BNUMBER:  B-281631 
DATE:  March 15, 1999
TITLE: Smelkinson Sysco Food Services, B-281631, March 15, 1999
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Matter of:Smelkinson Sysco Food Services

File:     B-281631

Date:March 15, 1999

John A. Burkholder, Esq., McKenna & Cuneo, for the protester.
Lynne Georges, Esq., Defense Supply Center Philadelphia, Defense 
Logistics Agency, for the agency.
Susan K. McAuliffe, Esq., and Christine S. Melody, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Protest of terms of solicitation for commercial food distribution 
services is sustained where agency failed to conduct adequate market 
research to support its determination that the challenged terms 
(requiring, among other things, that profit associated with 
interorganizational transfers of food items be disclosed) are 
consistent with customary commercial practice, or, alternatively, 
failed to obtain waiver necessary to tailor standard commercial item 
provision in a manner inconsistent with customary commercial practice.

DECISION

Smelkinson Sysco Food Services protests the terms of request for 
proposals (RFP) No. SPO300-99-R-D008, issued by the Defense Supply 
Center Philadelphia (DSCP), Defense Logistics Agency, for full service 
food distribution support for a number of federal installations in the 
Washington D.C. area.  Smelkinson protests the RFP requirement that 
offerors disclose, among other things, profit associated with 
interorganizational transfers of food items.

We sustain the protest.

The RFP, issued on October 23, 1998, contemplates the award of a 
fixed-price contract with weekly economic price adjustments, for a 
base year and 4 option years, for full line food distribution, where 
the "prime vendor" contractor serves as the customer's primary source 
for food items.  The procurement is being conducted pursuant to the 
commercial-item acquisition procedures of Part 12 of the Federal 
Acquisition Regulation (FAR).  The RFP's pricing schedule lists 
commercial food items to be supplied, with their estimated quantities, 
for offerors to price.  Offerors are to provide the following prices 
by item:  delivered price per unit, distribution price per unit, total 
unit price, and total extended price.  The RFP's "price changes" 
clause, included in the solicitation as an addendum to FAR  sec.  52.212-4, 
provides the following definitions of the relevant pricing terms:  the 
"unit price" is the "total price charged to DSCP per unit for a 
product delivered to the Government consisting of two components:  
'delivered price' and 'distribution price'"; the "delivered price" is 
the "actual invoice price . . . of the product paid to the 
manufacturer/supplier, delivered to the Prime Vendor's facility"; and 
the "distribution price" is the "firm fixed price, offered as a dollar 
amount, which represents all the elements of the contract price other 
than the delivered price . . . [such as] projected general and 
administrative costs, overhead, profit, packaging costs, 
transportation costs . . . and any other expenses."  RFP  sec.  
52.212-4(t), at 82-83.  This clause allows for changes in the 
"delivered price" on a weekly basis, to reflect fluctuation of item 
prices in the commercial market; the contractor's distribution price, 
however, remains fixed.

The RFP's "interorganizational transfers" clause, the subject of this 
protest, provides further pricing requirements for the determination 
of "delivered price" related to transfers among contractor affiliates 
or divisions.  This clause provides as follows:

     For purposes of determining the delivered price of an item 
     delivered under this contract, allowances for materials, supplies 
     and services that are sold or transferred between any divisions, 
     subdivisions, subsidiaries, or affiliates of the contractor under 
     a common control shall be on the basis of the cost incurred by 
     the transferring organization.  When materials or supplies are 
     purchased specifically for the contract, only the actual purchase 
     cost of these materials or supplies should be charged to the 
     contract. . . .

     If the contractor has an established centralized procurement 
     function, all actual costs associated with the operation of this 
     function may be added to the invoice price when the product is 
     transferred to the affiliated organization.

     Notwithstanding the above, allowances may be at price when it is 
     an established practice of the offeror/contractor to transfer 
     product to its affiliated organizations at other than actual 
     cost, by use of a catalogue, competition or some other standard 
     pricing mechanism, that transfer price can be used as the invoice 
     price of the item as long as all affiliated organizations were 
     charged the same price for that item.

     If the catalogue or standard price at which the item is being 
     transferred includes profit to the transferring organization, 
     that profit must be disclosed to the Contracting Officer.  The 
     Contracting Officer and the offeror/contractor will agree to a 
     procedure for this disclosure.  If no disclosure is made, then 
     profit may not be included in the price charged to the Government 
     for the item. 

RFP  sec.  52.212-4(u), at 84-85 (emphasis added).

The same RFP clause addresses freight (or transportation) costs as 
follows:

     The following requirements must be met before freight costs can 
     be charged to the Government as part of the delivered price of 
     the product:

     1.  Only actual costs paid by the contractor or any of its 
     affiliated organizations may be included as part of the delivered 
     price.  

               .    .    .    .    .    

     4.  If the offeror/contractor deviates from the above, full 
     disclosure must be made to the Contracting Officer who will 
     determine if an exemption from these requirements will be 
     granted.  Exemptions will only be granted when the Contracting 
     Officer determines that the exemption is in the best interest of 
     the Government.  

Id. at 85-86 (emphasis added).

Smelkinson contends that the requirements for disclosure of profit and 
freight costs in excess of actual costs related to interorganizational 
transfers among affiliates are contrary to customary practice in the 
food distribution industry. 

Smelkinson asserts that it is customary in the food service industry 
for large food distributors, or consortiums of smaller food service 
companies, to operate through a central purchasing and distribution 
center that can purchase from suppliers at high volume, resulting in 
lower prices that may be passed to consortium members or affiliates.  
Smelkinson explains that certain mark-ups may then be added to these  
prices, for instance, in light of numerous "value-added services" 
performed by the central purchasing and distribution center for its 
members.  Smelkinson Comments, Jan. 14, 1999, at 4-7.  Smelkinson 
further states that where the distributor, or central purchasing and 
distribution center, operates its own transportation network, 
customary commercial practice is for transportation of the item 
transferred to be charged at price, rather than cost, which may 
include profit or other elements.

Smelkinson contends that, although different food service distributors 
may price their products and product transfers in different ways, it 
is not customary practice to require, as the RFP does here, disclosure 
of profit, or freight costs in excess of actual costs, in otherwise 
competitive prices offered by the distributors.  Smelkinson adds that 
its large commercial food distribution operation does not include an 
accounting system that identifies the "profit" element per 
interorganizational transfer required to be disclosed by the RFP.  
Smelkinson therefore contends that, since the challenged disclosure 
terms are inconsistent with customary commercial practice, and, since 
the agency has failed to request and obtain the waiver necessary to 
include the challenged terms, the RFP is defective.

FAR  sec.  12.301(a), implementing the Federal Acquisition Streamlining Act 
(FASA) of 1994, 10 U.S.C.  sec.  2377 (1994), regarding the preference for 
the acquisition of commercial items that meet an agency's needs,[1] 
provides that

     contracts for the acquisition of commercial items shall, to the 
     maximum extent practicable, include only those clauses--

        (1) Required to implement provisions of law or executive 
orders applicable to the acquisition of commercial items; or

        (2) Determined to be consistent with customary practice.

FAR  sec.  12.301(b)(3) provides for the inclusion of the clause at FAR  sec.  
52.212-4 in solicitations and contracts for commercial item 
acquisitions, which clause "includes terms and conditions which are, 
to the maximum extent practicable, consistent with customary 
commercial practices."  FAR  sec.  12.301(b)(3) further provides that the 
"contracting officer may tailor" the terms of FAR  sec.  52.212-4 in 
accordance with FAR  sec.  12.302.  In pertinent part, FAR  sec.  12.302(a), 
provides that:

     because of the broad range of commercial items acquired by the 
     Government, variations in commercial practices, and the relative 
     volume of the Government's acquisitions in the specific market, 
     contracting officers may, within the limitations of this subpart, 
     and after conducting appropriate market research, tailor the 
     provision at . . . [FAR  sec. ] 52.212-4, Contract Terms and 
     Conditions--Commercial Items, to adapt to the market conditions 
     for each acquisition.  
 
FAR  sec.  12.302(c), regarding the tailoring of clauses for conditions 
inconsistent with customary practice, provides: 

     The contracting officer shall not tailor any clause or otherwise 
     include any additional terms or conditions in a solicitation or 
     contract for commercial items in a manner that is inconsistent 
     with customary commercial practice for the item being acquired 
     unless a waiver is approved in accordance with agency procedures.  
     The request for waiver must describe the customary commercial 
     practice found in the marketplace, support the need to include a 
     term or condition that is inconsistent with that practice and 
     include a determination that use of the customary commercial 
     practice is inconsistent with the needs of the Government.  A 
     waiver may be requested for an individual or class of contracts 
     for that specific item.

In response to the protest here, the agency asserts that the 
interorganizational transfers clause included in the RFP, as an 
addendum to FAR  sec.  52.212-4, is not inconsistent with customary 
commercial practice in the food distribution industry, and therefore 
no waiver is required to tailor the clause.  The agency states that it 
has conducted market research that supports its position; in 
particular, the agency lists several conferences held in the food 
distribution industry in which the agency discussed its prime vendor 
program.  Some of the solicitations recently issued pursuant to this 
program include the currently protested terms.  The agency reports 
that no other firm has objected to the terms of the 
interorganizational transfers clause at these conferences.  
Consequently, the agency asserts that, since no single pricing method 
is utilized in the food services distribution industry, and no firm 
has objected to the clause's terms (even though they were included in 
other recent prime vendor solicitations), the clause is not 
inconsistent with customary commercial practice.  The agency does not 
assert, however, nor does the record otherwise show, that the specific 
terms challenged by Smelkinson were ever researched or discussed by 
the agency with industry representatives at these conferences or 
elsewhere.

The FAR, at Part 10, provides general guidance to an agency regarding 
the scope and proper methods for conducting required market research.  
The specific techniques listed and factors to be considered, see FAR  sec.  
10.002(b)(1), reflect the purpose of market research--to generate a 
meaningful exchange of information between the agency and industry.  
Here, we think that the agency has failed to meet its obligation to 
conduct appropriate market research to show that the challenged terms 
are consistent with customary commercial practice.

As stated above, there is no showing in the record that the specific 
disclosure requirements, particularly regarding profit, were ever 
researched, discussed with, or commented upon by, industry 
representatives.[2]  While the agency relies on the fact that the 
clause at issue was not objected to by industry representatives, such 
silence alone is not an acceptable substitute for the agency's 
obligation to conduct market research to confirm customary industry 
practice in the use of these terms, particularly in view of the 
protester's assertion that there is no industry practice requiring 
disclosure of profit or other cost data for interorganizational 
transfers.[3]  In fact, the agency itself acknowledges that there is 
no customary commercial practice requiring such disclosure.  DSCP 
Supp. Report, Jan. 28, 1999, at 3; Affidavit of Thomas J. Lydon, Jan. 
28, 1999, at 1-2.

Since the clause at FAR  sec.  52.212-4, presenting standard terms and 
conditions for use in commercial item acquisitions, does not include 
the disclosure requirements challenged by Smelkinson, it is clear that 
the agency has "tailored" the provision in the RFP.  Given the lack of 
any meaningful market research showing that the challenged terms are 
consistent with customary commercial practice, we conclude that the 
agency violated the requirement in FAR  sec.  12.302(a) to conduct 
appropriate market research prior to tailoring the regulatory 
provision.  In the alternative, given the agency's apparent concession 
that there is no customary commercial practice calling for the type of 
disclosure required by the RFP clause, we conclude that the agency 
improperly tailored the standard clause at FAR  sec.  52.212-4 without 
obtaining the requisite waiver to do so under FAR  sec.  12.302(c).  
Accordingly, we sustain the protest.[4] 

We recommend that the agency amend the RFP to remove the challenged 
disclosure provisions, and then request new proposals.  In the 
alternative, if the agency continues to believe that the provisions 
are needed, the agency should either confirm through appropriate 
market research that the provisions are consistent with customary 
commercial practice or obtain a waiver, pursuant to FAR  sec.  
12.302(c).[5]  We also recommend that the protester be reimbursed the 
reasonable cost of filing and pursuing its protest, including 
attorneys' fees.  4 C.F.R.  sec.  21.8(d)(1) (1998).  The protester should 
submit its claim for costs, detailing and certifying the time expended 
and costs incurred, with the contracting agency within 60 days after 
receipt of this decision.  4 C.F.R.  sec.  21.8(f)(1).

The protest is sustained.

Comptroller General
of the United States 

1. In determining whether commercial items are suitable to meet an 
agency's needs, FASA requires that the head of an agency conduct 
market research "appropriate to the circumstances . . . before 
developing new specifications for a procurement by the agency; and 
before soliciting bids or proposals for a contract in excess of the 
simplified acquisition threshold."  10 U.S.C.  sec.  2377(c).

2. The agency states that in Lankford-Sysco Food Servs., Inc.; Sysco 
Food Servs. of Arizona, Inc., B-274781, B-275081, Jan. 6, 1997, 97-1 
CPD  para.  11 at 5, we found the same market research claimed here by the 
agency to be appropriate support for the agency's determination in 
that case that a different clause in a prime vendor solicitation, 
regarding rebates and discounts, was reflective of customary 
commercial practice.  In that case, however, the agency reported that 
comments had been solicited and received from industry 
representatives, supporting the customary nature of the particular 
clause at issue in that case.  Id.  Here, however, the record provides 
no evidence that the disclosure requirements of the RFP's 
interorganizational transfers clause were ever the subject of 
discussions with industry representatives.

3. The protester's position is based on a sworn statement by one of 
its vice presidents who states that he is familiar not only with the 
protester's own practice, but with the practices of other food service 
companies and several purchasing consortiums of such companies.  
Declaration of Dale K. Robertson, Jan. 13, 1999, at 1,3.

4. The protester also contends that the agency developed its price 
disclosure requirements to target the protester.  Since there has been 
no showing, nor do we find evidence in the record, of agency intent to 
harm the protester in this regard, we find no merit to the allegation.  
See Virginia Telecomms. & Sec., Inc., B-247368, May 20, 1992, 92-1 CPD  para.  
456 at 4.  The protester also argues that the requirements for 
disclosure of profit and freight costs in excess of actual costs on 
interorganizational transfers are contrary to the prohibition on 
requiring certified cost and pricing data in a commercial item 
acquisition.  See FAR  sec.  15.403-1(b)(3).  While we agree that requiring 
submission of cost or pricing data would generally be inappropriate in 
the context of a commercial-item acquisition, the prohibition to which 
the protester refers applies to certified cost or pricing data, see 
FAR  sec.  15.401, 15.406-2, and the RFP clause at issue here contains no 
requirement for such certification.

5. The agency asserts that the challenged clause is necessary for it 
to conduct a proper price analysis of proposals and to prevent 
overcharges by the contractor for adjustments to the delivered price.  
We find this issue premature for our review at this time.  Any 
examination of the agency's need for the clause would not be ripe for 
review until the agency obtained a waiver to tailor the standard 
commercial item provision at FAR  sec.  52.212-4.  The agency's statement 
of need for the clause would be generated during the waiver process 
pursuant to FAR  sec.  12.302(c).   See Aalco Forwarding, Inc., et al., 
B-277241.8, B-277241.9, Oct. 21, 1997, 97-2 CPD  para.  110 at 18-22.