Aalco Forwarding, Inc., et al., B-277241.8; B-277241.9,

Aalco Forwarding, Inc., et al., B-277241.8; B-277241.9, BNUMBER: B-277241.8; B-277241.9 DATE: October 21, 1997 TITLE: Aalco Forwarding, Inc., et al., B-277241.8; B-277241.9, October 21, 1997 ********************************************************************** Matter of:Aalco Forwarding, Inc., et al. File: B-277241.8; B-277241.9 Date:October 21, 1997 Alan F. Wohlstetter, Esq., and Stanley I. Goldman, Esq., Denning & Wohlstetter; James M. McHale, Esq., Seyfarth, Shaw, Fairweather & Geraldson; Thomas M. Auchincloss, Jr., Esq., Leo C. Franey, Esq., and Brian L. Troiano, Esq., Rea, Cross & Auchincloss; Richard L. DeWitt, Approved Forwarders Inc.; and Arthur R. Heath, A&P Shipping Corp., for the protesters. G. Jerry Shaw, Esq., and Susan E. Shaw, Esq., Shaw, Bransford & O'Rourke, for HFS Mobility Services; Brad Effenberger for FAReaching Services; L. Clyde Groover, Jr., for Associates Relocation Management Co., Inc., intervenors. Thomas J. Duffy, Esq., Maj. Jonathan C. Guden, and Ramon Morales, Esq., Department of the Army, for the agency. Adam Vodraska, Esq., Guy R. Pietrovito, Esq., and James A. Spangenberg, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST 1. Agency properly determined, based on market research, that household goods moving services for military personnel could be acquired under Federal Acquisition Regulation part 12 commercial item procedures, notwithstanding the inclusion of government-unique requirements in the solicitation that are not present in commercial contracts for moving services. 2. Agency properly issued waiver in accordance with Federal Acquisition Regulation sec. 12.302(c) for commercial item solicitation requirements that may be inconsistent with customary commercial practice where agency followed its procedures and reasonably found that the requirements subject to the waiver were legitimate agency needs. 3. There is no basis to presume that relocation brokers who may be awarded contracts for household goods moving services for military personnel will violate the Anti-Kickback Act of 1986, 41 U.S.C. sec. 51-58, when subcontracting for moving services; violations must be determined under the particular facts and circumstances presented by each transaction and whether payments have been made to the broker by subcontractors for an improper purpose. DECISION Aalco Forwarding, Inc. and 118 other firms protest the terms of request for proposals (RFP) No. DAMT01-97-R-3001, issued by the Military Traffic Management Command (MTMC), Department of the Army, for all personnel, equipment, materials, supervision, and other items necessary to provide transportation and transportation-related services for 50 percent of the eligible Department of Defense (DOD) and U.S. Coast Guard sponsored personal property shipments from North Carolina, South Carolina, and Florida, to any or all of 13 destination regions in the continental United States (CONUS) and/or any or all of 5 destination regions in Europe.[1] The solicitation implements a pilot program to reengineer DOD's personal property shipping and storage program. The protesters primarily contend that MTMC is improperly acquiring the transportation services under part 12 of the Federal Acquisition Regulation (FAR), Acquisition of Commercial Items, and that the RFP is defective because the inclusion of relocation brokers as offerors will violate the Anti-Kickback Act. The protests are denied. BACKGROUND DOD's Personal Property Shipping and Storage Program A member of the military services or a civilian employee of DOD who is ordered to make a permanent change of station or other approved move is entitled to ship and/or store, at government expense, an authorized amount of household goods and personal effects. As a result, DOD is the nation's largest personal property shipper. It expends more than one billion dollars on more than 650,000 household goods movements each year, accounting for approximately 15 percent of the moving industry's annual volume.[2] DOD's current personal property shipping and storage program is run centrally by the headquarters office of MTMC and administered locally by about 200 military and DOD shipping offices around the world. DOD relies almost exclusively on commercial movers, both directly with more than 1,100 moving van companies (carriers) and forwarders, and indirectly with thousands more agents and owner-operator truckers working for the carriers and forwarders. The current program, under which the transportation and related services are acquired under government bills of lading, is exempt from the procurement laws and regulations, see FAR sec. 47.000(a)(2), and separately regulated.