Sea Box, Inc. (SPE8ED-22-Q-0520)

B-420737 Jul 25, 2022 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights Sea Box, Inc., a small business of East Riverton, New Jersey, protests the terms of request for quotations (RFQ) No. SPE8ED-22-Q-0520, issued by the Defense Logistics Agency (DLA) for freight containers. Sea Box argues that the solicitation should provide additional information regarding The Buy American Act's (BAA) requirement for domestic end products. We dismiss the protest. View Decision Decision Matter of: Sea Box, Inc. File: B-420737 Date: July 25, 2022 Robert A. Farber, Esq., for the protester. Andrew T. McGuire, Esq., Defense Logistics Agency, for the agency. Raymond Richards, Esq., and Jonathan L. Kang, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST Protest that solicitation fails to provide information regarding how the agency will determine whether an offered item qualifies as a commercially available off-the-shelf item is dismissed where the protester does not cite any procurement law or regulation requiring the agency to include such information in the solicitation. DECISION Sea Box, Inc., a small business of East Riverton, New Jersey, protests the terms of request for quotations (RFQ) No. SPE8ED-22-Q-0520, issued by the Defense Logistics Agency (DLA) for freight containers. Sea Box argues that the solicitation should provide additional information regarding The Buy American Act’s (BAA) requirement for domestic end products. We dismiss the protest. On April 29, 2022, DLA issued the RFQ as a small business set‑aside under the commercial item and simplified acquisition procedures of Federal Acquisition Regulation (FAR) parts 12 and 13, seeking quotations for 31 freight containers called “Tricon II” containers. Req. for Dismissal at 3; Req. for Dismissal, encl. 1, RFQ at 1. The solicitation contemplates the issuance of a fixed‑price purchase order to the vendor offering the quotation representing the best value to the government considering price and past performance. RFQ at 3, 22. The RFQ includes Department of Defense FAR Supplement (DFARS) provision 252.225‑7000, Buy American-Balance of Payments Program Certificate, and DFARS clause 252.225‑7001, Buy American and Balance of Payments Program. Id. at 17, 33. On May 6, prior to the time set for receipt of quotations, Sea Box filed this protest with our Office. Sea Box argues that the RFQ fails to provide information necessary to compete. Protest at 4, 6‑7. Specifically, Sea Box argues that the agency is required to disclose the specific quantity of Tricon II containers a vendor must have sold commercially to satisfy DLA’s definition of commercially available off-the-shelf (COTS) items. Id. at 6‑7. DLA asks our Office to dismiss the protest for failing to state a valid basis of protest. Req. for Dismissal at 1. As explained below, we dismiss the protest. Our Bid Protest Regulations, 4 C.F.R. § 21.1(c)(4) and (f), require that a protest include a detailed statement of the legal and factual grounds for the protest, and that the grounds stated be legally sufficient. These requirements contemplate that protesters will provide, at a minimum, either allegations or evidence sufficient, if uncontradicted, to establish the likelihood that the protester will prevail in its claim of improper agency action. Midwest Tube Fabricators, Inc., B-407166, B-407167, Nov. 20, 2012, 2012 CPD ¶ 324 at 3. The DFARS provision at 252.225-7000 requires vendors to certify that their end products are one of the following: domestic, from a qualifying country, or foreign. DFARS provision 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”], or . . . [t]he end product is a COTS item.” DFARS clause 252.225-7001(a). For an item to satisfy the component test, “[t]he cost of its qualifying country components and its components that are mined, produced, or manufactured in the United States [must] exceed[] 55 percent of the cost of all its components.” DFARS clause 252.225-7001(a). A COTS item is defined as any item of supply that is a commercial item, sold in substantial quantities in the commercial marketplace, and offered to the government in the same form in which it is sold in the commercial marketplace. DFARS clause 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 price, unless the quotation is otherwise exempt from application of the price evaluation factor under the Buy American or Balance of Payments Program.[1] DFARS provision 252.225-7000(b)(1); see DFARS 225.502(c)(ii)(E). Id. The RFQ includes two evaluation factors: past performance and price. RFQ at 3, 22. Sea Box’s protest relates to the price factor.