Sea Box, Inc.

B-409963.3 Feb 04, 2015 Jump To FULL REPORT VIEW DECISION RELATED PAGES GAO CONTACTS Highlights Sea Box, Inc. of East Riverton, New Jersey, protests the award of a contract by the Defense Logistics Agency (DLA) to W&K Containers, Inc. (W&K), of Mill Valley, California, under request for quotations (RFQ) No. SPE8ED-14-Q-0418 for large metal shipping containers known as Tricon Type I. The protester alleges that the agency erred in finding that Sea Box did not offer a U.S.-made end product in compliance with the Trade Agreements Act of 1979 (TAA), 19 U.S.C. 2501 et seq. (2012). We deny the protest. We deny the protest. View Decision 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: Sea Box, Inc. File: B-409963.3 Date: February 4, 2015 Kathryn V. Flood, Esq., Pamela J. Mazza, Esq., Julia di Vito, Esq., and Peter B. Ford, Esq., Piliero Mazza PLLC, for the protester. Dennis J. Callahan, Esq., Rogers Joseph O'Donnell, for W&K Containers, Inc., an intervenor. Shantay N. Clarke, Esq., and Nicole Franchetti, Esq., Defense Logistics Agency, for the agency. Lois Hanshaw, Esq., and Christina Sklarew, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST Protest that an agency’s determination of noncompliance with the Trade Agreements Act was unreasonable is denied where the agency reasonably determined that the protester’s foreign-sourced components would not be substantially transformed in the U.S. and thus the protester’s item did not qualify as a U.S.-made end product. DECISION Sea Box, Inc. of East Riverton, New Jersey, protests the award of a contract by the Defense Logistics Agency (DLA) to W&K Containers, Inc. (W&K), of Mill Valley, California, under request for quotations (RFQ) No. SPE8ED-14-Q-0418 for large metal shipping containers known as Tricon Type I. The protester alleges that the agency erred in finding that Sea Box did not offer a U.S.-made end product in compliance with the Trade Agreements Act of 1979 (TAA), 19 U.S.C. § 2501 et seq. (2012).[1] We deny the protest. BACKGROUND On June 2, 2014, DLA issued an unrestricted RFQ under the commercial item acquisition and simplified acquisition procedures of Federal Acquisition Regulations (FAR) part 12 and subpart 13.5. RFQ at 1. The RFQ contemplated the award of a fixed-price contract for 53 Tricon units on a best-value basis, considering price and past performance.[2] Id. at 3. The RFQ required that the Tricons be CSC [convention for safe containers]-certified, and manufactured to the latest International Organization for Standardization (ISO) standards. Id. at 4. The RFQ identified the containers by national stock number and described the containers as consisting of a heavy-duty steel floor, corrugated steel sides, roof, and swinging doors on one end. Id. As relevant here, the solicitation incorporated Defense Federal Acquisition Regulation Supplement (DFARS) clause 252.225-7021, Trade Agreements (Oct. 2013), which requires that a contractor deliver only “U.S.-made, qualifying country, or designated country end products” unless such end products are not received or are insufficient to fill the government’s requirements.[3] Id. at 13; DFARS § 252.225-7021. For an item to be considered an end product of the United States or a designated country it must be: (1) mined, produced, or manufactured in the United States or (2) 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. Id. Three vendors, including Sea Box, submitted initial quotations. Agency Report (AR), Tab 3, Initial Award Decision, at 1. W&K’s quotation indicated that its container would be sourced in China and delivered via U.S. flag carrier. Id. Sea Box’s and the third vendor’s (“Vendor B”) quotations indicated that their items were sourced in China, delivered to the U.S. in kits, and assembled in the U.S. Id. Sea Box’s initial quotation also included a trade agreements certification pursuant to FAR § 52.225-5, Trade Agreements, indicating that the country of origin for the end products it intended to furnish was the United States.[4] Protest at 3. The vendors’ quotations were evaluated as follows:   W&K Containers Vendor B Sea Box Past Performance Delivery Score[5]   65[6]   83   78 Price $219,897 $233,571 $243,482 AR, Tab 3, Initial Award Decision, at 1. On June 10, the contracting officer (CO) determined that all quotations offered non-designated country end products and that W&K’s quotation represented the best value, based on price and past performance.[7] Id. On June 20, Sea Box filed its initial protest with our Office, alleging that the agency’s TAA evaluation was flawed.