Link: GAO Opinion
Agency: Defense Logistics Agency
Disposition: Protest sustained.
Protest challenging agency’s decision not to solicit a quotation from the protester is sustained where the record shows that the agency knew that the protester was interested in competing and did not have a reasonable basis to question the protester’s ability to perform.
General Counsel P.C. Highlight:
In response to SLG’s protest of the agency’s failure to solicit it, DSCR argues that it solicited competition to the extent required here. The agency maintains that because the acquisition at issue was conducted using simplified acquisition procedures, it was required to seek competition to the maximum extent practicable only, which it achieved by obtaining quotations from three vendors. The agency explains that it did not solicit SLG because the protester had never performed on a contract for the item and its previous contract history for the item was unfavorable. In the latter connection, the agency noted that SLG’s only purchase order for the item had been cancelled because the protester had misrepresented the foreign product it was providing as a domestic end product. The agency further noted that SLG was not an identified manufacturing source for the item and that it had not submitted a proposal in response to the RFP for the multi-year contract. GAO states that in using simplified acquisition procedures, agencies are required to –promote competition to the maximum extent practicable. While this standard generally may be met through the solicitation of at least three sources, an agency may not deliberately fail to solicit a responsible source that has expressed interest in competing without a reasonable basis for questioning the source’s ability to meet the agency’s needs.
GAO does not find that the agency has demonstrated that the acquisition specialist had a reasonable basis for failing to solicit the protester, a vendor she clearly knew to be interested in competing for orders for the item. The agency cites the protester’s lack of prior performance in furnishing the item as a basis for the acquisition specialist’s decision not to solicit the firm here, yet it appears from the record that the successful vendor likewise had not previously furnished the item; thus, GAO does not think that this provided a reasonable basis for distinguishing between the two vendors. The agency also cites the fact that the protester’s single purchase order for the item was cancelled after it was determined that, contrary to the representation in its quotation, the protester did not intend to furnish a domestic end item. GAO fails to see how the protester’s noncompliance with its obligation to furnish a domestic end item under its prior order furnishes a basis for questioning its ability to perform under this solicitation, however. The agency has not suggested that the firm is nonresponsible or otherwise ineligible to receive a contract. Further, the RFQ here is not set aside for small business; thus, FAR sect. 52.219-6(c), requiring small business offerors to furnish only domestic end items, is inapplicable, and the agency has not indicated any other basis for rejecting all non-domestic end items.
The fact that SLG was not listed as a manufacturing source of supply similarly fails to provide a reasonable basis for the agency’s failure to solicit the protester. The RFQ did not require vendors to furnish items that they themselves had manufactured; moreover, neither the successful vendor under this RFQ nor the awardee under the multi-year RFP was listed as a manufacturing source in the solicitations that resulted in purchases from those firms. Also, the protester’s failure to submit an offer in response to the multi-year RFP does not constitute a reasonable basis not to solicit it under the RFQ here. The RFP’s closing date was approximately a month after the order under protest was issued, and thus the acquisition specialist could not have been certain at the time she solicited quotations under this RFQ that the protester would not submit an offer in response to the RFP. Moreover, the RFP was for an estimated annual quantity approximately four times as large as the quantity solicited here, and thus provided a far less accurate gauge for measuring the protester’s interest in competing for the quantity here than the prior RFQs. In conclusion, GAO fails to see a reasonable basis in the record for the acquisition specialist’s decision not to solicit a quotation from the protester, which she knew to be interested in competing to supply the fluorescent lamp starters and whose ability to furnish the items she did not have a reasonable basis to doubt. Accordingly, GAO sustains the protest.