B-309930.2, Klinge Corporation, February 13, 2008

B-309930.2 Feb 13, 2008 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights Klinge Corporation protests the U.S. Marine Corps's (USMC) award of a contract to Sea Box, Ltd., under request for proposals (RFP) No. M67854-07-R-5060, for large field refrigeration systems (LFRS). Klinge asserts that Sea Box's proposal should have been rejected as unacceptable. We deny the protest. View Decision B-309930.2, Klinge Corporation, February 13, 2008 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: Klinge Corporation File: B-309930.2 Date: February 13, 2008 Richard P. Rector, Esq., and Seamus Curley, Esq.,with the law firm of DLA Piper, for the protester. Robert A. Farber, for Sea Box, Ltd., the intervenor. David P. Ingold, Esq., and James McCloskey, Esq., U.S. Marine Corps, for the agency. David A. Ashen, Esq., and John M. Melody, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST Protest that awardee's proposed large field refrigeration system (LFRS) did not meet requirements of Trade Agreements Act is denied where agency, after requesting further information from awardee, reasonably determined that components of awardee's LFRS would be substantially transformed in U.S. and thus qualify as a U.S.-made end product. DECISION Klinge Corporation protests the U.S. Marine Corps's (USMC) award of a contract to Sea Box, Ltd., under request for proposals (RFP) No. M67854-07-R-5060, for large field refrigeration systems (LFRS). Klinge asserts that Sea Box's proposal should have been rejected as unacceptable. We deny the protest. The solicitation provided for award of an indefinite'delivery/indefinite-quantity contract for a base period of 1 year, with four 1-year options, to furnish up to 300 LFRSs, as well as spare parts and training. Each LFRS was to be comprised of two primary components: (1) a 20-x-8-x-8-foot insulated container, compliant with International Organization for Standardization (ISO) standards, with double doors at one 8'x'8'foot end, and (2) (to be installed at the opposite end of the container) an electrically-powered refrigeration/freezing/heater unit (RU). The solicitation included a performance specification that divided the specified performance characteristics into Critical Performance Parameters that –must be met for minimum acceptability,— and other parameters that were only objectives and were subject to tradeoff in the best value analysis. RFP at 1; Performance Specification sections 1.0, 3.0, 3.1, 3.2. The solicitation also incorporated the standard Trade Agreements Act (19 U.S.C. sect. 2501 et seq.) clauses requiring (1) that offerors certify, –[f]or all line items subject to the Trade Agreements clause of this solicitation,— that –each end product to be delivered under this contract, except those listed in paragraph (c)(2) of this provision, is a U.S.-made, qualifying country, or designated country end product,— Defense Federal Acquisition Regulation Supplement (DFARS) sect. 252.225-7020, Trade Agreements Certificate; and (2) that the contractor –deliver under this contract only U.S.-made, qualifying country, or designated country end products,— absent exceptions not applicable here, DFARS sect. 252.225-7021(c), Trade Agreements. In this regard, DFARS standard clause 252.225-7021(a)(12), Trade Agreements, incorporated in the solicitation, provided that: U.S.-made end product means an article that -- (1) Is mined, produced, or manufactured in the United States; or (2) Is substantially transformed in the United States into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was transformed. Award was to be made to the offeror whose proposal represented the –best value— based on four evaluation criteria: operational effectiveness, past performance, supportability, and price. RFP, Federal Acquisition Regulation (FAR) sect. 52.212-2, Evaluation''Commercial Items. Sea Box, Klinge and three other offerors submitted proposals. Based on its evaluation of the initial proposals, the Corps determined that Sea Box's proposal represented the best value and made award to that firm on July 16, 2007. Klinge filed a protest with our Office challenging the award, asserting that (1) the agency had improperly determined Klinge's proposal to be unacceptable for failure to satisfy a Critical Performance Parameter in the performance specification''the requirement that the RU start and operate in ambient temperatures from '25 Fahrenheit (F.) to +131 F, Performance Specification sect. 3.9.1, and (2) Sea Box's proposal did not comply with the Trade Agreements provisions included in the RFP.