TITLE: B-400198, Sea Box, Inc., August 25, 2008
BNUMBER: B-400198
DATE: August 25, 2008
****************************************
B-400198, Sea Box, Inc., August 25, 2008

   Decision

   Matter of: Sea Box, Inc.

   File: B-400198

   Date: August 25, 2008

   Robert A. Farber for the protester.
   Maj. William J. Nelson, Department of the Army, for the agency.
   Paul E. Jordan, Esq., and John M. Melody, Esq., Office of the General
   Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   1. Determination to cancel invitation for bids after bid opening was
   unobjectionable where all bids exceeded funding allocated for project,
   notwithstanding protester's challenge to validity of funding estimate and
   reasonableness of low responsive bid.

   2. After cancellation of solicitation, agency decision to lease storage
   containers under Economy Act, without conducting a new competition, was
   unobjectionable where lease was consistent with requirements of act and
   applicable regulations require that agency use pre-existing contract for
   all such leases.

   DECISION

   Sea Box, Inc., protests the cancellation, after bid opening, of invitation
   for bids (IFB) No. W912L1-08-B-0001, issued by the Department of the Army,
   U.S. Property and Fiscal Officer, Texas, for supply of dry storage
   containers (connexes) for units of the Texas Army National Guard (TXARNG).

   We deny the protest.

   The IFB contemplated the award of a fixed-priced contract for 238 20-foot
   connexes for use at local armories throughout Texas and for use by the
   36^th Infantry Division in support of brigades mobilizing for service in
   both Iraq and Afghanistan. This is the second solicitation for this
   requirement. The prior solicitation, a request for proposals set aside for
   small businesses, resulted in a contract in the amount of $624,750. Sea
   Box protested that award, challenging the awardee's small business status
   and its compliance with the Buy American Act (BAA). The agency took
   corrective action--terminating the contract and resoliciting the
   requirement--and we dismissed the protest as academic (B-310562, Nov. 5,
   2007).

   Based on its experience in the prior procurement, the agency budgeted
   $624,750 for the requirement here. The IFB was issued on an unrestricted
   basis but, as before, required compliance with the BAA. The agency
   received seven bids; five, including the low bid ($634,500.86) offered
   connexes manufactured in China. Sea Box, with a bid of $1,721,930, offered
   connexes from Turkey. None of the offered products--Chinese or
   Turkish--complied with the BAA. While the agency concluded that it could
   not award a contract for Chinese-made connexes, it determined that, in
   accordance with the World Trade Organization Government Procurement Act
   (WTOGPA), it could award a contract for connexes that were manufactured or
   substantially transformed in Turkey. In order to ensure compliance with
   the WTOGPA, the contracting officer requested that Sea Box (and another
   "Turkish" bidder) certify that their products met the applicable
   manufacturing country requirements. Sea Box certified that 100 of its
   connexes were manufactured or substantially transformed in Turkey, but
   indicated that, due to delays in the procurement, it could no longer
   obtain the remaining units from its source in Turkey. As a result, the
   other 138 units were to be manufactured in China. The other bidder, whose
   price was significantly higher than Sea Box's, certified that all 238
   units would come from Turkey.

   Because the prices of the Turkish products exceeded the budgeted amount,
   the contracting officer sought additional funds. However, she found that
   an increase of only $323,600 was available, for a total of $948,350.65.
   Subsequently, she became aware that the Army Intermodal Distribution
   Platform Management Office (AIDPMO) could lease the agency all the
   connexes it needed for approximately $200,000. In this regard, the record
   shows that, under Army regulations, AIDPMO must approve all purchases of
   intermodal containers and all leases must be conducted through AIDPMO
   using the current Military Surface and Distribution Command (SDDC)
   container leasing contract. Army Regulation (AR) 56-4 paras. 3-7a(3),
   3-7b. The SDDC issued a master lease streamlining contract (MLSC) to
   Textainer Equipment Management Limited in 2003 and, in April 2004, the
   Army issued a message to all of its agencies--including the National Guard
   Bureau--mandating that all Army leasing requirements for intermodal
   distribution platforms (including connex containers) be processed using
   the MLSC. Army Message, para. 4. Based on the lack of sufficient funds to
   purchase the units, the contracting officer decided to cancel the IFB and
   to meet the agency's requirements with a lease, through AIDPMO. The
   contracting officer notified Sea Box and the other bidders that the IFB
   was canceled, and later advised Sea Box that all otherwise acceptable bids
   were at unreasonable prices. Sea Box then filed this protest.

   Sea Box asserts that the agency improperly determined that the bid prices
   all were unreasonably high, and challenges the agency's determination that
   it lacked sufficient funds. The protester asserts that the original
   estimate of $624,750 was not

   based on proper market research and therefore was unrealistically low.
   Comments at 2. Sea Box concludes that, since its bid for non-Chinese-made
   connexes was low, the agency should have awarded it a contract instead of
   canceling the IFB.

   Cancellation of a solicitation after bids have been opened and prices have
   been exposed is only permitted where a compelling reason exists to cancel.
   National Projects, Inc., B-283887, Jan. 19, 2000, 2000 CPD para. 16 at 4;
   Federal Acquisition Regulation (FAR) sect. 14.404-1(a)(1). A contracting
   agency properly may cancel a solicitation when sufficient funds are not
   available, regardless of any disputes concerning the validity of the
   government estimate or the reasonableness of the low responsive bid price.
   National Projects, Inc., supra; J. Morris & Assocs., Inc., B-256840, July
   27, 1994, 94-2 CPD para. 47 at 2 n.1; Armed Forces Sports Officials, Inc.,
   B-251409, Mar. 23, 1993, 93-1 CPD para. 261 at 2-3, recon. denied,
   B-251409.2, May 24, 1993, 93-1 CPD para. 402.

   Here, only two bids--Sea Box's and one other--offered products that met
   the solicitation's BAA requirements, and by the time the agency canceled
   the IFB, Sea Box was unable to supply 238 connexes that were BAA
   compliant. The agency determined that both bids exceeded the original
   budgeted funds and the additional funds identified by the contracting
   officer, and the protester has not shown otherwise. Under these
   circumstances, the agency had a compelling reason to reject all bids and
   cancel the solicitation.

   Our conclusion is not changed by Sea Box's observation that the IFB
   allowed the agency to make multiple awards, meaning that award could be
   made for less than the entire requirement, and that the agency therefore
   could have purchased a quantity of connexes from Sea Box up to the
   available funding. Comments at 3-4. While the IFB allowed the agency to
   make multiple awards, it did not require the agency to do so. The
   management of an agency's funds generally depends on the agency's judgment
   concerning which projects and activities shall receive increased or
   reduced funding. National Projects, Inc., supra at 5; Armed Forces Sports
   Officials, Inc., supra, at 2. Thus, the failure to make award to Sea Box
   for a reduced quantity was not improper.

   Sea Box asserts that obtaining the connexes by lease through the
   AIDPMO--rather than by competitively soliciting the lease requirement--was
   improper, because the agency has failed to justify acquiring the items
   under the Economy Act.

   This argument is without merit. The Economy Act provides authority for
   placement of orders between major organizational units within an agency so
   long as the act's requirements are met. 31 U.S.C. sect. 1535(a) (2000);
   see Dictaphone Corp., B-244691.2, Nov. 25, 1992, 92-2 CPD para. 380 at
   3-4, recon. denied, B-244691.3, Jan. 5, 1993, 93-1 CPD para. 2. Under the
   act, a major organizational unit within an agency may place an order with
   a major organizational unit within the same agency for goods or services
   if amounts are available; the head of the agency or unit decides the order
   is in the best interest of the government; the agency or unit to fill the
   order is able to provide or obtain by contract the ordered goods or
   services; and the agency head decides the goods or services cannot be
   provided by contract as conveniently or cheaply by a commercial
   enterprise. Id. Here, all four requirements were satisfied. The agency
   explains that it had sufficient funding to use the lease; it was in the
   best interests of the government to do so; the acquisition would be made
   under an existing contract, entered into before placement of the order, to
   meet the agency's requirements for the same or similar supplies; and the
   supplies could not otherwise be provided as conveniently or cheaply as
   with the lease. Agency Second Supp. Report at 4; see 31 U.S.C.
   sect. 1535(a)(1)-(4).

   Sea Box asserts that the agency did not properly justify its last
   finding--that the supplies could not otherwise be provided as conveniently
   or cheaply as with the lease. However, the agency specifically states that
   use of the MLSC ensures that the government's acquisition of containers is
   more economical and efficient. Agency Second Supp. Report at 4. This
   conclusion is consistent with the results of the competition under the
   IFB, and Sea Box has not presented any evidence that the connexes could be
   acquired more conveniently or cheaply elsewhere. Moreover, we think this
   finding is implicit in the Army's award of the MLSC and its promulgation
   of AR 56-4, which requires use of the current MLSC contract for all connex
   leases, presumably based on convenience and cost savings. We conclude that
   the agency's lease of the connexes under the MLSC complied with the
   requirements of the act, and that it was not required to compete the lease
   requirement. The availability of the MLSC contract, which provides a
   significantly less expensive means for the agency to meet its needs,
   provides an independent basis for canceling the IFB. Colonial Lock Supply
   Co., Inc., B-265645, Sept. 27, 1995, 95-2 CPD para. 149 at 2.

   Sea Box challenges the lease on a number of other bases. For example, it
   asserts that the agency has failed to demonstrate compliance with AR 56-4
   requirements for an equipment lease checklist and funding documents; that
   there are discrepancies in the number and price of the connexes to be
   leased; and that the MLSC contract and Textainer do not conform to various
   IFB requirements (date of manufacture, color, BAA compliance). Second
   Supp. Comments 1-5.

   Under the bid protest provisions of the Competition in Contracting Act of
   1984, 31 U.S.C. sections 3551-3556 (2000 & Supp. IV 2004), only an
   "interested party" may protest a federal procurement. A protester is
   deemed an interested party where it is an actual or prospective bidder or
   offeror whose direct economic interest would be affected by the award of a
   contract or the failure to award a contract. Bid Protest Regulations,
   4 C.F.R. sect. 21.0(a)(1) (2008). A protester is not an interested party
   where it would not be in line for contract award if its protest were
   sustained. Four Winds Servs., Inc., B-280714, Aug. 28, 1998 , 98-2 CPD
   para. 57. Since we have determined that the agency's decision to meet its
   requirement through a lease is unobjectionable, and its regulations do not
   permit it to lease connexes outside the MLSC or from other than its
   designated contractor, Sea Box cannot be in line for any lease award;
   thus, it is not an interested party to protest on these additional
   grounds.

   The protest is denied.

   Gary L. Kepplinger
   General Counsel