Link: GAO Opinion
Agency: Department of the Navy
Disposition: Protest denied
Keywords: GSA Schedule
General Counsel P.C. Highlight: Where an agency announces its intention to purchase using GSA Schedule (FSS) procedures, all items evaluated and ordered are generally required to be within the scope of the vendor’s FSS contract.
Marine Group Boat Works, LLC protests the issuance of a delivery order by the Department of the Navy, for two azimuthing stern-drive tugboats.
The RFQ, issued to holders of General Services Administration (GSA) Federal Supply Schedule (FSS) contracts for powered boats, provided for the issuance, without discussions, of a fixed-price delivery order for two 90-foot tugboats. Award was to be issued on a best value basis, considering technical merit of design; past performance and experience; and price.
Offerors were informed that they should provide their FSS standard craft pricing on a Requirements Matrix, which was an attachment to the solicitation. The Matrix requested a unit price for each tugboat and option prices for delivery. Elsewhere, vendors were informed that a delivery destination for each boat had not been determined and would be provided when a delivery order was issued. Section F also informed vendors that delivery of the boats was an option. Marine Group’s and another offeror’s proposal were both technically equal, but Marine Group’s price was higher. The Navy went with the lower priced proposal.
Marine Group protests that the Navy’s price evaluation improperly failed to consider the vendors’ proposed delivery prices. GAO finds that the RFQ, read as a whole, informed vendors that delivery of the tugboats was an option. GAO also finds that, although the RFQ required vendors to provide prices for theses delivery options as part of their quotations and identified price as an evaluation factor, the RFQ was silent as to whether the delivery prices would be evaluated. GAO finds that the RFQ was patently ambiguous as to whether the agency’s price evaluation would include vendors’ delivery prices. Under GAO’s Bid Protest Regulations, protest of alleged apparent solicitation improprieties must be filed prior to the closing time for receipt of quotations. Since Marine Group did not timely challenge this patent ambiguity prior to closing time, it may not now object that the agency is required to consider the delivery price options in its price evaluation.
Marine Group next protests that the delivery order could not be issued to the awardee because that firm’s FSS contract did not include delivery charges. GAO finds no merit to this argument, given that the Navy did not consider vendors’ delivery prices as part of its award decision and did not issue to the awardee a delivery order containing items not on its FSS contract. Non-FSS products and services may not be purchased using FSS procedures. Instead, their purchase requires compliance with applicable procurement laws and regulations. Where an agency announces its intention to purchase using FSS procedures, all items evaluated and ordered are generally required to be within the scope of the vendor’s FSS contract. There is no law or regulation that precludes an agency in a FSS procurement from requesting pricing information for non-FSS items where the non-FSS items are not considered as part of the agency’s evaluation and are not ordered.
Marine Group also objects that the Navy treated the vendors unequally by allowing the awardee to revise its quotation after the RFQ’s closing date. The RFQ required the submission of vendors’ quotations by August 9, 2010. The awardee submitted an unsolicited revised quotation in which it lowered its total price and the Navy based its evaluation on the awardee’s lower revised quotation. GAO does not find that the Navy treated the vendors unequally or otherwise acted improperly. The record shows that Marine Groups also revised its quotation after the closing date and the Navy allowed the revised quotation to be submitted. The record does not show that Marine Group was prejudiced by the Navy’s consideration of the awardee’s lower revised quotation price. Competitive prejudice is an essential element of a viable protest, and where the protester fails to demonstrate prejudice, GAO will not sustain a protest. Here, the awardee’s quotation was lower-priced than Marine Group’s even before the awardee revised its price.
Marine Group also protests that the Navy conducted discussions with the awardee, allowing the awardee to allegedly cure a “deficiency” in its quotation. The record shows that the Navy asked the awardee to explain how its proposed delivery schedule was achievable. The Navy found that the awardee’s delivery schedule was reasonable and achievable even though it greatly exceeded the RFQ requirement. The procedures of FAR part 15 governing contracting by negotiation do not govern competitive procurements under the FSS program. Where an agency handles the selection of a vendor for an FSS order like a competition, and a protest is filed challenging the outcome of the competition, GAO will review the agency’s actions to ensure that the evaluation and source selection were reasonable and consistent with the terms of the solicitation. There is no requirement in FAR subpart 8.4 that an agency, when soliciting vendor responses prior to issuing an order under an FSS contract, conduct discussions with vendors in accordance with FAR sec. 15.306 regarding the content of those responses. Here, the Navy had communications with both offeror’s concerning their technical responses to the solicitation and allowed both vendors an opportunity to address the agency’s concerns. Marine Group does not demonstrate that it was prejudiced. The protest is denied.