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FAR 14.408:  Equal Low Bids

Comptroller General - Key Excerpts

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)

Comptroller General - Listing of Decisions

For the Government For the Protester
Vetcorp, Inc., B-402519, May 14, 2010)  (pdf)  
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