Canadian Commercial Corporation/Freeze-Dry Foods,

B-266207 Feb 05, 1996 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights The protester alleges that the agency improperly determined that Freeze-Dry's offer of Canadian food products was ineligible for contract award under the terms of the solicitation and the "Buy American" provisions of the Berry Amendment. Freeze-Dry should have been awarded the contract on the basis of its low price. In pertinent part: "(a) The Contractor agrees to deliver under this contract only such of the following articles that have been grown. (2) To foods which have been manufactured or processed in the United States. The contracting officer determined that Freeze-Dry's offer was ineligible because it offered food products that were produced in Canada. All six offers were considered to be in the competitive range. View Decision Matter of: Canadian Commercial Corporation/Freeze-Dry Foods, Limited File: B-266207 Date: February 5, 1996 Procuring agency properly rejected offer of Canadian food products where the offer violated the Berry Amendment's prohibition on purchases of certain foreign products, 10 U.S.C. Sec. 2241 note (1994), and the agency head had not waived the restriction by determining that domestic food items could not be obtained in satisfactory quality and sufficient quantity at United States market prices. Attorneys DECISION The Canadian Commercial Corporation (CCC), on behalf of its endorsed subcontractor, Freeze-Dry Foods, Limited, [1] protests the Defense Personnel Support Center's (DPSC) [2] rejection of Freeze-Dry's low offer submitted in response to request for proposals (RFP) No. SPO300-95-R-9003. The protester alleges that the agency improperly determined that Freeze-Dry's offer of Canadian food products was ineligible for contract award under the terms of the solicitation and the "Buy American" provisions of the Berry Amendment. The protester contends that DPSC waived the Berry Amendment with respect to Freeze-Dry for this procurement and, therefore, Freeze-Dry should have been awarded the contract on the basis of its low price. We deny the protest. Issued by DPSC on May 19, 1995, the RFP requested offers for supplying diced chicken and dehydrated beef patties to various locations in the United States (U.S.) for use as B-rations. The RFP contemplated award of several fixed-price, indefinite quantity contracts on a line item-by-line item basis and indicated that price would be the sole factor in selecting contractors for each line item. The RFP incorporated DFARS Sec. 252.225-7012 (DAC 91-6), Preference for Certain Domestic Commodities, [3] which states, in pertinent part: "(a) The Contractor agrees to deliver under this contract only such of the following articles that have been grown, reprocessed, reused, or produced in the United States, its possessions, or Puerto Rico-- (1) Food . . . "(b) This clause does not apply-- (1) To supplies listed in FAR 25.108(d)(1), [4] or other supplies for which the Government has determined that a satisfactory quality and sufficient quantity cannot be acquired as and when need at U.S. market prices; (2) To foods which have been manufactured or processed in the United States, its possessions, or Puerto Rico. . . ." Six firms submitted offers by the June 22, 1995, closing date for receipt of initial proposals. The contracting officer determined that Freeze-Dry's offer was ineligible because it offered food products that were produced in Canada. However, on advice of counsel, all six offers were considered to be in the competitive range. Negotiations were held with the competitive range offerors, and best and final offers were received from all six firms. [5] Upon receipt of best and final offers, Freeze-Dry's offer was the lowest priced for line items 1 and 2. However, the contracting officer determined that Freeze-Dry's offer was ineligible for award because the offer was for food products produced outside of the U.S. By letter of August 29, Freeze-Dry was notified that contracts were awarded to the next low offerors for these line items. On September 19, the CCC filed this protest. The protester contends that DPSC waived application of the Berry Amendment's prohibition with regard to Freeze-Dry when DPSC entered into a memorandum of understanding (MOU) with Freeze-Dry on June 19, 1995, shortly before initial offers were due. The MOU established Freeze-Dry as a planned producer of various dehydrated meat items as part of the U.S. industrial mobilization base. The protester asserts that, under the terms of the MOU, Freeze-Dry may be required, as a planned producer, to accept a military contract for freeze-dehydrated meat items in a declared U.S. national emergency. The protester also notes that the MOU states that the items are considered critical to support American warfighting capabilities.