The wide discretion afforded contracting officers extends to a broad range of 

procurement functions, including the determination of what constitutes an advantage 

over other proposals. See L-3 Commc’ns EOTech, Inc. v. United States, 83 Fed. Cl. 
55

643, 650 (2008) (“The deference afforded to an agency’s decision must be even greater 

when a trial court is asked to review a technical evaluation.”), appeal dismissed, 356 F. 

App’x 390 (Fed. Cir. 2009); Textron, Inc. v. United States, 74 Fed. Cl. 277, 286 (2008), 

appeal denied, 222 F. App’x 974–96, (Fed. Cir. 2007) (in which the court considered 

technical ranking decisions as “‘minutiae of the procurement process’” not to be second 

guessed by a court (quoting E.W. Bliss Co. v. United States, 77 F.3d 445, 449 (Fed. Cir. 

1996))). This is because “[t]he evaluation of proposals for their technical excellence or 

quality is a process that often requires the special expertise of procurement officials, 

and thus reviewing courts give the greatest deference possible to these determinations.” 

Beta Analytics Int’l, Inc. v. United States, 67 Fed. Cl. 384, 395 (2005) (citing E.W. Bliss 

Co. v. United States, 77 F.3d at 449); see also CRAssociates, Inc. v. United States, 102 

Fed. Cl. 698, 717 (2011); Unisys Corp. v. United States, 89 Fed. Cl. 126, 142 (2009) 

(holding that an agency’s “exercise of such technical judgment and expertise . . . . is 

entitled to the greatest possible deference under E.W. Bliss”). The question is not 

whether the court would reach the same conclusions as the agency regarding the 

comparison of proposals, but, rather, whether the conclusions reached by the agency 

lacked a reasonable basis and, therefore, were arbitrary or capricious, in which case, 

courts have a role to review and instruct. See WorldTravelService v. United States, 49 

Fed. Cl. 431, 441 (2001) (“Therefore, this court’s main task is to ensure that the 

[agency] examined the relevant data and articulated a ‘rational connection between the 

facts found and the choice made.’” (quoting Motor Vehicle Mfrs. Ass’n v. State Farm 

Mut. Auto. Ins. Co., 463 U.S. at 43 (internal citations omitted))); Cybertech Grp., Inc. v. 

United States, 48 Fed. Cl. 638, 646 (2001) (“The court recognizes that the agency 

possesses wide discretion in the application of procurement regulations.”).

The amount of discretion afforded the contracting officer is greater in some 

circumstances as compared to others. For example, in a negotiated procurement, 

contracting officers are generally afforded greater decision making discretion, in 

comparison to their role in sealed bid procurements. See Glenn Def. Marine (ASIA), 

PTE Ltd. v. United States, 720 F.3d at 907 (“The protestor's burden is greater in 

negotiated procurement, as here, than in other types of bid protests because ‘“the 

contracting officer is entrusted with a relatively high degree of discretion.”’” (quoting 

Galen Med. Assocs., Inc. v. United States, 369 F.3d at 1330 (quoting Burroughs Corp. 

v. United States, 223 Ct. Cl. 53, 64, 617 F.2d 590, 598 (1980)))); Galen Med. Assocs., 

Inc. v. United States, 369 F.3d at 1330 (“Because the bid protest at issue here involved 

a ‘negotiated procurement,’ the protestor’s burden of proving that the award was 

arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law is 

greater than in other types of bid protests.” (citations omitted)); Am. Tel. & Tel. Co. v. 

United States, 307 F.3d 1374, 1379 (Fed. Cir. 2002) (“Moreover, in a negotiated 

procurement, as in this case, this court has held that the regulations entrust the 

contracting officer with especially great discretion, extending even to his application of 

procurement regulations.”), reh’g en banc denied (Fed. Cir.), cert. denied, 540 U.S. 937 

(2003).

The United States Court of Appeals for the Federal Circuit has explained that 

procurement officials have an even greater degree of discretion when it comes to bestvalue determinations, as compared to deciding on price alone. See Galen Med. 
56

Assocs., Inc. v. United States, 369 F.3d at 1330 (noting that because “the contract was 

to be awarded based on ‘best value,’ the contracting officer had even greater discretion 

than if the contract were to have been awarded on the basis of cost alone”); see also

CHE Consulting, Inc. v. United States, 552 F.3d at 1354 (citing E.W. Bliss Co. v. United 

States, 77 F.3d at 449); Banknote Corp. of Am. Inc. v. United States, 365 F.3d at 1355 

(“It is well-established that contracting officers have a great deal of discretion in making 

contract award decisions, particularly when, as here, the contract is to be awarded to 

the bidder or bidders that will provide the agency with the best value.” (citing TRW, Inc. 

v. Unisys Corp., 98 F.3d 1325, 1327-28 (Fed. Cir. 1996))); Am. Tel. & Tel. Co. v. United 

States, 307 F.3d at 1379; E.W. Bliss Co. v. United States, 77 F.3d at 449 (“Procurement 

officials have substantial discretion to determine which proposal represents the best 

value for the government.”); Optimization Consulting, Inc. v. United States, 115 Fed. Cl. 

78, 89 (2013); Amazon Web Servs., Inc. v. United States, 113 Fed. Cl. 102, 110 (2013) 

(“Contracting officers are afforded ‘an even greater degree of discretion when the award 

is determined based on the best value to the agency.’” (quoting Galen Med. Assocs., 

Inc. v. United States, 369 F.3d at 1330)); Akal Sec., Inc. v. United States, 103 Fed. Cl. 

310, 329 (2011) (“The United States Court of Appeals for the Federal Circuit has 

recognized that ‘[p]rocurement officials have substantial discretion to determine which 

proposal represents the best value for the government.’” (quoting E.W. Bliss Co. v. 

United States, 77 F.3d at 449)); Blackwater Lodge & Training Ctr., Inc. v. United States, 

86 Fed. Cl. 488, 514 (2009).

When the contracting officer’s discretion grows, so does the burden on the 

protestor. As noted in D & S Consultants, Inc. v. United States:

The protestor’s burden becomes more difficult the greater the degree of 

discretion vested in the contracting officer. DynCorp Int’l v. United States, 

76 Fed. Cl. 528, 537 (2007). Negotiated procurements afford the 

contracting officer a “breadth of discretion;” “best-value” awards afford the 

contracting officer additional discretion. Id. Therefore, in a negotiated, 

best-value procurement, the “protestor’s burden is especially heavy.” Id.

D & S Consultants, Inc. v. United States, 101 Fed. Cl. 23, 33 (2011), aff’d, 484 F. App’x 

558 (Fed. Cir. 2012); see also Galen Med. Assocs., Inc. v. United States, 369 F.3d at 

1330 (noting that contracting officers have great discretion in negotiated procurements 

but even greater discretion in best-value determinations than in procurements based on 

cost alone); PHT Supply Corp. v. United States, 71 Fed. Cl. 1, 11 (2006) (“It is critical to 

note that ‘a protestor’s burden is particularly great in negotiated procurements because 

the contracting officer is entrusted with a relatively high degree of discretion, and 

greater still, where, as here, the procurement is a “best-value” procurement.’” (citations 

omitted)). “It is well-established that contracting officers have a great deal of discretion 

in making contract award decisions, particularly when, as here, the contract is to be 

awarded to the bidder or bidders that will provide the agency with the best value.” 

Banknote Corp. of Am. Inc. v. United States, 365 F.3d at 1355 (citing TRW, Inc. v. 

Unisys Corp., 98 F.3d at 1327-28; E.W. Bliss Co. v. United States, 77 F.3d at 449; 

Lockheed Missiles & Space Co. v. Bentsen, 4 F.3d at 958–59); see also Am. Tel. & Tel. 
57

Co. v. United States, 307 F.3d at 1379; Lockheed Missiles & Space Co. v. Bentsen, 4 

F.3d at 958; Brooks Range Contract Servs., Inc. v. United States, 101 Fed. Cl. 699, 707 

(2011) (“[A] plaintiff’s burden ‘is elevated where the solicitation contemplates award on a 

“best value” basis.’” (internal citations omitted)); Matt Martin Real Estate Mgmt. LLC v. 

United States, 96 Fed. Cl. 106, 113 (2010); Serco v. United States, 81 Fed. Cl. 463, 496 

(2008) (“To be sure, as noted at the outset, plaintiffs have a significant burden of 

showing error in that regard because a court must accord considerable deference to an 

agency’s best-value decision in trading off price with other factors.”).

Although it is not bound by GAO decisions, the court typically gives respect and 

consideration to GAO decisions. See CBY Design Builders v. United States, 105 Fed. 

Cl. 303, 341 (2012) (citing Centech Grp., Inc. v. United States, 554 F.3d 1029, 1038 n.4 

(Fed. Cir. 2009) (GAO decisions are “not binding” authority, but may be “instructive in 

the area of bid protests.”)); Kingdomware Techs., Inc. v. United States, 107 Fed. Cl. at 

230 n.2; Orion Tech., Inc. v. United States, 102 Fed. Cl. 218, 229 n.17 (2011) (“While 

the decisions of the Comptroller General and the boards of contract appeals are not 

binding on the Court of Federal Claims, their analyses may be instructive.”), aff’d, 704 

F.3d 1344 (Fed. Cir. 2013). Decisions of the GAO are treated as expert opinions, which 

the court should “prudently consider.” Thompson v. Cherokee Nation of Okla., 334 F.3d 

1075, 1084 (Fed. Cir.), reh’g and reh’g en banc denied (Fed. Cir. 2003), aff'd in part, 

rev’d in part sub nom. Cherokee Nation of Okla. v. Leavitt, 543 U.S. 631 (2005); see

also Glenn Def. Marine (Asia) PTE Ltd. v. United States, 97 Fed. Cl. 568, 577 

(2011), dismissed, 459 F. App'x 906 (Fed. Cir. 2011); Global Computer Enters., Inc. v. 

United States, 88 Fed. Cl. 350, 412 (2009) (“‘Although not binding on this court, GAO 

opinions are properly used for information and guidance, given the GAO's experience 

and expertise.’” (quoting Career Training Concepts, Inc. v. United States, 83 Fed. Cl. 

213, 232 (2008))); Femme Comp Inc. v. United States, 83 Fed. Cl. 704, 746 (2008); 

Consol. Eng'g Servs., Inc. v. United States, 64 Fed. Cl. 617, 623 (2005).

Protestor argues that the decision by TRANSCOM to award the GPC III contract 

to International Auto Logistics was “arbitrary, capricious, an abuse of discretion, or 

otherwise not in accordance with applicable law,” citing to 28 U.S.C. § 1491(b)(4). 

Protestor alleges three protest grounds in support: First, protestor challenges 

TRANSCOM’s award of a “Satisfactory Confidence” past performance rating to 

International Auto Logistics. Second, protestor challenges TRANSCOM’s decision, 

under its integrated assessment and performance price tradeoff, to award the contract 

to the lower-priced International Auto Logistics, despite protestor’s higher past 

performance rating of “Substantial Confidence.” Third, protestor challenges the award to 

International Auto Logistics as in violation of federal procurement laws, because 

International Auto Logistics is allegedly proposing to use a suspended or debarred 

contractor for contract performance.

Given the complexity of the facts presented before the court, utilizing a joint 

submission submitted by the parties, the court has prepared three charts comparing 

International Auto Logistics’ past performance references with those of American Auto 

Logistics:
58

Comparative Chart – TRANSCOM’s Past Performance Evaluation 

of International Auto Logistics Recency Relevancy OCONUS (Outside the Continental United States) CONUS (Continental United States) POV Processing

Arranging for or Providing Ocean TransportationArranging for or Providing Inland TransportationCustomer ServicesStoragePast Performance Reference Evaluation by TRANSCOM

Prime 

Contractor

International 

Auto 

Logistics/ 

International 

Auto 

Processing

(a) MBUSA Ted 

Boudalis Y

Somewhat 

Relevant √ √ √ √

Exceptional 

Performance

(b) General Motors 

Scott McMillan Y

Somewhat 

Relevant √ √ √ √

Very Good 

Performance

(c) Glovis 

America, Inc. 

Glenn Clift

Y

Somewhat 

Relevant √ √ √ √

Very Good 

Performance

Subcontractors

Liberty Global 

Logistics

(a) HTC711-09-D0039 Bill Lindquist Y

Somewhat 

Relevant √ √ √ √ √

Exceptional 

Performance

(b) Uniworld Ross 

Shrourou Y

Somewhat 

Relevant √ √ √ √

Exceptional 

Performance

(c) HTC711-09-D0039 Kim Crossen Y

Somewhat 

Relevant √ √ √ √ √

Satisfactory 

Performance

Horizon Lines

(a) HTC711-11-09-

D-0037 Kim 

Crossen

Y

Somewhat 

Relevant √ √ √ √

Satisfactory 

Performance

(b) HTC711- 11-

DR012 Kim 

Crossen

Y

Somewhat 

Relevant √ √ √ √

Satisfactory 

Performance

(c) HTC711- 11-

DW004 Kim 

Crossen

Y

Somewhat 

Relevant √ √ √ √

Unsatisfactory 

to Satisfactory 

Performance

Global Auto 

Logistics/ 

Trans Global 

Auto 

Logistics

(a) Allied Contract 

W6447-ILEA08-35 Y Relevant √ √ √ √ √ √

Exceptional 

Performance

(b) Volkswagen 

Logistics Andree 

Brinkmann

Y Relevant √ √ √ √ √ √

Very Good to 

Exceptional 

Performance

SDV 

Command 

Source

(a) W9124J- 09-D0017 Gerard Sovie Y

Somewhat 

Relevant √ √ √ √ √

Very Good 

Performance

(b) W9124J-09-D0017 DO Fort 

Carson

Y

Somewhat 

Relevant √ √ √ √ √

Exceptional 

Performance

(c) W9124J- 09-D0017 DO Joint 

Base

Y

Somewhat 

Relevant √ √ √ √ √

Exceptional 

Performance

(d) W9124J-09-D0017 Angela 

Arwood

Y

Somewhat 

Relevant √ √ √ √ √

Very Good to 

Exceptional 

Performance

Posey 

Transport 

Group

(a) AT&T Marc 

Botindari Y

Somewhat 

Relevant √ √ √

Exceptional 

Performance

(b) TS00010203 

Joe Adamczyk Y

Not 

Relevant

(c) Erhard BMW 

John Kapousis Y

Not 

Relevant

Boyle 

Transportation

(a) GSA Ron 

Siegel Y

Not 

Relevant

(b) M&EC Mike 

Eisenhower Y

Not 

Relevant
59

VPC of 

Fayetteville

(a) Arthur 

Goodman Y

Not 

Relevant

(b) Michelle Bandy Y

Not 

Relevant

(c) Juan Villarreal Y

Not 

Relevant

North 

American 

Consulting & 

Services 

Company

(a) GAPS Donald 

Asdell Y

Not 

Relevant

(b) City & Port of 

Long Beach N -

(c) A&R 

Engineering N -

Lincoln 

Properties

(a) W9124J-09-D0017 Joe 

Adamczyk

Y

Not 

Relevant

(b) Cascades 

Technologies Y

Not 

Relevant
60

Comparative Chart – TRANSCOM’s Past Performance Evaluation 

of American Auto Logistics Recency Relevancy OCONUS (Outside the Continental United States) CONUS (Continental United States) POV Processing

Arranging for or Providing Ocean TransportationArranging for or Providing Inland TransportationCustomer ServicesStoragePast Performance Reference Evaluation by TRANSCOM

Prime 

Contractor

American 

Auto 

Logistics

(a) DAMT01-03-D0184 Willice Doyle Y

Very 

Relevant √ √ √ √ √ √ √

Exceptional 

Performance

(b) DAMT01-03-D0184 Krissy 

Schneider

Y

Very 

Relevant √ √ √ √ √ √ √

Very Good to 

Exceptional 

Performance 

Subcontractors

American 

Roll-on Rolloff Carrier

(a) HTC711-12-

DW004 Bill 

Lindquist

Y

Somewhat 

Relevant √ √ √ √ √

Exceptional 

Performance 

(b) HTC711-09-D0029 Kim Crossen Y

Somewhat 

Relevant √ √ √ √

Satisfactory 

Performance 

American 

Logistics 

Network

(a) DAMT01-03-D0184 Willice Doyle Y

Somewhat 

Relevant √ √ √ √ √

Exceptional 

Performance 

AP Logistics (a) DAMT01-03-D0184 Willice Doyle Y

Somewhat 

Relevant √ √ √ √ √

Very Good 

Performance 

Matson

(a) DAMT01-03-D0184 Willice Doyle Y

Very 

Relevant √ √ √ √ √ √ √

Very Good 

Performance

(b) HTC711-12-

DW014 Bill 

Lindquist

Y

Somewhat 

Relevant √ √ √ √ √

Exceptional 

Performance

(c) HTC711-11-

DW005-0014 Bill 

Lindquist

Y

Somewhat 

Relevant √ √ √ √ √

Exceptional 

Performance

(d) HTC711-11-

DR013 Kim 

Crossen

Y

Somewhat 

Relevant √ √ √ √

Satisfactory 

Performance

(e) HTC711-11-

DW005 Kim 

Crossen

Y

Somewhat 

Relevant √ √ √ √

Satisfactory 

Performance 

(f) HTC711-09-D0041 Kim Crossen Y

Somewhat 

Relevant √ √ √ √

Satisfactory 

Performance 

Transcar

(a) DAMT01-03-D0184 Willice Doyle Y

Somewhat 

Relevant √ √ √ √ √

Exceptional 

Performance

(b) W564KB-12-D0014 James D’Attlo Y

Not 

Relevant

The Pasha 

Group

(a) DAMT01-03-D0184 Willice Doyle Y

Very 

Relevant √ √ √ √ √ √ √

Exceptional 

Performance

Pasha Hawaii 

Transport 

Lines

(a) HTC711-11-

DW007 Bill 

Lindquist

Y

Somewhat 

Relevant √ √ √ √ √

Exceptional 

Performance

(b) HTC711-11-

DW007 Kim 

Crossen

Y

Somewhat 

Relevant √ √ √ √

Satisfactory 

Performance

(c) HTC711-11-

DR016 Suzanne 

Mudd-Yarber

Y

Somewhat 

Relevant √ √ √ √

Satisfactory 

Performance 
61

Summary Comparative Chart - TRANSCOM Evaluation

Number of Past Performance References

Very

Relevant Relevant Somewhat Relevant

Not 

Relevant

Not 

Recent

INTERNATIONAL AUTO LOGISTICS

International Auto 

Logistics/International 

Auto Processing

3

Liberty Global Logistics 3

Horizon Lines 3

Global Auto Logistics/ 

Trans Global Auto 

Logistics

2

SDV Command Source 4

Posey Transport Group 1 2

Boyle Transportation 2

VPC of Fayetteville 3

North American 

Consulting & Services 

Company

1 2

Lincoln Properties 2

TOTAL (28) 2 14 10 2

AMERICAN AUTO LOGISTICS

American Auto Logistics 2

American Roll-on Roll-off 

Carrier 2

American Logistics 

Network 1

AP Logistics 1

Matson 1 5

Transcar 1 1

The Pasha Group 1

Pasha Hawaii Transport 

Lines 3

TOTAL (18) 4 13 1
62

Past Performance Evaluation

In response to protestor’s challenges of the agency’s past performance 

evaluations, defendant responds that when evaluating past performance in a negotiated 

procurement, this court maintains a highly deferential standard, such that, in order to 

prevail, protestor must demonstrate “‘by a preponderance of the evidence that the 

[source selection authority decision] lacked any rational basis,’” quoting Overstreet Elec. 

Co., Inc. v. United States, 59 Fed. Cl. 99, 117 (2003), appeal dismissed, 89 F. App’x 

741 (Fed. Cir. 2004). (emphasis and modification in original). Previously, a Judge of the 

United States Court of Federal Claims explained, “[i]n the bid protest context, the 

assignment of a past performance rating is reviewed ‘only to ensure that it was 

reasonable and consistent with the stated evaluation criteria and applicable statutes and 

regulations, since determining the relative merits of the offerors' past performance is 

primarily a matter within the contracting agency's discretion.’” Todd Constr., L.P. v. 

United States, 88 Fed. Cl. 235, 247 (2009) (quoting Clean Venture, Inc., B-284176, 

2000 WL 253581, at *3 (Comp. Gen. Mar. 6, 2000)), aff’d, 656 F.3d 1306 (Fed. Cir. 

2011); see also Vanguard Recovery Assistance v. United States, 101 Fed. Cl. at 785 (It 

is a “‘well-recognized’ principle that ‘an agency's evaluation of past performance is 

entitled to great deference.’” (quoting Al Andalus Gen. Contracts Co. v. United States, 

86 Fed. Cl. 252, 264 (2009) (citing Westech Int'l, Inc. v. United States, 79 Fed. Cl. 272, 

293 (2007)))); SP Sys., Inc. v. United States, 86 Fed. Cl. 1, 23 (2009) (A “past 

performance evaluation ‘will not be disturbed unless it is unreasonable or inconsistent 

with the terms of the solicitation or applicable statutes or regulations.’” (quoting Consol. 

Eng’g Servs., Inc. v. United States, 64 Fed. Cl. at 637)). “‘When the Court considers a 

bid protest challenge to a past performance evaluation conducted in the course of a 

negotiated procurement, “the greatest deference possible is given to the agency.”’” 

FirstLine Transp. Sec., Inc. v. United States, 100 Fed. Cl. 359, 396 (2011) (quoting 

Univ. Research Co. v. United States, 65 Fed. Cl. 500, 505 (2005) (quoting Gulf Grp., 

Inc. v. United States, 61 Fed. Cl. at 351)); see also Plasan N. Am., Inc. v. United States, 

109 Fed. Cl. 561, 572, appeal dismissed (Fed. Cir. 2013); Fort Carson Support Servs. v. 

United States, 71 Fed. Cl. 571, 598 (2006) (“Evaluation of past performance is ‘within 

the discretion of the contracting agency and will not be disturbed unless it is 

unreasonable or inconsistent with the terms of the solicitation or applicable statutes or 

regulations.’” (quoting Consol. Eng'g Servs. v. United States, 64 Fed. Cl. at 637)). 

Likewise, the Court in Seaborn Health Care, Inc. v. United States, wrote:

A similar deferential standard applies when the Court is reviewing an 

agency's assessment of past performance evaluations. Commissioning 

Solutions Global, LLC v. United States, 97 Fed. Cl. 1, 9 (2011) (“[I]n cases 

such as this, when a negotiated procurement is involved and at issue is a 

performance evaluation, the greatest deference possible is given to the 

agency—what our Court has called a ‘triple whammy of deference.’”) 

(quoting Gulf Grp., Inc. v. United States, 61 Fed. Cl. 338, 351 (2004))); 

see also Blackwater Lodge & Training Center Inc. v. United States], 86 

Fed. Cl. 488, 493 (2009) (“mere disagreement” with past performance 

evaluations is insufficient to disturb agency's decision).
63

Seaborn Health Care, Inc. v. United States, 101 Fed. Cl. 42, 48 (2011). Continuing, the 

court stated:

In evaluating an offeror's past performance, FAR 15.305(a)(2) affords 

agencies considerable discretion in deciding what data is most relevant. 

PlanetSpace Inc. v. United States, 92 Fed. Cl. 520, 539 (2010). “Thus, 

when evaluating an offeror's past performance, the [contracting officer] 

‘may give unequal weight,’ or no weight at all, ‘to different contracts when 

[the contracting officer] views one as more relevant than another.’” Linc 

Gov't Servs., LLC v. United States, 96 Fed. Cl. 672, 718 (2010) (quoting 

SDS Int'l, Inc. v. United States, 48 Fed. Cl. 759, 769 (2001)).

Seaborn Health Care, Inc. v. United States, 101 Fed. Cl. at 51 (modifications in 

original); see also Vanguard Recovery Assistance v. United States, 101 Fed. Cl. at 787. 

“The court must especially defer to the agency's technical evaluations, past 

performance ratings, and other ‘minutiae of the procurement process . . . which involve 

discretionary determinations of procurement officials.’” J.C.N. Constr., Inc. v. United 

States, 107 Fed. Cl. 503, 510 (2012) (quoting E.W. Bliss Co. v. United States, 77 F.3d 

at 449), subsequent determination, 2013 WL 593479 (Fed. Cl. Feb. 15, 2013). This 

court has determined that, in a negotiated performance, a protestor must overcome a 

“triple whammy of deference by demonstrating by a preponderance of the evidence that 

the SSA lacked any rational basis” to assign a given past performance rating. 

Overstreet Elec. Co., Inc. v. United States, 59 Fed. Cl. at 117 (emphasis in original); see

also CGS Adm’rs, LLC v. United States, 110 Fed. Cl. 431, 450 (2013) (stating that “past 

performance evaluations in this type of procurement are accorded a ‘triple whammy of 

deference’” (quoting Overstreet Elec. Co., Inc. v. United States, 59 Fed. Cl. at 117)), 

appeal dismissed, 89 Fed. App’x 741 (Fed. Cir. 2004); Plasan N. Am., Inc. v. United 

States, 109 Fed. Cl. at 572; Tech Sys., Inc. v. United States, 98 Fed. Cl. 228, 243 

(2011). Nonetheless, although highly deferential, the court’s review of an agency’s past 

performance evaluation is neither an automatic endorsement of the agency’s actions 

nor tolerant of observable mistakes. Moreover, each past performance evaluation is 

reviewed on a fact-specific basis. 

Protestor challenges TRANSCOM’s rating of Global Auto Logistics’ two past 

performance ratings as “Relevant.” Protestor contends that it is not Global Auto 

Logistics that performed the efforts discussed in the references, but rather Trans Global 

Auto Logistics Europe, which protestor alleges is a “separate legal entity with different 

ownership.” Protestor maintains that “an agency may only attribute to the offeror the 

past performance of an affiliate where the proposal demonstrates that the resources of 

the affiliate will be provided or relied upon for contract performance such that the 

affiliate will have meaningful involvement in contract performance,” citing in support 

Femme Comp, Inc. v. United States, 83 Fed. Cl. at 747. Protestor claims that “neither 

TRANSCOM nor Intervenor has disputed the plain fact that Trans Global-Europe is a 

separate legal entity from, and not just a branch office of, Trans Global, and it is 

nowhere identified in Intervenor’s proposal,” by name. Protestor notes that the 
64

“Intervenor's proposal does not even reference Trans Global-Europe, let alone commit 

Trans Global-Europe's unidentified workforce, facilities or other resources to the 

performance of any part of the GPC III Contract.” Protestor further contends that “the 

vague references to having a European branch office cannot be reasonably construed 

as referring specifically to Trans Global Logistics Europe because there are no less than 

six different European ‘partners’ named on the website of Trans Global Auto 

Logistics.”15 Therefore, according to protestor, TRANSCOM had no basis on which to 

conclude that Trans Global Auto Logistics Europe was “an entity having involvement 

with Intervenor's team or future contract performance.” Protestor also cites to Health Net 

Federal Services, LLC, B-401652.3, 2009 WL 3843162 (Comp. Gen. Nov. 4, 2009), in 

which the protestor alleges the GAO held that an “agency improperly considered the 

past performance of corporate affiliates where the proposal provided no insight 

regarding which specific entities had performed the contracts referenced in the past 

performance proposal.” Protestor also cites to IAP World Services, Inc.; EMCOR 

Government Services, Inc., B-407917.2, 2013 WL 3817472 (Comp. Gen. July 10, 

2013), and Perini/Jones, Joint Venture, B-285906, 2000 WL 33741037 (Comp. Gen. 

Nov. 1, 2000), for the proposition that a mere statement by a subsidiary’s parent cannot 

bind the subsidiary to perform on a contract. 

In response, defendant argues that, “[t]he awardee’s proposal plainly identified 

Global Auto Logistics with its sister company, Trans Global Auto Logistics, as a 

subcontractor,” and that the two companies “had entered into a teaming agreement.” 

Defendant admits that “[p]erhaps at the outset the awardee could have stated more 

clearly the relationship between Global Auto Logistics and Trans Global Auto Logistics,” 

but that, in any event, International Auto Logistics’ responses to the evaluation notices 

made clear that Trans Global Auto Logistics has a “firm and lasting commitment to 

support its sister company Global Auto Logistics,” and that Global Auto Logistics “will 

have at its complete disposal TGAL's vast resources.” Defendant further maintains that 

the third entity, Trans Global Auto Logistics Europe, also “figures prominently in the 

awardee’s proposal,” through references to Trans Global Auto Logistics’ European 

branch offices. Defendant further notes that, in the International Auto Logistics proposal, 

“[t]he awardee identified Mr. Joachim ‘Joe’ Wetz as both General Manager of Trans 

Global Auto Logistics and Vice President of its European operations.” Defendant argues 

that, therefore, it was “not unreasonable for the evaluators to conclude that Trans 

Global Auto Logistics Europe is simply the European branch of Trans Global Auto 

Logistics repeatedly referenced in the awardee’s proposal.” Additionally, defendant 

points out that at the GAO, International Auto Logistics provided affidavits from Ms. 

Lester and Mr. Wetz affirming that “Trans Global Auto Logistics Europe is a ‘subsidiary’ 

of Trans Global Auto Logistics,” with all of its resources made available to both Global 

Auto Logistics and Trans Global Auto Logistics. Defendant maintains that these 

 

15 Protestor notes that “Trans Global's website identifies six different European 

‘Partners,’ including: Trans Global-Europe in Germany; TransGlobal Logistics UK in the 

United Kingdom; Amphion Global Logistics in Greece; International Transport Co SRL 

in Italy; B&B Expedite BV in The Netherlands; and Complete Marine Freight in Spain.” 

(emphasis in original).
65

commitments, made in the intervenor’s proposal, in the evaluation notice responses, 

and at the GAO, were sufficient to allow TRANSCOM to consider Trans Global Auto 

Logistics Europe’s past performance references when evaluating intervenor’s proposal. 

Defendant relies on the GAO decision in the above captioned protest, as well as 

the GAO decision in IAP World Services, Inc.; EMCOR Government Services, 2013 WL 

3817472, for the proposition that, when assessing a past performance reference, “‘[t]he 

relevant consideration is whether the resources of the parent or affiliated company—its 

workforce, management, facilities, or other resources—will be provided or relied upon 

for contract performance such that the parent or affiliate will have meaningful 

involvement in contract performance.’” (quoting id. at *6) (emphasis in original). 

Defendant adds that, in IAP World Services, Inc.; EMCOR Government Services, the 

GAO wrote: “‘[I]t is appropriate to consider an affiliate’s performance record where the 

affiliate will be involved in the contract effort or where it shares management with the 

offeror,’” but also noted that “‘it is inappropriate to consider an affiliate’s record where 

that record does not bear on the likelihood of successful performance by the offeror.’” 

(quoting id.) (emphasis in original). Defendant also quotes from Femme Comp Inc. v. 

United States, 83 Fed. Cl. at 747, for the proposition that an affiliated company’s past 

experience can be attributed when the proposal demonstrates that the “‘resources of 

the parent or affiliated company will affect the performance of the offeror.’” 

Intervenor agrees with defendant’s arguments, and adds, once again, citing 

Femme Comp, 83 Fed. Cl. 704, that “the procuring agency need not explicitly make a 

determination on the relationship where there is no reason to question it,” (citing id. at 

746), and “‘[t]he fact that the [affiliated] corporations were not expressly listed as 

subcontractors is immaterial; there is no requirement that an offeror must designate its 

affiliated corporations as subcontractors in order to officially commit their resources to 

the performance of a contract.’” (quoting id. at 747) (modification in original). Intervenor 

further contends that “[a] company is not required to team with its affiliates where the 

affiliate’s assets and resources will be made available during contract performance,” 

again citing to Femme Comp for support. Intervenor supports defendant’s position that, 

based on the record, “International’s proposal clearly demonstrated both: (1) Global 

Auto Logistics’/Trans Global Auto Logistics’ affiliation with Trans Global Logistics 

Europe; and (2) Global Auto Logistics’/Trans Global Auto Logistics’ intent to use Trans 

Global Logistics Europe in contract performance.” The intervenor also notes, “Global 

Auto Logistics/Trans Global Auto Logistics did not distinguish between the U.S. and 

European affiliates.” 

Evaluations of past performance are governed by FAR 15.305 (2013), which 

instructs that agency personnel, “should take into account past performance information 

regarding predecessor companies, key personnel who have relevant experience, or 

subcontractors that will perform major or critical aspects of the requirement when such 

information is relevant to the instant acquisition.” FAR 15.305(2)(iii). As a Judge of this 

court held in Femme Comp, “‘[a]n agency properly may attribute the experience or past 

performance of a parent or affiliated company to an offeror where the firm's proposal 

demonstrates that the resources of the parent or affiliated company will affect the 
66

performance of the offeror.’” Femme Comp Inc. v. United States, 83 Fed. Cl. at 747 

(quoting Hot Shot Express, Inc., B-290482, 2002 WL 1831022, at *2 (Comp. Gen. Aug. 

2, 2002)); see also Linc Gov’t Servs., LLC v. United States, 96 Fed. Cl. at 722. The 

GAO has also explained in Hot Shot Express that where

no provision in the solicitation precludes offerors from relying on the 

resources of their corporate parent or affiliated companies in performing 

the contract, and an offeror represents in its proposal that resources of a 

related company will be committed to the contract, the agency properly 

may consider those resources in evaluating the proposal.

Hot Shot Express, Inc., 2002 WL 1831022, at *2 (citing Physician Corp. of Am., B270698, 1996 WL 191140 (Comp. Gen. Apr. 10, 1996)). In PlanetSpace, Inc. v. United 

States, the rationale behind allowing the source selection authority discretion in 

choosing whether or not to evaluate the affiliate or parent was explained as follows:

At the outset, it is important to note that what does or does not constitute 

“relevant” past performance falls within the SSA's [source selection 

authority’s] considered discretion. See FAR 15.305(a)(2)(ii) (“The [SSA] 

shall determine the relevance of similar past performance information.”). . . 

The Office of Federal Procurement Policy's (“OFPP”) guidance to 

agencies is in accord, encouraging agencies to consider the past 

performance of key management personnel and subcontractors to “reduce 

[ ] the chance of needing to neither reward nor penalize an offeror with no 

other relevant past performance information” under FAR 15.305(a)(2)(iv). 

Best Practices for Collecting and Using Current and Past Performance 

Information, ch. 3 (Office of Fed. Procurement Policy, et al. 2000) (internal 

quotation marks omitted).

PlanetSpace, Inc. v. United States, 92 Fed. Cl. at 539.

 In the above captioned protest, International Auto Logistics gave sufficient 

information in its proposal and later responses to the evaluation notices to allow 

TRANSCOM to reasonably conclude that Trans Global Auto Logistics would be working 

with Global Auto Logistics to perform the GPC III contract, if the contract were to be 

awarded to the intervenor. When listing subcontractors in its proposal, International 

Auto Logistics mentioned the two companies together, as “Trans Global Auto 

Logistics/Global Auto Logistics.” In its description of the subcontractor, International 

Auto Logistics made clear that Global Auto Logistics and Trans Global Auto Logistics 

“share[] common ownership” and that Global Auto Logistics “was formed as a special 

purpose company, with the goal of participating in bidding and obtaining support 

contracts with the U.S. Government. GAL relies on TGAL and its principals for its past

performance.” Therefore, it was reasonable for TRANSCOM to conclude that both 

companies proposed were to be involved as subcontractors in the GPC III contract 

performance, even if other parts of the proposal named only Global Auto Logistics as 

the subcontractor. In addition, in response to an evaluation notice from TRANSCOM, 
67

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; 

freight forwarding,2

nd [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.

This letter further supports the agency’s determination that Trans Global Auto Logistics 

would have “meaningful involvement” in Global Auto Logistics’ proposed contract 

performance, see Linc Gov’t Servs., LLC v. United States, 96 Fed. Cl. at 722, and 

demonstrates “that the resources of the parent or affiliated company will affect the 

performance of the offeror.” See Femme Comp Inc. v. United States, 83 Fed. Cl. at 747 

(internal quotation omitted). 

International Auto Logistics’ proposal does not explicitly mention Trans Global 

Auto Logistics Europe, although the proposal does state that Trans Global Auto 

Logistics has “European offices,” and that Mr. Wetz, one of the key personnel 

committed to the GPC III effort is General Manager and Vice President of the 

“Transglobal Auto Shipping European Branch.” The first time Trans Global Auto 

Logistics Europe is mentioned as a separate entity from Trans Global Auto Logistics in 

the record is in protestor’s comments to the agency report during the GAO protest. At 

the GAO, International Auto Logistics also submitted an affidavit by Ms. Lester stating: 

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. . . . 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.

In addition, International Auto Logistics submitted an affidavit from Mr. Wetz, stating:

Trans Global Logistics Europe GmbH (“TGALE”) is a subsidiary of TGAL. I 

am the General Manager of Trans Global Logistics Europe GmbH 
68

(“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.

Protestor argues that intervenor’s affidavits at the GAO represent “post hoc 

rationalizations” that are “inappropriate to overcome the APA standard of review.” The 

parties’ submissions to the GAO, however, may be considered by this court. See 31 

U.S.C. § 3556 (2012) (In any action in front of the United States Court of Federal 

Claims, “the reports required by sections 3553 (b)(2) [the agency’s report to the GAO in 

a bid protest] and 3554 (e)(1) [the United States Comptroller General’s report to 

Congress in instances where an agency does not submit to recommendations from the 

GAO] of this title with respect to such procurement or proposed procurement and any 

decision or recommendation of the Comptroller General under this subchapter with 

respect to such procurement or proposed procurement shall be considered to be part of 

the agency record subject to review.”); Glenn Def. Marine (ASIA), PTE Ltd. v. United 

States, 720 F.3d at 911 n.8 (“All of the materials submitted to the GAO are part of the 

administrative record before the Court of Federal Claims. 31 U.S.C. § 3556. In a case 

involving a post-award conflict of interest investigation and analysis, this court noted 

that courts ‘reviewing bid protests routinely consider . . . evidence developed in 

response to a bid protest.’” (quoting Turner Constr. Co. v. United States, 645 F.3d at 

1386)) (modifications in original). 

In the protest currently before the court, although the affidavits submitted to the 

GAO further clarify the agency’s and intervenor’s arguments, there was, in fact, 

sufficient information available to the agency at the time of award included in the 

proposal and in the intervenor’s responses to the evaluation notices, such that the 

agency’s consideration of Trans Global Auto Logistics’ European affiliate or branch 

office’s past performance was not arbitrary or capricious. Protestor argues that Trans 

Global Auto Logistics Europe is a separate entity and therefore its resources cannot 

automatically be committed to the GPC III effort. Protestor states that, “[t]he most recent 

(and only) list of shareholders available from the corporate registry in Germany reflects 

that as of 2007 TGLE was owned 25% each by TGAL, MIRASCON 

Versicherungsmakler GmbH, Mr. Frank Hollmann, and Mr. Joachim Wetz,” indicating 

that Ms. Lester (through Trans Global Auto Logistics) and Mr. Wetz together own fifty 

percent of Trans Global Auto Logistics Europe. Protestor contends that “this ‘common 

management’” is insufficient, because “a subsidiary corporation is defined as ‘a 

corporation in which a parent corporation has a controlling share.’” (quoting Black’s Law 

Dictionary 394 (9th ed. 2009)). According to the solicitation, “Subsidiary means an entity 

in which more than 50 percent of the entity is owned-- (1) Directly by a parent 

corporation; or (2) Through another subsidiary of a parent corporation.” Whether or not 

Trans Global Auto Logistics Europe is a “subsidiary” of Trans Global Auto Logistics 
69

does not affect TRANSCOM’s analysis, however. The past performance of affiliates 

also can be attributed to intervenor’s proposal if their resources are committed to the 

contract. See Femme Comp Inc. v. United States, 83 Fed. Cl. at 747; IAP World Servs., 

Inc.; EMCOR Gov’t Servs., 2013 WL 3817472, at *6. Trans Global Auto Logistics 

Europe is an affiliate of Trans Global Auto Logistics. See FAR 2.101 (“Affiliates means 

associated business concerns or individuals if, directly or indirectly-- (1) Either one 

controls or can control the other; or (2) A third party controls or can control both.”). Ms. 

Lester and Mr. Wetz represented at the GAO that they run the “day-to-day” operations

of Trans Global Auto Logistics Europe, and protestor’s filing indicates that the two own 

fifty percent of the entity. Additionally, at the GAO, protestor described Mr. Wetz as 

Trans Global Auto Logistics Europe’s “sole director,” therefore having control of 

management. Furthermore, “there is no requirement that an offeror must designate its 

affiliated corporations as subcontractors in order to officially commit their resources to 

the performance of a contract.” Femme Comp Inc. v. United States, 83 Fed. Cl. at 747. 

Instead, the FAR indicates that the source selection authority “should take into account 

. . . subcontractors that will perform major or critical aspects of the requirement when 

such information is relevant to the instant acquisition.” FAR 15.305(a)(2)(iii). Based on 

the intervenor’s proposal, it was reasonable for the source selection authority to find that 

Global Auto Logistics’ European resources would be committed to the contract if 

awarded to the intervenor, and, therefore, to consider Trans Global Auto Logistics 

Europe’s past performance references. Moreover, Ms. Lester’s and Mr. Wetz’s 

representation as fifty percent of Trans Global Auto Logistics Europe’s shareholders, 

and Mr. Wetz as the European entity’s sole director, reasonably indicates that Trans 

Global Auto Logistics Europe’s resources would be committed to the intervenor’s GPC 

III effort, if International Auto Logistics was awarded the contract. 

Protestor attempts to rely on Femme Comp Inc. v. United States to argue that 

International Auto Logistics’ decision not to mention the legal entity’s name, Trans 

Global Auto Logistics Europe, is a reason not to consider it’s past performance 

references. The Femme Comp court, however, allowed a subsidiary’s past performance 

to be considered even though the exact relationship with the contractor was not 

specifically described in the proposal. The Femme Comp court stated that the 

“[a]lthough Systems Research's [the awardee’s] proposal refers repeatedly to Galaxy, 

Touchstone, and Spectrum, none of the three corporations were identified as 

subcontractors that were committed to perform under an awarded contract.” Femme 

Comp Inc. v. United States, 83 Fed. Cl. at 721, 745 (internal citations omitted). The 

Femme Comp court, relying on the GAO’s viewpoint from Hot Shot Express, Inc., 2002 

WL 1831022, nonetheless recognized that:

[T]he Army could have reasonably concluded that Systems Research's 

proposal demonstrated that the resources of Spectrum and Touchstone 

would affect Systems Research's performance on the contract. Both 

corporations are included in the narrative portion of Systems Research's 

proposal in such a way as to suggest that they would play a role in 

Systems Research's contract performance. The fact that the corporations 

were not expressly listed as subcontractors is immaterial; there is no 
70

requirement that an offeror must designate its affiliated corporations as 

subcontractors in order to officially commit their resources to the 

performance of a contract. 

Femme Comp Inc. v. United States, 83 Fed. Cl. at 747. Additionally, the Femme Comp

court stated:

Systems Research's response that all of Galaxy's employees were its own 

employees strongly implies that Galaxy was Systems Research's 

subsidiary corporation. As such, the Army could have reasonably 

concluded that Systems Research's proposal demonstrated that Galaxy's 

resources would affect Systems Research's performance on the contract. 

Accordingly, the Army properly considered Galaxy's experience and past 

performance when evaluating Systems Research's proposal.

Id. International Auto Logistics’ proposal stated that Trans Global Auto Logistics would 

use European branch offices, and discussed its resources available in Europe. Although 

International Auto Logistics did not specifically identify that the European branch which 

would be involved in contract performance was, by name, Trans Global Auto Logistics 

Europe, the government was not arbitrary and capricious when it concluded that Trans 

Global Auto Logistics Europe’s experience and resources were relevant to the 

intervenor’s past performance evaluation for the GPC III contract.

Protestor’s reliance on the GAO decisions it cites also is unavailing. Protestor 

contends that Health Net provides that agencies cannot consider the past performance 

of “corporate affiliates where the proposal provided no insight regarding which specific 

entities had performed the contracts referenced in the past performance proposal.” In 

Health Net, the GAO was not concerned with a lack of clarity as to the corporate 

relationship, but instead whether the entities involved in the past performance reference 

would actually perform as part of an awarded contract. The GAO opinion stated:

Given the repeated use of the general reference to “Aetna” throughout 

AGHP's [Aetna Government Health Plans, LLC’s, the awardee’s] proposal, 

the PAG (performance assessment group) did not know the specific roles, 

if any, the various Aetna entities would have in performance of the T–3 

effort. Nor did the PAG have any insight regarding which specific Aetna 

entities had performed the contracts referenced in AGHP's past 

performance proposal; therefore, the PAG could not know what role, if 

any, the entities that had performed the prior contracts would have in 

performance of AGHP's T–3 contract. Given this lack of information, 

TMA's [the Department of Defense TRICARE Management Activity’s]

reliance on past performance by “Aetna” in its assessment of AGHP 

effectively attributed to AGHP the past performance of other Aetna 

corporate entities based on the mere fact of their corporate affiliation. 

Absent some more definitive indications of what entities performed what 

contracts and what roles they would have in performing the T–3 effort, 
71

there was no basis for TMA to consider, let alone give credit in the 

evaluation for, the “generic” Aetna past performance submitted with its 

proposal. 

Health Net Fed. Servs., LLC, 2009 WL 3843162, at *12. As opposed to offering the 

unnamed Aetna affiliates as in the Health Net case, Trans Global Auto Logistics 

specifically offered the experience of its “European offices,” over which it had significant 

ownership and management control. Moreover, International Auto Logistics emphasized 

Mr. Wetz’s role in GPC III performance, as the “Vice President of European Operations” 

for Trans Global Auto Logistics.

The GAO decision in IAP World Services, Inc.; EMCOR Government Services, 

2013 WL 3817472, also is distinguishable from protest currently before the court. In IAP 

World Services, Inc.; EMCOR Government Services, the GAO faulted the agency for 

providing past performance references from entities that may not actually participate in 

the contract. See IAP World Servs., Inc.; EMCOR Government Services, 2013 WL 

3817472, at *7. The GAO stated: “We disagree with the Navy that it could attribute to J 

& A [World Service, LLC] the experience and past performance of separate corporate 

affiliates that were not proposed to perform any work or to otherwise provide resources 

under the contract.” Id. The same was true in Perini/Jones, Joint Venture, in which the 

GAO sustained a protest, in part, because the awardee’s past performance rating came 

from an affiliate and the GAO found “nothing in BRS's proposal that purports to offer the 

workforce, management, facilities or other resources of KBR for purposes of performing 

the contract.” See Perini/Jones, Joint Venture, 2000 WL 33741037, at *5–6. With 

respect to International Auto Logistics’ proposal, TRANSCOM gave past performance 

credit to an entity that was reasonably seen by the source selection authority as 

intending to perform on the contract, based on the International Auto Logistics proposal, 

even if the entity was not named in the proposal by its full name, Trans Global Auto 

Logistics Europe, but instead referred to as Trans Global Auto Logistics’ “European 

offices.” As opposed to the GAO cases offered above, there is sufficient evidence in the 

record that International Auto Logistics “purports to offer the workforce, management, 

facilities or other resources” of Trans Global Auto Logistics Europe towards the 

performance of the contract, as was verified in the affidavits submitted by the intervenor 

to the GAO. See id. at *5. 

An agency “may attribute the experience or past performance of a parent or 

affiliated company,” if the offeror merely, in the proposal or otherwise, “‘demonstrates 

that the resources of the parent or affiliated company will affect the performance of the 

offeror.’” Femme Comp Inc. v. United States, 83 Fed. Cl. at 747 (quoting Hot Shot 

Express, Inc., 2002 WL 1831022, at *2). As the protestor acknowledges in discussing its 

allegations with respect to [redacted] and [redacted], an individual contractor or 

subcontractor may be composed of hundreds of legal entities, and it would create a 

heavy burden to require every individual entity that is to be involved in a proposed 

contract to independently certify its involvement, and an equally heavy burden on the 

agency to verify each entity. Instead, as long as the proposal or evaluation notice 

makes it clear “that the resources of the parent or affiliated company will affect the 
72

performance of the offeror,” the past performance references of the parent or affiliate 

can be acknowledged. See id. In the International Auto Logistics proposal, Global Auto 

Logistics made specific mention of its facilities and resources in Europe, which it 

proposed to use to operate the European vehicle processing centers it would become 

responsible for under the contract, if awarded. Therefore, the source selection authority 

had a reasonable basis upon which to consider the past performance of Trans Global 

Auto Logistics Europe, and the agency’s decision to do so was not arbitrary or 

capricious.

In passing, protestor, in the facts section of its motion for judgment on the 

administrative record, asserts that “Intervenor's proposal did not include International 

Auto Processing as a subcontractor,” and, therefore, implies, without further addressing 

the argument, that TRANSCOM improperly allowed International Auto Logistics to rely 

on the past performance references of its parent organization, International Auto 

Processing, in its past performance proposal. As discussed above, however, “‘[a]n 

agency properly may attribute the experience or past performance of a parent or 

affiliated company to an offeror where the firm's proposal demonstrates that the 

resources of the parent or affiliated company will affect the performance of the offeror.’” 

Femme Comp Inc. v. United States, 83 Fed. Cl. at 747 (quoting Hot Shot Express, Inc., 

2002 WL 1831022, at *2). In its proposal, International Auto Logistics made clear that 

the resources of International Auto Processing will be committed to intervenor’s GPC III 

performance. The proposal stated: “IAL has at its disposal, complete access to IAP’s 

[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.” In addition, 

TRANSCOM issued an evaluation notice after its initial review of intervenor’s proposal, 

asking intervenor to “confirm that International Auto Logistics (IAL) will have full access 

to the resources of International Auto Processing (IAP) . . . .” In response, intervenor 

provided an August 14, 2013 letter from Mr. Miller, President and Chief Executive 

Officer of International Auto Processing, stating: “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,” and provided further details on 

the relationship between the two companies. Therefore, TRANSCOM was not arbitrary 

and capricious in determining that this was sufficient to confirm International Auto 

Processing’s commitment of resources to GPC III performance, or in considering the 

parent company’s past performance references. 

Next, protestor argues that Global Auto Logistics’ past performance references 

should not have been counted at all, because, International Auto Logistics does not 

specify how much each subcontractor would earn on the contract, and, according to 

protestor, “Global [Auto Logistics] 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 annual 

contract value.”16 Protestor contends that “[t]he RFP provided that: ‘Past performance 

 

16 Protestor estimates in its submission to the court that the proposal indicated that 

International Auto Logistics is assigning 2.2% of total contracted dollars to WOSB or 
73

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.’” (emphasis in original). Protestor 

alleges that TRANSCOM made no effort to determine whether any subcontractor, in 

particular, Global Auto Logistics, was a “principal” subcontractor performing “major” or 

“critical” aspects of the contract, yet TRANSCOM decided that Global Auto Logistics’ 

“two Relevant references were ‘[m]ost significant and of greatest consideration.’” 

According to protestor, International Auto Logistics was improperly awarded a 

“Satisfactory Confidence” past performance rating. In support, protestor again cites to 

Health Net Federal Services, LLC, 2009 WL 3843162, which protestor alleges is an 

example of a case in which the GAO sustained a protest of a contractor’s past 

performance rating when the “subcontractor’s role was limited to a relatively small 

portion of the contract.” 

In response, defendant contends that “[t]he solicitation [for the GPC III contract] 

did not define ‘principal subcontractor’ or ‘major’ or ‘critical’ aspects of the requirement.” 

Therefore, according to defendant, the solicitation allows for past performance 

references of subcontractors that will “perform major or critical ‘aspects,’ not a major or 

critical ‘percentage,’ of the solicitation’s requirements.” Defendant argues that “[t]he 

awardee proposed Global Auto Logistics/Trans Global Auto Logistics to operate vehicle 

processing centers (VPC) and vehicle storage facilities (VSF), provide over-the-road 

(OTR) transport inside and outside the contiguous U.S. (CONUS and OCONUS), and 

perform customs clearance work. These services are not ancillary. They are the 

performance work statement’s core requirements.” (internal citations omitted). 

Defendant also disputes protestor’s allegation that Global Auto Logistics is proposed to 

earn only $3-4 million per year, stating that “Global Auto Logistics/Trans Global Auto 

Logistics will operate nearly all of the awardee’s vehicle processing centers in Europe,” 

and that those vehicle processing centers “are worth significantly more than $3-4 

million.” Defendant also separately estimates in its motion for judgment on the 

administrative record that “Global Auto Logistics/Trans Global Auto Logistics will 

operate under the contract at roughly $8.8 million for the first full year of contract 

performance,” and that the facilities Global Auto Logistics will operate can generate up 

to $14 million a year, “depending upon the volume of vehicle inspections and 

processing.” Protestor, in response, notes that defendant’s calculation “is based on the 

firm-fixed prices that TRANSCOM will pay Intervenor,” (emphasis in original), and that 

intervenor would take out a percentage, reducing what the subcontractor would actually 

earn. Intervenor supports and repeats defendant’s arguments, and adds that: “Not only 

is the evaluation scheme American attempts to inject not in the Solicitation, but to apply 

it would result in a ‘competition’ that only American could win and therefore violate the 

purpose of the Competition in Contracting Act.”

As an initial matter, protestor has not provided sufficient evidence that Global 

Auto Logistics is projected to earn only $3–4 million per year on the contract. It is 

 

women-owned small business, equal to approximately $3–4 million a year, and that 

Global Auto Logistics is a woman-owned small business. 
74

correct that International Auto Logistics advertises Global Auto Logistics in its proposal 

as a “woman-owned small business,” and states in a separate chart within the proposal 

that women-owned small businesses are anticipated to receive between $3–4 million of

the overall contract per year. At the same time, however, Global Auto Logistics is slated 

in the proposal to operate five contractor owned and operated vehicle processing 

centers internationally, two vehicle storage facilities within the United States, and twelve 

government owned but contractor operated vehicle processing centers in Europe. 

Except for the one chart protestor points to, the calculations extrapolated from the 

solicitation, although only projections, suggest that Global Auto Logistics and its

affiliates would earn, or at least generate as revenue for International Auto Logistics, 

more than the $3–4 million from the GPC III contract if awarded. In addition, even 

assuming the validity of protestor’s factual assertions, defendant’s analysis suggests 

that Global Auto Logistics’ individual earnings, as a subcontractor, may reflect only a 

small portion of what the intervenor will earn from TRANSCOM due to Global Auto 

Logistics’ services under the GPC III contract. Even if Global Auto Logistics were to 

take in only $3–4 million a year, its references would still be permissible given the 

critical role Global Auto Logistics is anticipated to play in contract performance.17 

 

17 Protestor also projects that another of intervenor’s subcontractors, SDV Command 

Source, is only going to earn “approximately $1.6-2.1 million” per year on the contract if 

awarded, “which equates to approximately 1.2 percent of the total annual contract 

value.” Protestor alleges that, therefore, “TRANSCOM should not have considered SDV 

Command's past performance at all because it is not proposed as a ‘principal 

subcontractor.’” Protestor reaches this projection, as it does with respect to Global Auto 

Logistics, by relying on the intervenor’s proposal’s indication that International Auto 

Logistics is assigning 1.2% of all subcontracting dollars to “SDVOSB [Service-Disabled 

Veteran-Owned Small Business],” and noting that SDV Command Source fits that 

category in the proposal. Defendant does not attempt to project SDV Command 

Source’s earning potential off the GPC III contract if awarded, but, instead states that 

“the awardee has proposed SDV Command Source to operate vehicle processing 

centers in Georgia, Missouri, and Puerto Rico and a vehicle storage facility in South 

Carolina. As noted above, plaintiff’s restrictive definition of ‘principal subcontractor’ is 

not found in the solicitation.” (internal citation omitted). SDV Command Source is slated 

in the proposal to operate three vehicle processing centers and one vehicle storage site. 

According to intervenor’s proposal, the revenue generated from just the three vehicle 

processing centers alone will be more than what protestor alleges SDV Command 

Source will earn on the contract per year. In addition, even if protestor’s analysis of SDV 

Command Source’s earnings under the contract is correct, as is discussed more below, 

TRANSCOM still was not arbitrary and capricious in categorizing SDV Command 

Source as a “major subcontractor.” Moreover, since SDV Command Source’s 

references were rated as “Somewhat Relevant” to the GPC III solicitation, it appears 

from the record the references were not given as much weight as Global Auto Logistics’ 

two “Relevant” references. As noted by the source selection authority in her decision 

document, the two “Relevant” Global Auto Logistics references were treated as “[m]ost 

significant and of greatest consideration” in determining intervenor’s overall past 

performance confidence rating.
75

The parties’ arguments conflate what is really a two-part analysis. Part one is 

whether a reference can be considered. Part two is how much weight should be given a 

particular reference. The solicitation states:

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). Therefore, as a threshold matter, for a subcontractor’s past 

performance references to be considered by TRANSCOM in the first place, the 

subcontractor must be a “major subcontractor.” “The interpretation of a solicitation, as 

that of contract provisions generally, is a question of law which courts review de novo.” 

CBY Design Builders v. United States, 105 Fed. Cl. at 327 (citing NVT Techs., Inc. v. 

United States, 370 F.3d at 1159, and Banknote Corp. of Am., Inc. v. United States, 365 

F.3d at 1353). Determining the ambiguity of a solicitation is likewise a question of law. 

NVT Techs., Inc. v. United States, 370 F.3d at 1159 (citing Interwest Constr. v. Brown, 

29 F.3d 611, 614 (Fed. Cir. 1994)). “In determining whether rival interpretations of a 

solicitation are reasonable, the court must ‘begin with the plain language of the 

document.’” Furniture by Thurston v. United States, 103 Fed. Cl. 505, 512 (2012) 

(quoting Banknote Corp. of Am., Inc. v. United States, 365 F.3d at 1353 (citing Coast 

Fed. Bank, FSB v. United States, 323 F.3d 1035, 1038 (Fed. Cir. 2003))). Furthermore, 

“[w]hen interpreting a solicitation, the [solicitation] must be considered as a whole and 

interpreted in ‘a manner that harmonizes and gives reasonable meaning to all of its 

provisions.’” CBY Design Builders v. United States, 105 Fed. Cl. at 327 (quoting 

Banknote Corp. of Am., Inc. v. United States, 365 F.3d at 1353, and NVT Techs., Inc. v. 

United States, 370 F.3d at 1159); see also Cohen Fin. Servs., Inc. v. United States, 110 

Fed. Cl. at 277. 

When the terms of a solicitation are clear and unambiguous, there is no need to 

resort to extrinsic evidence for its interpretation. See CBY Design Builders v. United 

States, 105 Fed. Cl. at 327 (citing Banknote Corp. of Am., Inc. v. United States, 365 

F.3d at 1353); see also Precision Pine & Timber, Inc. v. United States, 596 F.3d 817, 

824 (Fed. Cir.), reh'g and reh'g en banc denied (Fed. Cir.), cert. denied, 131 S. Ct. 997 

(2011); Teg–Paradigm Envtl., Inc. v. United States, 465 F.3d 1329, 1338 (Fed. Cir.

2006) (“When the contract's language is unambiguous it must be given its ‘plain and 

ordinary’ meaning and the court may not look to extrinsic evidence to interpret its 

provisions.” (quoting Coast Fed. Bank, FSB v. United States, 323 F.3d at 1038)); Barron 

Bancshares, Inc. v. United States, 366 F.3d 1360, 1375 (Fed. Cir. 2004) (“If the terms of 

a contract are clear and unambiguous, they must be given their plain meaning—

extrinsic evidence is inadmissible to interpret them.”). “A solicitation term is ambiguous if 

‘more than one meaning is reasonably consistent with [its] language.’” Furniture by 

Thurston v. United States, 103 Fed. Cl. at 511 (quoting Grumman Data Sys. Corp. v. 

Dalton, 88 F.3d at 997) (modification in original). The United States Court of Appeals for 

the Federal Circuit has stated that, “[t]o show an ambiguity [in contract language,] it is 
76

not enough that the parties differ in their respective interpretations of a contract term.” 

NVT Techs., Inc. v. United States, 370 F.3d at 1159. In order to demonstrate ambiguity, 

the interpretations offered by both parties must “‘fall within a “zone of reasonableness.”’” 

Id. (quoting Metric Constructors, Inc. v. NASA, 169 F.3d 747, 751 (1999) (citations 

omitted)); see also Ace Constructors, Inc. v. United States, 499 F.3d 1357, 1361 (Fed. 

Cir. 2007) (“[I]n interpreting a solicitation, ‘[it] is ambiguous only if its language is 

susceptible to more than one reasonable interpretation. . . . If the provisions of the 

solicitation are clear and unambiguous, they must be given their plain and ordinary 

meaning.’” (quoting Banknote Corp. of Am., Inc. v. United States, 365 F.3d at 1353)). 

The parties have different interpretations of the meaning of “major,” as applied to 

the word “subcontractor.” Although protestor admits in its filings that “[t]he term ‘major 

subcontractor’ was not defined by the RFP,” protestor argues “major” has a dollar 

component to it, and, therefore, only large-dollar subcontractors’ past performance 

references should have been considered by TRANSCOM; yet, protestor does not 

suggest what dollar value would be large enough. Defendant and intervenor both assert 

that “major” should be interpreted broadly, to include “aspects” of a subcontractor’s 

participation, such as the types of responsibilities the parties are proposed to undertake. 

Looking at the solicitation as a whole, the court agrees that a broader interpretation of 

“major subcontractor” is appropriate. Although protestor is asking the court to take a 

more restrictive, price-based view of the term “major,” there is no indication in the 

solicitation that price alone was meant to determine what constitutes a “major 

subcontractor.” Instead, as intervenor points out, “[r]ather than requiring the Agency to 

measure past performance in specific percentages and dollar values, the Solicitation 

required it to perform a qualitative analysis of each offeror's past performance and 

assign a rating.” 

The term “major subcontractor” does not appear to be defined in the FAR, and is 

assigned a variety of meanings in a variety of solicitations, sometimes involving money, 

sometimes not. See, e.g., Standard Commc’ns, Inc. v. United States, 101 Fed. Cl. 723, 

728 (2011) (“The assessment was conducted by analyzing ‘the quality, relevancy[,] and 

recency’ of the offeror's and its major subcontractors' past performances in the 

government contract arena. The Solicitation specifically identified as significant to its 

analysis past contracts greater than $100,000 for the provision of services similar to 

those to be provided pursuant to the T4 Program.” (internal citation omitted; modification 

in original)); Femme Comp Inc. v. United States, 83 Fed. Cl. at 711 (the solicitation 

defining major subcontractor as “a subcontractor that [was] anticipated to perform 20% 

of the total contract earned revenue,” “must have been responsible for, or performed, 

two or more of the functional areas listed in the Performance Work Statement, and must 

have had at least nine months of experience on the contract . . . .” (internal quotations 

omitted; modification in original)); Info. Tech. & Applications Corp. v. United States, 51 

Fed. Cl. 340, 352 (2001) (“While the Comptroller General in Oceanometrics [1998 WL 

309917 (Comp. Gen. June 9, 1998)] does not define what constitutes a ‘major or critical 

aspect’ of a contract, it is the court's view that the percentage of the work proposed to 

be performed is one consideration and not the dispositive factor in determining whether 

the proposed effort of the subcontractor is a major or critical aspect of the work.”), aff’d, 
77

316 F.3d 1312 (Fed. Cir.), reh’g and reh’g en banc denied (Fed. Cir. 2003); Landoll 

Corp., B-291381, 2002 WL 32056925, at *5 (Comp. Gen. Dec. 23, 2002) (The GAO 

accepted “the evaluators' belief that the subcontractor would be ‘responsible for critical 

design functions,’ and that although WASP [Watkins Aircraft Support Products, Inc.] 

stated that the subcontractor's work expressed as a percentage of total project dollars 

would be very small, the subcontractor's role ‘would in fact be vital to WASP's success 

or failure in the UMT [universal munitions trailer] effort.’” (internal citations omitted)). 

Accordingly, the term “major subcontractor” has been defined in a variety of ways 

specific to the context of the particular procurement at issue. Although the solicitation at 

issue before the court does not offer a definition of the term “major subcontractor,” the 

following words do appear in the solicitation: “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.” This language seems to suggest that the term “major” refers 

to an “aspect” of the work to be provided, not just a price or dollar value calculation. The 

fact that Global Auto Logistics, pursuant to the International Auto Logistics proposal, will 

be responsible for the operation of five contractor owned and operated vehicle 

processing centers internationally, two vehicle storage facilities within the United States, 

and twelve government owned, but contractor operated vehicle processing centers in 

Europe, provides a rational basis by which the source selection could have considered 

Global Auto Logistics a “major subcontractor,” vital to the success or failure of the 

International Auto Logistics effort. See Landoll Corp., 2002 WL 32056925, at *5. On the 

other hand, protestor’s view that “major” must refer predominantly to price appears 

unsupported by a review of the solicitation.

Apart from whether or not Global Auto Logistics’ past performance references 

should have been evaluated in the first instance, protestor also opposes the weight that 

these references were given. The solicitation stated: “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.” In the Source Selection Decision Document, 

the source selection authority further stated:

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.
78

Protestor argues that the source selection authority gave more weight to Global Auto 

Logistics’ past performance references than to International Auto Logistics’ other 

“Somewhat Relevant” references, which was in violation of the solicitation’s 

requirements. The court does not dispute protestor’s contention that the source 

selection authority found Global Auto Logistics’ past performance references “[m]ost 

significant and of greatest consideration,” but does not agree that TRANSCOM was in 

violation of the requirements of the solicitation. 

TRANSCOM reasonably awarded International Auto Logistics a “Satisfactory 

Confidence” rating, based, in part, on the two Global Auto Logistics “Relevant” past 

performance references, both indicating “Very Good to Exceptional” performance on the 

efforts discussed in the references, along with the intervenor’s remaining fourteen 

“Somewhat Relevant” past performance references. As stated by the United States 

Court of Appeals for the Federal Circuit, “[a]t the outset, it is important to note that what 

does or does not constitute ‘relevant’ past performance falls within the [Source 

Selection Authority's] considered discretion.” Glenn Def. Marine (ASIA), PTE Ltd. v. 

United States, 720 F.3d at 911 (quoting PlanetSpace, Inc. v. United States, 92 Fed. Cl. 

at 539 (modification in original). “Further, the FAR entrusts the critical determination of 

‘what does or does not constitute “relevant” past performance to the SSA's considered 

discretion.’” Linc Gov’t Servs., LLC v. United States, 96 Fed. Cl. at 718 (quoting 

PlanetSpace v. United States, 92 Fed. Cl. at 539 (citing FAR 15.305(a)(2)(ii))). 

“‘[D]etermining the relative merits of the offerors' past performance is primarily a matter 

within the contracting agency's discretion.’” Todd Constr., L.P. v. United States, 88 Fed. 

Cl. at 247 (quoting Clean Venture, Inc., 2000 WL 253581, at *3); Seaborn Health Care, 

Inc. v. United States, 101 Fed. Cl. at 48; Commissioning Solutions Global, LLC,

B-401553, 2009 WL 3634337, at *3 (Comp. Gen. Oct. 6, 2009) (“[T]he contracting 

agency has the discretion to determine the relevance and scope of the performance 

history to be considered, and our Office will not question the agency's judgment unless 

it is unreasonable or inconsistent with the terms of the solicitation or applicable 

procurement statutes and regulations.”). Moreover, in general, “‘“when evaluating an 

offeror's past performance, the [Source Selection Authority] may give unequal weight, or 

no weight at all, to different contracts when the [Source Selection Authority] views one 

as more relevant than another.”’” Glenn Def. Marine (ASIA), PTE Ltd. v. United States, 

720 F.3d at 911 (quoting Linc Gov’t Servs., LLC v. United States, 96 Fed. Cl. at 718 

(quoting SDS Int'l, Inc. v. United States, 48 Fed. Cl. at 769)) (modification in original); 

see also E.W. Bliss Co. v. United States, 77 F.3d at 449; Plasan N. Am., Inc. v. United 

States, 109 Fed. Cl. at 573 (“‘[A]n agency, in evaluating past performance, can give 

more weight to one contract over another if it is more relevant to an offeror's future 

performance on the solicited contract.’” (quoting Forestry Surveys & Data v. United 

States, 44 Fed. Cl. 493, 499 (1999)); Tech Sys., Inc. v. United States, 98 Fed. Cl. at 

259; Univ. Research Co., LLC v. United States, 65 Fed. Cl. at 507 (“An agency could, of 

course, choose to give greater weight to contracts it found to be more relevant than 

others . . . .”). The court also notes that its review is “‘“only to ensure that it [the 

evaluation] was reasonable and consistent with the stated evaluation criteria and 

applicable statutes and regulations, since determining the relative merits of the offerors' 
79

past performance is primarily a matter within the contracting agency's discretion.”’” 

Vanguard Recovery Assistance v. United States, 101 Fed. Cl. at 784 (quoting Todd 

Constr., L.P. v. United States, 88 Fed. Cl. at 247 (quoting Clean Venture Inc., 2000 WL 

253581, at *3). The solicitation states that “[t]he relevancy of each contract reference 

will be considered in the overall confidence assessment rating for the offeror.” The 

solicitation further states 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.” The source selection authority, therefore, was able to 

rely on Global Auto Logistics’ references even more than those of the prime contractor’s 

references, given the “Somewhat Relevant” rating for the prime contractor and the 

“Relevant” rating for Global Auto Logistics. 

The protestor contends that TRANSCOM’s decision to give weight to Global Auto 

Logistics’ “Relevant” references despite the subcontractor’s allegedly small size 

disagrees with the GAO’s opinion in Health Net Federal Services, LLC, 2009 WL

3843162. Protester asserts that, in Health Net, the GAO found that even if “the past 

performance of a subcontractor was relevant,” “the subcontractor's past performance 

could not rationally justify the offeror's rating because the subcontractor's role was

limited to a relatively small portion of the contract.” Protestor appears to argue that even 

though two of Global Auto Logistics’ past performance references received a rating of 

“Relevant,” because Global Auto Logistics was proposed to perform an allegedly small 

portion of the overall contract, the source selection authority should not have found both 

references “[m]ost significant and of greatest consideration” when determining 

International Auto Logistics’ overall past performance confidence rating. Health Net 

Federal Services, LLC, however, is distinguishable from the above captioned case. The 

GAO, in Health Net, stated:

Moreover, we conclude that the agency's consideration of the relevant 

past performance of AGHP's [Aetna Government Health Plans, LLC’s, the 

awardee’s] subcontractor, WPS [Wisconsin Physicians Services], could 

not have reasonably justified AGHP's past performance rating. To the 

extent WPS had “relevant” and “exceptional” past performance, WPS's 

role in performance was limited to [Deleted] of the many T–3 functional 

requirements, [Deleted]. This left AGHP, as the prime contractor, 

responsible for all other T–3 requirements, including [Deleted]. Thus, while 

AGHP, through WPS, demonstrated relevant experience for [Deleted] 

under the RFP, a significant portion of the contract was to be in the hands 

of AGHP, which had only “somewhat relevant” experience.

Id. at *14 (redactions in original). The GAO’s decision in Health Net does not contradict 

this court’s consistently-held view that “‘an agency, in evaluating past performance, can 

give more weight to one contract over another if it is more relevant to an offeror's future 

performance on the solicited contract.’” Plasan N. Am., Inc. v. United States, 109 Fed. 

Cl. at 573 (quoting Forestry Surveys & Data v. United States, 44 Fed. Cl. at 499); see

also Glenn Def. Marine (ASIA), PTE Ltd. v. United States, 720 F.3d at 911; Linc Gov’t

Servs., LLC v. United States, 96 Fed. Cl. at 718; SDS Int'l, Inc. v. United States, 48 Fed. 
80

Cl. at 769. Indeed, the solicitation at issue in Health Net indicated, just like in the GPC 

III solicitation, that the greatest weight was to be given to references and information 

“‘determined to be the most relevant and significant.’” Id. (internal citation omitted). 

What seemed to trouble the GAO in Health Net were fact-specific issues such as 

the Department of Defense’s decision to give Aetna the highest past performance rating 

possible, based primarily or solely on Aetna’s reference of very small size. Id. The GAO 

stated: “In sum, based on the fact that AGHP's past performance submitted for 

evaluation was with respect to contracts that were small fractions of the size of the T–3 

effort, TMA's decision to assign AGHP the highest past performance rating of ‘High 

Confidence’ is not supported by the record.” Id. at *16. The GAO, after completing its 

review, found that none of the past performance references provided by Aetna were 

more than “Somewhat Relevant,” and the GAO was concerned by the poor quality of 

Aetna’s references, all of which were of a small size:

Whether it was reasonable to consider some of the contracts even 

“somewhat” relevant given that their beneficiary populations were a small 

fraction of the size of the beneficiary population covered by the T–3 

contract is itself questionable. At a minimum, absent some further support 

in the record, it was not reasonable to give AGHP the highest past 

performance rating in reliance on the “exceptional” performance ratings 

associated with the prior contracts of such smaller size.

Id. at *14. Moreover, in the Health Net solicitation, size played an important factor in 

determining a past performance reference’s relevance: “According to the SSEG [Source 

Selection Evaluation Guide], ‘[r]elevance would increase as the size of the historical 

efforts increase.’” Health Net Fed. Servs., LLC, 2009 WL 3843162, at *4 (internal 

citation omitted). In the above captioned case, as discussed in detail below, although 

TRANSCOM gave considerable weight to the past performance references from Global 

Auto Logistics, the agency also considered fourteen other Somewhat Relevant 

references, some of which were for very large dollar denomination contracts. 

Furthermore, the solicitation in the current case did not indicate that size was of the 

same critical importance as in the Health Net case. In addition, TRANSCOM only 

awarded International Auto Logistics an overall past performance rating of “Satisfactory 

Confidence,” which is not the highest confidence rating available. TRANSCOM’s overall 

past performance rating decision, therefore, appears more reasonable than the 

Department of Defense’s rating decision in Health Net.

Protestor next argues that even if Global Auto Logistics’ references could be 

considered and given the weight they were given by the source selection authority, she 

incorrectly rated the two Global Auto Logistics past performance references “Relevant.” 

Protestor points to the solicitation’s definition of a “Relevant” past performance rating, 

which stated: “‘[p]resent/past performance effort that involves similar scope and 

magnitude of effort and complexities this solicitation requires.’” Protestor contends that 

“[t]his definition includes three conjunctive parts: ‘similar scope’ and ‘similar magnitude’ 

and ‘similar complexity,’” (emphasis in original), yet when rating two of Global Auto 
81

Logistics’ past performance references, according to protestor, “TRANSCOM only

considered similarities in the respective performance areas of the contracts (i.e., the 

scope of work) and did not give any consideration to the low dollar values and 

comparatively low levels of complexity.” Protestor alleges: 

The record reflects that the past performance evaluation was a 

mechanical process by which the evaluators simply identified whether 

each contract reference included the following service elements: CONUS 

performance, OCONUS performance, vehicle processing, arranging for 

ocean transportation, providing ocean transportation, arranging for inland

transportation, providing inland transportation, customer service and 

storage.

According to protestor, “[i]f all but one of these elements were identified by the 

evaluators, then the reference received a rating of Relevant,” regardless of similarity in 

magnitude or similarity in complexity. 

Defendant responds that protestor’s reading of the solicitation is too narrow, and 

claims that “plaintiff’s suggested reading of the solicitation criteria would effectively 

transform the solicitation into a sole-source procurement.” Defendant argues that, “the 

evaluators were free to take a more holistic approach.” According to defendant, “[t]his 

Court and the Federal Circuit have consistently and recently held that the determination 

of whether a contract is relevant in a past performance evaluation is within the agency’s 

discretion.” Defendant asks the court not to focus on the price of the past performance 

references, because first, “most important, the solicitation did not commit the agency to 

a dollar-value threshold for scope, magnitude of effort, or complexity,” second, because 

the contract is being performed with a number of subcontractors, and third, because 

“the services are readily available in the commercial marketplace, even if on a smaller 

scale than plaintiff’s current operation.” Intervenor supports the defendant’s position, 

and, quoting from the solicitation, indicates that the solicitation defined “‘relevancy,’” not 

according to a “specific percentage of work at a specific minimum dollar value,” but as

“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.”

In addition to the solicitation defining a past performance reference to be 

“Relevant” when the “[p]resent/past performance effort involved similar 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 
82

providing ocean transportation, arranging for or providing inland 

transportation, customer service, and storage. 

The solicitation also indicates: “In 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 on small business utilization,” but did 

not mention price. The broad definitions of “Relevant” allowed the agency flexibility to 

determine relevance. The solicitation allowed the agency to make its relevancy 

determination, “based on, but not limited to, the similarities between a given past 

performance effort and this solicitation” in the five areas of “POV processing, arranging 

for or providing ocean transportation, arranging for or providing inland transportation, 

customer service, and storage.” The parties created and submitted a joint, comparative 

chart, which suggested that a reference was credited as “Very Relevant,” “Somewhat 

Relevant,” or “Not Relevant,” based in part on how many of the five areas of work the 

past performance reference covered, as well as two additional evaluation parameters:

whether the past performance reference covered work inside the continental United 

States, and outside the continental United States. It appears from a review of the joint 

submission that a past performance reference was in part credited as “Very Relevant” if 

it covered all seven evaluative parameters, “Relevant” if it covered six of seven 

evaluative parameters, and “Somewhat Relevant” if it included activity in three to five of 

seven evaluative parameters, although the record indicates that, overall, the agency 

took a more nuanced approach than indicated by the parties’ summary charts. The 

agency did not have to make a relevancy determination based solely or even primarily 

on price or size. See J.C.N. Constr., Inc. v. United States, 107 Fed. Cl. at 515; Tech 

Sys., Inc. v. United States, 98 Fed. Cl. at 259 (noting that while the agency “could make 

contract size dispositive for relevance, there is no external requirement that it do so”); 

see also TestVonics Inc., B-406700.3, 2012 WL 6098422, at *4 (Comp. Gen. Dec. 4, 

2012) (“In light of the fact that the contract called for the manufacture of units having 

virtually all of the technical characteristics of the units to be furnished under the contract 

to be awarded . . . the fact that the contract being evaluated was for the manufacture of 

fewer units during a shorter period of time does not provide a basis for our Office to find 

the agency's conclusion unreasonable,” in assigning the reference contract a rating of 

“relevant.”).

Global Auto Logistics’ first past performance reference was Trans Global Auto 

Logistics’ contract with Allied International/Sirva, for the processing of personally-owned 

vehicles for the Canadian defense forces in Europe (Allied contract). TRANSCOM’s 

rationale for Global Auto Logistics’ rating of “Relevant” was: “Reference provided 

includes providing/arranging for ocean & inland transportation, customer service, POV 

processing, and CONUS/OCONUS performance but does not include storage.” 

Protestor claims, however, that “TRANSCOM's evaluators incorrectly identified the 

scope of work under the Allied Contract. It did not include all of the service elements 

except storage. Specifically, Intervenor's proposal explained that the Allied Contract was 

limited to ‘vehicle’ processing in Europe of both inbound and outbound Canadian 

Department of Defense service member [privately-owned vehicles],” and did not cover 
83

performance in the continental United States. (emphasis and modification in original). 

Additionally, protestor argues that while “Intervenor's proposal claims the work under 

the Allied Contract included arranging ocean transportation as part of the POV 

processing, there is no indication that the Allied Contract included providing ocean 

transportation.” (emphasis in original). Defendant responds that both continental United 

States and outside of continental United States experience was not needed, and 

similarly, both providing for and arranging for ocean transport was not required, for a 

rating of “Relevant” under TRANSCOM’s rating scheme. Additionally, defendant claims 

that the Allied contract past performance questionnaire indicated that the effort 

“included CONUS operations.” 

The past performance questionnaire regarding the Allied International contract 

was filled out by Pat Amirault from “Sirva Inc / Allied Internatiuonal [sic].” Initially, 

protestor contends that the past performance questionnaire is unreliable as a source by 

which to determine what performance areas a past performance reference covered, 

because “the evaluation record makes clear that the questionnaires were completed by 

commercial customers that did not understand them.” The record before the court is 

insufficient to agree with protestor’s conclusion. It is unlikely that, for example, Pat 

Amirault would have mistaken whether or not Trans Global Auto Logistics worked within 

the continental United States on the Allied International contract. Nor can one conclude 

from the record that Pat Amirault simply checked all the boxes “Exceptional” without 

looking at the questions, especially since for the questions regarding storage, Mr. 

Amirault responded “N/A” instead of giving a rating. (emphasis in original). Although 

International Auto Logistics’ proposal did not explicitly indicate that any of the work for 

the Allied contract was performed within the continental United States, the proposal

stated that Trans Global Auto Logistics was handling “[c]omplete transportation 

services” for the Canadian defense forces. The questionnaire for the reference included, 

under “[l]ocation (countries) where service was performed under this contract,” “USA.” 

Additionally, where the questionnaire indicated, “[c]ontractor was capable of 

coordinating CONUS inland shipments between multiple origins and destinations on an 

ongoing basis within required delivery dates,” Mr. Amirault checked the box marked 

“Exceptional.” (emphasis in original). The record, therefore, provides evidence that 

supports the agency’s decision to credit the reference with work in the continental 

United States. 

The protestor also contends that intervenor only arranged for, but did not provide, 

ocean transport. The solicitation only asked for past performance experience related to 

“arranging for or providing ocean transportation,” however, and did not require both. 

(emphasis added). From a review of the agency past performance evaluations, the 

agency appears to have grouped together “providing/arranging” when reviewing the 

ocean transportation evaluation parameter. The agency, therefore, was not 

unreasonable or inconsistent when it decided to attribute this reference with 

“providing/arranging for” ocean transportation, even if Trans Global Auto Logistics only 

had arranged for ocean transportation under the contract. 
84

Protestor also questions Global Auto Logistics’ second “Relevant” past 

performance reference, the Volkswagen Logistics contract, as being arbitrarily rated. 

TRANSCOM’s rationale for the rating of “Relevant” for this contract was the same as for 

the Allied International contract: “Reference provided includes providing/arranging for 

ocean & inland transportation, customer service, POV processing, and

CONUS/OCONUS performance but does not include storage.” Regarding the 

Volkswagen Logistics contract, protestor claims that there were no continental United 

States operations under this contract, and that there was no ocean transportation at all 

under the contract, but that, “TRANSCOM has given past performance credit for 

providing and arranging ocean transportation for the second of these services even 

though Trans Global-Europe is merely a customer of VW-Logistics on that part of the 

contract.” Protestor also argues that the Volkswagen Logistics contract was too small to 

be “Relevant” because it only was for $650,000.00 a year, and that TRANSCOM was 

inconsistent to allow this reference to be rated “Relevant” but to downgrade other 

offerors’ past performance reference which were of similar value.18

As with the Allied International contract, the past performance questionnaire for 

the Volkswagen Logistics contract indicates that operations inside the continental 

United States were part of the contract. The questionnaire mentioned “USA” as a 

“‘[l]ocation (countries) where service was performed under this contract.” Under the 

question, “[c]ontractor was capable of coordinating CONUS inland shipments between 

multiple origins and destinations on an ongoing basis within required delivery dates,” the 

Volkswagen Logistics respondent checked the box marked “Very Good.” (emphasis in 

original). This is sufficient to support TRANSCOM’s decision to attribute continental 

United States performance to this reference. 

The protestor contends that Trans Global Auto Logistics did not arrange or 

provide for ocean transport under the Volkswagen Logistics contract. Although Trans 

Global Auto Logistics is also moving Volkswagen privately-owned vehicles under a 

contract, Trans Global Auto Logistics separately, or in conjunction, also appears to have 

arranged for ocean transportation with Volkswagen Logistics of other privately-owned 

vehicles. The Volkswagen response to the past performance questionnaire stated:

“Trans Global provides an outstanding service to VW-Group, as well as being a 

valuable customer to VW-Logistics, as a forwarder booking and shipping POVs on VWLogistics chartered vessels.” This indicates that Trans Global Auto Logistics still does 

the work of arranging for ocean shipping, even if it is with “VW-Logistics chartered 

vessels.” As the agency remarked in its agency response to protestor’s GAO protest, 

“[t]he Volkswagen vessel is no different than any other ocean vessel, it just happens 

TGAL [Trans Global Auto Logistics] also has a contract to move Volkswagen POVs, and 

 

18 In particular, protestor points to TRANSCOM’s evaluation of a “$300,000 - $500,000” 

reference for TranLogistics, LLC, a subcontractor to the American Presidential Lines 

proposal, regarding which TRANSCOM stated: “References were considered SR 

[Somewhat Relevant] because they covered all 5 performance areas. However, they

were not considered R [Relevant] because of their low dollar value.”
85

also uses space on these chartered vessels to move POVs of U.S. and Canadian 

Service members as well.”

Although there is no evidence that TRANSCOM felt price was a key determining 

factor as to whether or not a subcontractor was a “major subcontractor,” TRANSCOM 

did generally downgrade a past performance reference if the references reflected an 

amount of revenue that was low, although this was most often in conjunction with 

another issue, such as the reference also covering experience in a small number of 

performance areas relevant to the GPC III contract. For example, TRANSCOM rated 

the past performance references of another International Auto Logistics subcontractor, 

VPC of Fayetteville, as “Not Relevant” in part because the references, for less than 

$4,000.00 each, were “very low dollar value in comparison to this Solicitation,” and only 

covered a limited number of performance areas. TRANSCOM also rated as “Not 

Relevant” another reference from an International Auto Logistics subcontractor, Posey 

Transport Group, which was worth up to $319,530.00 in one year, in part as being “a 

low dollar value in comparison to this Solicitation,” but also because the reference 

covered only a few performance areas:

Reference provided includes providing/arranging inland transportation and 

customer service in the western United 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.

Based on a review of the record, only for a single subcontractor, TranLogistics, LLC, a 

subcontractor to another offeror, American Presidential Lines, did TRANSCOM make 

the statement that revenue was the reason for a reference’s rating downgrade: “All 3 

references [of TranLogistics] are rated ‘SR’ [Somewhat Relevant] and are low dollar 

($300,000 - $500,000) and involve automobiles. . . . References were considered SR 

[Somewhat Relevant] because they covered all 5 performance areas. However, they 

were not considered R [Relevant] because of their low dollar value.” Upon review, the 

record indicates that TRANSCOM uniformly decided that “references in the $300,000-

$500,000 range” would typically receive a rating of “Somewhat Relevant,” unless the 

reference also covered very few performance areas. The record does not clarify 

whether this limit was per year or over the life cycle of the contract. Regardless, the 

Volkswagen contract, for $650,000.00 per year, would have been outside the range in 

which TRANSCOM considered a past performance reference to be of “low dollar 

value.”19 

 

19 The court notes that one of protestor’s eighteen past performance reference is a 

reference for Transcar, GmbH (reference W564KB-12-D-0014). TRANSCOM, in its 

review of the reference, indicated that the reference was for a “low dollar value” of 

$356,878.24. Protestor’s proposal additionally indicated that the annual revenue of the 

reference was €269,477.00, with the lifecycle earnings only reaching €274,902.00. 

Protestor’s Transcar reference, also, according to TRANSCOM’s review, only covered 

two performance areas. 
86

TRANSCOM, in its interim evaluation of Global Auto Logistics’ past performance 

references, gave recognition to 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.” Protestor, however, objects to TRANSCOM’s consideration of key personnel, 

arguing that “the solicitation did not provide that past performance evaluation credit 

would be given for the experience of ‘key personnel,’ and there is nothing in the 

solicitation that required resumes to be submitted.” The FAR, however, specifically 

suggests that agencies should consider “key personnel who have relevant experience” 

when making past performance decisions. See FAR 15.305(2)(iii). In the past, Judges 

of this court have held: “Given that procurement officials are usually ‘given great 

discretion in determining what references to review in evaluating past performance,’ the 

SSA's consideration of the experience of intervenor's key personnel does not appear 

improper.” SDS Int’l v. United States, 48 Fed. Cl. at 771 (quoting Seattle Sec. Servs., 

Inc. v. United States, 45 Fed. Cl. 560, 567 (2000)); see also Supreme Foodservice 

GmbH v. United States, 112 Fed. Cl. at 431; PlanetSpace, Inc. v. United States, 92 Fed. 

Cl. at 539 (discussing evaluation of “key personnel” under the FAR). Moreover, there is 

nothing in the solicitation that prohibited the consideration of key personnel by the 

agency when evaluating past performance. 

Protestor next questions TRANSCOM’s decision to rate another fourteen 

International Auto Logistics past performance references as “Somewhat Relevant,” and 

claims that “the Source Selection Authority also reached an erroneous conclusion that 

the various Intervenor references that were assigned Somewhat Relevant ratings, when 

‘considered together . . . reflect successful performance of all of the services[20] required 

by this solicitation, including long-term storage.’” (modification in original). Protestor 

contends that in three “performance areas” the source selection authority “naively” 

concluded that International Auto Logistics could complete the assigned tasks based on 

the strength of intervenor’s past performance references. According to the protestor, 

these performance areas were “Vehicle Processing Services,” “Inland Transportation 

Services,” and “Ocean Transportation Services.” (emphasis in original) For each 

performance area, protestor attempts to show, not necessarily that the individual past 

performance references were incorrectly rated, but instead, that, in total, the 

intervenor’s references covering a given performance area were not sufficient for 

TRANSCOM to rationally conclude that there is “a reasonable expectation” that 

intervenor could perform on the contract. 

Defendant did not respond to protestor’s allegations individually, but argues 

generally:

Plaintiff’s argument is an exaggeration and once again reflects its efforts 

to essentially transform the solicitation into a sole source award to the 

incumbent. The evaluators recognized that these “somewhat relevant” 

past performance efforts were not the “same” as the solicitation’s 

 

20 These “services” are also referred to as “performance areas” elsewhere in the record. 
87

requirements, but the record demonstrates the awardee’s “somewhat 

relevant” past efforts involved some of the scope and magnitude of effort 

and complexities the solicitation requires.

(emphasis in original). Defendant also maintains that: “Plaintiff’s mere disagreement is 

not enough, however, to overturn the agency’s decision.” Intervenor adds that 

“American [Auto Logistics] insists (incorrectly) that the terms ‘relevant’ and ‘somewhat 

relevant’ require the Agency to determine relevancy solely on the basis of a comparison 

of dollar values and percentage of Solicitation requirements the contractor performed, 

while ignoring key differences between ‘very relevant’ work and work that is only 

‘relevant’ or ‘somewhat relevant.’” 

The core of protestor’s argument is that the agency erred in its technical analysis 

of whether or not the intervenor’s past performance references, in total, allowed for a 

“reasonable expectation that the offeror will successfully perform the required effort.” 

Protestor repeatedly asserts that the intervenor’s technical attributes are insufficient and 

that TRANSCOM was arbitrary and capricious in its evaluation. For example, related to 

vehicle processing services, protestor claims that International Auto Logistics “does not 

operate a vehicle processing center that is comparable to the privately-owned vehicle 

processing requirements in the Performance Work Statement Sections 1.3.3, 1.3.4 and 

1.3.7, and its outdoor lot is certainly not comparable to the Performance Work 

Statement Section 1.3.6 requirements (providing secure indoor facility and monthly 

maintenance requirements).” Initially, the court notes that protestor is arguing about 

intervenor’s technical proposal, attempting to dispute the agency’s conclusion that 

intervenor’s “[p]roposal clearly meets the minimum requirements of the solicitation,” as 

identified in the performance work statement. Intervenor’s technical proposal has not 

been challenged by protestor. To the extent protestor is arguing that the agency’s past 

performance determination was improper because the agency’s technical determination 

regarding a particular past performance reference was incorrect, determinations on 

such technical matters deserve deference from the court, and the court should not 

easily overturn an agency’s reasoned conclusion. It is not the court’s role to determine 

whether the evaluations were perfect or even as good as they could be, or, in its 

opinion, the best technical solution to the problem the agency is trying to solve, as long 

as the requirements of the solicitation are met. “‘“If the court finds a reasonable basis for 

the agency’s action, the court should stay its hand even though it might, as an original 

proposition, have reached a different conclusion as to the proper administration and 

application of the procurement regulations.”’” Weeks Marine, Inc. v. United States, 575 

F.3d at 1371 (quoting Honeywell, Inc. v. United States, 870 F.2d at 648 (quoting M. 

Steinthal & Co. v. Seamans, 455 F.2d at 1301)); see also Motor Vehicle Mfrs. Ass’n v. 

State Farm Mut. Auto. Ins. Co., 463 U.S. at 43 (“The scope of review under the 

‘arbitrary and capricious’ standard is narrow and a court is not to substitute its judgment 

for that of the agency.” (citation omitted)). “[D]isagreement with evaluations, ‘no matter 

how vigorous, fall far short of meeting the heavy burden of demonstrating that the 

findings in question were the product of an irrational process and hence were arbitrary 

and capricious.’” Tech Sys., Inc. v. United States, 98 Fed. Cl. at 243 (quoting Banknote 

Corp. of Am. v. United States, 56 Fed. Cl. at 384).
88

Regarding the intervenor’s fourteen “Somewhat Relevant” references, to 

determine if the references provided a rational basis for TRANSCOM’s overall past 

performance rating decision, the agency in the Source Selection Evaluation Board 

report concluded that, even discounting Global Auto Logistics’ two “Relevant”

references: “the Satisfactory-Exceptional past performance on the SR [Somewhat 

Relevant] 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 source selection authority also stated in the Source Selection 

Decision Document: “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.” Protestor takes issue with this 

assessment, with respect to three performance areas: vehicle processing, ocean 

transportation, and inland transportation. 

TRANSCOM credited under the performance area “Vehicle Processing Services” 

all three of International Auto Logistics’ “Somewhat Relevant” past performance 

references and all four of SDV Command Source’s “Somewhat Relevant” references, 

not including Global Auto Logistics’ two “Relevant” references. (emphasis in original). 

Protestor contends, however, that, under the GPC III contract, International Auto 

Logistics will be responsible for six vehicle processing centers, but that its references 

“reflect no experience in the operation of a processing center that involves 

individualized handling and processing of hundreds of vehicles per week dropped off or 

picked up by service members, a process that is far more personalized and complicated 

than that used by International Auto Processing for its commercial customers at the 

Brunswick, GA facility.” Therefore, according to protestor, “[b]ased on an accurate 

interpretation of the relevancy ratings requiring an assessment of scope and magnitude 

of effort and complexity of each reference as compared to the RFP requirements, 

International Auto Processing's past performance warranted no better than a Not 

Relevant rating.” (emphasis in original). International Auto Logistics’ proposal, and 

related past performance questionnaire responses, emphasized that the central activity 

of intervenor’s references was the processing of vehicles. Regarding intervenor’s first 

reference, the “MBUSA [Mercedes Benz USA]” contract, intervenor stated in its 

proposal that it “unloads, inspects, and processes POVs for outgoing ocean vessels,” 

and handles “over 200,000 POVs annually,” bringing in at least $2,893,562.00 in 

2012.21 The past performance questionnaire filled out by International Auto Logistics 

and sent to Mercedes Benz USA listed under the “Brief Description of Work Performed,” 

“[r]eceive, inspect, document, wash, provide and manage truck areas, paint and body 

 

21 In intervenor’s proposal, intervenor stated that it earned $8.1 million on the Mercedes 

Benz USA contract in 2012, and $9.9 million in 2013. In the past performance 

questionnaire, however, International Auto Logistics stated that the value of the contract 

in 2012 was only $2,893,562.00, with no information on 2013 values.
89

repairs, customer service, performance reporting.” (emphasis in original). Regarding 

intervenor’s second reference, for a “General Motors” contract, according to its 

proposal, intervenor “coordinates inland truck transportation, unloads vehicles, performs 

in/out processing,” as well as “inspect[s] each vehicle for damage upon arrival.” The 

proposal indicates that the contract is for $800,000.00 annually. Although the past 

performance questionnaire in the record does not contain a description of the work 

performed, Scott McMillan, the respondent to the questionnaire for “General Motors,”

stated that “IAP provides port processing services out of Brunswick, Georgia. Although 

one of our smaller providers (approximately 19K units annually), they do a very good job 

processing our vehicles.” 

Regarding intervenor’s third reference, a contract with Hyundai Glovis America, 

intervenor states in its proposal that “IAP receives POVs from vessels, performs in/out 

processing,” “inspect[s] each vehicle for damage upon arrival,” and installs accessories 

and customizes vehicles. The proposal further notes that “Glovis and its customers, 

Hyundai and Kia, have been so pleased with the level of quality service provided by IAP 

that Hyundai has allowed IAP to process its vehicles for over 25 years. In 2012, these 

manufacturers shipped over 170,000 vehicles through IAP facilities.” The contract is for 

approximately $13 million a year, according to both intervenor’s proposal and the past 

performance questionnaire. The questionnaire respondent, Glenn Clift, President and 

CEO of Glovis America, stated that “IAP is a member of GLOVIS America’s 2012 Club 

Elite Program in recognition of their ability to meet or exceed performance standards in 

Automotive Port Processing.” 

Protestor argues that “International Auto Processing does not operate a vehicle 

processing center that is comparable to the privately-owned vehicle processing 

requirements in the Performance Work Statement Sections 1.3.3, 1.3.4 and 1.3.7, and 

its outdoor lot is certainly not comparable to the Performance Work Statement Section 

1.3.6 requirements (providing secure indoor facility and monthly maintenance 

requirements).” Protestor’s contention that intervenor’s facilities do not meet the 

requirements of the performance work statement is directed at TRANSCOM’s rating of 

intervenor’s technical proposal; Subfactor 2 – Technical Approach, as Acceptable, 

which means that the “[p]roposal clearly meets the minimum requirements of the 

solicitation.” Before this court, protestor has not challenged the determination that 

intervenor’s technical proposal was rated as “Acceptable.” Moreover, the GPC III 

solicitation does not require that intervenor’s past performance references had to match

the GPC III solicitation’s particular performance work statement requirements.

Intervenor’s past performance references as the prime contractor are 

supplemented by SDV Command Source’s past performance references, which include

vehicle processing. Protestor never challenges the validity of the references 

themselves, but instead contends that “the value of SDV Command's total performance 

under the GPC III Contract (operating three of the 19 contractor-owned and operated 

facilities and one of seven storage facilities) is only estimated by Intervenor to be 1.2%

of the annual contract dollars.” According to protestor, TRANSCOM, therefore, should 

not have considered SDV Command's past performance at all because it is not 
90

proposed as a ‘principal subcontractor.’” As discussed above, however, the court has 

reason to be skeptical of protestor’s calculation of how much any one of intervenor’s 

subcontractors will earn. That SDV Command Source will operate three vehicle 

processing centers and one vehicle storage facility provides a reasonable basis upon 

which TRANSCOM could consider the subcontractor a “major subcontractor,” and 

consider its past performance references. One of SDV Command Source’s four past 

performance references was for a $55,356,885.16 life-cycle contract for the United 

States Army Installation Management Command, in which SDV Command Source, 

according to the past performance questionnaire, “[e]stablished and operated six (6) 

Vehicle Processing Centers (VPCs) and eight (8) Vehicle Storage Facilities (VSFs).” 

(emphasis in original). SDV Command Source was given a “Very Good” rating by the 

respondent from the United States Army in response to the questionnaire statement

indicating: “Contractor provided vehicle inspection and corresponding documentation of 

vehicle condition prior to acceptance and upon delivery, including pre-existing and 

newly incurred damage.” (emphasis in original). Another of SDV Command Source’s 

references was for a $7,522,453.04 life-cycle contract with the United States Army at 

Fort Carson, in which the company, according to the past performance questionnaire, 

“[e]stablish[ed] and operate[d] Vehicle Processing Centers (VPCs) and either collocated 

or separate Vehicle Storage Facilities (VSFs).” (emphasis in original). The respondent 

to the past performance questionnaire from Fort Carson marked “Exceptional” in 

response to both statements on the questionnaire regarding privately-owned vehicle 

processing: “Contractor provided management/coordination to receive and schedule 

POV shipments between multiple destinations within delivery dates required;” and 

“[c]ontractor provided vehicle inspection and corresponding documentation of vehicle 

condition prior to acceptance and upon delivery, including pre-existing and newly 

incurred damage.” (emphasis in original). SDV Command Source also presented a third 

past performance reference, for a $16,673,677.91 contract with the United States Joint 

Base Lewis, in which SDV Command Source established and operated vehicle 

processing centers and performed other vehicle processing services, including 

maintenance and inspections. The questionnaire respondent representing Joint Base 

Lewis marked “Exceptional” in response to the two statements in the questionnaire 

related to privately-owned vehicle processing.22 (emphasis in original).

There are imperfections in intervenor’s, and its subcontractor’s, past performance 

references. In all of International Auto Logistics’ three past performance questionnaires, 

the respondents marked “Unknown” in response to the two statements related to 

 

22 As discussed below, TRANSCOM, using its Past Performance Information Retrieval 

System, identified and considered a fourth reference the agency determined also 

covered processing of personally-owned vehicles. TRANSCOM stated that the 

reference was for a contract in which SDV Command Source was a “[p]rime contractor 

providing complete inprocessing storage services for the Dept of the Army POVs,” and 

that the reference indicated “Very Good to Exceptional performance.” The record, 

however, does not contain other information as to the reference, such as the specific 

work involved or size of the contract. 
91

“Privately-Owned Vehicle (POV) Processing.”23 (emphasis in original). In SDV 

Command Source’s past performance questionnaire related to the approximately $55 

million United States Army life-cycle contract, the respondent indicated in its comments 

that the focus of the contract was not about vehicle processing, but, instead, noted that: 

“SDV’s contract with IMCOM was for long-term POV storage only. However, SDV did 

dray POVs to/from SDV’ [sic] vehicle processing centers and SDV storage locations.” 

These inconsistencies, however, are far from fatal to TRANSCOM’s determination. As 

noted above, the court accords significant discretion to agencies in past performance 

determinations, especially those in which the determinations are highly technical in 

nature. See Glenn Defense Marine (ASIA), PTE Ltd. v. United States, 720 F.3d at 911; 

Turner Constr. Co., Inc. v. United States, 645 F.3d at 1383; Tech Sys., Inc. v. United 

States, 98 Fed. Cl. at 243; L-3 Commc’ns EOTech, Inc. v. United States, 83 Fed. Cl. at 

650 (“The deference afforded to an agency’s decision must be even greater when a trial 

court is asked to review a technical evaluation.”); Beta Analytics Int’l, Inc. v. United 

States, 67 Fed. Cl. at 395; see also E.W. Bliss Co. v. United States, 77 F.3d at 449 

(noting that protestor’s arguments “deal with the minutiae of the procurement process in 

such matters as technical ratings and the timing of various steps in the procurement, 

which involve discretionary determinations of procurement officials that a court will not 

second guess”). The agency only need demonstrated “rational reasoning and 

consideration of relevant factors.” See Weeks Marine, Inc. v. United States, 575 F.3d at 

1368-69 (quotations omitted); Overstreet Elec. Co., Inc. v. United States, 59 Fed. Cl. at 

117. The record supports TRANSCOM’s decision that International Auto Logistics’ and 

SDV Command Source’s references were sufficient in “scope and magnitude of effort 

and complexity” as to warrant a “Somewhat Relevant” past performance rating. These 

references, when considered together, offered a rational basis for TRANSCOM to 

conclude that there is a “reasonable expectation that the offeror will successfully 

perform the required” processing of personally-owned vehicles under the GPC III 

program. 

Under “Ocean Transportation Services,” TRANSCOM considered the “Somewhat 

Relevant” past performance references of two of intervenor’s subcontractors, Liberty 

Global Logistics, and Horizon Lines, apart from Global Auto Logistics’ two “Relevant”

references. (emphasis in original). Protestor does not contend that Liberty Global 

Logistics’ or Horizon Lines’ references are irrelevant to ocean transportation, and admits 

that “ocean container shipping is Horizon's line of business.” The protestor states, “[t]he 

issue here is not whether those contracts encompassed similar performance areas.” 

Instead, protestor takes issue with “the vast difference in ‘scope’ and ‘complexity,’ 

including whether Liberty and Horizon have sufficient assets to meet the GPC III 

requirement to transport more than 4,000 privately-owned vehicles per month within the 

applicable Required Delivery Date time frames.” Protestor claims that “Liberty has only 

two roll-on/roll-off vessels, which is significantly fewer than the five to eight roll-on/roll-off 

vessels that Plaintiff will use under its negotiated agreements with its sister company,” 

and that “Horizon only operates container ships.” Protestor argues without support that 

 

23

“Unknown” is defined in the questionnaire as: “No record of past performance or the 

record is inconclusive.” (emphasis in original).
92

container ships are worse and more expensive for transporting cars, because they hold 

fewer vehicles, and that Horizon Lines’ fifteen owned or leased container ships would 

be unable to make up the transport capability of protestor’s roll-on/roll-off carriers, which 

can carry “thousands of cars.” Protestor contends that “[b]ased at least in part on 

questionable ‘market research’ that it may be possible to transport six vehicles in a 

container, TRANSCOM did not question whether the Liberty and Horizon assets would 

be sufficient to meet the GPC III requirements.” 

Once again, protestor is attempting to dispute the agency’s conclusion that 

intervenor’s “[p]roposal clearly meets the minimum requirements of the solicitation.” As 

noted above, protestor’s technical proposal has not been challenged by protestor. 

Based on the record before the court, there is no reason to conclude that the resources 

intervenor has committed to the project would be insufficient to meet the GCP III 

program requirements. Moreover, the performance work statement allows for “arranging 

for” ocean transportation, and does not require that it all be provided in-house. To the 

extent protestor argues that intervenor’s past performance references are insufficient to 

warrant an overall past performance rating of “Satisfactory Confidence,” protestor has 

not persuaded the court. Liberty Global Logistics’ first past performance reference was 

for a TRANSCOM Surface Deployment and Distribution Command contract shipping 

military vehicles and other cargo around the world using “U.S. Flag roll-on/roll-off” 

vessels.24 This contract, according to the proposal and past performance questionnaire, 

was for approximately $50 million annually, equal to almost half of what International 

Auto Logistics proposed charging for all transportation services for the first complete 

year of GPC III performance, i.e. $116,525,049.85. TRANSCOM rated Liberty Global 

Logistics as “Exceptional” in response to all the statements in the questionnaire related 

to ocean transportation. (emphasis in original). This reference provides a rational basis 

by which TRANSCOM could conclude that there is a “reasonable expectation that the 

offeror will successfully perform” the ocean shipping effort required by the GPC III 

statement of work. See Weeks Marine, Inc. v. United States, 575 F.3d at 1368–69; 

Overstreet Elec. Co., Inc. v. United States, 59 Fed. Cl. at 117. Moreover, TRANSCOM 

also considered, and gave credit to, intervenor for another Liberty Global Logistics past 

performance reference, for a shipping contract with Uniworld International, Inc. worth 

$5.5 million annually. In the past performance questionnaire, Liberty Global Logistics 

was rated between “Satisfactory” and “Exceptional” in regards to ocean transportation 

services provided under the contract. (emphasis in original).

From the record, it appears that the TRANSCOM source selection authority did 

not consider the third past performance reference intervenor submitted on behalf of 

Liberty Global Logistics, for a contract with the Ford automotive company for $25 million 

a year. Nor was the one past performance reference intervenor provided for Horizon

Lines, for a $2.9 billion contract with TRANSCOM, in which “Horizon currently provides 

transport of light vehicles in support of USTRANSCOM solicitation Regional Domestic 

 

24 This TRANSCOM contract was for the delivery of military vehicles under the “USC-6” 

program, apparently separate from the GPC III contract for the delivery of personallyowned vehicles at issue in the above captioned case.
93

Contract – 05 (RDC-05) in the Alaska and Hawaii markets,” considered. Neither 

reference appeared in the agency’s initial or interim past performance evaluations, 

although, in front of the GAO, the agency loosely referred to these references: “Both 

carriers also provided extensive past performance in the area of shipping and handling 

POVs.” TRANSCOM’s correspondence documentation indicated that, on July 18, 2013, 

“[t]he past performance team decided there was sufficient information to assign a rating 

without this PPQ, so the request for Mr. Carpenter to complete a PPQ was retracted. 

However, he was told if he would like to submit on LGL's [Liberty Global Logistics’] 

behalf he could.” TRANSCOM’s correspondence documentation also indicated that “Mr. 

Carpenter responded via e-mail on 7/29/2013 at 1:57PM stating his legal counsel will 

not allow him to complete the questionnaire.” The record before the court indicates that 

“[n]o PPQs were received for Horizon.” 

TRANSCOM, however, gathered an additional past performance reference for 

Liberty Global Logistics, and three past performance references for Horizon Lines, using 

the agency’s Past Performance Information Retrieval System. As stated in the agency’s 

interim past performance evaluation, the Liberty Global Logistics reference TRANSCOM 

collected, and one of the three Horizon Line references, were for contracts “providing 

international cargo transportation and distribution services using common contract 

ocean carriers offering regularly scheduled commercial liner service.” Horizon Lines’

remaining two references were stated to be for contracts “providing port to port and end 

to end ocean transportation services” between Alaska, Hawaii, and the continental 

United States. Three of the four references indicated “Satisfactory” performance, 

although the last Horizon Lines reference indicated “Unsatisfactory to Satisfactory 

performance.” Horizon Lines’ performance concerns were resolved through intervenor’s 

response to an evaluation notice, which indicated, in part, 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.” 

Under “Inland Transportation Services,” the third performance area for which 

protestor alleges intervenor’s past performance record is lacking, TRANSCOM credited 

intervenor with two “Somewhat Relevant” references from Liberty Global Logistics, three 

Somewhat Relevant references from Horizon Lines, four “Somewhat Relevant”

references from SDV Command Source, and one “Somewhat Relevant” reference from 

Posey Transport Group, apart from the two “Relevant” references from Global Auto 

Logistics. (emphasis in original). Protestor’s argument does not discuss the references 

from Liberty Global Logistics, Horizon Lines, and SDV Command Source, considers the 

past performance references of those subcontractors intervenor stated provided “OTR 

[over-the-road]” transportation services in a summary chart on page fifty-two of 

intervenor’s proposal. A review of the record, however, indicates that TRANSCOM 

considered the past performance references from all four subcontractors as arranging 

for or providing inland transportation services. The sole subcontractor with a “Somewhat 

Relevant” reference related to inland transportation services, according to protestor, is 

Posey Transport Group. Protestor claims that “[i]t was simply unreasonable for the 

Agency to conclude there is a reasonable expectation of successful performance of the 
94

vast CONUS and OCONUS inland transportation requirements based on one 

subcontractor's experience on a single contract performing trucking transportation 

services for new vehicles only in the United States.” 

It was appropriate for TRANSCOM to credit the past performance of Liberty 

Global Logistics, Horizon Lines, and SDV Command Source towards inland 

transportation. Although the chart on page fifty-two of intervenor’s proposal provided a 

more summary and less detailed overview, the text of intervenor’s proposal described 

Liberty Global Logistics as providing transportation “between U.S. and international 

destinations via truck, air, sea and rail. LGL provides a wide array of point-to-point 

logistics and transportation services to meet common and unique shipping needs.” 

Intervenor also described Liberty Global Logistics as providing “door-to-door 

movements for the Department of Defense.” TRANSCOM attributed inland 

transportation to Liberty Global Logistics’ past performance reference for the $50 million 

contract with the Surface Deployment and Distribution Command. Intervenor’s proposal 

indicated that Liberty Global Logistics conducted “Inland Transport” for this contract, 

including a “surface move” of military vehicles. (emphasis in original). The respondent 

for the past performance questionnaire for this reference rated Liberty Global Logistics 

as “Exceptional” in response to all the statements under the category of inland 

transportation. (emphasis in original).

It also was appropriate for TRANSCOM to credit the past performance of SDV 

Command Source towards inland transportation. Regarding SDV Command Source’s 

contract with the United States Army Installation Management Command, worth 

$55,356,885.16 over its life cycle, intervenor’s proposal stated:

SDV’s POV Storage contract involved arranging for inland transport of 

POV vehicles. For these activities, we coordinated carrier scheduling and 

movement of vehicles in-processed at each of the VPCs and designated 

POV storage sites. We also coordinated carrier scheduling and movement 

of vehicles from VSFs to designated VPCs upon return of a service 

member. In general, we coordinated transport with carriers, conducted a 

joint inspection with the carrier (using the DOD Form 788) and oversaw all 

vehicle loading and dispatch.

The respondent to the past performance questionnaire for this reference marked 

“Unknown” in response to the statements on inland transportation, but commented later 

on in the questionnaire that: “Answered 1B and section 2 [inland transportation] as 

unknown because SDV’s contract with IMCOM was for long-term POV storage only. 

However, SDV did dray POVs to/from SDV’ [sic] vehicle processing centers and SDV 

storage locations. SDV always did a very good job of coordinating movements of POVs 

to and from storage.” (emphasis in original). Intervenor also indicated in its proposal that 

SDV Command Source arranged for inland transportation as part of the Fort Carson 

and Joint Base Lewis contracts, worth approximately $7.5 million and $16 million lifecycle respectively. For the Fort Carson reference, the respondent to the past 

performance questionnaire marked “Exceptional” in response to three of five of the 
95

statements in the questionnaire on inland transportation. (emphasis in original), 

although the respondent to the past performance questionnaire for the Joint Base Lewis 

contract commented “NOT APPLICABLE” in response to the same statements in the 

questionnaire.

In addition to the references from Liberty Global Logistics and SDV Command 

Source, TRANSCOM did consider one reference from Posey Transport Group, which it 

considered to be “Somewhat Relevant” to the solicitation’s requirements, a contract to 

transport vehicles for AT&T. Intervenor stated in its proposal that Posey Transport 

Group operates as a “vehicle transport operation servicing the entire continental United 

States and Canada.” According to the past performance questionnaire, under this 

contract, Posey Transport Group “[m]anaged the transportation of new vehicles entering 

service from sedans and service trucks/vans to bucket trucks. Also managed the 

transportation of used surplus vehicle relocation and specialty equipment relocation.” 

According to the intervenor’s proposal and related past performance questionnaire, the 

contract was worth $3,516,452.00 in 2012. The respondent for AT&T rated Posey as 

“Exceptional” in response to four out of the five questionnaire statements under the 

topic of inland transportation. (emphasis in original).

The references from Liberty Global Logistics, SDV Command Source, and Posey 

Transport Group discussed above, in total, provide a rational basis for the agency’s 

“reasonable expectation that the offeror will successfully perform the required” inland 

transportation effort for the GPC III program.25 The record does not support protestor’s 

contention that the agency “lacked any rational basis” for its actions, Overstreet Elec. 

Co., Inc. v. United States, 59 Fed. Cl. at 117 (emphasis in original), or was otherwise 

“‘unreasonable or inconsistent with the terms of the solicitation or applicable statutes or 

regulations.’” Fort Carson Support Servs. v. United States, 71 Fed. Cl. at 598 (quoting 

Consol. Eng'g Servs. v. United States, 64 Fed. Cl. at 637).26

Protestor’s analysis also improperly assumes that Global Auto Logistics’ three

past performance references should be disregarded. Global Auto Logistics’ past 

performance references, according to TRANSCOM, covered “providing/arranging for 

ocean & inland transportation, customer service, POV processing, and 

CONUS/OCONUS performance but does not include storage.” Within the three 

 

25 In addition to the above, one past performance reference from Liberty Global 

Logistics, three past performance references from Horizon Lines, and one past 

performance reference from SDV Command Source, all of which originated from the 

agency’s Past Performance Information Retrieval System, were indicated by 

TRANSCOM to cover inland transportation. Protestor does not challenge their validity.

26 The GAO’s analysis of the same challenged determinations was in line with the 

court’s analysis. The GAO stated, “[w]e 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.” 
96

“performance areas” at issue, the references provided by the intervenor for Global Auto 

Logistics serve to further buttress the other “Somewhat Relevant” references provided 

by the intervenor, and further substantiate TRANSCOM’s “reasonable expectation that 

the offeror will successfully perform the required effort.” The court also notes that the

solicitation did not require that the awardee have, at the moment of award, all of the 

resources required to perform the GPC III contract. As the agency correctly stated in 

front of the GAO, “[w]hat Protester fails to understand is the solicitation did not require 

offerors to demonstrate ownership of ‘a national and international fleet of car carriers,’ 

or currently employ ‘the necessary pool of drivers.’ Rather the solicitation called for 

experience in ‘arranging for or providing inland transportation.’” (internal citations 

omitted).

In sum, based on the record before the court, the source selection authority, Ms. 

Jorgenson, reached her decision to award a rating of “Satisfactory Confidence” to 

International Auto Logistics based on a thorough review of the offeror’s past 

performance references as a whole, not on any one reference. The source selection 

authority noted that, “IAL and its subcontractors combined have provided numerous 

references to demonstrate successful performance in individual performance areas as 

required by the solicitation.” In addition, the agency’s overall review of the offerors’ past 

performance proposals was thorough. The agency made multiple charts to compare the 

different references, conducted three stages of review, followed up on issues in 

between the different stages of review with evaluation notices, developed a record of its 

correspondence with the offerors, and discussed at length the rationale behind each 

offeror’s final, overall past performance rating. After this review, the agency concluded 

that the intervenor had a “reasonable expectation” of success in the GPC III effort. The 

evidence before the court does not support protestor’s assertion that intervenor would 

have only a low expectation, or no expectation of successful contract performance. 

Even if the court were to believe that a particular lower confidence rating might have 

been a better determination, “[i]f the court finds a reasonable basis for the agency’s 

action, the court should stay its hand even though it might, as an original proposition, 

have reached a different conclusion as to the proper administration and application of 

the procurement regulations.” Weeks Marine, Inc. v. United States, 575 F.3d at 1371 

(quotations omitted). The solicitation at issue in this case leaves significant discretion to

the source selection authority to define the evaluation terms, as well as to assess what 

falls within “POV processing,” “arranging for or providing ocean transportation,” and 

“arranging for or providing inland transportation.” After review of the extensive record, 

the court finds that the agency’s individual ratings of “Somewhat Relevant,” assigned to 

International Auto Logistics’ fourteen past performance references, have a reasonable 

basis in the record before the court, and that the intervenor deserves a “Satisfactory 

Confidence” overall past performance rating. A review of the record offers a rational 

basis for the agency’s determination that there is a “reasonable expectation that the 

offeror will successfully perform” the GPC III contract.
97

Integrated Assessment & Performance Price Tradeoff

Protestor also contends that, even if TRANSCOM was reasonable in giving 

International Auto Logistics an overall “Satisfactory Confidence” past performance 

rating, “the integrated assessment itself is unreasonable and contrary to the RFP.” 

According to the solicitation, the agency’s “integrated assessment” was to reflect the 

agency’s overall review of an offeror’s proposal, and was to be conducted after ratings 

were given for each of the five individual business, technical, past performance, small 

business utilization, and price evaluation factors. The source selection authority’s 

integrated assessment focused primarily on how the various offerors’ performance and 

price proposals compared between offerors, an evaluation described in the solicitation 

as the “Performance Price Tradeoff.” According to the Source Selection Decision 

Document, “[t]he integrated assessment takes into consideration the potential tradeoffs 

in terms of performance confidence assessment ratings and price. Ratings for technical 

subfactors are not factored into this confidence assessment rating because the factors 

were rated on an Acceptable/Unacceptable basis and all offerors’ proposals were rated 

as Acceptable.” The solicitation provided guidance for the offerors on how the 

performance price tradeoff was to be conducted:

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. . . . 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.

Protestor takes issue with how TRANSCOM conducted the performance price 

tradeoff between International Auto Logistics and American Auto Logistics, alleging that 

the agency abandoned “the RFP's criteria that made price equal to past performance,” 

in the tradeoff, and, instead, “decided that ‘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.’” According to protestor, “[t]here is no 

statutory or regulatory authority to support the Source Selection Authority's reliance on 

the commercial nature of the contract to diminish—if not eliminate—the role that past 

performance was supposed to play in the source selection process.” Protestor notes 

that “[t]here are countless items that would clearly meet the FAR definition of a 

‘commercial item,’ but that does not mean they are easy to manufacture.” Protestor also 

claims that the source selection authority impermissibly, and inconsistent with the 

solicitation’s evaluation criteria, “concluded that ‘the primary margin of service
98

superiority represented in AAL's [Protestor’s] higher past performance score is not in 

specific performance areas, but rather contract integration.’” (modification in original). 

Protestor, in addition, claims that the source selection authority failed to consider that 

the price differential between the two offers may not be as large as indicated, because, 

“although the contract is fixed price, the resulting award will be an IndefiniteDelivery/Indefinite Quantity contract, wherein minor differences in prices could fluctuate 

depending on ordered quantities.” 

Defendant responds that the source selection authority was correct to consider 

the “commercial nature” of the contract, as well as to conclude that the protestor’s 

“margin of service superiority” was in contract integration, and that there is limited “risk 

inherent in selecting the awardee instead of the incumbent.” Defendant asserts the FAR 

encouraged the agency to “consider ‘the relative differences between proposals, their 

strengths, weaknesses and risks . . . .’” (quoting Halter Marine, Inc. v. United States, 56 

Fed. Cl. 144, 170 (2003)). Defendant further contends that the source selection 

authority “did not ignore the smaller magnitude of the awardee’s past performance

efforts, nor the risks inherent in choosing a contractor with a lower past performance 

rating, but reasoned the awardee could successfully scale up its operation because of 

the common, commercial nature of the services.” According to defendant:

[P]laintiff’s argument ignores the salient point that neither statute, nor 

regulation, nor the solicitation prohibits the source selection authority from 

taking into account the prevalence of the solicited services in the 

commercial market in her analysis of the risk . . . . Here the source 

selection authority did precisely what she was supposed to do—exercise 

business judgment and balance risk to make an informed tradeoff 

decision.

Intervenor adds that “[t]he Court must afford the Source Selection Authority who 

exercises independent judgment tremendous discretion in deciding which offeror 

represents the best value to the government,” citing FAR 15.308 (2013). 

FAR 15.308 instructs source selection authorities as follows:

The source selection authority's (SSA) decision shall be based on a 

comparative assessment of proposals against all source selection criteria 

in the solicitation. While the SSA may use reports and analyses prepared 

by others, the source selection decision shall represent the SSA's 

independent judgment. The source selection decision shall be 

documented, and the documentation shall include the rationale for any 

business judgments and tradeoffs made or relied on by the SSA, including 

benefits associated with additional costs. Although the rationale for the 

selection decision must be documented, that documentation need not 

quantify the tradeoffs that led to the decision.
99

FAR 15.308. The requirements of FAR 15.308 have been described as follows:

First, the regulation requires the agency to make a business judgment as 

to whether the higher price of an offer is worth the technical benefits its 

acceptance will afford. See, e.g., TRW, Inc. [v. Unisys Corp.], at 1327; 

Dismas Charities, Inc., 61 Fed. Cl. [191, 203 (2004)]. Doing this, the 

decisional law demonstrates, obliges the agency to do more than simply 

parrot back the strengths and weaknesses of the competing proposals—

rather, the agency must dig deeper and determine whether the relative

strengths and weaknesses of the competing proposals are such that it is 

worth paying a higher price. Second, in performing the tradeoff analysis, 

the agency need neither assign an exact dollar value to the worth 

associated with the technical benefits of a contract nor otherwise quantify 

the non-cost factors. FAR § 15.308 (“the documentation need not quantify 

the tradeoffs that led to the decision”); Widnall v. B3H Corp., 75 F.3d 

1577, 1580 (Fed. Cir. 1996). But, this is not to say that the magnitude of 

the price differential between the two offers is irrelevant—logic suggests 

that as that magnitude increases, the relative benefits yielded by the 

higher-priced offer must also increase. See Beneco Enters., Inc., 2000 

C.P.D. ¶ 69, 1999 WL 1713451, at *5 (1999). To conclude otherwise, 

threatens to “minimize[ ] the potential impact of price” and, in particular, to 

make “a nominal technical advantage essentially determinative, 

irrespective of an overwhelming price premium.” Coastal Sci. and Eng'g, 

Inc., 89–2 C.P.D. ¶ 436, 1989 WL 237564, at *2 (1989); see also

Lockheed Missiles & Space Co., 4 F.3d at 959–60. Finally—and many 

cases turn on this point—the agency is compelled by the FAR to 

document its reasons for choosing the higher-priced offer. Conclusory 

statements, devoid of any substantive content, have been held to fall short 

of this requirement, threatening to turn the tradeoff process into an empty 

exercise. Indeed, apart from the regulations, generalized statements that 

fail to reveal the agency's tradeoff calculus deprive this court of any basis 

upon which to review the award decisions. See Johnson Controls World 

Servs., 2002 WL 1162912, at *6; Satellite Servs., Inc., 2001 C.P.D. ¶ 30, 

at *9–11; Si–Nor, Inc., 2000 C.P.D. ¶ 159, 1999 WL 33210196, at *3 

(1999).

Serco Inc. v. United States, 81 Fed. Cl. at 496–97; see also Croman Corp. v. United 

States, 106 Fed. Cl. 198, 220 (2012) (citing to the framework discussed in Serco), aff’d, 

724 F.3d 1357 (Fed. Cir.), reh’g and reh’g en banc denied (Fed. Cir. 2013). A Judge of 

this court has stated that, under FAR 15.308, “[w]hen assessing differences between 

proposals, the SSA should take into consideration not only the proposals' adjectival 

ratings but also information on advantages and disadvantages of the proposals. 

‘Looking beyond the adjectival ratings is necessary because proposals with the same 

adjectival ratings are not necessarily of equal quality.’” Mil-Mar Century Corp. v. United 

States, 111 Fed. Cl. 508, 553 (2013) (quoting Femme Comp Inc. v. United States, 83 

Fed. Cl. at 758); see also AM Gen., LLC v. United States, 115 Fed. Cl. 653, 699 (2014) 

(“This court has also recognized the limitation of a bare evaluation rating, and the need, 
100

in certain circumstances, to go beyond the evaluation rating to understand the value 

provided by the proposal.”).

A protestor bears a significant burden to demonstrate error in a source selection 

authority’s best-value trade-off analysis, because, as discussed above, procurement 

officials have a very high degree of discretion when it comes to best value 

determinations. See Galen Med. Assocs., Inc. v. United States, 369 F.3d at 1330 

(because “the contract was to be awarded based on ‘best value,’ the contracting officer

had even greater discretion than if the contract were to have been awarded on the basis 

of cost alone”); CHE Consulting, Inc. v. United States, 552 F.3d at 1354 (“Procurement 

officials have substantial discretion to determine which proposal represents the best 

value for the government.” (quotation omitted)); Banknote Corp. of Am. Inc. v. United 

States, 365 F.3d at 1355; Optimization Consulting, Inc. v. United States, 115 Fed. Cl. at 

89; Amazon Web Servs., Inc. v. United States, 113 Fed. Cl. at 110 (“Contracting officers 

are afforded ‘an even greater degree of discretion when the award is determined based 

on the best value to the agency.’” (quoting Galen Med. Assocs., Inc. v. United States, 

369 F.3d at 1330)); Supreme Foodservice GmbH v. United States, 109 Fed. Cl. at 382. 

Courts allow agencies such a high degree of discretion in best value 

determinations because it is necessarily a subjective process. The determination of 

which offer represents the “overall best value to the government” involves layers of

decision-making and judgment calls regarding which proposals offer the overall highest 

technical merit, and what technical advantages are worth a higher price. Any decision to 

contract is “inherently a judgmental process which cannot accommodate itself to

absolutes, at least not without severely impairing the quality of the judgment called for.” 

Sperry Flight Sys. Div. v. United States, 212 Ct. Cl. at 339, 548 F.2d at 921; see also

Comprehensive Health Servs., Inc. v. United States, 70 Fed. Cl. 700, 721 (2006).

At multiple points in the Source Selection Decision Document, the source 

selection authority discussed, and compared, the past performance and price offerings 

submitted by International Auto Logistics and American Auto Logistics. In the section 

evaluating International Auto Logistics’ proposal, under a subsection titled “Integrated 

Assessment,” (emphasis in original), the source selection authority stated:

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.
101

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 [Total Evaluated Price] is the 

lowest submitted by any offeror and is $38,301,734.66 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 continued the comparison when reviewing American 

Auto Logistics’ proposal. The source selection authority stated:

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 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 
102

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 and capitalization 

in original), the source selection authority maintained: 

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. 

Underpinning TRANSCOM’s performance price tradeoff and integrated 

assessment, and the source selection authority’s ultimate conclusion, is the agency’s 

conclusion that the services to be performed under the GPC III effort are “commercial 

item[s].” See FAR 12.101(b). In her source selection decision, the source selection 

authority stated that, “[a]dding volume to a commercial service already being performed 

presents less risk than adding a new service,” and that “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.” Moreover, the solicitation 

was structured as a commercial item acquisition. The solicitation incorporated by 

reference “Contract Terms and Conditions--Commercial Items” pursuant to FAR 12.301 

(2013) and 52.212-4 (2013). Solicitations for commercial items are governed under FAR 

Part 12, which sets forth streamlined procedures and special evaluation requirements. 

See FAR 12.000 (2013) (“This part prescribes policies and procedures unique to the 

acquisition of commercial items. It implements the Federal Government's preference for 

the acquisition of commercial items contained in Title VIII of the Federal Acquisition 

Streamlining Act of 1994 (Public Law 103-355) by establishing acquisition policies more 

closely resembling those of the commercial marketplace and encouraging the 

acquisition of commercial items and components.”); FAR 12.203 (2013) (“The 

contracting officer may use the streamlined procedure for soliciting offers for 

commercial items prescribed in 12.603.”); FAR 12.602 (2013) (“When evaluation factors 

are used, the contracting officer may insert a provision substantially the same as the 

provision at 52.212-2, Evaluation--Commercial Items, in solicitations for commercial 

items . . . .”); Streamlined Solicitation for Commercial Items, FAR 12.603 (2013) (“When 

a written solicitation will be issued, the contracting officer may use the following 

procedure to reduce the time required to solicit and award contracts for the acquisition 

of commercial items. This procedure combines the synopsis required by 5.203 and the 

issuance of the solicitation into a single document.”). The different, streamlined 
103

procedures for the acquisition of commercial items give agency personnel discretion in 

what they can refer to in coming to a past performance determination. See Use of Past 

Performance, FAR 12.206 (2013) (“Contracting officers should consider past 

performance data from a wide variety of sources both inside and outside the Federal 

Government in accordance with the policies and procedures contained in subpart 9.1, 

section 13.106 [for simplified acquisitions], or subpart 15.3 [for negotiated acquisitions], 

as applicable.”). Although protestor alleges in its brief that defendant erred in 

“Overemphasizing the Commercial Nature of the GPC III Service Elements,” 

(capitalization in original; emphasis removed), protestor does not directly challenge 

TRANSCOM’s decision to determine that the GPC III solicitation was a “commercial 

item” acquisition under the FAR. 

Defendant conducted a market research survey, as is suggested in the FAR and 

in the Defense Federal Acquisitions Regulations Supplement (DFARS), FAR Part 200 et

seq., regarding whether personally-owned vehicle processing and transport are

commercial items. See FAR 12.202 (2013) (“Market research (see 10.001) is an 

essential element of building an effective strategy for the acquisition of commercial 

items and establishes the foundation for the agency description of need (see part 11), 

the solicitation, and resulting contract.”); DFARS 212.102 (2013) (“(a)(i) When using 

FAR part 12 procedures for acquisitions exceeding $1 million in value . . . the 

contracting officer shall-- (A) Determine in writing that the acquisition meets the 

commercial item definition in FAR 2.101 or meets the criteria at FAR 12.102(g)(1); (B) 

Include the written determination in the contract file . . . .”); see also FAR 10.001 (2013) 

(“Agencies must . . . [c]onduct market research appropriate to the circumstances . . . .”); 

FAR 10.002 (2013) (discussing procedures for market research). Defendant stated in its 

May 18, 2012 market research report:

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 [request for information] 

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. 

The incumbent contractor’s response states that the services sought 

under the GPC III requirement are not commercial. The basis for its 
104

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). 

Under FAR 2.101(b)(6), a “commercial item” includes:

Services 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.

FAR 2.101(b)(6). Pursuant to the FAR, “[c]atalog price means a price included in a 

catalog, price list, schedule, or other form that is regularly maintained by the 

manufacturer or vendor, is either published or otherwise available for inspection by 

customers, and states prices at which sales are currently, or were last, made to a 

significant number of buyers constituting the general public.” FAR 2.101(b)(6)(i). Under 

the same regulation, “[m]arket prices means current prices that are established in the 

course of ordinary trade between buyers and sellers free to bargain and that can be 

substantiated through competition or from sources independent of the offerors.” FAR

2.101(b)(6)(ii). According to the TRANSCOM May 18, 2012 market research report, the 

agency concluded that the GPC III effort was commercial in nature because, “four (4) of 

the five (5) [80%] of the RFI respondents agreed that the services associated with this 

effort are commercial,” and, also, “[t]he GPC III requirement is the continuation of the 

work performed under the GPC II contract and it too is determined a commercial item.” 

(first brackets in original). Defendant’s market research report covered five companies. 

See Advanced Am. Constr., Inc. v. United States, 111 Fed. Cl. 205, 226 (2013) (“[T]he 

agency enjoys substantial discretion in determining how much and what type of market 

research is ‘appropriate to the circumstances’ for the purpose of ‘[d]etermin[ing] if 

sources capable of satisfying the agency's requirements exist.’” (quoting FAR 

10.001(a))); Assessment and Training Solutions Consulting Corp. v. United States, 92 

Fed. Cl. 722, 725, 731 (2010) (“The court agrees with defendant that the Contracting 

Officer had discretion under the relevant regulations to conduct market research 

‘appropriate to the circumstances.’ The regulations note that the extent of the market 

research will vary depending on a number of factors and direct agencies not to request 

‘more than the minimum information necessary’ when conducting market research.” 

(quoting FAR 10.001(b), 10.002(b) (internal citations omitted)). In Assessment and 

Training Solutions Consulting Corp. v. United States, a Judge of this court upheld a 
105

small business market research report that only garnered nine responses, only four of 

which were from small businesses. See generally id.

Specifically regarding the GPC III contract, the respondents to the market survey 

generally offered support to the agency’s determination that a commercial item 

designation was appropriate. In general, the respondents’ comments to the agency 

support the agency’s determination. For example, [redacted], one of the market 

research respondents, stated that “[t]he 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.” Another respondent to the market 

survey, [redacted], commented that “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.” In addition, according to the agency, 

the prior GPC II contract was operated under the terms of a commercial item contract, 

with no indication in the record of any issues arising as a result. The statements of the 

industry respondents, and the agency’s prior experience with the GPC II contract, offer 

a reasonable basis in the record for the agency to have concluded that the GPC III 

scope of services are, as the FAR states, “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.” See FAR 2.101(b); Kasten v. Saint-Gobain 

Performance Plastics Corp., 131 S. Ct. 1325, 1335 (2011) (“These agency views are 

reasonable. They are consistent with the Act. The length of time the agencies have held 

them suggests that they reflect careful consideration, not ‘post hoc rationalizatio[n].’ 

Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 

463 U.S. 29, 50, 103 S. Ct. 2856, 77 L.Ed.2d 443 (1983). And they consequently add 

force to our conclusion.” (citing Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)); 

Amer. Airlines, Inc. v. United States, 551 F.3d 1294, 1302 (Fed. Cir. 2008) (“The

government is correct that the reasonableness of an agency interpretation is supported 

when it has been consistent over time.” (citing as an example Good Samaritan Hosp. v. 

Shalala, 508 U.S. 402, 417 (1993))), reh’g granted, 319 F. App’x 914 (Fed. Cir. 2009); 

see also Bevevino v. United States, 99 Fed. Cl. 461, 471 (2011) (the court “noting the 

broad deference afforded an agency's interpretation of its own regulation, especially 

where that interpretation has been consistent over time” (citing Gose v. United States 

Postal Serv., 451 F.3d 831, 837 (Fed. Cir.), reh’g denied (Fed. Cir. 2006))). 

After the May 18, 2012 market research report was published, additional 

responses from industry were sought through an October 25, 2012 request for 

information e-mail, proposing the question “Vehicle Processing Centers Network (VPC). 

Is there a commercial alternative to the VPC network?” One of intervenor’s 

subcontractors in its GPC III proposal, Boyle Transportation, indicated that, “[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 [sic] 

have the storage capability to handle this contract.” SDV Command Source, another of 

intervenor’s subcontractors, stated that “[m]ixing this program with a commercial 
106

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

Intervenor’s parent company, International Auto Processing, also noted that “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 handle [sic] the GPC, negating most of or all 

cost advantage.” International Auto Processing, however, stated, in that same 

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

[Redacted], another respondent, stated in response to the same question that “there is 

the option of using a completely commercial solution for this requirement.” Also in the 

record is a comment from [redacted] 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 outside of a commercial structure.” In sum, the agency’s 

conclusion that the contract was for a commercial item under FAR 2.101 was

reasonable based on the record before the agency. See Weeks Marine, Inc. v. United 

States, 575 F.3d at 1371; Assessment and Training Solutions Consulting Corp. v. 

United States, 92 Fed. Cl. at 725, 731.

Given that the GPC III effort was considered a commercial item transaction under 

the FAR, this court reviews the agency’s performance price tradeoff to see if it was 

arbitrary and capricious, and if it relied on factors that were not intended to be 

considered in the solicitation. See Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. 

Ins. Co., 463 U.S. at 43. Although the solicitation specified that past performance would 

be weighed “approximately equal to cost or price considerations,” the solicitation did not 

specify further how the government would come to a final, “best value,” “Performance 

Price Tradeoff” determination. The solicitation’s rather broad language left the source 

selection authority discretion to consider factors that would affect the performance price 

tradeoff, including her “business judgment[s]” under FAR 15.308. See FAR 15.308 

(“The source selection decision shall be documented, and the documentation shall 

include the rationale for any business judgments and tradeoffs made or relied on by the 

SSA, including benefits associated with additional costs.”). Such business 

determinations, as stated in the Source Selection Decision Document, can include

whether or not the “commercial nature” of the contract reduces the risk of poor 

performance, and whether “[a]dding volume to a commercial service already being 

performed presents less risk than adding a new service.”

The record indicates that the source selection authority and the Source Selection 

Advisory Council considered the impact of the commercial nature of the services 

provided on International Auto Logistics’ ability to perform the GPC III contract. The 

Source Selection Advisory Council stated: 

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) 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.
107

The source selection authority further stated: 

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.

“While price differential may be taken into account to determine a best value 

award, ‘it is not solely dispositive; we must consider all the surrounding circumstances.’” 

See, e.g., Overstreet Elec. Co., Inc. v. United States, 59 Fed. Cl. at 120 (quoting Alfa 

Laval Separation, Inc. v. United States, 175 F.3d at 1368); see also E.W. Bliss Co. v. 

United States, 77 F.3d at 449; Emax Fin. & Real Estate Advisory Servs., LLC, 

B-408260, 2013 WL 3872144, at *6 (Comp. Gen. July 25, 2013) (citing American Med. 

Info. Servs., B-288627, 2001 WL 1382255, at *1 (Comp. Gen. Nov. 7, 2001). In a 

performance price tradeoff, courts will be careful when overruling an agency’s business 

or technical judgment. See Galen Med. Assocs., Inc. v. United States, 369 F.3d at 1330; 

Sperry Flight Sys. Div. v. United States, 212 Ct. Cl. at 339, 548 F.2d at 920–21; 

Overstreet Elec. Co., Inc. v. United States, 59 Fed. Cl. at 120; Omega World Travel v. 

United States, 54 Fed. Cl. at 578. Based on the record before the court, the source 

selection authority properly balanced price and past performance, and considering her 

reasonable determination that the risk of poor performance with the intervenor was low, 

in part due to the commercial nature of the activity, the source selection authority was 

not irrational when she found that American Auto Logistics’ superior performance rating 

“in the current commercial marketplace is not worth the $38,301,734.66 price premium.” 

The solicitation affirmatively states that 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.” This statement gives the source selection authority 

discretion to consider other factors that could help in her determination of what is a 

“disproportionate” price premium, as well as what is an offeror’s “margin of service 

superiority.” The source selection authority was, therefore, within the solicitation’s 

requirements when she concluded, based on her business judgment, that “[a]warding 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.”27

 

27 Protestor’s claim that the source selection authority failed to consider that “prices 

could fluctuate depending on ordered quantities,” also does not undermine the source 

selection authority’s decision. The agency was not under an obligation to consider 

speculative fluctuations in price when coming to its final determination. The solicitation 

only required the source selection authority to examine the “total evaluated price” in her 

final, integrated assessment, with the total evaluated price representing a fixed price 

value defined within the solicitation. Nonetheless, the source selection authority 

recognized when coming to her final source selection decision that the “[a]ctual
108

Working with Debarred or Suspended Contractors

In a hearing before this court, petitioner alleged that International Auto Logistics 

had subcontracted with “a fairly notoriously debarred company,” referred to at the 

hearing as Agility International or Agility Defense and Government Services, to perform 

under the contract if awarded. As defendant and intervenor repeatedly note in their 

filings, this allegation was not formally made in protestor’s complaint. Protestor’s 

allegations and defendant’s responses at times raise more questions than answers. 

According to protestor, protestor’s counsel discovered on February 5, 2014, that entities 

operating under the names “Agility International” and “Agility Defense & Government 

Services” were soliciting to fill management positions for vehicle processing centers 

connected to performance of the GPC III contract. Protestor alleges that this discovery 

indicates that either one or both of the alleged Agility entities is acting as a 

subcontractor to International Auto Logistics for performance of the GPC III contract. 

Protestor indicates that it informed TRANSCOM of its discovery two days before the 

court hearing. To support its contention, protestor provided website images of vehicle 

processing center management job postings, allegedly related to the GPC III program,

originating from either Agility International or Agility Defense & Government Services

websites. The alleged job postings protestor provided in its filings are summarized as 

follows:

 A job posting from Agility Logistics,

28 viewed on December 15, 2013, for a 

“Vehicle Processing Center Manager” for the locations of “BH (Primary),” 

“Madison, AL 35758 US” “KR-27 KR,” “KR-11 KR,” “KR,” and “GU.”29 Under “Job 

Description,” it was stated: “THESE POSITIONS ARE CONTINGENT ON 

WINNING THE CONTRACT.” (capitalization in original). The posting 

“SUMMARY” stated: “As a component of the United States Transportation 

Command (USTRANSCOM), the Military Surface Deployment and Distribution

Command (SDDC) manages Department of Defense (DoD) sponsored

shipments of privately-owned vehicles (POVs) belonging to military service

members and DoD Civilian employees. This requirement is for complete

 

difference in cost to the Government is dependent on POV shipping and storage volume 

during contract performance.”

28 Although the name of the specific Agility entity posting the job offerings is unclear, the 

corporate logo at the top of the job posting websites states “Agility,” with the phrase “A 

New Logistics Leader” following in smaller font below. (emphasis in original). The job 

postings appear to have been placed on the website domain 

https://agilitylogistics.mua.hrdepartment.com.

29 Although the documents themselves do not make clear what the acronyms mean, 

based on context, it appears these acronyms refer to: Bahrain, Guam, Madison, 

Alabama, and South Korea (Korean Republic). For all Agility Logistics job posts, under 

“Job Type” it was stated “Non-U.S. Job.” 
109

transportation and processing services for the area of Bahrain, Guam, Seoul,

South Korea, Taegu, South Korea.” (capitalization in original). The summary also 

indicated that the position would serve “as the Agility DGS, Inc. [Defense & 

Government Services] secondary interface/representative for communications 

with the customer.”

 A job posting from Agility Logistics, viewed on December 15, 2013, for a “VPC 

Assistant SiteManager [sic]” for the locations of “GU (Primary),” “BH,” “Madison, 

AL 35758 US” “KR-27 KR,” and “KR-11 KR.” Under “Job Description,” it was 

stated: “THESE POSITIONS ARE CONTINGENT ON WINNING THE 

CONTRACT.” (capitalization in original). The posting “SUMMARY” stated: “As a 

component of the United States Transportation Command (USTRANSCOM), the 

Military Surface Deployment and Distribution Command (SDDC) manages 

Department of Defense (DoD) sponsored shipments of privately-owned vehicles

(POVs) belonging to military service members and DoD Civilian employees. This 

requirement is for complete transportation and processing services for the area 

of Guam, Bahrain, Seoul. South Korea, and Daegu, South Korea.” (capitalization 

in original). The summary also indicated that the position would serve “as the 

Agility DGS, Inc. secondary interface/representative for communications with the 

customer.”

 A job posting from Agility Logistics, viewed on January 1, 2014, for a “VPC 

Assistant Site Manager,” for the locations of “CAP BH (Primary),” “NOR BH,” 

“CEN BH,” and “SOU BH.” This posting does not reference a contract with 

TRANSCOM, but does indicate that the applicant “[m]ust be able to access US 

Military installations.” The summary also indicated that the position would serve 

“as the Agility DGS, Inc. secondary interface/representative for communications 

with the customer.”

 A job posting from Agility Logistics, viewed on January 1, 2014, for a “Vehicle 

Processing Center Manager,” for the locations of KR-11 KR (Primary),” and “KR27 KR.” This posting does not reference a contract with TRANSCOM, but does 

indicate that the applicant “[m]ust be able to access US Military installations.” The 

summary also indicated that the position would serve “as the Agility DGS, Inc. 

secondary interface/representative for communications with the customer.”

 A job posting from Agility Logistics, viewed on January 1, 2014, for a “VPC 

Assistant Site Manager,” for the locations of KR-11 KR (Primary),” and “KR-27 

KR.” This posting does not reference a contract with TRANSCOM, but does 

indicate that the applicant “[m]ust be able to access US Military installations.” The 

summary also indicated that the position would serve “as the Agility DGS, Inc. 

secondary interface/representative for communications with the customer.”

 A job posting from Agility Logistics, viewed on January 1, 2014, for a “Vehicle 

Processing Center Manager,” for the location of “KR-27 KR (Primary).” This 

posting does not reference a contract with TRANSCOM, or directly reference 
110

work with the United States military. The summary does not indicate any joint 

role with Agility Defense & Government Services. 

 The results of a search of job postings from Agility Logistics, viewed on January 

21, 2014, showing results for “Vehicle Processing Center Manager,” and/or 

“VPC Assistant Site Manager,” for the locations of “KR-27 KR,” “KR-11 KR,” 

“CAP BH,” “NOR BH,” “CEN BH,” “SOU BH,” “MUH BH,” “GU,” “MT GU,” “SR 

GU,” “IN GU,” “BA GU,” “AT GU,” “MA GU,” and “TM GU.” (emphasis in original).

 A job posting, undated, from “Agility Defense & Government Services” soliciting 

for a “Vehicle Processing Manager” and “Vehicle Processing Center Assistant 

Manager” for Hagatna, Guam. (emphasis in original). The positions were stated 

to be “Contingent Upon Winning Contract.” The posting was indicated to be 

placed on the website http://guam.jobs.

Protestor also alleges that International Auto Logistics has ties to Agility through 

its key personnel, which, according to the protestor, the intervenor is intentionally hiding. 

According to protestor, 

Mr. Tipton, who was employed by Plaintiff’s parent company from April 

2003 to September 2008, worked for an Agility company from 2008 until 

joining Intervenor in June 2012. Mr. Tipton's resume in Intervenor's 

proposal contains no reference to his four-year employment with Agility, 

and his Linkedln profile reflects this four-year employment gap. 

(internal citations omitted). Protestor also notes that another International Auto Logistics 

executive, Rod Mallette, also worked for Agility prior to coming over to International 

Auto Logistics. In support, protestor appended to its February 21, 2014 filing a copy of 

Mr. Tipton’s and Mr. Mallette’s LinkedIn profiles, which indicate that Mr. Mallette was a 

“Global Account Manager” for “Agility Logistics” from “2008–2010.” (emphasis in 

original). Protestor alleges that Agility International and Agility Defenses & Government 

Services are debarred contractors, and, therefore, International Auto Logistics’ alleged 

contracting with them is in violation of procurement regulations. 

FAR 9.405 (2013) states in relevant part:

(a) Contractors debarred, suspended, or proposed for debarment are 

excluded from receiving contracts, and agencies shall not solicit offers 

from, award contracts to, or consent to subcontracts with these 

contractors, unless the agency head determines that there is a compelling 

reason for such action (see 9.405–1(b), 9.405–2, 9.406–1(c), 9.407–1(d), 

and 23.506(e)). Contractors debarred, suspended, or proposed for 

debarment are also excluded from conducting business with the 

Government as agents or representatives of other contractors.
111

(b) Contractors included in the SAM [System for Award Management] 

Exclusions as having been declared ineligible on the basis of statutory or 

other regulatory procedures are excluded from receiving contracts, and if 

applicable, subcontracts, under the conditions and for the period set forth 

in the statute or regulation. Agencies shall not solicit offers from, award 

contracts to, or consent to subcontracts with these contractors under 

those conditions and for that period.

. . .

(d)(1) After the opening of bids or receipt of proposals, the contracting 

officer shall review the SAM Exclusions.

. . .

(4) Immediately prior to award, the contracting officer shall again review 

the SAM Exclusions to ensure that no award is made to a listed 

contractor.

FAR 9.405; see also FAR 9.405-2 (2013) (stating that “contracting officers shall not 

consent to subcontracts with such contractors unless the agency head states in writing 

the compelling reasons for this approval action”). 

In order to support its claim that Agility International and Agility Defense and 

Logistics are ineligible contractors, and were so at the time of the award of the GPC III 

contract, protestor provided a copy of a May 16, 2012 letter from Walter Thomas, 

Special Assistant for Contracting Integrity, of the United States Defense Logistics 

Agency, to the “Agility Public Warehousing Company, K.S.C.,” of Sulaibiya, Kuwait. The 

letter, located in protestor’s filings but not in the Administrative Record, discusses the 

circumstances involved, stating:

On behalf of the Defense Logistics Agency (DLA), on and after November 

16, 2009, the Suspension and Debarment Official (SDO) suspended The 

Public Warehousing Company KSC (also known as Agility) (PWC/Agility) 

and more than 120 of its affiliates from Government contracting and from 

directly or indirectly receiving the benefits of federal assistance programs

or from purchasing surplus Government property under the Federal 

Property and Management Regulations. Since that time, additional 

affiliates of PWC/Agility have been identified. Therefore, I have initiated 

this action pursuant to the authority of, and the debarment procedures

contained in, the Federal Acquisition Regulation (FAR) Subpart 9.4. For 

your information, FAR Subpart 9.4, the Defense FAR Supplement 

(DFARS) 209.4, and 2 C.F.R. Part 1125 may be located on the Internet at 

http://www.acq.osd.mil/dpap/dars/dfarspgi/current/index.html and

https://www.acquisition.gov/Far/.
112

The letter continued:

Pursuant to FAR 9.407-1(c), suspension may be extended to affiliates of a 

contractor, as defined in FAR 9.403 ("Affiliates."). Because PWC/Agility is 

the parent of the attached companies, which are listed by address and 

DUNs [sic] numbers [Dunn & Bradstreet Numbers], they are each 

suspended based on their affiliation with PWC/Agility, a criminally indicted 

company. These suspensions are temporary pending the completion of 

the legal proceedings against PWC. This letter constitutes written notice to 

each of the affiliates pursuant to FAR Subpart 9.407-1 (c)(2).

Along with the letter, protestor attached a list of company DUNS identification 

numbers, allegedly representing the list of entities listed as suspended pursuant to the 

letter from the Defense Logistics Agency. Among this list are numerous United States 

entities under the names “AGILITY INTERNATIONAL, INC.,” and “AGILITY 

LOGISTICS, CORP.” (capitalization and emphasis in original). The list does not contain 

any United States entities under the name Agility Defense and Government Services. 

To supplement this list, protestor appends a February 20, 2014 list of entities allegedly 

found from a search of the System for Award Management by protestor, using the 

search term, “Agility Defense & Government Services.” (emphasis in original). The 

list contains, in relevant, part two Virginia and two Guam entities under the name 

“AGILITY DEFENSE & GOVERNMENT SERVICES, INC.,” listed as excluded as of 

November 16, 2009 and January 6, 2010 respectively. (capitalization in original). The 

same list also contains two Madison, Alabama entities under the name “Agility Defense 

and Government Services, Inc.,” with DUNS number 788495232, that are not listed as 

excluded. In addition, protestor appended a list of entities allegedly found from a 

February 21, 2014 search of the System for Award Management, using the search 

terms “agility” and “international.” (emphasis in original). That last list contains, in 

relevant part, a Kuwaiti entity under the name “Agility Logistics International BV,” and 

two United States, New York entities under the name “Agility Logistics Corp aka Agility 

GIL” listed as excluded from contracting. This list, however, also includes one 

Alexandria, United States, Virginia entity under the name “AGILITY INTERNATIONAL 

INC.,” with DUNS number 155340052, listed as not excluded from contracting. 

(capitalization in original).

Despite the obvious, potential evidentiary issues raised by protestor’s attachment 

of website images as exhibits and informal submission of documents, defendant and 

intervenor have not formally objected to the introduction of protestor’s exhibits into the 

protest. Intervenor, however, contends that it “cannot address the purported 

announcements that Plaintiffs [sic] counsel asserts to have been found on the Internet.” 

Defendant does not provide new facts to counter protestor’s allegations, but maintains 

that “IAL’s proposal did not include the company at issue, Agility Defense & 

Government Services (Agility) or any of its affiliates, divisions, or branches.” Defendant 

also maintains that “IAL has unequivocally stated to the agency, U.S. Transportation 

Command, and the Court that it does not intend to subcontract with any entity affiliated 

with Agility to perform the contract at issue in this case.” Defendant claims that the job 
113

postings protestor refers to “had been deleted and were not active on February 6, 

2014,” and were otherwise only contingent upon winning the contract. Defendant also 

notes that, “[c]ounsel for intervenor provided the Government two DUNS numbers for 

two Agility affiliates: 788495232 (Taos Industries, Inc.)[

30] and 155340052 (Agility 

International, Inc.). The Government searched the System for Award Management 

(SAM), and found that neither DUNS number is associated with a suspended or

debarred Agility affiliate.” (footnote omitted). Defendant does admit, however, that the 

job posting related to the vehicle processing center in Hagatna, Guam “directed job 

applicants to apply at an office of a suspended Agility affiliate.” 

Intervenor presents its own version of events. According to intervenor:

On November 16, 2009, the Public Warehousing Company was indicted 

by the U.S. Government, and suspended from government contracting. 

Over the course of the next several days, hundreds of the Public 

Warehousing Company's affiliates were also suspended, including Agility 

Defense and Agility International. Agility Defense and Agility International 

have never been accused of any wrongdoing, and no legal proceedings 

have ever been initiated against them.

(emphasis in original). Intervenor claims that, after two years, “Agility Defense and 

Agility International filed suit in the United States District Court for the Northern District 

of Alabama (No.5:11-cv-04111-CLS)” to challenge their suspensions. According to 

intervenor, on December 19, 2012, the United States District Court for the Northern 

District of Alabama “ordered the suspensions terminated,” which the government did on 

December 21, 2012. In support, intervenor attaches a December 21, 2012 letter, signed 

by Joyce White Vance, United States Attorney, Northern District of Alabama, United 

States Department of Justice, addressed to Maynard Cooper & Gale, P.C., the counsel 

of record in the current case, stating:

In accordance with the Court's Order entered December 19, 2012, please 

see the enclosed two screen shots from the government's Excluded 

Parties List computer system (now System for Award Management) 

showing that the plaintiffs’ suspensions from government contracting have

been lifted and that the plaintiffs have been removed from the Excluded 

Parties List.

The System for Award Management screen shots provided by intervenor show two 

System for Award Management entries, for “TAOS INDUSTRIES, INC.,” DUNS number 

788495232,

31 and “AGILITY INTERNATIONAL INC.,” with DUNS number 155340052, 

 

30 Intervenor indicates that “Agility Defense was formerly known as Taos Industries, Inc. 

The DUNS number assigned to the former Taos Industries is now assigned to Agility 

Defense.” 

31 This is the same DUNS number reflected in protestor’s filing as belonging to “Agility 

Defense and Government Services, Inc.” 
114

indicating no exclusions from government contracting. (capitalization in original). 

Protestor has not objected to the court’s consideration of these exhibits. 

According to intervenor, the government successfully appealed, and in the 

appellate decision Agility Defense & Government Services, Inc., et al., v. United States

Department of Defense, et al., 739 F.3d 586 (11th Cir. 2013), “[o]n December 31, 2013, 

the Eleventh Circuit reversed the District Court and rendered judgment in favor of the 

government.” According to intervenor, “prior to the issuance of the Eleventh Circuit's 

mandate, Agility Defense and Agility International filed a Petition for Panel Rehearing or 

in the Alternative, for Rehearing En Banc.” Intervenor claims that, because appellate 

proceedings were ongoing as of the date of the intervenor’s filing: “As of the date of this 

filing, Agility Defense and Agility International are not suspended, nor have they been 

since December 21, 2012. Thus, Intervenor could have lawfully subcontracted with 

Agility Defense and/or Agility International at any time since December 21, 2012 up to 

and including this date [February 28, 2014].”

32

 (internal citations omitted). 

Regarding the specifics of the relationship between the Agility entities and 

intervenor, intervenor states that, after being awarded the GPC III contract, “Mr. Rich 

Brooks, who is the president of Agility Defense and Agility International - - the nonexcluded entities identified in the Appendix - - requested Intervenor's consideration of a 

potential subcontract for a limited amount of the work required by the subject contract.” 

Intervenor maintains that, “[a]lthough Intervenor did consider Mr. Brooks' request and 

discuss the same with him, Intervenor never entered into a subcontract (or other 

business relationship) with Agility Defense, Agility International or any of their affiliates.” 

The intervenor further indicates: “The day before the hearing on February 7, 2014, 

Intervenor learned that Plaintiff had written the Agency and raised the issue of

Intervenor's potential subcontract with Agility Defense and/or Agility International.” 

According to the intervenor, “[u]pon learning of the same, Intervenor made the final 

decision to terminate any discussions with Mr. Brooks and to reject any subcontract or 

other business relationship with Agility Defense, Agility International or any of their 

affiliates.” In addition, intervenor’s counsel represented the same at the hearing, when 

counsel stated: “‘Agility does not have a subcontract with [Intervenor]. We spoke with

the president of [Intervenor] yesterday to confirm that. There is no subcontract in place, 

and there is no subcontract being entertained at this time.’” (modifications in original). 

Intervenor also stated: “To avoid all doubt, Intervenor states that it has not entered into 

a subcontract or other business relationship with Agility Defense, Agility International or 

any of its affiliates, and that it does not intend to do so.” As to protestor’s claim that 

intervenor’s counsel had potentially inside knowledge of the issue because it 

represented the Agility entities in the Eleventh Circuit, intervenor’s counsel disclaimed 

knowledge, stating that “undersigned counsel serve Intervenor and their other clients, 

including certain Agility entities, solely as their lawyers. Undersigned counsel are not 

 

32 Although not determinative to the court’s opinion, the court notes that, after 

intervenor’s filing, the petition for rehearing was denied and the Eleventh Circuit’s 

mandate issued on April 9, 2014. 
115

involved in all of the business transactions conducted by Intervenor, Agility, or their 

other clients.” 

According to the District Court decision in Agility Defense and Government

Services, Inc. v. United States Department of Defense, Civ. No. CV–11–S–4111–NE, 

2012 WL 2480484, at *1 (N.D. Ala., June 26, 2012): 

Agility Defense and Government Services, Inc., and Agility International, 

Inc., commenced this action against the United States Department of 

Defense, Secretary of Defense Leon E. Panetta, the Defense Logistics 

Agency, and the Director of the Defense Logistics Agency, Vice Admiral 

Mark D. Harnitchek, seeking declaratory and injunctive relief to lift 

plaintiffs' suspension from government contracting.

The United States District Court for the Northern District of Alabama, in Agility Defense,

explained that “[t]he genesis of this action lies in plaintiffs' corporate relationship to 

Public Warehousing Company, K.S.C. (‘PWC’), a Kuwaiti corporation that specializes in 

logistics.” Id. at *2. The District Court explained that after the Public Warehousing 

Company was indicted for fraud related to food contracts for the United States military, 

“numerous other PWC subsidiaries were suspended, including plaintiff Agility on 

November 23, 2009. The subsidiaries, including plaintiffs, were not accused of any 

involvement in the wrongdoing for which PWC was indicted; rather the sole basis for 

their suspension was their status as affiliates of PWC.” Id. at *3 (footnotes omitted). In 

the United States District Court for the Northern District of Alabama case, the two Agility 

entities that brought suit appear to be the same Madison, Alabama Agility Defense & 

Government Services company, and the Alexandria, Virginia Agility International 

company, that, as reflected in protestor’s submissions to this court, are currently not 

listed as excluded from contracting on the System for Award Management: 

Plaintiff Agility Defense and Government Services, Inc. (“DGS”) is a 

Delaware corporation with its principal place of business in Madison 

County, Alabama, and an indirect subsidiary of PWC. There are three 

layers of subsidiaries between PWC and DGS. Plaintiff Agility 

International, Inc. (“Agility”) is a Delaware corporation with its principal 

place of business in Alexandria, Virginia, and a direct subsidiary of DGS; 

therefore, it also is an indirect subsidiary of PWC.

Id. at *2 (footnotes omitted). The plaintiffs in Agility Defense argued that FAR 9.407-4(b)

(2013) prohibited a suspension of longer than eighteen months. See Agility Def. and 

Gov’t Servs., Inc. v. United States Dept’ of Def., 2012 WL 2480484, at *7–8. The District 

Court concluded “that the interpretation of the regulation proposed by plaintiffs is the 

correct one. That is, no contractor may be suspended for greater than eighteen months 

unless legal proceedings are initiated against that contractor itself, regardless of the 

basis for the initial decision to suspend the company.” Id. at *10. The District Court 

ordered the termination of their suspensions, and, from the parties’ exhibits, it appears 

that the government complied shortly thereafter. 
116

The United States Department of Defense appealed, and on December 31, 2013, 

the United States Court of Appeals for the Eleventh Circuit found for the United States 

Department of Defense in Agility Defense & Government Services. v. United States 

Department of Defense, 739 F.3d at 589. The Eleventh Circuit reasoned:

The central issue in this appeal is whether the United States or its 

agencies must initiate legal proceedings against an affiliate of an indicted 

government contractor to toll the 18–month time limit on the suspension of 

the affiliate even though the affiliate was suspended solely on account of 

its affiliate status. The regulation states, “In no event may a suspension 

extend beyond 18 months, unless legal proceedings have been initiated 

within that period.” 48 C.F.R. § 9.407–4(b). The agency argues that we 

must interpret “legal proceedings” as legal proceedings against the 

indicted government contractor. The affiliates argue that we must interpret 

“legal proceedings” as legal proceedings against the suspended affiliate of 

the indicted government contractor. We agree with the agency.

Id. at 589. The appellate court did not remand to the district court, but instead, stated: 

“We REVERSE the summary judgment in favor of the affiliates, Agility Defense and 

Agility International, and RENDER a judgment in favor of the defendants.” Id. at 592 

(capitalization and emphasis in original). On February 13, 2014, as indicated by 

intervenor, the Agility entities filed a petition for rehearing en banc. See Appellees’ 

Petition for Reh’g or, in the Alternative, Reh’g En Banc, Agility Def. & Gov’t Servs. v. 

United States Dep’t of Def., No. 13-10757 (11th Cir. Feb. 13, 2014). On March 31, 

2014, the Eleventh Circuit denied the petition. See Order Denying Petition(s) for Reh’g 

and Petition(s) for Reh’g En Banc, Agility Def. & Gov’t Servs. v. United States Dep’t of 

Def., No. 13-10757 (11th Cir. Mar. 31, 2014). The mandate by the Eleventh Circuit 

issued on April 9, 2014. See Mandate of Judgment, Agility Def. & Gov’t Servs. v. United 

States Dep’t of Def., No. 13-10757 (11th Cir. Apr. 9, 2014).33 A review of the parties’ 

filings and the record before the court, however, indicates that as of the award date of 

the GPC III contract, October 24, 2013, both these Agility entities were allowed to 

contract with the government. At the time of the procurement award, the decision from 

the United States District Court for the Northern District of Alabama in Agility Defense

still stood. At the time of the award, even if International Auto Logistics had agreed to 

subcontract with Agility International or Agility Defense and Government Services, there 

would have been no violation of the FAR at that time. The FAR itself only requires that 

the agency, when making a final procurement decision, examine to see if a contractor is 

debarred or suspended before or at the time of award. See FAR 9.405(d)(4) 

 

33 It appears that Agility International, DUNS number 155340052, and Agility Defense 

and Government Services, DUNS number 788495232 are again excluded from 

government contracting in the System for Award Management. See Exclusion 

Summary, Agility International, Inc., Sys. Award Mgmt., available at www.sam.gov (last 

visited June 23, 2014); Exclusion Summary, Agility Defense and Government Services, 

Inc., Sys. Award Mgmt., available at www.sam.gov (last visited June 23, 2014).
117

(“Immediately prior to award, the contracting officer shall again review the SAM 

Exclusions to ensure that no award is made to a listed contractor.”). At the time the 

agency selected intervenor as the contract awardee, Agility International, DUNS number 

155340052, and Agility Defense and Government Services, DUNS number 788495232, 

were not debarred or suspended from government contracting. The court does not 

reach the question of whether or not International Auto Logistics did in fact form a 

business relationship with any Agility entity at the time of award. Although not 

dispositive in the instant protest, the agency is on notice of the potential issue and will 

have to monitor the intervenor’s performance, including that of its subcontractors, to be 

in conformance with the FAR and the contract requirements, as it must with all its 

contractors. 

CONCLUSION

As previously communicated to the parties, the government’s past performance 

determination and final integrated assessment were not arbitrary, capricious, an abuse 

of discretion, or otherwise not in accordance with law. Protestor’s requests for a 

temporary restraining order and preliminary injunction are DENIED. Defendant’s and 

intervenor’s cross-motions for judgment on the administrative record are GRANTED. 

The Clerk of Court shall enter JUDGMENT consistent with this opinion.

IT IS SO ORDERED.

s/Marian Blank Horn

MARIAN BLANK HORN

 Judge