B-172420, JUN 25, 1971

B-172420, JUN 25, 1971

BID PROTEST - RESTRICTIVE SPECIFICATIONS - CONTAINER SIZE DENYING PROTEST OF SEA-LAND SERVICE, INC., AGAINST THE PROVISIONS IN RFP ISSUED BY THE NAVY PURCHASING OFFICE FOR THE LEASING OF A NUMBER OF CARGO CONTAINERS. THE SPECIFICATION THAT THE CONTAINERS BE 8 FEET BY 8 FEET BY 20 FEET IS NOT IN VIOLATION OF 10 U.S.C. 2304(H) AND 2305(A) WHICH PROVIDE THAT NO SOLICITATION FOR THE CARRIAGE OF GOVERNMENT PROPERTY SHALL REQUIRE CARGO CONTAINERS OF ANY STATED DIMENSIONS BECAUSE, UNDER THE EXCEPTION ALLOWED BY THOSE SECTIONS, THE SECRETARY OF DEFENSE HAS NOW DETERMINED THAT MILITARY REQUIREMENTS NECESSITATE THE SPECIFICATIONS IN THE INSTANT SOLICITATION.

TO RAGAN & MASON:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED MARCH 31, 1971, PROTESTING ON BEHALF OF SEA-LAND SERVICE, INCORPORATED (SEA-LAND), AGAINST THE PROVISIONS OF REQUEST FOR PROPOSALS (RFP) NO. N00600-71-R 5484, ISSUED BY THE NAVY PURCHASING OFFICE, WASHINGTON, D.C.

THE SOLICITATION, ISSUED ON MARCH 19, 1971, REQUESTS OFFERS FOR THE LEASING OF A NUMBER OF CARGO CONTAINERS FOR A PERIOD OF APPROXIMATELY 90 DAYS. THE SPECIFICATIONS PROVIDE, IN PERTINENT PART, THAT THE CONTAINERS SHALL BE 8 FEET BY 8 FEET BY 20 FEET.

YOU PROTEST THE SPECIFICATION REQUIREMENT WITH RESPECT TO THE SIZE OF THE CONTAINER AS BEING A VIOLATION OF PUBLIC LAW 90-268, 10 U.S.C. 2304(H) AND 2305(A), WHICH PROVIDE THAT, EXCEPT IN A CASE WHERE THE SECRETARY OF DEFENSE DETERMINES THAT MILITARY REQUIREMENTS NECESSITATE SPECIFICATION OF CONTAINER SIZES, NO ADVERTISEMENT, INVITATION FOR BID OR CONTRACT FOR THE CARRIAGE OF GOVERNMENT PROPERTY IN OTHER THAN GOVERNMENT-OWNED CARGO CONTAINERS SHALL REQUIRE THE CARRIAGE OF SUCH PROPERTY IN CARGO CONTAINERS OF ANY STATED LENGTH, HEIGHT, OR WIDTH.

IN OUR DECISION TO YOU DATED MAY 25, 1971, B-172312, WE HELD THAT A SOLICITATION FOR THE LONG-TERM LEASING OF CARGO CONTAINERS OF A SPECIFIC SIZE FOR USE IN PROVIDING SHIPPING SERVICE TO ALASKA BY TWO GOVERNMENT- OWNED NUCLEUS SHIPS, DID NOT DIRECTLY OR INDIRECTLY VIOLATE THE STATUTORY PROHIBITION AGAINST CONTRACTS SPECIFYING CARRIAGE OF GOVERNMENT PROPERTY IN CARGO CONTAINERS OF ANY STATED LENGTH, HEIGHT, OR WIDTH.

THE RECORD SHOWS THAT THE CONTAINERS COVERED BY THE INSTANT SOLICITATION ARE INTENDED FOR USE BY THE NAVY IN DEVELOPING THE CAPABILITY TO CONTAINERIZE AMMUNITION SHIPMENTS. A SIMILAR PROGRAM IS UNDER DEVELOPMENT BY THE ARMY, BUT THE ARMY IS USING ARMY-OWNED MILVANS FOR SHIPPING ITS AMMUNITION. THE NAVY PROPOSES, AT LEAST FOR THIS MOVEMENT, TO USE COMMERCIAL CONTAINERS AND HAVE THE MILITARY SEALIFT COMMAND CHARTER A CONTAINER-SHIP TO CARRY THE CONTAINERS ON A ROUND TRIP FROM THE NAVAL AMMUNITION DEPOT, EARLE, NEW JERSEY, TO SUBIC BAY, THE PHILIPPINE ISLANDS, AND RETURN, A PERIOD NOT TO EXCEED 90 DAYS.

THE SOLICITATION HERE INVOLVED IS SOLELY FOR THE LEASING OF CONTAINERS. BUT THE SHORT TERM LEASE OF THE CONTAINERS IS ONLY MEANINGFUL WHEN CONSIDERED IN CONJUNCTION WITH THE SUBSEQUENT CHARTERING OF A COMMERCIAL VESSEL SPECIFICALLY FOR THE PURPOSE OF CARRIAGE. BY SPECIFYING THE SIZES OF THE CONTAINERS CERTAIN CARRIERS COULD BE PREJUDICED IN NOT BEING ABLE TO OFFER THEIR VESSELS FOR THE MOVEMENT. THIS, WE BELIEVE, WOULD BE A CIRCUMVENTION OF THE STATUTORY PROHIBITION AGAINST SPECIFYING CONTAINER SIZES. HOWEVER, THE SECRETARY OF DEFENSE IN A MEMORANDUM FOR THE SECRETARY OF THE NAVY DATED MAY 21, 1971, MADE THE FOLLOWING DETERMINATION:

"IN RESPONSE TO MESSAGE 061608Z APRIL 1971 FROM THE CHIEF, NAVAL MATERIAL COMMAND, TO THE ASSISTANT SECRETARY OF DEFENSE (INSTALLATIONS AND LOGISTICS) A DETERMINATION IS HEREBY MADE IN ACCORDANCE WITH TITLE 10, U.S.C. SECTION 2304(H) THAT MILITARY REQUIREMENTS NECESSITATE THE SPECIFICATION OF CONTAINER SIZES IN THE CONTRACT TO BE AWARDED BY THE NAVAL MATERIAL COMMAND FOR THE SHORT-TERM LEASING OF COMMERCIAL CONTAINERS TO BE USED IN MOVING AMMUNITION BETWEEN THE NAVAL AMMUNITION DEPOT, EARLE, NEW JERSEY, AND THE NAVAL MAGAZINE, SUBIC BAY, THE PHILIPPINE ISLANDS."

WE HAVE BEEN ADVISED THAT THE PURCHASING ACTIVITY IS ISSUING A MODIFICATION TO THE SOLICITATION ESTABLISHING A NEW CLOSING DATE OF JULY 1, 1971.

SINCE THE SECRETARY OF DEFENSE HAS NOW DETERMINED THAT MILITARY REQUIREMENTS NECESSITATE THE SPECIFICATION OF CONTAINER SIZES IN THE CONTRACT TO BE AWARDED UNDER THE INSTANT SOLICITATION, YOUR PROTEST MUST BE DENIED.