Link: GAO Opinion
Agency: Department of the Navy
Disposition: Protest denied.
Keywords: Schedule Contract
General Counsel P.C. Highlight: When an agency announces its intention to order from an existing FSS vendor, all items quoted and ordered are required to be on the vendor’s FSS contract at the time the order is issued.
Maybank Industries, LLC (Maybank) protests the issuance of a delivery order under a request for quotations issued by the Department of the Navy (Navy) for a range training support craft.
The RFQ was issued on the General Service Administration’s (GSA) e-Buy website and provided for the issuance of a fixed-price delivery order for a commercially available boat with specified options and modifications. The competition was conducted under FAR subpart 8.4 and was limited to vendors holding contracts under Federal Supply Schedule (FSS) 84, category 260?01, Powered Boats. Vendors were informed that the delivery order would be issued on a best value basis, considering the following evaluation factors: technical capability of the proposed design; price, including discounts; past performance; and additional consideration such as ability to meet the delivery schedule, warranties, terms and conditions for proprietary data, administrative costs, or other proposed unique items.
Detailed specifications for the boat were provided, and vendors were informed that the boat’s primary mission was to support the Navy’s offshore multi-warfare training ranges, fleet operations training, and undersea warfare combat systems training. Among other things, vendors were informed that the boat must have a minimum overall length of 90 feet, an aft ramp capable of launching and retrieving various seaborne targets and munitions, an aluminum hull, and identified minimum cruise and speed requirements.
Maybank asserts that the awardee’s FSS contract does not include a boat with a minimum overall length of 90 feet as required by the RFQ.
GAO states that the FSS program provides federal agencies a simplified process for obtaining commonly used commercial supplies and services. Non-FSS supplies and services may not be purchased using FSS procedures; instead, their purchase requires compliance with applicable procurement laws and regulations, including those requiring the use of competitive procedures. When an agency announces its intention to order from an existing FSS vendor, all items quoted and ordered are required to be on the vendor’s FSS contract at the time the order is issued. The sole exception to this requirement is for items that do not exceed the micro?purchase threshold of $3,000, since such items properly may be purchased outside the normal competition requirements in any case. In reviewing an agency’s technical evaluation under an FSS competitive acquisition, GAO will not reevaluate the quotations, but, as with protests of negotiated procurements, GAO examines the record to ensure that the agency’s evaluation was reasonable and consistent with the terms of the solicitation and the stated evaluation criteria.
Here, the record shows that the awardee’s 27-meter boat with an interchangeable ramp satisfied the RFQ’s 90?foot overall length requirement. As explained by the awardee, the Navy, and GSA, the 27-meter boat on the firm’s FSS contract was lengthened to 29 meters, or 95 feet, to accommodate the interchangeable ramp. Maybank does not address the awardee’s or the agencys’ explanations as to how the awardee’s modified boat satisfied the overall length requirement. At best, Maybank’s protest reflects mere disagreement with the agency’s evaluation judgment, which does not show that the Navy unreasonably found that the awardee’s boat satisfied the RFQ’s requirements in this regard.
Maybank next complains that the Navy improperly accepted the awardee’s modified 27?meter boat, because the boat was added to the FSS contract after the receipt of quotations. GAO finds no merit to this argument. The critical date for determining whether the supplies and services are on the vendor’s contract is the date that the order is placed. Although Maybank argues that the Navy suggested to the awardee that it add its modified boat to its FSS contract prior to the agency’s issuance of an order to that firm, it does not identify any law or regulations that the agency allegedly violated by informing the awardee that its quoted boat must be on its FSS contract before the issuance of an order. The protest is denied.