B-229890, Mar 3, 1988, 88-1 CPD ***

B-229890, Mar 3, 1988, 88-1 CPD ***

PROCUREMENT - Bid Protests - Transportation Contracts - Bills of Lading - GAO Review DIGEST: Protest concerning Army request for carriers' rate tenders is dismissed since the request was issued under authority of the Transportation Act of 1940, as amended, 49 U.S.C. Sec. 10721 (1982), and the transportation services will be obtained through the use of a government bill of lading and not under the government's procurement system.

Sam Trucking:

Sam Trucking protests the decision of the Military Traffic Management Command (MTMC), the Department of the Army, to reject its proposed rate tender under a request for rate tenders (RFT) for shipment of certain specified types of cargos to and from various military bases. MTMC refused to accept the protester's tender because the company's operating authority specifically prohibited the handling of sensitive or hazardous material to be shipped by the bases involved. Sam Trucking believes it has Interstate Commerce Commission (ICC) authority to transport the items as listed in the RFT.

We dismiss the protest.

On November 17, 1987, MTMC headquarters mailed letters of negotiations to the carrier industry for movements of "freight all kinds, including sensitive material, except Classes A & B ammunition and explosives, Class C Ammunition and Explosives requiring a Transportation Protective Service and non-sensitive Class C ammunition and explosives weighing in excess of 1,000 pounds, and Class C commodities" between 8 origin/destination bases. The carriers were to furnish copies of their operating authority covering the movements in which they wished to participate.

Tenders were opened on the due date of December 14, 1987 and evaluations began on December 15. MTMC determined Sam Trucking's tender was not acceptable because of an apparent lack of ICC authority to transport hazardous material. This protest followed on December 24.

MTMC states that its RFT will be followed by issuance of a government bill of lading. MTMC argues, therefore, that this protest should be dismissed as outside our bid protest authority because the transportation services are to be obtained under a government bill of lading pursuant to the pertinent statutory authority set forth in the Transportation Act of 1940, as amended, 49 U.S.C. Sec. 10721 (1982).

Sam Trucking argues that our Office does have jurisdiction to decide this protest, and that, alternatively, the circumstances here require our review because the terms of the original letter of negotiations was changed in evaluating the offerors' tender rates. We do not agree with either proposition.

The MTMC letter of negotiations states that the proposed shipments are interstate in nature and subject to the regulations of the Interstate Commerce Act (ICA) (49 U.S.C. Sec. 10101 et seq.). A Uniform Tender of Rates and/or Charges for Transportation Services form (standard form) which required all offerors to specify their rates for freight transport to each origin/destination base for which they were offering service was attached to the MTMC letter. The standard form further indicates at items 20(c) and 21 that transportation and payment for transportation services effectively shall be accomplished through a government bill of lading, and item 21 instructs the carrier that its offer is subject to the authority of Section 10721 of the ICA.

A government bill of lading is the basic procurement document used by the government for acquiring freight transportation services from common carriers under section 321 of the Transportation Act of 1940, which authorizes the procurement of transportation services at published rates from any common carrier lawfully operating in the territory where such services are to be performed. 49 U.S.C. Sec. 10721 (1982); see also Department of Agriculture-- Request for Advance Decision, 62 Comp.Gen. 203 (1983), 83-1 CPD Para. 201.

In Petchem Inc., 65 Comp.Gen. 328 (1986), 86-1 CPD Para. 179, we determined that transportation obtained through the use of a government bill of lading is not subject to the procurement laws. See Federal Acquisition Regulation (FAR) Secs. 47.000(a)(2) and 47.200(b)(2) (1984). Here, the rate tenders for transportation freight services were procured pursuant to the Transportation Act of 1940. The request for tenders was made under Military Traffic Management Command Regulations (MTMCR). See FAR Sec. 47.200(b)(2) and Department of Defense Federal Acquisition Regulation Supplement (DFARS) Sec. 1.103b. (This DFARS provision expressly states that neither the FAR or DFARS apply to transportation services purchased by bills of lading and similar transportation forms and that purchase of these types of services will be in accordance with the MTMCR.)

The agency has not used, therefore, the government's procurement procedures to obtain these services but has followed the procedures as outlined in the MTMCR for obtaining rate tenders. See MTMCR 55-1 (Sept. 15, 1979). MTMC has not used a solicitation which contains the ordinary clauses contained in procurement solicitations and payment will be based upon a government bill of lading rather than the contractual documents ordinarily used for government procurement contracts. The negotiations for a rate tender do not guarantee a carrier an exact amount of traffic volume nor do they result in a contract between the carrier and MTMC. Sam Trucking implicitly bound itself to the requirements of an ICA tender negotiation by its attestation of the same in items 21 and 22 of the standard form. We conclude, therefore, that this matter falls outside the government's procurement system and thus will not be considered by our Office under our Bid Protest Regulations, 4 C.F.R. part 21 (1987), which deal with the filing of protests of alleged violations of procurement statutes and regulations. 31 U.S.C. Sec. 3552 (Supp. III 1985).

In any event, Sam Trucking contends that its tender was rejected because of an apparently improper change in the letter of negotiations issued here, namely, the inclusion of the transport of hazardous material. Notwithstanding our finding above, we note that the RFT specifically indicated that Class C ammunition and explosives were identified items of freight and the record fails to indicate that any amendments were made to the RFT. The record also indicates such materials in fact will be shipped from the locations subject to this tender. Since the protester's operating authority expressly excludes those hazardous materials as listed in the RFT for freight transport, and the protester indicates he is not seeking authority from the ICC to ship sensitive or hazardous materials, we find the agency's rejection of its tender to be reasonable.

The protest is dismissed.