Canadian Commercial Corporation/ Liftking Industries, Inc., B-282334; B-282334.2; B-282334.3, June 30, 1999

Canadian Commercial Corporation/ Liftking Industries, Inc., B-282334; B-282334.2; B-282334.3, June 30, 1999 TITLE: Canadian Commercial Corporation/ Liftking Industries, Inc., B-282334; B-282334.2; B-282334.3, June 30, 1999 BNUMBER: B-282334; B-282334.2; B-282334.3 DATE: June 30, 1999 ********************************************************************** Canadian Commercial Corporation/ Liftking Industries, Inc., B-282334; B-282334.2; B-282334.3, June 30, 1999 Matter of: Canadian Commercial Corporation/ Liftking Industries, Inc. File: B-282334; B-282334.2; B-282334.3 Date: June 30, 1999 Richard L. Moorhouse, Esq., James P. Gallatin, Jr., Esq., and Andrew J. Hungerman IV, Esq., Reed Smith Shaw & McClay, for the protester. Gary E. Cross, Esq., Dunaway & Cross, for Kalmar Last Maskin Verkstad, an intervenor. Jeffrey I. Kessler, Esq., and Susan M. Lewandowski, Esq., Department of the Army, for the agency. Guy R. Pietrovito, Esq., and James A. Spangenberg, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST 1. Solicitation language that stated that the agency intended to make up to two awards allowed the agency the discretion to make a single award; it did not state a requirement for multiple awards. 2 The agency reasonably determined that a single award was in the best interest of the government where the agency reasonably evaluated the awardee's offer as substantially superior to the protester's offer such that award to the awardee alone was in the government's best interests. 3. General Accounting Office will not review an agency's determination to waive Buy American Act preference requirements as being in the public interest; late approval of the waiver does not provide a basis to object to the agency's source selection decision which presumed the waiver of the Buy American Act requirements would be obtained. DECISION Canadian Commercial Corporation, on behalf of Liftking Industries, Inc., protests the award of a contract to Kalmar Last Maskin Verkstad under request for proposals (RFP) No. DAAE07-98-R-S011, issued by the U. S. Army Tank-Automotive and Armaments Command (TACOM), for two prototype rough terrain container handlers (RTCH). We deny the protest. An RTCH is a vehicle that lifts, moves, and stacks 20-foot and 40-foot long containers up to a stated load weight. Agency Report (AR), Tab 7, Operational Requirements Document (ORD), at 1, and Tab 11, Source Selection Plan (SSP), at 5. The Army's current RTCHs were fielded between 1979 and 1984, and no longer fully meet the agency's needs with regard to efficiency, economy, and lift capability. In addition, the current RTCHs require labor- and equipment-intensive disassembly for transportation. AR, Tab 7, ORD, at 2. The Army developed a two-phased acquisition strategy to obtain the new RTCHs. AR, Tab 11, SSP, at 5-6, and Tab 17, RFP, at 20. In phase 1, up to two demonstration contracts were to be let, after full and open competition, for prototype RTCHs for testing. The Army hoped to award one contract for a mast-type RTCH (which is the type of RTCH currently used by the agency) and another contract for an alternative technology type RTCH. Award of a production contract for the RTCHs would be made in phase 2. Offerors were informed that the agency might acquire between 394 and 500 RTCHs during phase 2, depending upon available funding. AR, Tab 17, RFP, at 20. The competition for the production contract would be limited to the contractors who received prototype demonstration contracts under phase 1. [1] Id. The Army conducted a number of market surveys and obtained industry comments on a draft purchase description (PD) and draft RFP. AR, Tab 1, Contracting Officer's Statement, at 1-2. The PD and RFP were drafted to allow a variety of design types to compete for award. Id. From its market surveys, the agency expected proposals offering RTCHs using a fixed mast, which is an older, proven technology, and RTCHs using an extendable overhead boom (also called reach stackers), which is based upon newer technology. [2] Id. at 2. The Army implemented phase 1 of its acquisition plan by issuing the RFP on August 24, 1998. The RFP provided for the award of up to two fixed-price contracts for the prototype RTCHs and for training and support services. Specifically, offerors were informed as follows: The government intends to award up to two contracts for up to two technologies, to up to two responsible offerors whose proposals, in the Source Selection Authority's [SSA] opinion, represent the best value to the government, based upon the criteria set forth in this Section M. The government intends to award one contract for the best value mast type (as defined in ASME B56.6) container handler and another contract for the best value alternative technology container handler. However, we reserve the right to make awards based on the two best proposals. AR, Tab 17, RFP, sect. M.2, at 93.