GCS protests, among other things, that the agency improperly
issued the delivery order to GSI in an amount exceeding the
applicable $5 million limitation, as reflected in the terms of
the solicitation against which GCS submitted its quotation.
Under the terms of FAR Part 13 applicable to this solicitation,
the contracting officer was not authorized to use simplified
acquisition procedures to acquire supplies and services when the
anticipated award exceeded $5 million. We are unpersuaded that
the agency had a reasonable expectation that, “due to the
introduction of competition,” the value of this acquisition
would decrease below $5 million. Nothing in the record indicates
that the agency conducted any market survey or Internet product
search to support its view that the required items could be
purchased at a price below the $5 million threshold. To the
contrary, the only documented research performed by the agency,
conducted in connection with the planned sole-source award to
GSI, indicated that the procurement value was [DELETED]. AR, Tab
6, Price Reasonableness Memo, at 3. In short, the record shows
that the agency’s estimated value of this acquisition was in
excess of $5 million, yet the agency proceeded with this
procurement on the basis of authority that had application only
to acquisitions below $5 million. Further, the record indicates
that the agency’s violation of the applicable FAR Part 13
provisions prejudiced GCS. GCS maintains that, had the agency
amended the solicitation to place vendors on notice of its
intent to proceed pursuant to the $5.5 million threshold, GCS
would have added additional enhanced features to its product,
just as GSI did in its quotation that exceeded the $5 million
threshold, and that GCS’s enhancements would have led the agency
to conclude that GCS’s quotation reflected the best value to the
government. Protester Comments, Dec. 11, 2006, at 19-21. In this
context, GCS states that it considered the $5 million threshold
in FAR Part 13 to constitute a ceiling on its quotation. Id. We
view GCS’s understanding in this regard to be reasonable. (Global
Communications Solutions, Inc., B-299044; B-299044.2,
January 29, 2007) (pdf)
At the outset, we disagree with the
protester that WAPA was required to solicit full and open
competition in conducting this procurement. As noted above, the
RFQ was issued pursuant to FAR subpart 13.5, which allows
simplified acquisition procedures for the acquisition of
commercial items less than $5 million. 41 U.S.C. sect.
253(g)(1)(B) (Supp. III 1997). Procurements conducted under
simplified acquisition procedures are specifically exempt from
the statutory requirement to obtain full and open competition;
instead, contracting officers are required to promote
competition to the maximum extent practicable. 41 U.S.C. sect.
253(g)(4) (1994); FAR sect.sect. 13.104, 13.501(a). (American
Eurocopter Corporation, B-283700, December 16, 1999)
Here, we conclude that the
selection decision was flawed because the contracting officer
made no qualitative comparison of the technical differences
between the proposals to determine whether the awardee's
technical superiority justified the price premium. Further, the
award decision was not adequately supported and documented.
(Universal
Building Maintenance, Inc., B-282456, July 15, 1999)
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