Charleston Marine Containers, Inc.
Highlights
Charleston Marine Containers, Inc. (CMCI) protests the issuance of a delivery order to Sea Box, Inc. under request for quotations (RFQ) No. SPM8ED-07-Q-0336, issued by the Defense Logistics Agency, Defense Supply Center Philadelphia, for Tricon II cargo containers. The protester principally maintains that the Sea Box container was improperly approved by the agency.
B-299862, Charleston Marine Containers, Inc., August 30, 2007
Decision
Matter of: Charleston Marine Containers, Inc.
Mike Szathmary, Charleston Marine Containers, Inc., for the protester.
Bob Loughery, for Sea Box, Inc., an intervenor.
Marlene Surrena, Esq., and Sharif T. Dawson, Esq., Defense Logistics Agency, for the agency.
Linda C. Glass, Esq., and Ralph O. White, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Protest challenging agency's determination to approve successful vendor's product is denied where record shows that the agency's determination was reasonably based.
DECISION
Charleston Marine Containers, Inc. (CMCI) protests the issuance of a delivery order to Sea Box, Inc. under request for quotations (RFQ) No. SPM8ED-07-Q-0336, issued by the Defense Logistics Agency, Defense Supply Center Philadelphia, for Tricon II cargo containers. The protester principally maintains that the Sea Box container was improperly approved by the agency.
The RFQ, issued
Sea Box and CMCI responded to the RFQ. Sea Box submitted a quote of $38,637 for its containers with a 10 day delivery schedule. CMCI submitted a quote of $46,039.77 with a 21 day delivery schedule. The contracting officer evaluated the quotes and the vendors' ABVS scores and issued an order to Sea Box on June 2. On June 8, CMCI filed this protest with our Office.
In its initial protest, CMCI argues that the salient characteristics listed in the RFQ for a Tricon II container were in fact the salient characteristics of a Tricon I container. The protester also argues that, while it does not question whether the Sea Box Tricon II container satisfies the RFQ requirements, it maintains that the Sea Box container does not meet the higher quality and performance standards of a Tricon II container.
To the extent the protester contends that the specifications for a Tricon II container were inaccurately listed in the RFQ or that the Sea Box container was improperly listed as an approved product, its protest is untimely. This Office's Bid Protest Regulations contain strict rules requiring timely submission of protests. These rules require that protests based upon alleged improprieties in a solicitation which are apparent prior to the deadline for receipt of offers or quotations must be filed before that time. Bid Protest Regulations, 4 C.F.R. sect. 21.2(a)(1) (2007). Our timeliness rules reflect the dual requirements of giving parties a fair opportunity to present their cases and resolving protests expeditiously without unduly disrupting or delaying the procurement process. Dominion Aviation, Inc.-Recon., B-275419.4,
In its comments submitted in response to the agency report, CMCI contends that the Sea Box product was not properly approved by the agency. Specifically, CMCI argues that the agency failed to follow the procedures for evaluating an alternate product in that Sea Box was not required to submit all drawings, specifications, or other data necessary to clearly describe the characteristics and features of the alternate being offered.[3]
As a preliminary matter, we note that Sea Box was not offering an alternate product here. The Sea Box container was approved by the agency prior to issuance of the RFQ and was specifically listed in the RFQ as an approved product.
At best, the protester's arguments are limited to a challenge to the adequacy of the agency's review of the Sea Box product.[4]
A contracting agency has the primary responsibility for determining its minimum needs and for determining whether a previously unapproved product will satisfy those needs, since it must bear the burden of difficulties incurred by reason of a defective evaluation. Chromalloy Gas Turbine Corp., B-234272,
The agency reports that it reviewed the technical data package (TDP) submitted by Sea Box to determine if it was equal to the technical requirements set forth in the Purchase Item Description (PID) for the Tricon II container. AR.,Tab 8, Declaration of Product Specialist. The agency's review consisted of comparing all physical and salient characteristics listed in the TDP with those set forth in the PID for exact conformance. The agency further reports that it compared the Sea Box Tricon II to the CMCI Tricon II from information available from both vendors. Specifically, the agency reviewed the Sea Box catalogue page which contained dimensional characteristics and data indicating the Sea Box container was manufactured to the latest International Organization of Standardization (ISO) standards applicable to these containers. The agency concluded that both containers were manufactured to the latest ISO standards, were dimensionally the same, and met or exceeded the government's minimum needs. On this basis, the agency concluded that the Sea Box container met all of the government's requirements, including the salient characteristics listed in the PID, and therefore that the container was properly included as an approved Tricon II container.
Here, we have no basis to question the agency's decision to grant approval for the Sea Box container. While CMCI challenges the adequacy of the documentation used by DLA in evaluating the acceptability of the Sea Box container, CMCI's concerns fall short of establishing that the agency's determination was unreasonable. At best, the protest arguments constitute technical disagreements which do not provide a basis for the protester to prevail on this matter.
The protest is denied.
Gary L. Kepplinger
General Counsel
[1] A Tricon II container is a cube-shaped container that has a set of doors on both ends. The agency reports that Tricon is a common generic term used in the container industry to refer to a specific type of cargo container. Agency Report (AR) at 2.
[2] We recognize that this protest involves an RFQ; however, the agency throughout its procurement record uses award language. We will retain the award language for consistency with the underlying record.
[3] To the extent the protester argues that the Sea Box container violates the protester's patent, this issue is not for our consideration. Lab Prods., Inc., B-252452,
[4] We view CMCI's challenge to the adequacy of the agency's approval of the Sea Box container as timely since the protester indicates that this challenge is based on its examination of a photograph of the Sea Box container it received on June 10, 2007 that presumably indicates that the Sea Box container does not satisfy the requirements of a Tricon II container and on information contained in the agency report submitted in response to the protest.
[5] In fact, the protester in its comments to the agency report specifically states that its protest was not that the Sea Box product did not meet the salient characteristics of the purchase order, but rather that the RFQ mistakenly listed the salient characteristics for the Tricon I container instead of the Tricon II. As previously stated, any challenge to the solicitation is untimely. Moreover, both vendors submitted quotes for their respective Tricon II containers.