Link: GAO Opinion
Agency: General Services Administration
Disposition: Protest dismissed in part, denied in part.
Issuance of a Federal Supply Schedule (FSS) order to vendor was proper where the ordered items were added to vendor’s FSS contract by a timely-executed modification.
General Counsel P.C. Highlight:
Sea Box alleges that the “or equal” items offered by CMCI were not timely or properly added to CMCI’s Federal Supply Schedule (FSS) contract and that CMCI therefore offered impermissible “open market” items that were ineligible for consideration under the RFQ. First, Sea Box argues that the actual closing date of the solicitation was May 11, not May 12, and thus the “or equal” items were not on CMCI’s FSS contract by the time the RFQ closed. With regard to its first argument, Sea Box asserts that the actual closing time of the RFQ was 5 p.m. on May 11, rather than May 12, and that CMCI was ineligible to receive an order because its “or equal” items had not been added to its FSS contract by that time. This argument is based on the fact that two closing dates were listed for this procurement, May 12 on the GSA e-Buy system, and May 11 on the RFQ. GAO concludes that Sea Box’s challenge to the closing date is untimely. The conflict between the closing date listed on the GSA e-Buy system and the closing date listed on the RFQ constituted a patent ambiguity that was apparent prior to the time set for receipt of quotations. In accordance with Bid Protest Regulations, 4 C.F.R. sect. 21.2(a) (2009), solicitation improprieties apparent prior to the time set for receipt of quotations must be filed prior to that time. Having failed to seek clarification or file a protest before the closing time of the RFQ, Sea Box may not now assert that the only legally permissible interpretation of the ambiguity is its own.
Sea Box argues that CMCI failed to provide certain documentation required, which Sea Box argues the contracting officer was required to review prior to approving the modification request. Sea Box concludes that by improperly waiving this documentation requirement, the GSA FSS contracting officer abused her discretion and acted outside her authority, rendering the modification void. GAO considers bid protest challenges to the award or proposed award of contracts. Therefore, GAO generally does not review matters of contract administration, which are within the discretion of the contracting agency and for review by a cognizant board of contract appeals or the Court of Federal Claims. The few exceptions to this rule include situations where it is alleged that a contract modification improperly exceeds the scope of the contract and therefore should have been the subject of a new procurement; where a protest alleges that the exercise of a contractor’s option is contrary to applicable regulations; or where an agency’s basis for contract termination is that the contract was improperly awarded. GAO concludes that Sea Box’s challenge to the propriety of the GSA FSS contracting officer’s decision to approve a request to modify an existing FSS contract is a matter of contract administration and that none of the stated exceptions apply.
Finally, Sea Box argues that issuing the orders was improper because the modification to CMCI’s FSS contract did not take effect until after the orders were issued. Citing GSAR sect. 552-243.72(d), which states that a GSA FSS contract modification “will not be made effective until the government receives the [contractor’s] electronic file updates,” Sea Box asserts that FSS contract modifications are not valid until the contracting officer personally reviews and approves the electronic file updates. Here, CMCI’s electronic file updates were not approved by the GSA FSS contracting officer until June 26, eight days after the orders were issued to CMCI. GAO states that a bilateral contract modification is a supplemental agreement requiring mutual intent to contract consisting of three substantive components: offer and acceptance, consideration, and a government representative with actual authority to bind the government.
In this case, the record shows that the required mutual intent to contract existed on May 12, when the GSA FSS contracting officer accepted CMCI’s modification request, and thus that a binding modification was created at that time. While Sea Box points to the language in the clause stating that a modification will not be “made effective” until the government receives the contractor’s electronic file update, GAO views the clause, including the specific language on which Sea Box relies, as a procedural admonition directed at the contractor. As a result, it does not limit the agency’s authority to issue an order where, as here, the relevant items already have been added to the vendor’s FSS by a binding modification. This part of the protest is denied.