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FAR 13.104:  Promoting competition

Comptroller General - Key Excerpts

Phoenix protests that the brand name restriction is unduly restrictive of competition. In this regard, Phoenix notes that there is a list of commercial herbicides that are approved for use on BLM land, which contains multiple, equal items for each product the agency is procuring.

The simplified acquisition procedures established under FAR part 13 are designed to promote efficiency and economy in contracting, and to avoid unnecessary burdens for agencies and contractors, where, as here, the value of the acquisition is less than $150,000. See FAR § 13.002. When using simplified acquisition procedures, agencies are required to obtain competition to the maximum extent practicable and must not solicit quotations based on personal preference or restrict the solicitation to suppliers of well-known and widely distributed makes or brands. Id. § 13.104; see B&S Transport, Inc., B-407589, Dec. 27, 2012, 2012 CPD ¶ 354 at 2. In a simplified acquisition, an agency is permitted to limit a solicitation to a brand name item when the contracting officer determines that the circumstances of the contract action deem only one source is reasonably available. FAR §§ 11.105(a)(2)(ii), 13.106-1(b)(1). In such cases, we review the decision to limit the procurement to a brand name for reasonableness. See Critical Process Filtration, Inc., B-400746 et al., Jan. 22, 2009, 2009 CPD ¶ 25 at 3.

According to the agency, the brand name herbicides in the solicitation are necessary to satisfy the agency’s needs because they “are currently approved for use” pursuant to the agency’s pesticide use proposal (PUP). Agency Report (AR), Exh. 6, Brand Name Justification, July 8, 2016, at 1. With respect to the PUP, the agency explains that there must be an approved pesticide use proposal which lists the pesticides that the agency will be using on a particular piece of land. COS Supplemental, Aug. 17, 2016, at 2-3. The agency reports that a PUP must be submitted every three years for approval. COS at 6; AR, Exh. 6, Brand Name Justification, July 8, 2016, at 1. According to the agency, it is justified in using brand name only herbicides in this case because if it desires to use other equal pesticides that are not on the PUP, it will be required to amend the PUP to include these pesticides, which will take up to six months. Id.

The agency’s position, however, is not supported by the record. According to the 2012 PUP the agency provided to our Office, only two of the herbicides required by the solicitation (Plateau and Escort) were listed and their approval expired in November 2015. Pesticide Use Proposal 2012, at 1. A second PUP was prepared in June 2016, which includes the two herbicides on the 2012 expired PUP, plus the Weedar. Pesticide Use Proposal 2016, at 1. However, the June 2016 PUP has not yet been approved. Id. at 4. Thus, there is no current PUP that covers three of the herbicides that the agency is procuring under a brand name only specification.

In response to a request for further information about the fact that several of the brand name pesticides are not actually listed on a current (unexpired) PUP, the agency stated that: “[I]t is not against BLM policy for a Field Office to purchase a chemical prior to the completion of a Pesticide Use Proposal.” Agency e-mail, Sept. 22, 2016, at 1. Thus, the agency notes that the 2016 PUP, which includes the Plateau, Escort, and Weedar herbicides, and which was prepared to replace the expired PUP, is in the process of completion. Id. at 1-2. The agency concludes that since “the Field Office was in the process of preparing the necessary proposal [it] did not violate BLM policy by purchasing the products in question.” Id. at 2. This position, however, directly contradicts its earlier justification that it was unable to include equal items in the solicitation because they were not currently on the PUP.

It seems that the agency’s real explanation for the brand name only restriction is that there are over 350 formulated products associated with 18 herbicide active ingredients for consideration and:

[t]he pesticide use proposal identifies the proposed active ingredients and their associated formulations. . . . the selection of a particular formulation is at the discretion of the individual preparing the proposal and the addition of formulations outside the ones identified in the actual proposal, are not necessary, as they may not take into account the factors utilized by the proposal preparer in selecting the identified formulations.

Agency e-mail, Sept. 22, 2016, at 3. The agency also contends that the brand name is justified because the program office “would not use generics ([office] traded the generics [] received last year).” CO Supplemental at 5, quoting AR, Tab 7, Program Office E-mail, at 1. It appears from this that the agency is advocating that it has the discretion and control, with certain restrictions relating to environmental assessments, as to which herbicide ingredients and formulations are placed on the PUP, and therefore could choose not to place generic brands on the PUP. We do not disagree with the agency that it has some discretion to determine what products to include on the PUP. However, in exercising that discretion, the agency must have a reasonable basis to exclude equal products from the PUP. It cannot simply rely on the PUP to limit competition, where is has not provided a reasonable basis for excluding items from the PUP.

Accordingly, we find that the agency has failed to reasonably justify its determination to limit the competition to brand name items. See FAR § 13.106-1(b)(1). While there may be justifiable reasons for restricting this procurement to brand name only herbicides, the agency has not provided that justification here.  (Phoenix Environmental Design, Inc. B-413373: Oct 14, 2016)


Latvian next asserts that the agency failed to conduct the procurement using full and open competition as required by the Competition in Contracting Act of 1984. However, since the agency was using simplified acquisition procedures, it was not required to use full and open competition to conduct the procurement. See 10 U.S.C. § 2304(g)(1) (2012). Instead, the agency was required to promote competition to the maximum extent practicable. 10 U.S.C. § 2304(g)(3); FAR § 13.104. Further, since the agency was using simplified acquisition procedures, and pursuant to FAR § 5.202(a)(12) was not required to publish notice on the FedBizOpps website, soliciting three sources meets the FAR’s requirements for conducting a simplified acquisition. FAR § 13.104(b).

Finally, Latvian protests that the agency did not provide sufficient time to respond to the solicitation. As noted above, the solicitation was issued on January 23, and called for vendors to submit their quotations by January 26. FAR § 13.003(h)(2) requires that for acquisitions conducted under simplified acquisition procedures the agency establish submission deadlines that afford vendors a reasonable opportunity to respond. Here, the record indicates that the agency issued a solicitation that was not complex to meet a requirement for commercial items that were, in the contracting officer’s experience, commonly available. Contracting Officer’s Statement at 2. Given these circumstances, and the fact that four vendors, including the protester, were able to respond by the due date, we have no basis to find that the agency did not allow a reasonable amount of time for vendors to respond. See Military Agency Services Pty., Ltd., supra, at 7.  (Latvian Connection General Trading and Construction, LLC, B-409442: Apr 25, 2014)  (pdf)


In using simplified acquisition procedures, agencies are required to “promote competition to the maximum extent practicable.” 10 U.S.C. sect. 2304(g)(3) (2006); FAR sect. 13.104. While this standard generally may be met through the solicitation of at least three sources, see FAR sect. 13.104(b); Omni Elevator Co., B-246393, Mar. 6, 1992, 92-1 CPD para. 264 at 2, 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. See Military Agency Servs. Pty., Ltd., B-290414 et al., Aug. 1, 2002, 2002 CPD para. 130 at 7-8; Bosco Contracting, Inc., B‑270366, Mar. 4, 1996, 96-1 CPD para. 140 at 3-4.

We do not think 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, we do 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. We fail 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, we fail 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, we sustain the protest.  (Solutions Lucid Group, LLC, B-400967, April 2, 2009) (pdf)


SMI alleges that the time allowed for the submission of quotations was unreasonable. Contracting agencies are required to provide a reasonable time for all offerors to respond to solicitations, 41 U.S.C. sect. 416(a)(5) (2000); Federal Acquisition Regulation (FAR) sect. 13.003(h)(2). The decision as to the appropriate response time lies within the discretion of the contracting officer. See Crowley Am. Transp., Inc., B-259599.2, June 19, 1995, 95-1 CPD para. 277 at 6. There is nothing in the record which would indicate that the contracting officer abused his discretion here. The agency concluded on July 21 that the solution to the rust problem required flushing the system. The agency issued the solicitation 8 days later on July 29, with quotations due August 3, giving the solicited firms 5 days to prepare and submit quotations. As discussed above, the agency states that the Navy’s supply of oilers is critically low, and that military readiness mandates that this ship promptly be made seaworthy. In addition, there were concerns that the quality of the renovation work be ascertained, which could not be done absent a sea trial. Given the speed with which the Navy moved to repair this problem with the ship, and the importance of the ship’s functioning to the Navy’s preparedness, we conclude that the record supports the reasonableness of the contracting officer’s exercise of discretion in requiring that quotations be submitted 5 days from the date of the solicitation. See id. SMI argues not that the 5 days was unreasonable, but that the time that SMI had between when it received the solicitation (the afternoon of August 1) and the time set for submission of quotations (the morning of August 3) was unreasonable. This argument is unpersuasive. The agency was under no obligation to solicit SMI. In using simplified acquisition procedures, agencies are required to promote competition to the maximum extent practicable. FAR sect. 13.104. Where, as here, a simplified acquisition is not expected to exceed $25,000, the contracting officer is required to consider solicitation of at least three sources to promote competition to the maximum extent practicable. FAR sect. 13.104(b); Aleman & Assocs., Inc., B‑287275, May 17, 2001, 2001 CPD para. 93 at 4. The agency fulfilled this requirement by issuing the flushing solicitation to three firms. Since all firms, regardless of when they received the solicitation, were required to submit quotations by the solicitation’s specified due date, SMI did not have as much time as the other, solicited firms in which to prepare its quotation. However, the time period being judged for its reasonableness is that afforded to the firms that were solicited. As explained above, we find the time set by the agency for the submission of quotations reasonable under the particular facts of this case. (Specialty Marine, Inc., B-296988, October 11, 2005) (pdf)


With respect to the protester’s contention that it was not provided sufficient time to submit a response to this RFQ, we agree. Other than the New Year’s Day holiday and the weekend following it, the agency allowed a total response time here of 1 ½ business days. The agency states that this brief response time was necessary in order to meet the March 31 date mandated under the BPCA (AR at 1); however, there is no such mandate in the BPCA. Simply put, the BPCA does not set a March 31 deadline for any task to be performed by HHS. Rather, the BPCA requires that HHS issue a list of drugs each year, beginning no later than 1 year after the BPCA was enacted (on January 4, 2002). 42 U.S.C.A. § 284m(a)(1). More importantly, the present procurement is associated with preparation of the 2005 list, not the list for the current year 2004. Although we agree that reasonable time limits must be set for the completion of preliminary services leading to the publication of the 2005 list, there is nothing in the record to support the agency’s contention that these services had to be completed by March 31, 2004. Moreover, we note that the need to prepare this list is a recurring requirement, and the agency had prepared a statement of work (SOW) for this associated research effort by October 1, 2003. In addition, the record shows that Metaworks had prepared a draft proposal by October 24. AR, Tab 2, at 8-9 (the SOW), 12 (Metaworks’ Draft Proposal). Under these circumstances, a response time of 1 ½ business days was not a reasonable amount of time to require IVI to prepare a submission to demonstrate its capabilities. Accordingly, we sustain the protest on this basis. See Jack Faucett Assocs., Inc., B-279347, June 3, 1998, 98-1 CPD ¶ 155 at 3‑4 (1 day response time without reasonable justification is unreasonable). (Information Ventures, Inc., B-293541, April 9, 2004) (pdf)


Alternatively, the agency may have viewed Payne's quotation as late and rejected it on that basis. That basis, as well, is, in our view, legally unsupported. We have long held that the requirement to obtain competition to the maximum extent practicable, whether in the context of simplified acquisition procedures or the predecessor small purchase procedures, means that language requesting quotations by a certain date cannot be construed as establishing a firm closing date for the receipt of quotations absent a provision--which was not present here--expressly providing that quotations must be received by that date to be considered. Instruments & Controls Serv. Co., B-222122, June 30, 1986, 86-2 CPD ¶ 16 at 3. Instead, agencies should consider any quotations received prior to source selection if no substantial activity has transpired in evaluating quotations and other vendors would not be prejudiced. Id. See also KPMG Consulting LLP, B-290716, B-290716.2, Sept. 23, 2002, 2002 CPD ¶ 196 at 11; G.E.G. Sugar Blues & Noe's Colors, B-284117, Feb. 22, 2000, 2000 CPD ¶ 29 at 3.  (Payne Construction, B-291629, February 4, 2003)  (txt version)


The RFQ here provided that "[o]ffers are requested by COB Friday, September 24, 1999." Language requesting quotations by a certain date cannot be construed as establishing a firm closing date for the receipt of quotations absent a provision expressly providing that quotations must be received by that date to be considered. John Blood, B-274624, Dec. 19, 1996, 96-2 CPD para. 233 at 2; Instruments & Controls Serv. Co., B-222122, June 30, 1986, 86-2 CPD para. 16 at 3. Here, the language in the RFQ requesting quotations by September 24 does not meet that standard. The agency therefore should have considered any quotations received prior to source selection if no substantial activity had transpired in evaluating quotations and other vendors would not be prejudiced. Instruments & Controls Serv. Co., supra. Failure to do so would be inconsistent with the statutory provision authorizing simplified procedures for small purchases, 10 U.S.C. sect. 2304(g)(1)(A) (Supp. IV 1998), which requires that agencies obtain competition to the maximum extent practicable. 10 U.S.C. sect. 2304(g)(3) (1994); Instruments & Controls Serv. Co., supra. Since the RFQ here contained no late quotations clause; absolutely no activity with regard to the evaluation of quotations had transpired prior to the receipt of Sugar Blues' quotation; and there is no indication that any other vendor would be prejudiced, the quotation should have been considered.  (G.E.G. Sugar Blues & Noe's Colors, B-284117, February 22, 2000)


FASA requires only that agencies obtain competition to the maximum extent practicable when they utilize simplified acquisition procedures. 10 U.S.C. sect. 2304(g)(3); see FAR sect. 13.104; Aleman & Assocs., Inc., B-287275, May 17, 2001, 2001 CPD para. 93 at 3. This standard is usually met if an agency solicits at least three sources. However, the competition may be limited to fewer than three, including limiting the competition to only one source reasonably capable of performing the work, and the solicitation conducted orally without public notice, if the agency's needs must be satisfied on an urgent basis. See FAR sect.sect. 5.202(a)(2), 13.104(b), 13.106-1(a)(1)(iii), 13.106-1(b), 13.106-1(c).  (GMA Cover Corporation, B-288018, August 17, 2001)


Since it had already accepted the late submission of technical information by the protester, we find unobjectionable, in the context of the use of simplified acquisition procedures, the agency's attempt to enhance competition through the acceptance of additional technical information and revisions to permit the other vendors to establish compliance with the specifications. Simplified acquisition procedures emphasize efficiency rather than formal procedure and, when using them, agencies have considerable discretion in their approach, as long as it promotes competition to the maximum extent practicable. FAR sect. 13.106-2(b)(2); Cromartie and Breakfield, B-279859, July 27, 1998, 98-2 CPD para. 32 at 2. Here, the vendors benefited similarly from the agency's willingness to accept late submissions, hence the protester was not prejudiced by the agency's acceptance of late technical submissions.  (Williams-Trane Company, Inc., B-283522, November 22, 1999)


The simplified acquisition procedures emphasize efficiency rather than formal procedures and, where using these procedures, an agency has considerable discretion in its approach, so long as it promotes competition to the maximum extent practicable. West Coast Research Corp., B-281359, B-281359.2, Feb. 1, 1999, 99-1 CPD para. ___ at 4. In circumstances such as here, where the solicitation does not contain a specific late quotations provision requiring receipt of quotations by a specified date in order to be considered but instead merely calls out a due date, the agency should normally consider any quotations received prior to the selection decision if no substantial activity has transpired in evaluating quotations. Adrian Supply Co., B-235352, Aug. 2, 1989, 89-2 CPD para. 99 at 2.

However, here the agency was not, even in the alleged absence of a contract between the Corps and Dixie, required to consider RMG's quotation. The contracting officer had already begun the purchase order issuance process by the time he actually received RMG's quotation. He had examined the quotations received, prepared an abstract, determined to issue a purchase order to Dixie, issued confirmation of a verbal agreement with Dixie, and dispatched notice to the EDI system. Thus, substantial activity in evaluating quotations and processing the purchase order had already occurred before the contracting officer was aware that a revised quotation had been submitted by RMG. As a result, the Corps was not required to consider RMG's late quotation. Id. at 3.  (RMG Industrial Sales, B-281632, March 15, 1999)

Comptroller General - Listing of Decisions

For the Government For the Protester
Latvian Connection General Trading and Construction, LLC, B-409442: Apr 25, 2014  (pdf) Phoenix Environmental Design, Inc. B-413373: Oct 14, 2016
Specialty Marine, Inc., B-296988, October 11, 2005 (pdf) Solutions Lucid Group, LLC, B-400967, April 2, 2009 (pdf)
Military Agency Services Pty., Ltd., B-290414; B-290441; B-290468; B-290496, August 1, 2002  (pdf) Information Ventures, Inc., B-293541, April 9, 2004 (pdf)
GMA Cover Corporation, B-288018, August 17, 2001 Payne Construction, B-291629, February 4, 2003  (txt version)
Aleman & Associates, Inc., B-287275, May 17, 2001 G.E.G. Sugar Blues & Noe's Colors, B-284117, February 22, 2000
Lucent Technologies, Inc., B-285505, August 23, 2000  
Williams-Trane Company, Inc., B-283522, November 22, 1999  
RMG Industrial Sales, B-281632, March 15, 1999  
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