HOME  |  CONTENTS  |  DISCUSSIONS  DISCUSSION ARCHIVES  |  BLOG  |  QUICK-KITs|  STATES

Loading

FAR 13.106-2:  Evaluation of offers and quotes

Comptroller General

As noted above, this procurement was conducted under the simplified procedures for evaluation of commercial items. Simplified acquisition procedures are designed, among other things, to reduce administrative expenses, promote efficiency and economy in contracting, and avoid unnecessary burdens for agencies and contractors. FAR § 13.002; 41 U.S.C. § 3305. When using these procedures, an agency must conduct the procurement consistent with a concern for fair and equitable competition and must evaluate proposals in accordance with the terms of the solicitation. ERIE Strayer Co., B-406131, Feb. 21, 2012, 2012 CPD ¶ 101 at 4.

Our Office reviews allegations of improper agency actions in conducting simplified acquisitions to ensure that the procurements are conducted consistent with a concern for fair and equitable competition and with the terms of the solicitation. ERIE Strayer Co., supra; Russell Enters. of N. Carolina, Inc., B‑292320, July 17, 2003, 2003 CPD ¶ 134 at 3. Although an agency is not required to conduct discussions under simplified acquisition procedures, where an agency avails itself of negotiated procurement procedures, the agency should fairly and reasonably treat offerors in the conduct of those procedures. ERIE Strayer Co., supra, at 4.

In this regard, FAR § 15.306 describes a range of exchanges that may take place when the agency decides to conduct exchanges with offerors during negotiated procurements. Clarifications are “limited exchanges” between an agency and an offeror for the purpose of eliminating minor uncertainties or irregularities in a proposal, and do not give an offeror the opportunity to revise or modify its proposal. FAR § 15.306(a)(2); American Material Handling, Inc., B-410899, March 12, 2015, 2015 CPD ¶ 106 at 8; ERIE Strayer Co., supra. Clarifications are not to be used to cure proposal deficiencies or material omissions, or materially alter the technical or cost elements of the proposal, or otherwise revise the proposal. American Material Handling, Inc., supra; see eMind, B‑289902, May 8, 2002, 2002 CPD ¶ 82 at 5. Discussions, on the other hand, occur when an agency communicates with an offeror for the purpose of obtaining information essential to determine the acceptability of a proposal, or provides the offeror with an opportunity to revise or modify its proposal in some material respect. Alliant Enter. JV, LLC, B-410352.4, Feb. 25, 2015, 2015 CPD ¶ 82 at 5; see FAR § 15.306(d). As a general matter, when an agency conducts discussions with one offeror, it must afford all offerors remaining in the competition an opportunity to engage in meaningful discussions. See ERIE Strayer Co., supra; Strategic Analysis, Inc., B‑292392, B‑292392.2, Sept. 3, 2003, 2003 CPD ¶ 156 at 4. Further, it is the actions of the parties that determines whether discussions have been held and not merely the characterization of the communications by the agency. Priority One Servs., Inc., B‑288836, B‑288836.2, Dec. 17, 2001, 2002 CPD ¶ 79 at 5.

The Air Force asserts that its communications with the Mahto were clarifications, not discussions. AR at 5. We disagree. Mahto was permitted to revise portions of its quotation that did not comply with the solicitation’s terms. In this regard, the RFQ did not include any provision for progress payments, and instead incorporated FAR § 52.212-4, which provides that: “Payment shall be made for items accepted by the Government that have been delivered to the delivery destinations set forth in this contract.” FAR § 52.212-4(i); RFQ at 3. Mahto’s quotation, however, instead quoted a schedule of payments under which payments would be made in four installments at various contract milestones, [deleted]. AR, Tab 8, Mahto Quotation, at 16. When the agency communicated with Mahto about this discrepancy, Mahto altered its quotation, dropping the requirement for progress payments, and instead agreed to accept the agency’s proposed “Net 30” payment terms. AR, Tab 10, Email Exchange Between Mahto and Agency, at 1.

In addition, although the RFQ required vendors to propose a fixed price for 16 days of training, setup, and support on Wake Island, CLIN 0002, RFQ at 8, Mahto’s quotation stated that the costs associated with its technicians’ work on Wake Island would be “billed separately” on a per diem basis. AR, Tab 8, Mahto Quotation, at 16. Where, as here, a solicitation requests proposals on a fixed-price basis, a price offer that is conditional and not firm cannot be considered for award. See SunEdison, LLC, B-298583, B-298583.2, Oct. 30, 2006, 2006 CPD ¶ 168 at 5. Thus, Mahto’s statement that the costs of transporting technicians to and from the jobsite would be billed separately failed to comply with the RFQ’s requirement that vendors quote fixed prices for that work.

The agency’s communications with the awardee invited a response from Mahto that was necessary to determine the acceptability of Mahto’s quotation and, in fact, resulted in Mahto being permitted to supplement or alter its quotation. This is quintessentially the nature of discussions, not clarifications. Kardex Remstar, LLC, B-409030, Jan. 17, 2014, 2014 CPD ¶ 1 at 4. Accordingly, we conclude that the Air Force, having conducted discussions with Mahto, was required to also conduct discussions with all other vendors in the competition, including IWI. We sustain the protest on that basis.  (International Waste Industries B-411338: Jul 7, 2015.)  (pdf)
 

The RFQ was issued by the Army Expeditionary Contracting Command in Grafenwoehr, Germany on March 3, 2014, using commercial item and simplified acquisition procedures contained in Federal Acquisition Regulation (FAR) parts 12 (commercial items) and 13 (simplified acquisition procedures). Agency Report at 2. Quotations were due on March 26. The solicitation provided that quotations could be submitted via facsimile transmission, hand delivery, or e-mail to the contracting specialist identified in the solicitation. RFQ at 3.

Latvian protests that the agency has not established a restricted access electronic bid box in accordance with Federal Acquisition Regulation (FAR) § 14.401 to receive bids.

FAR §14.401 requires all bids received before the time set for bid opening remain in a locked bid box, a safe, or in a secured, restricted-access electronic bid box. This provision of the FAR, however, is applicable to procurements being conducted using FAR part 14 sealed bid procedures. FAR §14.000. Here, the Army is not conducting the procurement using FAR part 14 sealed bid procedures to solicit bids. Rather, the Army is soliciting quotations using FAR parts 12, and 13. Accordingly, the Army is not required to establish a bid box.

Latvian has not provided any information which demonstrates or suggests that the agency is prohibited from accepting quotations submitted in response to a procurement conducted under FAR parts 12 and 13 by fax, hand delivery, or e-mail to the address of a specified contract specialist. Further, to the extent that Latvian believes the quotations are not being property secured the Army notes that only the contracting specialist has access to his e-mail box, which is secured using a common access card, the fax machines are in a secure, locked building, and visitors must be escorted within the building. AR at 3. Accordingly, there is no basis here to find that the agency is improperly accepting quotations, or failing to secure them.  (Latvian Connection General Trading and Construction, LLC, B-409569: May 8, 2014)  (pdf)


In its protest, B&S asserts that it timely verified the information in its quote via email. Protest at 2. In support of its assertion, the protester submitted an email chain that includes a message, allegedly sent at 2:54 p.m. (EST) on September 24, from B&S’s president to the Army contract specialist in which B&S verifies the requested information about the firm’s quote. Protest, attach. 1, Email Correspondence, at 3-4.

When using simplified acquisition procedures, agencies must promote competition “to the maximum extent practicable.” 10 U.S.C. § 2304(g)(3) (2012). In meeting this requirement, agencies must make reasonable efforts, consistent with efficiency and economy, to afford all eligible and interested vendors an opportunity to compete. S.D.M. Supply, Inc., B-271492, June 26, 1996, 96-1 CPD ¶ 288 at 4. Agencies have a fundamental obligation to have procedures in place not only to receive quotations, but also to reasonably safeguard quotations received and to give them fair consideration. Id. However, as a practical matter, even with appropriate procedures in place, an agency may lose or misplace a bid or quotation, and the occasional loss of a bid or quotation--even if through the negligence of the agency--generally does not entitle the bidder or vendor to relief. Id.; Interstate Diesel Serv., Inc., B-244842.2, Sept. 27, 1991, 91-2 CPD ¶ 304 at 2. Indeed, we have found an agency’s rejection of a quote to be reasonable where a protester emailed its quote to the agency, but the record showed that the agency never actually received the emailed submission prior to the deadline. See Turner Consulting Group, Inc., B-400421, Oct. 29, 2008, 2008 CPD ¶ 198 at 4.

The circumstances here do not provide a basis to sustain the protest. In this regard, the agency contends that it never received any email verification from B&S, and, consequently, it considered the quote to have been withdrawn. AR at 6. The record shows that the agency’s information technology (IT) staff conducted an email trace of all email messages the agency received from B&S’s president on September 24. Agency Memorandum for the Record at 1-2. The results of the agency’s search confirm that the Army never received the email B&S contends its president sent to the contract specialist. Id., attach. 6, Email from IT Staff to Contract Specialist, at 1.

Although the protester has presented evidence that it timely sent an email verifying information about its quote, there is no question that the agency did not receive B&S’s email verification prior to the contract specialist’s deadline. Moreover, the agency sent the protester multiple emails seeking a response, and the agency advised the protester in writing and on the telephone that the agency would consider B&S to have withdrawn its quote if it failed to provide written answers to the agency’s questions. Additionally, the record does not show that B&S took any steps to confirm that its email message was received.

In short, given that there is no evidence in the record to show actual timely receipt of B&S’s verification email, we have no basis to find unreasonable the agency’s decision not to award a contract to B&S.[3] See Turner Consulting Group, Inc., supra, at 4; Int’l Garment Processors, B-299674, B-299743, B-299746, July 17, 2007, 2007 CPD ¶ 130 at 7 (agency’s rejection of revised quote was reasonable where protester only demonstrated that quote was transmitted, but not that it was actually timely received by the agency); see also Lakeshore Eng’g Serv., B-401434, July 24, 2009, 2009 CPD ¶ 155 at 4 (elimination from competitive range found reasonable where protester did not show that its proposal was successfully delivered to agency’s email box prior to submission deadline); Am. Material Handling, Inc., B-281556, Feb. 24, 1999, 99-1 CPD ¶ 46 at 3-4 (agency not required to consider vendor’s quote where agency lost quote due to agency computer malfunction).  (B&S Transport, Inc., B-407589, Dec 27, 2012)  (pdf)
 


As noted above, the procurement was conducted under the simplified procedures for evaluation of commercial items. Simplified acquisition procedures are designed, among other things, to reduce administrative expenses, promote efficiency and economy in contracting, and avoid unnecessary burdens for agencies and contractors. FAR § 13.002; 41 U.S.C. § 3305 (Supp. IV 2010). When using these procedures, an agency must conduct the procurement consistent with a concern for fair and equitable competition and must evaluate proposals in accordance with the terms of the solicitation.

Our Office reviews allegations of improper agency actions in conducting simplified acquisitions to ensure that the procurements are conducted consistent with a concern for fair and equitable competition and with the terms of the solicitation. Russell Enters. of N. Carolina, Inc., B-292320, July 17, 2003, 2003 CPD ¶ 134 at 3. Although an agency is not required to conduct discussions under simplified acquisition procedures, where an agency avails itself of negotiated procurement procedures, the agency should fairly and reasonably treat offerors in the conduct of those procedures. See Kathryn Huddleston and Assocs., Ltd., B-289453, Mar. 11, 2002, 2002 CPD ¶ 57 at 6; Finlen Complex, Inc., B-288280, Oct. 10, 2001, 2001 CPD ¶ 167 at 8-10.

In this regard, FAR § 15.306 describes a range of exchanges that may take place when the agency decides to conduct exchanges with offerors during negotiated procurements. Clarifications are “limited exchanges” between an agency and an offeror for the purpose of eliminating minor uncertainties or irregularities in a proposal, and do not give an offeror the opportunity to revise or modify its proposal. FAR § 15.306(a)(2); Lockheed Martin Simulation, Training & Support, B-292836.8 et al., Nov. 24, 2004, 2005 CPD ¶ 27 at 8. Clarifications are not to be used to cure proposal deficiencies or material omissions, or materially alter the technical or cost elements of the proposal, or otherwise revise the proposal. eMind, B-289902, May 8, 2002, 2002 CPD ¶ 82 at 5. Discussions, on the other hand, occur when an agency communicates with an offeror for the purpose of obtaining information essential to determine the acceptability of a proposal, or provides the offeror with an opportunity to revise or modify its proposal in some material respect. Gulf Copper Ship Repair, Inc., B-293706.5, Sept. 10, 2004, 2005 CPD ¶ 108 at 6; see FAR § 15.306(d). When an agency conducts discussions with one offeror, it must conduct discussions with all other offerors in the competitive range. Gulf Copper Ship Repair, Inc., supra.

Ultimately, it is the actions of the parties that determine whether discussions have been held and not the characterization of the communications by the agency. Id. In situations where there is a dispute regarding whether communications between an agency and an offeror constituted discussions, the acid test is whether an offeror has been afforded an opportunity to revise or modify its proposal. Id. Communications that do not permit an offeror to revise or modify its proposal, but rather request that the offeror confirm what the offeror has already committed to do in its proposal, are clarifications and not discussions. Environmental Quality Mgmt., Inc., B-402247.2, Mar. 9, 2010, 2010 CPD ¶ 75 at 7.

As explained below, we disagree with the agency that its exchange with the awardee involved only clarifications. Prior to the exchange, the agency viewed the proposal as unacceptable; after the exchange, the rating was changed to acceptable.

(Note:  The following section that is within red brackets was taken from the background section and placed in the discussion section of this decision because it helps to understand the decision without referring to the actual decision).

[The contract specialist conducted what the agency characterized as verbal “clarification[s]” with RexCon regarding how such “discrepancies” were accounted for within the proposal submitted. Contract Specialist Memorandum for Record, July 21, 2011. Following that telephone call, the agency submitted written questions to RexCon, to which RexCon replied in writing. Following are those questions and answers memorializing that verbal exchange:

1. Can the Generator that you proposed run the entire plant without having to add any additional power?

Yes. Per the proposal, we’ve done an extensive power study showing the power load of the plant and all equipment. The power load is 400 [kilowatts (KW)], the proposed generator is 455KW, providing ~12% safety factor.

2. Does your company provide 24 hour 7 days a week technical support?

Yes. We have field techs on call. Included as well are free upgrades for a year and 2 free attendees at our annual RC3 training school.

3. Is the moisture compensation you proposed automatic?

Yes. Per page 7 of our proposal: “Includes Automatic computer batching capability and automatic moisture compensation with a slump meter readout.”

4. Did you provide safe ladders and/or stairs to access the requested parts of the plant?

Yes. Per [agency] specifications, Personnel Access to all plant components (safety Ladders) are included. Access Ladders will be provided to all plant components as specified.]

In our view, RexCon’s answers to questions two and four resulted in material revisions to its proposal. Specifically, the second question concerned the solicitation’s requirement for a 24 hour a day, 7 day a week technical hotline direct from the manufacturer for plant troubleshooting. The agency asked if RexCon provided such technical support and RexCon replied, “Yes. We have field techs on call.” Email from RexCon to Agency, July 21, 2011. Through this exchange, the awardee was permitted to augment its proposal to address a clear omission regarding a material solicitation requirement. In response to the fourth question, which concerned the solicitation requirement for stairs or ladders to access the plant, the awardee responded that access ladders to all plant components will be provided. While the agency asserts that it intended to require personnel access to the entire concrete plant, the RFQ specified, as noted above, that access must be provided to only two discrete portions of the plant. The awardee’s response to the agency’s question references no portion of RexCon’s proposal, and there is no evidence in the record that the awardee’s proposal previously met the access requirement. Because the agency effectively conducted discussions with RexCon, the Air Force was required to afford ERIE with an opportunity to address the agency’s concerns with its proposal through discussions, as well. Gulf Port Ship Repair, Inc., supra.

Where improper discussions were held, we will resolve any doubts concerning the prejudicial effect of the agency’s actions in favor of the protester; a reasonable possibility of prejudice is a sufficient basis for sustaining the protest. See Ashland Sales & Serv., Inc., B-255159, Feb. 14, 1994, 94-1 CPD ¶ 108. In other words, once an impropriety in the conduct of discussions is found, it must be clear from the record that the protester was not prejudiced in order to deny the protest. Id.

In brief, on this record, we see a reasonable possibility of prejudice to the protester. The protester’s proposal was found unacceptable on four grounds. Two grounds--failure to provide a generator of sufficient capacity for continuous operation of the concrete plant and failure to provide plant-wide personnel access--were issues that the awardee was permitted to address through discussions. Additionally, the protester omitted from its proposal a key performance specification, namely, plant capacity. The record contains the protester’s unrebutted assertion that, if it were provided the opportunity for clarifications, its proposal could be amended to accurately state that its offered plant meets that required performance. Finally, the protester’s proposal was rated unacceptable for offering an operating system other than Windows. There is a reasonable possibility that, with the conduct of discussions, the protester could satisfy this requirement, as well.  (ERIE Strayer Company, B-406131, Feb 21, 2012)  (pdf)


Resource complains that the agency unreasonably evaluated its technical quotation because the agency's assigned weaknesses in support of its determination that Resource's quotation was technically unacceptable were, in fact, adequately addressed in Resource's presentation.

Simplified acquisition procedures are designed to, among other things, reduce administrative costs, promote efficiency and economy in contracting, and avoid unnecessary burdens for agencies and contractors. FAR sect. 13.002; Sawtooth Enters., Inc., B-281218, Dec. 7, 1998, 98-2 CPD para. 139 at 3. When using simplified acquisition procedures, an agency must conduct the procurement consistent with a concern for fair and equitable competition and must evaluate quotations in accordance with the terms of the solicitation. In reviewing protests of an allegedly improper simplified acquisition evaluation, we examine the record to determine whether the agency met this standard and executed its discretion reasonably. Computers Universal, Inc., B‑297552, Feb. 14, 2006, 2006 CPD para. 42 at 4-5; DOER Marine, B-295087, Dec. 21, 2004, 2004 CPD para. 252 at 3. Moreover, even for procurements under simplified acquisition procedures, it is a fundamental principle of government accountability that an agency be able to produce a sufficient record to allow for a meaningful review where its procurement actions are challenged. See e-LYNXX Corp., B-292761, Dec. 3, 2003, 2003 CPD para. 219 at 8; Checchi and Co. Consulting, Inc., B-285777, Oct. 10, 2001, 2001 CPD para. 132 at 6. In this regard, where an agency fails to adequately document its actions, it bears the risk that there may not be adequate supporting rationale in the record for us to conclude that the agency had a reasonable basis for the source selection decision. Southwest Marine, Inc.; American Sys. Eng'g Corp., B-265865.3, B-265865.4, Jan. 23, 1996, 96‑1 CPD para. 56 at 10. Nevertheless, in reviewing an agency's procurement actions, we do not limit our review to contemporaneous evidence, but consider, as appropriate, hearing testimony and the parties' arguments. Id.

Here, while Resource's 1-hour oral presentation was videotaped, the Q&A session was not. Instead, this session was documented by hand-written notes taken by acquisition personnel. The contract specialist used these notes, and her own, to prepare a document memorializing the session. When Resource asserted that the contract specialist's account mischaracterized its answers, the contract specialist permitted Resource to submit its version of the answers, which with a few edits by the agency, was accepted as an accurate memorialization of the session. AR, Tab 19f, Email from Contract Specialist (Nov. 4, 2010). The accepted revisions provided much more detailed answers to the questions offered during the Q&A session of the oral presentation, for example, in the areas of collaboration with federal bureaus and methods. AR, Tab 19e, Resource's Final Q&A Document.

Because of the events surrounding Resource's Q&A session, this was an issue at the hearing that our Office conducted on this protest. At the hearing, a witness from the TEP was asked by the hearing officer to provide her recollection of Resource's Q&A session. The hearing officer read several of the questions from the document memorializing Resource's answers during the Q&A session to the TEP member, who testified that she had not seen either the initial or finalized version of the document. Tr. at 30-31, 84. Although the TEP member testified that she was able to recall some of the questions, she had limited recall of Resource's answers; to the extent she recalled the answers, her recollection seemed more consistent with the initial version of the Q&A document, than with the final document that the agency agreed more accurately reflected Resource's answers. Tr. at 93, 133, 135-36. Moreover, the initial, less detailed, version of Resource's responses to the questions posed in the Q&A session is more consistent with the technical consensus document concluding that Resource's quotation was technically unacceptable because it explained that the answers given by Resource on October 14, particularly in the areas of collaboration and methods, failed to provide sufficient detail to convince the technical evaluators that its quotation was technically acceptable. AR, Tab 21, Consensus of Resource, at 2-3.

Thus, despite receiving hearing testimony and the parties' post-hearing arguments, we cannot find that the agency's documentation in regard to Resource's Q&A session is sufficient to allow us to review the reasonableness of the agency's judgments. Because the final, mutually agreed-upon version of the Q&A document addresses some of the weaknesses included in the TEP's consensus report that supported Resource's unacceptable rating, this document is at odds with the consensus evaluation report. In addition, the final Q&A document, which the agency accepted as an accurate memorialization of the session, is inconsistent with the testimony of the TEP witness; at a minimum, the final document provides more robust answers than the TEP member recalled during her testimony. Compare AR, Tab 19e, attach., Final Q&A Document for Resource's Oral Presentation, at 3 with Tr. at 135-136. In view of these discrepancies, it is unclear whether the TEP members reasonably understood and considered Resource's answers at the oral presentation. Accordingly, we cannot find that the agency's documentation adequately supports its decision. See e-LYNXX Corp., supra; Checchi and Co. Consulting, Inc., supra.  (Resource Dimensions, LLC, B-404536, February 24, 2011)  (pdf)


Frontier argues that its quote was reasonable and that the CO failed to properly evaluate its quoted price in accordance with the terms of the RFQ. Frontier also argues that the IGE was flawed and should not be used as a basis to determine price reasonableness. The protester further argues that since it was the only HUBZone small business vendor to submit a quote, the CO could not evaluate its price by comparing it to the prices quoted by other small business concerns.

As noted above, the procurement was conducted under simplified acquisition procedures. Simplified acquisition procedures are designed to, among other things, reduce administrative expenses, promote efficiency and economy in contracting, and avoid unnecessary burdens for agencies and contractors. Federal Acquisition Regulation (FAR) sect. 13.002. These procedures provide discretion to COs to use one or more of the evaluation procedures in FAR Parts 14 and 15. See FAR sect. 13.106-2(b); Finlen Complex, Inc., B-288280, Oct. 10, 2001, 2001 CPD para. 167 at 8-10. When using these procedures, an agency must conduct the procurement consistent with a concern for fair and equitable competition and must evaluate quotations in accordance with the terms of the solicitation. In reviewing protests of an allegedly improper simplified acquisition evaluation, we examine the record to determine whether the agency met this standard and exercised its discretion reasonably. Russell Enters. of N. Carolina, Inc., B-292320, July 17, 2003, 2003 CPD para. 134 at 3.

The primary issue here is Frontier’s claim that the CO improperly used an “unreasonable price” determination to reject the quote of a HUBZone business concern. As stated above, the RFQ specifically provided that a BPA would be issued to those vendors who submitted a technically acceptable quote at a reasonable price. RFP para. E.2. The RFQ further stated that price would be evaluated in accordance with the FAR. Id. Under simplified acquisition procedures price reasonableness is determined by the CO. FAR sect. 13.106-3(a). The CO may make a reasonableness determination based on a comparison to an IGE. FAR sect. 13.106-3(a)(2)(vi). Here, the CO, in accordance with the FAR, based her price reasonableness decision on an IGE that was prepared using market research. Frontier’s quote was significantly higher than the IGE and was therefore determined to be unreasonably priced. We do not find this determination to be unreasonable.

The protester also argues that the IGE used here was developed after an inadequate evaluation of the market for the required equipment. In calculating the IGE, the agency reports that it contacted companies in Montana, Idaho and Washington who offered mobile refrigerated units for rent and the prices from these firms ranged from $125 through $175 with variations in pricing schemes depending on length of rental. AR, Tab 2, CO Statement at 6. The agency also did an internet search to establish a price range for similar units meeting OSHA (Occupational Safety and Health Administration) requirements. Finally, the IGE was established by adding a premium amount to an average of the market prices to take into consideration the excessive wear and tear the equipment would experience. Id.

On this record, we have no basis to conclude that the IGE was not reasonably based or that the market research was inadequate. If anything, the adequacy of the agency’s market research was vindicated by the quotes it received from numerous other small business concerns. Frontier’s argument that the IGE was based on an inadequate evaluation of the market reflects mere disagreement with the agency’s assessment and provides no basis for our Office to sustain a protest.  (Frontier Transportation, Inc., B-400345, September 9, 2008) (pdf)
 


In reviewing a protest against an agency’s evaluation of quotations, we examine the record to determine whether the agency’s judgment was reasonable and consistent with the stated evaluation criteria and applicable statutes and regulations. American Artisan Prods., Inc., B-286239, Nov. 29, 2000, 2000 CPD para. 198 at 2. Here, we think that the agency reasonably rejected the quotation as unacceptable based on the protester’s failure to furnish an image demonstrating that the thumbdrive that it was offering contained an external write-protect switch. The RFQ required vendors to submit an image of the write-protect switch, presumably, as noted, to demonstrate the switch’s compliance with the requirement that it extend above the body of the drive so as to be operable by finger (i.e., without the use of a tool). It is the vendor’s responsibility to submit the information requested by the agency for evaluation purposes, and a vendor that does not do so runs the risk that its quotation will be rejected as unacceptable. 3K Office Furniture Distribution GmbH, B-292911, Dec. 18, 2003, 2003 CPD para. 231 at 4. Here, the only image that the protester furnished to the contracting officer prior to the technical evaluation on July 13 was the image of the drive incorporating a biometric switch that it proposed for the top secret drives. Even assuming that this image satisfied the RFQ requirement for an image of a finger-operated write-protect switch with regard to the top secret drives, the fact remains that the protester furnished no image of the switch that it was proposing for the unclassified and secret drives. While the protester maintains that it had previously furnished a color picture of a thumbdrive with an appropriate switch in response to an earlier RFQ that was cancelled, the protester made no reference to the previously submitted image in the quotation that it submitted in response to the RFQ here; given the lack of any reference to the previous submission, we do not see how the evaluators should have been expected to know of its existence and/or the fact that it was an image of the product that Joint Systems intended to furnish here. Accordingly, we think that the evaluators reasonably rejected the protester’s quotation as technically unacceptable for failing to furnish a picture of a write-protect switch conforming to the solicitation requirements for the secret and unclassified drives. (Joint Systems, Inc., B-298573, October 6, 2006) (pdf)


When using simplified acquisition procedures under FAR Part 13, an agency must conduct the procurement consistent with a concern for fair and equitable competition. In reviewing protests against an allegedly improper simplified award selection, we examine the record to determine whether the agency met this standard and exercised its discretion reasonably. Dew Drop Sprinklers & Landscaping, B‑293963, July 15, 2004, 2004 CPD para. 171 at 3. The agency claims that telecommunications services were necessary to test and demonstrate the operability of the KVTS, and that it added the $7,000, which was taken from the same price schedule containing CUI’s $20,000 quotation to make the system operable, to account for these costs because “[t]he government also had to identify the cost of telecommunications within the CUI quotation in order to ensure [that] CUI had presented a viable proposal of reestablishing operability and testing of the KVTS,” given that CUI’s quotation did not specifically indicate that such costs were included. Contracting Officer’s Supplemental Statement at 3. CUI’s claim that the costs for necessary telecommunications were included in its $20,000 lump sum quotation is consistent with its e-mails and quotation, given that the quotation expressly included the acquisition of new cell phone lines and testing of the system, which could not be done without an active telecommunications service. In addition, CUI’s quotation clearly indicated that the $7,000 figure used by the agency in the evaluation was not the total monthly telecommunications charges, but was a proposed increase to the monthly communications charges under CUI’s maintenance contract, and that this proposed increase was not related to CUI’s quotation to make the system operable. Our review reveals no reasonable basis for the agency to assume that the $7,000 increase referred to in CUI’s quotation represented the cost of telecommunications that would be needed to make the system operable under the purchase order. In any case, the record evidences that the contracting officer did not ask CUI whether the costs for necessary telecommunications were included in its quotation or request CUI to separately price the telecommunications charges. Instead, when its quotation was solicited, CUI was asked to provide “a detailed proposal of what work and costs would be required to reestablish KVTS operability,” and for a “[p]roposed cost for the overall effort,” to reestablish the operability of the KVTS. Contracting Officer’s Supplemental Statement at 2; Agency Supplemental Report, Tab H, E-mail from Contracting Officer to CUI (Sept. 9, 2006). Before adding this $7,000 charge to CUI’s quotation for evaluation purposes, the agency, at a minimum, should have requested CUI to verify whether or not the costs for necessary telecommunications to accomplish the purchase order work were included in its $20,000 quotation. In sum, the agency unreasonably added CUI’s proposed $7,000 increase in its telecommunications monthly charge in the KVTS maintenance contract to CUI’s $20,000 quotation without first requesting that CUI verify whether the necessary telecommunications costs were already included in its quotation. On this record, CUI’s $20,000 quotation was the lowest-priced one, and CUI should have been issued the purchase order, if otherwise appropriate. Because we are advised by the agency that the performance under this purchase order has been completed, we recommend that CUI be reimbursed its quotation preparation costs as well as the reasonable costs of filing and pursuing the protest. 4 C.F.R. sect. 21.8(d)(1), (2). CUI should submit its certified claim for costs, detailing the time expended and costs incurred, directly to the agency within 60 days of receiving this decision. (Computers Universal, Inc., B-297552,February 14, 2006)


We find the source selection to be reasonable and in accordance with the terms of the solicitation. Although Dew Drop asserts that it was improper for the agency to consider the relative experience of the two offerors as a discriminator, the RFQ specifically stated that the agency would evaluate experience, along with past performance, technical ability to meet the requirements and price, and make award to the vendor whose quotation provided the best value after considering these factors. Further, while Dew Drop challenges the agency's position that the technical evaluation factors were important, arguing that the project was only a simple one, we note that the RFQ did not make price more significant than the technical factors. On the contrary, the RFQ did not specify the relative importance of the individual evaluation factors and, in the absence of any indication in the RFQ of the relative importance among the individual evaluation factors, they are presumed to be of equal importance. See Hyperbaric Techs., Inc. , B293047.2; B-293047.3, Feb.11, 2004, 2004 CPD 87 at 4; Maryland Office Relocators , B-291092, Nov. 12, 2002, 2002 CPD 198 at 5. Agency officials have broad discretion in determining the manner and extent to which they will make use of the technical and cost evaluation results. Price/technical tradeoffs may be made, and the extent to which one is sacrificed for the other is governed by the test of rationality and consistency with the established factors. See Structural Preservation Sys., Inc. , B-285085, July 14, 2000, 2000 CPD 131 at 7. An agency may properly select a more highly rated quotation over one offering a lower price where it has reasonably determined that the technical superiority outweighs the price difference. See Sawtooth Enters., Inc. , supra. , at4. As explained above, the contracting officer determined that TML's non-price advantages warranted payment of that firm's higher price. Dew Drop has furnished no basis for our Office to question this determination. (Dew Drop Sprinklers & Landscaping, B-293963, July 15, 2004) (pdf)


Here, we find that the contracting officer failed to give any meaningful consideration to e-LYNXX’s substantially lower quotation price, given his inability to explain why Noosh’s superiority was worth the more than 65 percent higher price. More specifically, we question whether the contracting officer had a sufficient basis to perform a rational price/technical tradeoff where he testified that the open posting requirement was a key consideration in his analysis but that he did not understand the requirement or obtain any advice concerning it from anyone that did. We fail to see how the contracting officer can assign value for something he admittedly does not understand and for which he did not seek any advice, and we sustain e-LYNXX’s protest on this basis. (e-LYNXX Corporation, B-292761, December 3, 2003)  (pdf)


Under the circumstances, we find that the USDA's decisions to rate Houston's quotation unacceptable under the weight and balance factor and to not conduct discussions with that firm were reasonable and not unfair. The RFQ informed offerors that award would be made without discussions, RFQ § E.1(g), and it does not appear from the record that the exchanges afforded Commander an opportunity to revise its quotation. Given that Houston failed to provide the required weight and balance sheet, which rendered its quotation unacceptable under this factor, the agency did not have to engage in discussions with Houston to enable it to remedy this deficiency. CDS Network Sys., Inc., B‑281200, Dec. 21, 1998, 98-2 CPD ¶ 154 at 3. (Houston Air, Inc., B-292382, August 25, 2003)  (pdf)


We recognize that the agency may have reasonably desired, and certainly could have required, that technical proposals include a detailed plan, as well as evidence of the vendors' understanding of the requirements and their qualifications and experience. That would be altogether appropriate and within the agency's discretion. Stating such desires and requirements is the purpose of evaluation criteria in a solicitation, and it is to provide transparency in our federal procurement process and fairness for those competing for federal contracts that, as explained above, agencies are required by procurement law to set out in the solicitation the evaluation criteria, and then to follow them. Here, the RFQ did not put vendors on notice of any of the requirements that the agency has now identified. In our view, it would be unfair for the agency, after the fact, to evaluate technical proposals based on criteria that the agency was required to identify before vendors submitted those proposals. See FAR §§ 13.106-1(a)(2), 13.106‑2(a)(2). We therefore sustain the protest. (SKJ & Associates, Inc., B-291533, January 13, 2003)  (pdf)  (text version)


Where an agency is not required to hold discussions or otherwise communicate with vendors regarding past performance information, as is the case where simplified acquisition procedures are employed, see FAR § 13.106-2(b)(2), and the contracting officer has no reason to question the validity of the past performance information, we think that she can reasonably rely on the information furnished without seeking to verify it or permitting the protester an opportunity to rebut it. Lynwood Mach. & Eng'g, Inc., B-285696, Sept. 18, 2000, 2001 CPD ¶ 113 at 7.  Moreover, we note that an agency's past performance evaluation may be based on a reasonable perception of inadequate prior performance, even where the protester disputes the agency's interpretation of the underlying facts.  Quality Fabricators, Inc., B-271431, B-271431.3, June 25, 1996, 96-2 CPD ¶ 22 at 7. Thus, we conclude the agency's actions were unobjectionable.  (John Blood, B-290593, August 26, 2002)


Although an agency is not required to establish a competitive range or conduct discussions under simplified acquisition procedures, we think that where an agency avails itself of these negotiated procurement procedures, the agency should fairly and reasonably treat quoters in establishing the competitive range and conducting discussions. See Finlen Complex, Inc., B-288280, Oct. 10, 2001, 2001 CPD para. 167 at 8-10.  

In sum, we find unreasonable the Corps's competitive range determination that included only Act II's quote. In making this judgment, the Corps apparently mistakenly believed that Act II's quote satisfied all the solicitation requirements and was acceptable. Instead, the record shows that two firms' quotes suffered from similar informational weaknesses that were susceptible of correction through discussions. We sustain KHA's protest because the Corps failed to treat the two firms fairly and equally with respect to conducting discussions.  (Kathryn Huddleston and Associates, Ltd., B-289453, March 11, 2002)


Where an agency is not required to hold discussions or to otherwise communicate with vendors regarding past performance information, as is the case here where simplified acquisition procedures were employed, see FAR sect. 13.106-2(b)(2), and where the evaluators and selection official have no reason to question the validity of the past performance information, they can reasonably rely on the information furnished without seeking to verify it or permitting the protester an opportunity to rebut it. See A.G. Cullen Constr., Inc., B-284049.2, Feb. 22, 2000, 2000 CPD para. 45 at 5.  (Ocean Technical Services, Inc., B-288659, November 27, 2001)


In our view, it was inappropriate for the agency, on the one hand, to request quotes from the vendors for equipment for six locations and to issue a delivery order based on the prices for all six locations, and, on the other hand, for price evaluation purposes, to consider prices for only five locations. Procuring agencies do not have the discretion to announce one evaluation scheme and then follow another in the actual evaluation. Technical Support Servs., Inc., B-279665, B-279665.2, July 8, 1998, 98-2 CPD para. 26 at 3. The record shows that, had the agency compared the quotes based on the prices proposed for all six locations, as requested by the agency, then the protester's quote would have been low. Nonetheless, based on the record here, the selection of the Solvetech system is unobjectionable. The agency solicited quotes orally, which is allowed under FAR sect.13.106-1(c), and while vendors were told that price would be the predominant consideration in the selection decision, vendors were also advised that other factors, such as life-cycle costs, standardization and ease of data extraction would also be considered. Telephone Hearing, Jan. 21, 2000. After evaluating price and technical considerations, the agency reasonably determined that the Solvetech system represented the better value.  (AudioCARE Systems, B-283985, January 31, 2000)


Even under simplified acquisition procedures, award decision is not reasonable where the record does not provide any documentation or explanation which supports the price/technical tradeoff, and the award determination appears to be based entirely on a comparison of total technical point scores without consideration of protester's lower technically scored, but low priced proposal.  (Universal Building Maintenance, Inc., B-282456, July 15, 1999)

Comptroller General - Listing of Decisions

For the Government For the Protester
Latvian Connection General Trading and Construction, LLC, B-409569: May 8, 2014  (pdf) International Waste Industries B-411338: Jul 7, 2015.  (pdf)
B&S Transport, Inc., B-407589, Dec 27, 2012  (pdf) ERIE Strayer Company, B-406131, Feb 21, 2012  (pdf)
Frontier Transportation, Inc., B-400345, September 9, 2008 (pdf) Resource Dimensions, LLC, B-404536, February 24, 2011  (pdf)
Joint Systems, Inc., B-298573, October 6, 2006 (pdf) Computers Universal, Inc., B-297552,February 14, 2006 (pdf)
Dew Drop Sprinklers & Landscaping, B-293963, July 15, 2004 (pdf) e-LYNXX Corporation, B-292761, December 3, 2003  (pdf)
Houston Air, Inc., B-292382, August 25, 2003  (pdf) SKJ & Associates, Inc., B-291533, January 13, 2003  (pdf)  (text version)
Russell Enterprises of North Carolina, Inc., B-292320, July 17, 2003 Kathryn Huddleston and Associates, Ltd., B-289453, March 11, 2002  (PDF Version)
Chant Engineering Company, Inc., B-292140, May 29, 2003 Finlen Complex, Inc., B-288280, October 10, 2001  (PDF Version)
John Blood, B-290593, August 26, 2002 Universal Building Maintenance, Inc., B-282456, July 15, 1999
Ocean Technical Services, Inc., B-288659, November 27, 2001  
AudioCARE Systems, B-283985, January 31, 2000  
   

U. S. Court of Federal Claims

 
U. S. Court of Federal Claims - Listing of Decisions
For the Government For the Protester
Forestry Surveys and Data v. U.S., No. 98-844C, August 12, 1999  
Legal

Protests

Bona Fide Needs Rule
Public Laws
Legislation
Courts & Boards


Rules & Tools
Workforce
Reading

Small Business
 

   
 
 

ABOUT  l CONTACT