GAO Says US Need Not Provide Certain Info in Procurement Request for Shipping Containers
The Government Accountability Office, in a July 25 decision, dismissed a protest from shipping container manufacturer Sea Box contesting the terms of a Defense Logistics Agency request for quotations (RFQ) for freight containers. Sea Box said the solicitation should have more information on the Buy American Act's requirement for domestic end products, but GAO ruled the protest doesn't cite any procurement law or regulation requiring the DLA to include such information in the solicitation.
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In April, DLA issued the RFQ seeking quotations for 31 freight containers, contemplating a fixed-price purchase order to the vendor offering the best-value quote to the government considering present and past performance. Sea Box then filed its protest with GAO, arguing the RFQ fails to give information needed to compete. In particular, Sea Box argued that DLA is required to disclose the specific quantity of the requested containers a vendor must have sold commercially to satisfy its definition of commercially available off-the-shelf (COTS) items.
GAO said its bid protest regulations require that a protest have a detailed statement of the legal and factual grounds and that these grounds be "legally sufficient." Sea Box failed to clear this standard, the agency said. Sea Box argued it's unable to "compete intelligently" because it can't tell based on the information in the RFQ whether its offered Tricon II container qualifies as a domestic end product as defined by the Buy American Act. The manufacturer said it would like to identify its Tricon II container as a COTS item.
DLA responded that its regulations require self-certification as to whether the offered product is a domestic, qualifying or foreign end product, as defined by the act. In a case where the contracting officer is required to find whether an offered item is a COTS item, though, such a finding is made case by case during the evaluation of quotations and is left to the contracting officer's discretion. Sea Box said the agency must find whether the product has been sold in substantial quantities and advise the prospective offeror of that determination, though GAO disagreed.
"The protester does not identify any relevant statute or regulation that requires the agency to make and disclose a COTS determination in the manner sought by the protester," GAO general counsel Edda Emmanuelli Perez said. "The protester also does not identify any relevant statute or regulation that prohibits an agency from relying on an offeror’s certification of the COTS status of its product, and to rely on that self-certification. Because Sea Box has not alleged the agency violated a procurement statute or regulation, the protester has failed to state a valid basis of protest and we therefore dismiss the protest."