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FAR 7.105:  Content of Acquisition Plans

Comptroller General - Key Excerpts

New The protester asserts that, if properly evaluated, the LCCs for Dell and non-Dell computers would be identical, and therefore the LCCs should be removed from the RFQ. Protest at 7. According to the protester, the only reason the agency decided to consider the LCCs is to "orchestrate a defacto or backdoor sole source award to Dell" through its misapplication of the LCCs. Protester's Comments at 3.

The FAR requires acquisition plans, where appropriate, to discuss how LCCs will be considered and, if they are not to be used, to explain why not. See FAR sect. 7.105(a)(3)(i). The protester acknowledges that LCCs can be a "valid factor" for an agency to consider as it determines the true costs of products or services. Protest at 5. Thus, the protest issue raised here is not whether an agency may reasonably include LCCs in its analysis, but whether those costs could reasonably be anything other than identical for Dell and non-Dell computers and, as the protester argues, not a proper component of the agency's price evaluation.

As an initial matter, assuming that the protester is correct--i.e., if properly evaluated, the LCCs for Dell and non-Dell computers would be identical for all vendors--there is no possibility of prejudice associated with the agency's inclusion of LCC's in the RFQ. Competitive prejudice is an essential element of a viable protest; we will not sustain the protest unless the protester establishes a reasonable possibility that it has been prejudiced by the agency's actions. Armed Forces Hospitality, LLC, B‑298978.2, B‑298978.3, Oct. 1, 2009, 2009 CPD para. 192 at 9-10. In this regard, the protester does not allege that inclusion of the LCCs is restrictive of competition or unfairly favors Dell products per se. To the contrary, the fundamental premise of the protester's argument is that the LCCs would have equal application to all firms. To the extent there is any prejudice associated with the protester's arguments, it stems from the protester's related assumption that the agency will apply the LCCs in a way to disadvantage providers of non-Dell computers. These allegations merely anticipate improper agency action, however, and are only cognizable after the agency has completed its evaluation of vendors' quotations; at this juncture, the allegations are speculative and premature. Paramount Group, Inc., B-298082, June 15, 2006, 2006 CPD para. 98 at 6‑7.

Moreover, we find unpersuasive the protester's underlying assumption, namely, that if an agency ultimately calculates LCCs as identical for certain competing offerors, having included LCCs as part of the evaluation was improper. Having acknowledged that LCCs are a useful agency consideration in calculating its true total cost, the protester here attempts to carve out an exception--unless the LCCs are identical. Of course, the knowledge that LCCs are identical for certain offerors is also useful information for the agency, and we see nothing inherently unreasonable in a solicitation announcing that LCCs will be considered, even if those costs are ultimately determined to be equivalent. The protester's own allegation is that, where an agency finds LCCs to be equivalent, the agency "should," not "must," remove the LCCs from the solicitation. Protest at 7. Because the protester offers no persuasive legal basis for its claim that equivalent LCCs may not be included in a solicitation--nor does it even assert as much--we see no basis to challenge the reasonableness of the agency's inclusion of LCCs in this solicitation.  (NCS Technologies, Inc., B-405192.2, October 27, 2011)  (pdf)

Comptroller General - Listing of Decisions

For the Government For the Protester
New NCS Technologies, Inc., B-405192.2, October 27, 2011  (pdf)  


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