B-297537, MMI-Federal Marketing Service Corp., February 8, 2006

B-297537 Feb 08, 2006 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights MMI-Federal Marketing Service Corp. protests the award of a contract to Iguana, LLC under request for quotations (RFQ) SPO406-05-Q-T784, issued by the Defense Logistics Agency, Defense Supply Center Richmond (DSCR) for pop-up bednets impregnated with an insecticide. The protester contends that the agency unreasonably relied upon information provided by the awardee indicating that it would comply with the RFQ's domestic production restrictions. We sustain the protest. View Decision B-297537, MMI-Federal Marketing Service Corp., February 8, 2006 DOCUMENT FOR PUBLIC RELEASE The decision issued on the date below was subject to a GAO Protective Order. This redacted version has been approved for public release. Decision Matter of: MMI-Federal Marketing Service Corp. File: B-297537 Date: February 8, 2006 Ron R. Hutchison, Esq., Doyle & Bachman LLP, for the protester. Jennifer A. Kerkhoff, Esq., Troutman Sanders LLP, for Iguana, LLC, an intervenor. Marit D. Bank, Esq., Defense Logistics Agency, for the agency. Jonathan L. Kang, Esq., and Michael R. Golden, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST Protest is sustained where the agency unreasonably determined that awardee's quotation demonstrated compliance with the Berry Amendment's domestic production requirements, in light of countervailing pre-award information that the awardee would not comply. DECISION MMI-Federal Marketing Service Corp. protests the award of a contract to Iguana, LLC under request for quotations (RFQ) SPO406-05-Q-T784, issued by the Defense Logistics Agency, Defense Supply Center Richmond (DSCR) for pop-up bednets impregnated with an insecticide. The protester contends that the agency unreasonably relied upon information provided by the awardee indicating that it would comply with the RFQ's domestic production restrictions. We sustain the protest. BACKGROUND The agency sought quotations for the supply of 25,000 bednets, which are mesh screen fabric covers that surround a user's sleeping area. The required bednets are manufactured from synthetic fabrics and coated synthetic fabrics that have been impregnated with permethrin, an insecticide. The RFQ stated that the bednet manufacturing process must comply with the requirements of 10 U.S.C. sect. 2533a, commonly referred to as the –Berry Amendment.— RFQ at 2. The Berry Amendment generally restricts the Department of Defense's expenditure of funds for certain articles and items, including synthetic fabric and coated synthetic fabric, to domestically produced products. See 10 U.S.C. sect. 2533a(b). The RFQ also included the –Preference for Certain Domestic Commodities— clause, Defense Federal Acquisition Regulation Supplement (DFARS) sect. 252.225-7012, which implements the Berry Amendment. RFP at 11. The RFQ listed two approved sources for the bednets, MMI and Iguana. Id. at 3. Award of a contract under the solicitation was reserved for small business vendors. Id. at 7. Award was to be made based on vendors' prices and scores derived from the Automated Best Value System (ABVS), and vendors were advised that –[d]elivery is more important than price.— Id. at 18, 2. Because the use of permethrin is regulated as a pesticide by the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), 7 U.S.C. sections 136a-y, the RFP required the bednets to carry a label listing valid Environmental Protection Agency (EPA) registration and establishment numbers. RFP at 2-3; see also 40 C.F.R. sect. 156.10 (EPA labeling requirements). An EPA registration number identifies the company that registered the pesticide product, and an establishment number identifies the location where the final product will be assembled. EPA FIFRA Label Review Manual 3d Ed., available at http://www.epa.gov/oppfead1/labeling/lrm. A supplemental distribution number must be identified on the product label, comprised of the registration number and a number identifying the distributor, if the distributor of the pesticide product is not the party to whom the pesticide product is registered. Id. The agency received quotations from both Iguana and MMI. The agency delayed award of the contract to review information indicating that Iguana would not comply with the Berry Amendment requirements. Contracting Officer's Statement at 2. In its quotation, Iguana provided a product label that identified EPA registration No. 81041-1-66306 and EPA establishment No. 81041-CHN-001. Agency Report (AR), Tab C, Iguana Quotation, at 27-28. The agency was aware, due to its exchanges with Iguana regarding another procurement for bednets, contract No. SP0406-05-D-4084, that establishment No. 81041-CHN-001 referred to Igauana's subcontractor in China that would –treat the fabric using a patented process to apply the pesticide.— AR, Tab G, Exh. B, Letter from Iguana to Agency, Apr.