Sea Box, Inc. (SPE8ED-21-Q-1167)

B-420130,B-420130.2 Nov 18, 2021 Jump To FULL REPORT VIEW DECISION RELATED PAGES GAO CONTACTS Highlights Sea Box, Inc., a small business of East Riverton, New Jersey, protests the issuance of a purchase order to W&K Containers, Inc., a small business of Mill Valley, California, under request for quotations (RFQ) No. SPE8ED-21-Q-1167, issued by the Defense Logistics Agency (DLA) for freight containers. Sea Box contends that the agency improperly evaluated the awardee's quotation as offering a domestic end product, as required by the Buy American Act (BAA), because the awardee's item is not a commercially available off-the-shelf (COTS) item, nor does the item meet the component test. 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-420130; B-420130.2 Date:  November 18, 2021 Ruth E. Ganister, Esq., Rosenthal and Ganister, LLC; for the protester. Dennis Callahan, Esq., Rogers Joseph O'Donnell, PC, for W&K Containers, Inc., the intervenor. John P. Patkus, Esq., and Samantha L. Meyer, Esq., Defense Logistics Agency, for the agency. Emily R. O’Hara, Esq., and Peter H. Tran, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST Protest challenging the validity of the awardee’s representation that it supplied a domestic end product in its Buy American Act certification is denied where the agency reasonably relied on the certification.  DECISION Sea Box, Inc., a small business of East Riverton, New Jersey, protests the issuance of a purchase order to W&K Containers, Inc., a small business of Mill Valley, California, under request for quotations (RFQ) No. SPE8ED-21-Q-1167, issued by the Defense Logistics Agency (DLA) for freight containers.  Sea Box contends that the agency improperly evaluated the awardee’s quotation as offering a domestic end product, as required by the Buy American Act (BAA), because the awardee’s item is not a commercially available off-the-shelf (COTS) item, nor does the item meet the component test.  We deny the protest. BACKGROUND The solicitation, issued on August 19, 2021, as a small business set-aside, was an urgent requirement for 28 Tricon II freight containers.[1]  Agency Report (AR), Tab 1, RFQ at 1.  The procurement was conducted as a commercial item acquisition, using the procedures in parts 12 and 13 of the Federal Acquisition Regulation (FAR).  COS/MOL at 2.  The solicitation anticipated that the issuance of the purchase order would be made to the responsible vendor whose quotation represented the best value to the government, considering price and past performance.  RFQ at 3.  As relevant here, the RFQ incorporated Defense Federal Acquisition Regulation Supplement (DFARS) section 252.225-7000, Buy American Statute -- Balance of Payments Program Certification, and DFARS section 252.225-7001, Buy American and Balance of Payments Program, into the solicitation.[2]  RFQ at 18, 33.  Section 252.225‑7000 of the DFARS requires vendors to certify that their end products are one of the following:  domestic, from a qualifying country, or foreign.[3]  DFARS 252.225-7000(c).  A domestic end product is defined as an “end product manufactured in the United States if . . . [it satisfies the component test],[4] or . . . [t]he end product is a COTS item.”[5]  DFARS 252.225-7001(a).  If an end product is identified as a foreign end product, the agency must evaluate the quotation in accordance with part 225 of the DFARS, which instructs the agency to apply a 50 percent evaluation factor to a quotation if the low priced quotation is a foreign quotation that is not exempt from the Buy American or Balance of Payments Program.[6]  DFARS 252.225-7000(b)(1); see DFARS 225.502(c)(ii)(E). DLA received two quotations in response to its solicitation, one from Sea Box ($275,324) and one from W&K ($223,972).  COS/MOL at 6.  In its quotation, W&K identified itself as a dealer of containers manufactured by a domestic company ([DELETED]), and listed the manufacturer’s commercial and government entity (CAGE) number.  AR, Tab 5, W&K Quotation at 2.  In the Buy American Act -- Balance of Payments Program Certification section of its quotation, W&K identified its containers as “Domestic End Products.”  Id.  DLA issued the purchase order to W&K on August 24.  AR, Tab 2, Purchase Order at 1.  Sea Box filed this protest with our Office on September 3.[7] DISCUSSION The protester primarily alleges that the awardee’s quoted end product is not a domestic end product because the item does not meet the component test and does not qualify as a COTS item.  Protest at 5-6.  Thus, according to the protester, the agency should have treated W&K’s product as a foreign end product and applied a 50 percent evaluation factor in accordance with section 225.502(c)(ii)(E) of the D...