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Matter of: T&S Products, Inc. File: B-261287 Date: August 14, 1995

B-261287 Aug 14, 1995
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Highlights

A "peel seal") on shipping sacks exceeds agency's minimum needs and is restrictive of competition is denied where agency demonstrates that the requirement is reasonably necessary to meet its needs. The protester contends that the requirement for a peel seal exceeds the agency's minimum needs and is restrictive of competition. Only the fourth is at issue in this protest. Sought five different sizes of sacks of this type under eight different National Stock Numbers (NSN) [2] and 32 separate line item numbers. [3] The sacks were to be furnished in accordance with Commercial Item Description A-A-160. The sealing flap shall have a strip of pressure sensitive adhesive. Was received for each of the 32 line items covered by the exception noted above.

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Matter of: T&S Products, Inc. File: B-261287 Date: August 14, 1995

Protest that requirement for a pressure sensitive adhesive seal covered by a liner (i.e., a "peel seal") on shipping sacks exceeds agency's minimum needs and is restrictive of competition is denied where agency demonstrates that the requirement is reasonably necessary to meet its needs.

Attorneys

DECISION

T&S Products, Inc. protests the terms of invitation for bids (IFB) No. 2FYP-DW-950004-S, issued by the General Services Administration (GSA) for paper shipping sacks. T&S objects to the inclusion of a requirement for a sealing flap containing a strip of pressure sensitive adhesive covered by a liner (i.e., a "peel seal") in the item description pertaining to a portion of the "cushioned" [1] envelopes. The protester contends that the requirement for a peel seal exceeds the agency's minimum needs and is restrictive of competition.

We deny the protest.

The IFB contemplated the award of multiple requirements contracts for delivery of shipping sacks of various types and sizes to four GSA warehouses located in different parts of the country. Of the four types of sacks sought (i.e., sacks cushioned with closed cell plastic film, commonly known as bubblewrap; reinforced sacks; sacks cushioned with a medium such as macerated paper; and sacks cushioned with a medium such as macerated paper and containing a sealing flap with a peel seal), only the fourth is at issue in this protest. The IFB, as amended, sought five different sizes of sacks of this type under eight different National Stock Numbers (NSN) [2] and 32 separate line item numbers. [3] The sacks were to be furnished in accordance with Commercial Item Description A-A-160, subject to the following exception:

"The open end of the sack shall be provided with a sealing flap. The sealing flap shall have a strip of pressure sensitive adhesive, protected by a liner, extending across the width of the flap to within 1/4" of each side of the flap. An easy opening tear strip shall be incorporated into the back of the sack." [4]

T&S filed its protest objecting to the requirement for a protective liner with our Office on May 4, the day before the scheduled bid opening. The contracting officer proceeded with bid opening on May 5. One bid, from Sealed Air Corporation, was received for each of the 32 line items covered by the exception noted above.

The protester maintains that the requirement for a peel seal here exceeds the agency's minimum needs and is restrictive of competition. T&S contends that the requirement should be rewritten to permit sacks incorporating other types of sealing mechanisms.

A procuring agency is required to specify its needs in a manner designed to promote full and open competition, and may only include restrictive provisions in a solicitation to the extent necessary to meet the agency's minimum needs. Omega World Travel, Ind., B-258374, Jan. 13, 1995, 95-1 CPD Para. 20. Where a protester challenges a specification as unduly restrictive of competition, it is the agency's responsibility to establish that the specification is reasonably necessary to meet its minimum needs. ViOn Corp., B-256363, June 15, 1994, 94-1 CPD Para. 373. If the agency can establish that the requirement is reasonable and necessary, then the fact that very few firms--or even only one firm--can comply does not demonstrate that the requirement is improper. [5] Computer Tomography Repair Serv., Inc., B-228050, Nov. 2, 1987, 87-2 CPD Para. 428.

GSA explains that prior to 1993, it did not acquire macerated paper shipping sacks that were self-sealing; instead, it acquired sacks that were closed by folding one end and securing it with either tape or staples. In 1993, representatives of the United States Postal Service (USPS) asked GSA to become USPS' primary source for certain packaging products, including paper shipping sacks, to be offered for sale to the public under the USPS' retail sales program. In meetings with GSA personnel, USPS representatives identified desired features for the paper shipping sacks. One of the features specified, for both the bubblewrap sacks and for those cushioned with macerated paper, was an adhesive sealing flap with a protective liner.

According to the USPS representatives, the peel seal protects the adhesive from contamination by dust and debris. The USPS explains that such contamination reduces the effectiveness of the adhesive; shortens the shelf-life of the sack; and increases the risk of the sacks opening accidently in transit. USPS also claims that the peel seals are easy and convenient for postal customers to use, and are now standard in the packaging industry. As a result, in the judgment of USPS management, mailing sacks with peel seals are desired by local post offices and their customers.

The protester takes issue with these justifications, arguing that the problem of adhesive contamination can be resolved in a less restrictive manner, i.e., by packaging the sacks in smaller lots or by requiring that they be handled in a manner that will not contaminate the self-sealing mechanism. T&S also argues that ease and convenience of use and conformance to industry standards are not factors that the agency should consider in determining its minimum needs.

With regard to the protester's first point, we fail to see how a change in handling procedures would solve the problem of adhesive contamination given that, according to the Postal Service, the contamination occurs through exposure to dust in the air as the sacks are stored and displayed in local post offices, frequently on open shelving. Further, even though measures such as packaging the sacks in smaller bundles could help to reduce the amount of time that a sack is exposed to dust in the environment prior to sale, the protester has failed to demonstrate--and we fail to see--how any such measures could be as effective in preventing contamination as the peel-off liner over each adhesive strip.

The protester also challenges the requirement on the ground that customer convenience and satisfaction "do not equate to" the agency's minimum needs. We disagree. Given that the items here are being purchased for resale to the public, it is appropriate for the procuring agency to consider the factors that play a role in determining whether postal patrons purchase shipping sacks from the USPS rather than from other commercial sources. Also, GSA may appropriately consider factors bearing on whether local post offices will choose to order their shipping sacks from GSA, since they are not required to do so. In this regard, we have previously held that GSA may properly consider demand by using agencies in determining which items it should stock, since if it does not make desired items available, agencies may choose to purchase these items on the open market, resulting in increased prices to the government. Independent Prods. Co., Inc., B-207519.2, Apr. 22, 1983, 83-1 CPD Para. 434.

The protester also argues that the type of self-sealing mechanism used on the shipping sacks is irrelevant since customer usage patterns demonstrate that postal patrons do not rely on the seals and instead routinely staple shut all shipping sacks, including self-sealing ones. In support of its argument, the protester cites a memorandum prepared by a representative of the USPS' Customer Service Division summarizing his observations of a focus panel of postal customers who were asked to evaluate and discuss various aspects of the USPS' retail sales program, including the product line offered. In that memorandum, the USPS representative notes that:

"there was some discussion about the PSA [Pressure Sensitive Adhesive]; some liked it and some did not; overall everyone stapled the bag shut after it was sealed."

Although the USPS memorandum suggests that where a stapler is readily available some customers will choose to staple a self-sealing sack, this evidence alone does not invalidate the judgment of the USPS that customers and local post offices like to use mailing sacks with peel seals.

Finally, the protester argues that if GSA is concerned with acquiring products which conform to current industry standards, it should acquire bubblewrap sacks exclusively, since sacks cushioned with bubblewrap--and not those cushioned with macerated paper--are now standard in the industry. In this regard, we note that GSA anticipates the award of requirements contracts for its shipping sacks under this solicitation. Thus, if the protester is correct in its contention that bubblewrap sacks are now the industry norm and will be preferred by consumers--and as a consequence, there will be little demand for the macerated paper sacks-- GSA will have the discretion to acquire as few of the sacks as actual customer demand dictates.

The protest is denied.

1."Cushioned" shipping sacks, as the term is used by GSA in Commercial Item Description A-A-160D and the IFB, refers to sacks cushioned with a medium such as macerated paper.

2. In three cases, envelopes of the same size were to be packaged in two different sized bundles and were thus assigned two different NSNs.

3. The solicitation listed each of the four delivery locations as separate line items under each NSN.

4. The exception also required that "TO" and "FROM", both followed by blank lines, be printed on the envelope. The protester has not objected to this additional requirement.

5. Although only one bid was received for each of the line items covered by the protested specification, the record shows that that bidder is not the only company capable of furnishing a macerated paper shipping sack with a peel seal. In this regard, we note that another manufacturer of the shipping sacks, Astro-Valcour Inc. (AVI), represented to this Office that it makes a product which meets the requirements of CID A-A-160, as modified by the exception requiring an adhesive strip covered by a protective liner. AVI explains that its production capability to meet the requirements of the 1995 solicitation for macerated paper sacks with peel seals is very limited, however, and that, for this reason, it elected not to bid on any of the items covered by the protested specification.

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