Container Products Corporation, B-280603.2, November 4, 1998

B-280603.2 Nov 04, 1998 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights DIGEST Protest against solicitation requirement that cargo containers be certified prior to the submission of proposals is sustained where record does not establish that requirement is necessary to meet the agency's needs. Container Products argues that the RFP is unduly restrictive of competition because it requires that prospective offerors obtain certification of their containers prior to submitting proposals. BACKGROUND The RFP was issued to acquire quadruple containers (QUADCONs). QUADCONs are intermediate size cargo containers designed to allow shipment and ground transportation of military supplies and equipment. The contractor is to fabricate. No proposal was received from Container Products. View Decision Matter of: Container Products Corporation File: B-280603.2 Date: November 4, 1998 DIGEST Attorneys DECISION Container Products Corporation protests the terms of request for proposals (RFP) No. M67854-98-R-3005, issued by the U.S. Marine Corps for cargo containers. Container Products argues that the RFP is unduly restrictive of competition because it requires that prospective offerors obtain certification of their containers prior to submitting proposals. We sustain the protest. BACKGROUND The RFP was issued to acquire quadruple containers (QUADCONs), container racks, and horizontal connectors to meet Marine Corps and Army requirements. QUADCONs are intermediate size cargo containers designed to allow shipment and ground transportation of military supplies and equipment. Agency Report at 2. The contractor is to fabricate, produce, and field cargo containers meeting standards set forth in 49 C.F.R. Sec. 450-453 (1996). RFP Attachment 4 (statement of work (SOW)) at 1. The SOW and the RFP purchase description, as well as 49 C.F.R. Sec. 450.5 and 453.1, also require the QUADCONs to be certified to meet the requirements of the International Convention for Safe Containers (CSC). RFP Attachment 1 (Purchase Description) at 2, SOW at 4. Moreover, section L-6.1.1 of the RFP states that "[t]he required CSC certification must be successfully obtained, in full, for the proposed QUADCON container(s) prior to submittal of the offeror's proposal." The RFP contemplates the award of a fixed-price, indefinite-delivery, indefinite-quantity contract for 5 years. RFP at B-2, F-3. The RFP specifies a minimum of 4,000 and a maximum of 34,000 QUADCONs, as well as minimums and maximums for connectors and racks, with the first production delivery scheduled no later than 180 days after the first delivery order. Id. at B-2, B-3, B-4, F-2, F-3. The RFP closed on July 23 and the Marine Corps received six proposals, but no proposal was received from Container Products. Agency Report at 8. The agency reports that four of those six proposals offered CSC-certified containers. Id. PROTEST ALLEGATIONS Container Products notes that the RFP was issued on June 11 and proposals were due on July 10, and argues that due to the complexity of the CSC certification process, it is impossible to obtain certification in the 30 days between issuance of the RFP and proposal submission. Protest, Attachment 1 at 1-2. The result, according to Container Products, is that the RFP is open only to those firms whose containers had been certified prior to issuance of the RFP. Id.; Comments at 2. Container Products argues that this practice is unduly restrictive, establishes a preference for a few offerors and prevents qualified offerors, such as Container Products, from competing. Container Products acknowledges, however, that the government may need a portion of the QUADCONs as quickly as possible. In recognition of this possibility, Container Products argues that the agency should acquire under this solicitation only the quantity of QUADCONs it needs immediately and that the remainder of the solicited 34,000 units should be acquired under another contract allowing a realistic time for sources whose containers are not presently certified to obtain the certification and to compete. Protest, Attachment 1 at 1-2; Comments at 3. /1/ ANALYSIS Procuring agencies are required to specify their needs in a manner designed to permit full and open competition, and may include restrictive requirements only to the extent they are necessary to satisfy the agencies' legitimate needs (or as otherwise authorized by law). 10 U.S.C. Sec. 2305(a)(1)(B) (1994); see Mossberg Corp., B-274059, Nov. 18, 1996, 96-2 CPD Para. 189 at 2. Where a protester challenges a specification as unduly restrictive, the agency must establish that the requirement is reasonably necessary to meet its needs; we will examine the adequacy of the agency's position to ensure that it is rational and can withstand logical scrutiny.