Vetcorp objects to the
agency's reliance on the guidance at FAR sect. 14.408‑6 to
determine which of the equally-priced quotes would receive
award. Vetcorp contends that
this regulation applies only to procurements conducted using
sealed bids and that the solicitation here sought "proposals."
See Protest at 3; Comments at 2.
Vetcorp also contends that, as the only HUBZone small business
in this competition, it should have received award.
Specifically, Vetcorp argues that it is entitled to the
evaluation preference set forth at FAR sect. 19.1307(a), which
provides for a 10 percent price preference for HUBZone small
businesses. Vetcorp contends that the HUBZone price preference
must be used to break the tie, instead of drawing lots.
With respect to the
contention that the agency could not look to the guidance in FAR
part 14 because this procurement was not conducted using sealed
bids, the Corps argues that this was a sealed bid procurement
because the solicitation requested that "interested bidders
. . . submit their pricing information."
Agency's Response to Comments at 1-2.
As an initial
matter, we disagree with the Corps that this procurement was
conducted on the basis of sealed bidding.
A fundamental element of sealed bidding is the submission of
sealed bids that are publicly opened.
See FAR sect. 14.101, Elements of Sealed Bidding.
Here, the quotes received were not publicly opened.
Rather, as indicated on the face of the combined
synopsis/solicitation, this procurement was conducted pursuant
to the streamlined procedures of FAR subpart 12.6, which sets
forth procedures for the acquisition of commercial items.
That said, we turn
next to whether the Corps could appropriately look to the
guidance in FAR part 14 to resolve this tie.
We conclude that it could.
In conducting commercial item
procurements under FAR part 12, contracting officers have
discretion to choose among the procedures prescribed in FAR part
13, simplified acquisition procedures; part 14, sealed bidding;
or part 15, negotiation. See
FAR sections 12.102(b), 12.203.
Here, the contracting officer looked to FAR sect. 14.408-6 to
determine which of the equally low‑priced quotes received from
small businesses should receive award.
Vetcorp has not identified any procurement law or regulation, or
any solicitation provision that the Corps violated in using FAR
part 14 to resolve this question.
In fact, even in negotiated procurements conducted under FAR
part 15, we have noted a contracting agency's use of FAR part 14
procedures for determining the award priority among equally
low‑priced proposals. See,
e.g., National Medical Staffing, Inc.; PRS
Consultants, Inc., B-238694, B-238694.2, June 4, 1990, 90-1
CPD para. 530 at 2 (sustained on other grounds); Martin Tool
& Die, Inc., B‑230915.2, 232780, Aug. 11, 1988, 88-2 CPD
para. 132 at 2 n.1. (Vetcorp, Inc.,
B-402519, May 14, 2010) (pdf)