Link: GAO Decision
Protestor: Crewzers Fire Crew Transport, Inc.
Agency: Department of Agriculture
Disposition: Protest Denied.
_____________________________________________________________________________________________________
GAO Digest:
- GAO has jurisdiction to decide a protest of an agency’s modification of the price evaluation formula stated in blanket purchase agreements (BPA) where the price evaluation scheme for the BPAs forms the basis for the placement of orders under them.
- Protest of agency’s corrective action to modify BPAs is denied where agency reasonably determined that the modification was necessary to correct an error in the price evaluation formula set forth in the BPAs.
General Counsel PC Highlight:
Crewzers Fire Crew Transport, Inc. protested the modification of a BPA for tents used in seasonal fire suppression efforts. The RFQ provided a formula for evaluating vendors’ prices, which was intended to weight the daily and weekly prices more heavily than the monthly price. The RFQ was amended when the initial formula failed to capture the agency’s intent due to a typographical error. However, when BPAs were established with all vendors that had submitted reasonably priced quotations for technically acceptable resources, the BPAs included the initial RFQ formula for evaluating prices, rather than the amended formula. The procurement system used the amended formula to rank vendors; when the agency determined that the formula in the procurement system contained errors, it corrected this formula without notifying vendors or modifying the BPAs. After Crewzers protested that the agency’s modification improperly deviated from the price evaluation formula stated in its BPA, the agency elected to take corrective action.
The GAO first rejected the agency’s assertion that the GAO did not have jurisdiction to hear this protest, holding that it may hear objections to agency actions that result in “award” of instruments which are not in themselves contracts, such as BPAs. The GAO found that the agency’s decision to correct the price evaluation formula was within its broad discretion to take corrective action. It pointed out that all BPA holders were afforded the same opportunity to revise their prices, and that all vendors would have access to their competitors’ rates, negating any competitive prejudice to Crewzers.
Vendors should pay strict attention to any amendments that are issued by the agency, including when the amendments are to be implemented. In cases in which vendors hold BPAs, vendors must ensure that their BPAs remain consistent with any modifications to the requirement, particularly if those modifications go into effect immediately. If a vendor notices an inconsistency, the agency may claim that it is the affirmative duty of the vendor to bring that inconsistency to the agency’s attention.