Link: GAO Decision
Protestor: Sea Box, Inc.
Agency: Department of the Navy
Disposition: Protest Sustained.
- The failure of the protester’s quotation to agree to hold its prices firm for 90 days did not render the quotation unacceptable, because the concept of an acceptance period has no application to quotations, which are not offers.
- An agency unreasonably considered a technically unacceptable, intervening quotation in determining not to apply a Buy American Act preference to the protester’s quotation
General Counsel PC Highlight:
Sea Box, Inc. protested the issuance of a purchase order to Caru Containers, Inc. for Tricon Double Door Both Ends Cargo (Tricon II) Containers with specific configuration changes, including minimum interior dimensions. The RFQ included FAR clause 52.225-1. Buy American Act Supplies, which provides a preference for domestic end products. The contracting officer determined that the Buy American Act preference applied to Caru, with the lowest quotation, but not to Hyundai Translead, as the second lowest quotation. Hyundai offered a Mexican-made end product, which was exempt from the Act due to the North American Free Trade Act.
The GAO first disagreed with the agency that Sea Box was not an interested party because its quotation had expired. The GAO differentiated a quotation from a bid or proposal, noting that a quotation is purely informational and creates no binding agreement should the government accept it. The GAO then agreed with Sea Box that Hyundai could not be considered in the agency’s Buy American Act analysis because Hyundai’s quotation was not technically acceptable. The GAO pointed out that the RFQ specifically required vendors to provide information demonstrating that their quotations would satisfy the requested configuration changes, information which Hyundai failed to provide. After applying the Buy American Act preference to Caru’s quotation, and excluding Hyundai’s quotation, Sea Box should have been found to have submitted the lowest-priced, technically acceptable quotation. The GAO recommended that the agency terminate the order to Caru and issue a purchase order to Sea Box, as well as reimburse Sea Box for the costs of protesting.
Vendors must remember to include all requested information indicating compliance of their quotation with all necessary technical specifications. Particularly where the RFQ provides for numerous configuration changes, specifically demonstrating compliance with technical information or commercial literature is essential. Blanket statements of compliance, without more, may cause the quotation to be excluded from consideration.