BNUMBER:  B-266238
DATE:  February 8, 1996
TITLE:  Sea-Land Service, Inc.

**********************************************************************

Matter of:Sea-Land Service, Inc.

File:     B-266238

Date:     February 8, 1996

Raymond S. E. Pushkar, Esq., and Michael A. Hopkins, Esq., McKenna & 
Cuneo, for the protester.
Richard S. Haynes, Esq., E. Duncan Hamner, Esq., and Charna J. 
Swedarsky, Esq., Military Sealift Command, for the agency.
Christine F. Davis, Esq., and Guy R. Pietrovito, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

A solicitation will not result in the award of an enforceable 
requirements contract where a solicitation provision disclaims the 
government's obligation to order its requirements from the contractor 
and therefore renders illusory the consideration necessary to enforce 
the contract; agency's proposed amendment to that solicitation 
provision is ambiguous and does not clearly revive the government's 
obligation to order its requirements from the contractor.

DECISION

Sea-Land Service, Inc. protests the terms of request for proposals 
(RFP) No. N62387-95-R-8058 ("the Interport RFP"), issued by the 
Military Sealift Command (MSC), for ocean and intermodal 
transportation of Department of Defense (DOD) cargo on specified trade 
routes.  Sea-Land protests that the RFP will not result in the awards 
of enforceable requirements contracts, as solicited.

We sustain the protest.

The Interport RFP was issued on October 21, 1994, to obtain rates and 
services for ocean and intermodal transportation of breakbulk and 
containerized cargo over eight trade routes from October 1, 1995 to 
May 31, 1996.[1]  Carriers could submit proposals for any trade route 
on which they maintained regular commercial sailings, using either 
all-United States (U.S.) flagship service, all-foreign flagship 
service, or combination service (U.S. and foreign flagship service).  
The RFP incorporated the Cargo Preference Act of 1904, 10 U.S.C.  sec.  
2631 (1994), and accorded a preference to U.S. flagship service over 
foreign flagship service.  Furthermore, to be eligible for award, 
carriers were required to commit 50 percent of their U.S. flagship 
capacity, if any, to the DOD Sealift Readiness Program for use in a 
military or national defense emergency.

The RFP, as issued, stated that "[t]he government contemplates award 
of a Firm-Fixed Rate, Indefinite Delivery, Indefinite Quantity 
contract."  The RFP did not impose any minimum transit time, sailing 
frequency, or cargo accommodation requirement that a carrier must meet 
to be eligible for award.  Rather, the RFP provided that the 
government would tender cargo for transport on the carrier's regularly 
scheduled commercial sailings.

The carrier offering the lowest rate for a given route would receive 
award, although multiple awards for each route were possible if the 
service of more than one carrier was deemed necessary.  The successful 
carriers' names and their accepted rates would be published in the 
Interport Container Agreement and Rate Guide.  The Agreement, which 
was included in the RFP, describes the services to be performed, the 
promises of the parties, and the methods by which the government will 
fill individual cargo requirements.

The promises of the carrier appear in section C-4 of the Agreement, 
"Carrier Requirements."  Under that section, the carrier agrees to 
transport such cargo as the government might tender based upon the 
carrier's accepted Interport rates or, if applicable, its lower common 
carrier rates.  Section C-4 does not obligate the carrier to promise 
the government a minimum amount of space in its vessels, but, if the 
carrier has adequate space to transport the cargo, the carrier "shall 
not refuse or discriminate in the matter of cargo space 
accommodations."  This is in accord with The Shipping Act of 1984, 46 
U.S.C. App.  sec.  1701, 1709(b)(6) (1988).  According to section C-4, 
breaching a "Carrier Requirement" may expose the carrier to a 
termination for default and a claim for damages.

Regarding the government's promises,[2] the Agreement provides that, 
as individual cargo requirements arise, "all such cargo shall be 
shipped via carriers holding contracts."  The government warrants that 
it will not book cargo with carriers not awarded Interport contracts, 
unless "capability from carriers receiving awards is not available to 
meet the requirement."  In a multiple award situation, the government 
will book cargo in order of cost favorability among Interport 
carriers, provided that the low-cost carrier offers "acceptable space 
and a schedule meeting the delivery requirements of the cargo."  If 
the low-cost carrier cannot meet the government's space or delivery 
requirements for the particular cargo, the government will book the 
cargo with "the next low cost carrier and so on, until a carrier can 
be found who can provide acceptable space and delivery schedule."  The 
Agreement authorizes the government to make other arrangements to ship 
the cargo if no Interport carrier can provide adequate space.[3]  
Offerors were advised that the government does not guarantee any 
minimum volume of cargo to any carrier.

The Agreement's "Cargo Booking Policy" also contains a "Limitation of 
Government Liability" clause, which states

     "Nothing in this Agreement shall give the carrier any right, 
     claim or cause of action against the Government for the 
     Government's (1) failure to book any particular cargo or any . . 
     . quantity of cargo with the carrier; (2) failure to utilize any 
     or all of the vessel space dedicated by a contract carrier; (3) 
     booking of any particular cargo or any quantity of cargo with any 
     other carrier, whether or not such carrier has been awarded a . . 
     . Container Agreement; (4) transporting any cargo by any means 
     other than with the carrier; (5) otherwise failing to perform any 
     of its promises or undertakings set forth in Sections C-4,[4] 
     G-6, or H-8 of this Agreement; (6) right to use alternative 
     competition methods of procuring ocean transportation, including 
     service contracting that will obtain service from the least 
     expensive among the same types of carriers or vessels and also 
     the least expensive among different types of carriers or 
     vessels."

Sea-Land submitted an initial proposal in response to the RFP by the 
December 9, 1994, proposal receipt date.  On August 16, 1995, MSC 
issued amendment No. 0004 to the RFP.  The amendment added four routes 
to the scope of the RFP.  These routes were Route 6A (U.S. East Coast 
to Spain), Route 7 (U.S. East Coast to the Middle East Area), Route 
12A (U.S. Gulf Coast to Spain), and Route 13 (U.S. Gulf Coast to the 
Middle East Area).  The amendment invited proposals from any 
interested U.S. or foreign flagship carrier, including carriers that 
did not submit proposals for the eight original routes.

Unlike the eight original routes covered by the Interport RFP, the 
four new routes were the subject of another MSC solicitation, RFP No. 
N62387-95-R-2600 ("the Worldwide RFP"), to which Sea-Land also 
responded.  The Worldwide and Interport RFPs were issued 
simultaneously (October 21, 1994), contemplated concurrent performance 
periods (October 1, 1995 to May 31, 1996), and contained substantially 
similar terms and conditions.  The Worldwide RFP, as amended, provided 
that "the Government contemplates award of a Firm Fixed Rate 
Requirements contract" as to most routes, including Routes 6A, 7, 12A, 
and 13.  The Worldwide RFP did not incorporate the standard 
"Requirements" clause, set forth at Federal Acquisition Regulation 
(FAR)  sec.  52.216-21, required for inclusion in solicitations 
contemplating requirements contracts.  See FAR  sec.  16.505.

In contrast with the Interport RFP, competition under the Worldwide 
RFP was restricted to U.S. flagship carriers, using either all-U.S. 
flagship service or combination service with foreign flagships.  In 
its protest report, MSC states that it issued Interport amendment No. 
0004 to allow foreign flagship carriers to compete for Routes 6A, 7, 
12A, and 13 because it believed that U.S. flagship service under the 
Worldwide RFP might not suffice to meet DOD's cargo requirements.  To 
address the overlap in requirements between the Interport and 
Worldwide RFPs, amendment No. 0004 advised offerors that service on 
Routes 6A, 7, 12A, and 13 would be 

     "supplemental to U.S. flag service on these same routes . . . 
     under [the Worldwide RFP].  Preference will be given to awardees 
     of rates for these routes under [the Worldwide RFP] to the extent 
     that U.S. flag service can meet requirements."  

Sea-Land was the successful carrier under the Worldwide RFP for Routes 
7 and 13, and one of two successful carriers for Routes 6A and 12A, 
effective October 1, 1995, under the Worldwide Container Agreement and 
Rate Guide. 

On August 25, 1995, before proposals were due under Interport 
amendment No. 0004, Sea-Land filed an agency-level protest, asserting 
three protest grounds:  (1) that the RFP's Sealift Readiness Program 
award eligibility requirement was discriminatory; (2) that the RFP 
would not result in an enforceable indefinite delivery, indefinite 
quantity (IDIQ) contract; and (3) that the government would breach the 
Worldwide Agreement if it allowed Interport carriers to provide 
service on Routes 6A, 7, 12A, and 13.  MSC sustained Sea-Land's 
protest only as to the allegation that the RFP's IDIQ terms were 
defective, and, on September 8, MSC amended the Interport RFP to state 
that it intended to award requirements contracts for the trade 
routes.[5]  This protest followed.  MSC proceeded with the award of 
the original eight trade routes on October 1, 1995, but suspended 
award of the amendment No. 0004 routes during the pendency of the 
protest.

Sea-Land protests, with respect to the prospective award of the 
amendment No. 0004 routes, that the Interport RFP, as amended, will 
not result in the awards of enforceable requirements contracts.  
Sea-Land argues that the RFP's "Limitation of Government Liability" 
clause excuses the government from purchasing its requirements under 
the Interport Agreement, thereby vitiating the consideration necessary 
to make the contracts enforceable.  We agree.
 
A requirements contract provides for filling all actual purchase 
requirements of designated government activities for specific supplies 
or services during a specified contract period, with deliveries 
scheduled by placing orders with the contractor.  FAR  sec.  16.503.  The 
essential feature of a requirements contract is that the government is 
committed to satisfying its requirements only through that contract 
and no other, while the contractor is committed to filling all such 
requirements that may arise.  These mutual promises constitute the 
consideration necessary to form a binding contract.  Torncello v. 
U.S., 681 F.2d 756 (Ct. Cl. 1982); Stanley F. Horton d/b/a T & H 
Rental & Snow Removal, DOTCAB No. 1231, 82-2 BCA  para.  15967; B-160063, 
Feb. 10, 1967.  Although the mutual promises may be modified to the 
extent that orders must be reasonable in relation to any estimated 
quantities and the known capacity of the contractor, the absence of 
either required promise undermines mutuality of consideration and 
renders the contract unenforceable.  Id.;  Michael O'Connor, Inc., 
B-185502, Apr. 5, 1976, 76-1 CPD  para.  224.  Under such circumstances, the 
government would incur no liability to the seller if it chose to 
satisfy its requirements elsewhere, while the seller would incur no 
liability to the government if it declined to supply the goods or 
services requested.   Modern Sys. Technology Corp. v. U.S., 24 Ct. Cl. 
360 (1991); Stanley F. Horton d/b/a T & H Rental & Snow Removal, 
supra; Federal Elec. Corp., ASBCA Nos. 12161, 11726, 11918, 68-1 BCA  para.  
6834.

In this case, we find that the government has assumed no legal 
obligation under the Interport Agreement and that the solicitation 
falls into the category of an illusory contract--a document which 
appears to contemplate a contract, but which lacks consideration and 
is therefore unenforceable.  See Stanley F. Horton d/b/a T & H Rental 
& Snow Removal, supra.

Ostensibly, the Interport Agreement requires the government to fill 
all its cargo requirements through Interport carriers, provided that 
the selected carrier has enough space and provided that no U.S. 
flagship under the Worldwide Agreement is available to transport the 
cargo pursuant to the Cargo Preference Act.  Although the Interport 
carrier has promised under the Agreement to accept all tendered DOD 
cargo as space permits, the government's promise to tender such cargo 
is negated by the "Limitation of Government Liability" clause.  

Under that clause, the government may decline to book cargo with an 
Interport carrier, even if that carrier has enough space for the cargo 
and is eligible to transport the cargo under the Cargo Preference Act.  
Among other things, the clause expressly denies the carrier a cause of 
action if the government books cargo with any other carrier, "whether 
or not such carrier has been awarded a . . . Container Agreement"; 
uses "alternative competition methods of procuring ocean 
transportation" in order to obtain the least expensive service; or 
otherwise fails to perform any of its promises or undertakings 
specified in the Cargo Booking Policy or Carrier Protection from 
Competition provisions.  The "Limitation of Government Liability" 
clause provides that "[n]othing in this Agreement shall give the 
carrier any right, claim or cause of action" if the government chooses 
to ignore the Interport Agreement and to satisfy its requirements 
elsewhere.  In other words, the government has rendered illusory the 
promises made elsewhere in the agreement with regard to booking cargo 
by disclaiming any liability for its failure to fulfill each of these 
promises.  The disclaimer makes the Interport Agreement akin to a 
basic ordering agreement (BOA), which is merely an understanding, not 
an obligation, that the government may enter future contracts if the 
need for services arises.  Modern Sys. Technology Corp. v. U.S., 24 
Ct. Cl. 360; see FAR  sec.  16.703; Delta Oaktree Prods., B-248903, Oct. 7, 
1992, 92-2 CPD  para.  230.

MSC has not disclosed the origin or purpose of the "Limitation of 
Government Liability" clause, although MSC does not dispute that the 
clause deprives the contract of consideration.  MSC states that it 
will amend the clause to restore consideration.  Specifically, MSC 
proposes to begin the clause with the following language, "[e]xcept as 
otherwise specified herein, nothing in this Agreement shall give the 
carrier any right, claim or cause of action against the Government for 
the Government's (1) failure to book any particular cargo or any . . . 
quantity of cargo with the carrier," and so on.[6]  MSC states that 
this language is intended to restore the contractor's cause of action 
should the government breach any of the obligations enumerated in the 
clause, but to restrict the contractor's cause of action to the 
Contract Disputes Act of 1978, 41 U.S.C.  sec.  601 et seq. (1994).  In 
this regard, the RFP already incorporates the standard Disputes 
Clause, FAR  sec.  52.233-1, advising offerors that the Contract Disputes 
Act applies.

Sea-Land argues that one cannot reasonably interpret the agency's 
proposed amended "Limitation of Government Liability" clause as 
restoring the contractor's rights to pursue "claim[s] or cause[s] of 
action" under the Contract Disputes Act, which the clause otherwise 
precludes.  The protester notes that the proposed clause does not even 
mention the Contract Disputes Act or the Disputes clause, and that the 
Contract Disputes Act already applies to all government contracts, 
including maritime contracts.  See 41 U.S.C.  sec.  602(a), 603; Bethlehem 
Steel Corp. v. Avondale Shipyards, Inc., 951 F.2d 92 (5th Cir. 1992).  
Thus, the protester questions MSC's stated goal of implementing the 
Contract Disputes Act via the "Limitation of Government Liability" 
clause--a goal that could be more readily accomplished by simply 
deleting the "Limitation of Government Liability" clause from the RFP.  
Moreover, the protester argues that the language of the planned 
amendment is essentially ambiguous.  For example, if the phrase, 
"[e]xcept as otherwise specified herein," refers to every provision of 
the Interport Agreement (e.g., sections C-5, G-6, and H-8), then each 
enumerated disclaimer in the "Limitation of Government Liability" 
would be nullified and meaningless, contrary to accepted rules of 
contract interpretation.

In our view, the proposed "Limitation of Government Liability" clause 
is susceptible to at least two, if not more, reasonable 
interpretations.  Presuming that the phrase, "[e]xcept as otherwise 
provided herein," refers to the Interport Agreement as a whole, no 
Interport provision is specifically exempt from the "Limitation of 
Government Liability" disclaimers, but numerous Interport provisions 
broadly contradict each enumerated disclaimer.  Thus, it is not clear 
whether the provisions setting forth the government's putative 
obligations are intended to be controlling in light of the "[e]xcept 
as otherwise provided herein" language, or whether the disclaimer 
itself will be controlling in the absence of more specific language to 
the contrary in connection with the provisions setting forth those 
putative obligations.  Moreover, if the amended language is read to 
encompass the Disputes clause incorporated into the RFP, it is not 
clear how this can remedy the problem since the clause already 
provides the contractor with the procedural right to bring a claim 
against the government--it does not itself provide any substantive 
rights and therefore would not restore the rights otherwise waived by 
the carrier in the "Limitation of Government Liability" clause.  
Accordingly, we find that the proposed "Limitation of Government 
Liability" clause would not clarify the government's obligation under 
the Interport Agreement and, therefore, would not render the contract 
clearly enforceable.

In addition to the absence of consideration, Sea-Land also protests 
that the Interport RFP is defective because it does not include all 
FAR clauses prescribed for inclusion in a requirements contract.  FAR  sec.  
16.505 requires the following clauses to be included in solicitations 
contemplating requirements contracts:  FAR  sec.  52.216-18, Ordering; FAR  sec.  
52.216-19, Delivery-Order Limitations; and FAR  sec.  52.216-21, 
Requirements.  The Interport RFP includes only the Requirements clause 
and improperly omits the Ordering and Delivery-Order Limitations 
clauses.

Sea-Land raises a number of other contentions concerning the RFP that 
are meritless or not for our consideration.  Specifically, Sea-Land 
protests the issuance of Interport amendment No. 0004, covering Routes 
6A, 7, 12A, and 13, because these routes are subject to the Worldwide 
Agreement.  The protester characterizes the Worldwide Agreement as a 
requirements contract, which generally requires the government to 
satisfy all its cargo requirements on the subject routes using 
Worldwide carriers, such as Sea-Land.  Although Sea-Land grants that 
the government may use another carrier if Worldwide carriers lack 
sufficient space for the cargo, Sea-Land maintains that space will be 
available.  Sea-Land argues that, because DOD would likely breach the 
Worldwide Agreement by booking cargo with Interport carriers, it is 
unclear what, if any, valid requirements remain under the Interport 
RFP.  Sea-Land thus claims that amendment No. 0004 is ambiguous and 
that our Office should recommend that it be canceled.

The RFP unambiguously states that orders for cargo shipment along 
these routes would first be placed under the Worldwide Agreement to 
the extent that U.S.-flag service contracted for under that agreement 
can meet the government's requirements.  Thus, to the extent Sea-Land 
asserts that orders placed under the Interport Agreement would breach 
the Worldwide Agreement, the basis for that assertion is not apparent 
from the RFP.  To the extent Sea-Land believes that the government 
will place specific orders that would constitute a breach of the 
Worldwide Agreement contracts, its proper remedy would be a claim 
under the Contract Disputes Act should such action occur.  See GSX 
Gov't. Servs., Inc., B-239549, July 5, 1990, 90-2 CPD  para.  14.  

The protester also claims that the use of foreign flagship service 
under Interport would likely violate the Cargo Preference Act, if the 
government rejects available service from Worldwide carriers or other 
U.S. flagship carriers in order to expedite delivery.  The Interport 
RFP incorporates the appropriate cargo preference for U.S. flagship 
service over foreign flagship service and extends this cargo 
preference to U.S. flagship carriers under the Worldwide Agreement 
pursuant to amendment No. 0004.  At this juncture, Sea-Land's protest 
merely anticipates a violation of the Cargo Preference Act during 
performance of the Interport contract; accordingly, we will not 
consider this matter.

Finally, Sea-Land protests that the Interport RFP treats U.S. flagship 
carriers, such as Sea-Land, unfairly by requiring them to commit 50 
percent of their U.S. flagship capacity to the Sealift Readiness 
Program, a requirement inapplicable to foreign flagship carriers.  
Sea-Land urges that foreign carriers not be permitted to compete.  We 
dismiss this protest allegation as untimely because the award 
eligibility requirement was not introduced by amendment No. 0004 and 
should have been protested to the contracting agency before the 
initial proposal receipt date.  4 C.F.R.  sec.  21.2(a)(1), (a)(3) (1995); 
Wheeler Bros., Inc., B-242061.2, Apr. 19, 1991, 91-1 CPD  para.  387, recon. 
den., B-242061.3, June 7, 1991, 91-1 CPD  para.  546.  In addition, our 
Office generally does not consider protests that procurements should 
be more restrictive, such as by excluding a category of potential 
offerors.  See Petchem Inc., B-228093, Sept. 8, 1987, 87-2 CPD  para.  228.

In summary, we sustain Sea-Land's protest allegation that the RFP will 
not result in a requirements contract with respect to the amendment 
No. 0004 routes and dismiss the remainder of Sea-Land's protest.  We 
recommend that MSC determine whether a requirements contract or some 
other type of agreement would best serve its needs and amend the 
solicitation to reflect the procurement method selected.  If MSC 
determines that a requirements contract is the appropriate vehicle, 
the RFP should be amended to address the concerns discussed in this 
decision.  We also find that Sea-Land is entitled to recover its costs 
of filing and pursuing this protest.  4 C.F.R.  sec.  21.6(d)(1).  The 
protester should submit its certified claim for costs to the 
contracting agency within 60 days after receipt of this decision.  4 
C.F.R.  sec.  21.6(f)(1).

The protest is sustained.

Comptroller General
of the United States

1. Sea-Land did not offer to transport breakbulk cargo in response to 
the RFP, and its protest is based upon the RFP provisions applicable 
to containerized cargo.  Therefore, our decision will refer to the RFP 
containerized cargo provisions, although we note that the breakbulk 
cargo provisions are generally similar.

2. The government's promises appear in the following provisions of the 
Agreement: section C-5, "Government Obligation--Commitment of Cargo," 
section G-6, "Cargo Booking Policy," and section H-8, "Carrier 
Protection from Competition." 

3. Contrary to MSC's interpretation, the Interport Agreement, while it 
allows the government to discriminate between multiple awardees on the 
basis of their delivery schedules, does not clearly authorize the 
government to make other transportation arrangements to secure a 
better delivery schedule.

4. The reference to section C-4, "Carrier Requirements," is clearly 
erroneous, in that this section describes carrier promises, not 
government promises.  Although the apparent error does not affect our 
decision, the correct reference is section C-5, "Government 
Obligation--Commitment of Cargo."

5. The Interport RFP included the Requirements clause set forth at FAR  sec.  
52.216-21.

6. This qualifying language begins the "Limitation of Government 
Liability" clause in the Worldwide Agreement.  It is absent from the 
Interport Agreement awarded as to the eight original trade routes.