In its protests, Carahsoft alleges that MicroLink's quotation failed to meet three of the minimum technical specifications of the RFQ and therefore should have been found to be technically unacceptable.

Where, as here, an agency issues an RFQ to FSS contractors under FAR subpart 8.4 and conducts a competition (see FAR sect. 8.405), we will review the record to ensure that the agency’s evaluation is reasonable and consistent with the terms of the solicitation. See GC Servs. Ltd. P’ship, B-298102, B-298102.3, June 14, 2006, 2006 CPD para. 96 at 6; RVJ Int’l, Inc., B-292161, B-292161.2, July 2, 2003, 2003 CPD para. 124 at 5. In reviewing a protest challenging an agency’s technical evaluation, our Office will not reevaluate the quotations; rather, we will examine the record to determine whether the agency’s evaluation conclusions were reasonable and consistent with the terms of the solicitation and applicable procurement laws and regulations. OPTIMUS Corp., B-400777, Jan. 26, 2009, 2009 CPD para. 33 at 4.

Carahsoft argues that Microlink’s quotation did not comply with technical specification B-8. MicroLink’s quotation provided, for technical specification B-8, that its system [REDACTED]. AR, Tab 7, MicroLink’s Quotation, at 13. This failed to account for modification No. 6, which tightened the effective date for the implementation of the B-8 requirement from within 1 year of implementation to any time after implementation. Carahsoft argues that this failure rendered MicroLink’s quotation unacceptable.

The agency responds that MicroLink’s “mislabeling” of its response to technical specification B-8 did not render its quotation technically unacceptable because other information provided within MicroLink’s quotation and its answers to questions asked after receipt of its quotation evidence that MicroLink’s proposed system fully satisfied the requirement. Supplemental (Supp.) AR at 6. In this regard, NGA argues that when read together MicroLink’s responses to technical specifications B-7 and B‑8 show compliance with the B-8 specification. Id. For example, MicroLink’s B‑7 response stated, [REDACTED]. AR, Tab 7, MicroLink’s Quotation, at 11. In response to technical specification B-8, MicroLink stated, [REDACTED]. Id. at 13. From these comments, the agency argues that MicroLink’s quotation clearly demonstrates that it is [REDACTED] as required by B-8, since it can provide an [REDACTED]. Supp. AR at 6. NGA also references MicroLink’s answer to the question posed by NGA during the evaluation of quotations about the hardware computing requirements required to process half a billion records. MicroLink responded to this question that the agency would need [REDACTED]. AR, Tab 9, MicroLink Response to Agency Clarification (Jan. 13, 2009). The agency argues that this demonstrates that MicroLink’s software currently complies with the requirement of supporting half a billion records at any time after implementation since scalability is a function of hardware configuration. Supp. AR at 6. According to the agency, MicroLink’s answer was also consistent with Carahsoft’s answer, which identified [REDACTED]. Id.

However, while MicroLink may have the capacity to scale up to the required half a billion records, nowhere in its quotation does it agree to do so at any time after implementation as required by the RFQ’s minimum technical specifications. The quoted language referenced by the agency describes the performance capability of the software and the means of implementing this capability, and does not address when this capability will be fully available. To the contrary, MicroLink’s quotation only promised [REDACTED]. Clearly stated solicitation technical requirements are considered material to the needs of the government, and a quotation that fails to conform to such material terms is technically unacceptable and may not form the basis for award. 4D Sec. Solutions, Inc., B-400351.2, B-400351.3, Dec. 8, 2008, 2009 CPD para. 5 at 4. A vendor is responsible for affirmatively demonstrating the merits of its quotation and risks the rejection of its quotation if it fails to do so. Id. Thus, we find unreasonable the agency’s finding that Microlink’s quotation satisfied the minimum requirement that the scalability be available any time after implementation. We sustain the protest on this basis.  (Carahsoft Technology Corporation, B-401169; B-401169.2, June 29, 2009)  (pdf)

The RFQ sought quotations from firms holding FSS contracts for therapeutic hospital mattresses and pumps. The RFQ required that vendors provide "descriptive literature and/or brochure information of the mattress specifications and other characteristics specified in the description." RFQ at 3. The RFQ, as amended, provided for the issuance of an order to the vendor whose quotation was determined to represent the best value to the government, with quotations to be evaluated on the basis of the following equally weighted factors: technical, past performance and price. The technical factor consisted of six equally weighted subfactors: ease of use, pressure management, stability and reliability, comfort, warranty, and delivery.

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Encompass argues that the agency improperly evaluated its proposed mattress and unreasonably placed the order for Sizemore's higher priced mattress.

In the context of an RFQ, where an agency solicits FSS vendors responses and uses an evaluation approach similar to that used in FAR Part 15 negotiated procurements, our Office will review the agency's actions to ensure that the evaluation of vendors' submissions was reasonable and consistent with the solicitation's evaluation criteria. Advanced Tech. Sys., Inc., B‑298854; B-298854.2, Dec. 29, 2006, 2007 CPD para. 22 at 8. A protester's mere disagreement with the agency's judgment or its belief that its quotation deserved a higher technical rating is not sufficient to establish that the agency acted unreasonably. Id. at 8-9.

Encompass complains that the agency improperly evaluated its mattress's perimeter firmness as "poor." As indicated above, in evaluating the perimeter firmness of Encompass's mattress the agency noted that there was "[n]o literature provided re [initial load deflection], and [the evaluators] 'didn't sense any firmness at [the] edge'" of the sample mattress provided. AR, exh. 9, Technical Evaluation, at 4. The agency noted that the firmness of the perimeter of the mattress was important because "[o]ur patient population is vulnerable to falls since many of them have mobility problems associated with aging or medical conditions such as spinal cord injuries. The perimeter firmness of the mattress is important in reducing the risk of patients slipping or falling since a firm mattress perimeter provides more stability as they enter and exit the beds." AR, exh. 18, Agency Letter to Encompass (Dec. 30, 2008), at 2. Because Encompass failed to provide the required documentation to support this subfactor and the evaluators found that the perimeter of its proposed mattress appeared "mushy," we have no reason to question the agency's evaluation of this subfactor.

Encompass also complains that it should not have been downgraded because its proposed mattress lacked side handles. Encompass primary argument in support of this contention was that Sizewise's mattress with handles was not listed on its FSS contract. However, the agency has provided evidence and Encompass now concedes that Sizewise's proposed mattress is on its FSS contract. Agency E-Mail to GAO (Feb. 19, 2009), attach.; Encompass Letter to GAO (Feb. 24, 2009). Encompass nevertheless argues that handles are ordinarily not provided "for apparent safety reasons," but that its quotation indicated that it would "provide handles if, after training clinical personnel [it was determined] that handles were a requirement." Protester's Comments at 3. However, as the agency advised Encompass, "[t]he lack of handles can increase . . . injuries [to] our staff when they need to reposition or turn mattresses." AR, exh. 18, Agency Letter to Encompass (Sept. 27, 2008), at 1. Given that Encompass did not unequivocally offer the side handles in its quotation notwithstanding the solicitation's expressed preference for this feature, the agency could reasonably downgrade its proposal under this subfactor.

Encompass finally contends that the agency failed to produce documentation that fully supported its technical evaluation of the mattress proposed by Sizewise or of the past performance evaluation. Inasmuch as no protective order was issued in this case because the protester was not represented by counsel, we reviewed, in camera, the agency's documentation regarding the evaluation of Sizewise's quotation, which contained material that was protected by the agency, and the other evaluation documentation in the file, and have found that this documentation reasonably supports the agency's evaluation conclusions.  (Encompass Group LLC, B-310940.3, March 17, 2009) (pdf)

USGC argues that the agency failed to conduct meaningful discussions in accordance with FAR Part 15 because the exchanges the agency had with the vendors were assertedly discussions and the “clarification question” USGC received had insufficient specificity to allow USGC to address the agency’s concerns.

There is no requirement in FAR Subpart 8.4 that an agency soliciting vendor responses prior to issuing an order under an FSS contract conduct discussions with vendors in accordance with FAR sect. 15.306 regarding the content of those responses. Avalon Integrated Servs. Corp., B‑290185, July 1, 2002, 2002 CPD para. 118 at 4. However, exchanges that do occur with vendors in a FAR Subpart 8.4 procurement, like all other aspects of such a procurement, must be fair and equitable. See COMARK Fed. Sys., B- 278343, B-278343.2, Jan. 20, 1998, 98‑1 CPD para. 34 at 5. Our Office has looked to the standards in FAR Part 15, and the decisions interpreting that part, for guidance in determining whether exchanges with vendors under a FAR Subpart 8.4 procurement were fair and equitable, for example, in situations where the agency’s approach in conducting exchanges with the vendors was like FAR Part 15 discussions (in which case the discussions should be meaningful). See TDS, Inc., B-292674, Nov. 12, 2003, 2003 CPD para. 204 at 6.

Here, however, the RFQ did not indicate that the agency would conduct discussions like those described in FAR Part 15 and, in fact, the exchanges conducted with the vendors were not like FAR Part 15 discussions. As noted above, the RFQ invoked FAR Subpart 8.4 procedures, did not suggest that FAR Part 15 procedures would apply, and announced that discussions were not contemplated. See RFQ at 1. In addition, the exchanges involved the agency’s request for certain limited “clarifications” from all of the vendors that submitted quotations regarding certain weaknesses and uncertainties that the TET found in the initial evaluation of those quotations. Although the responses to the clarification questions were considered in the technical evaluation and led to one vendor’s quotation receiving a higher technical rating, the agency did not allow any vendor an opportunity to modify its quotation, specifying in its clarification requests that quotation revisions would not be accepted. Thus, because the approach to exchanges here were not like FAR Part 15 discussions, we do not believe that FAR Part 15, and the decisions interpreting that part, should be the applicable standard in deciding whether the exchanges in this FSS procurement were fair and equitable.

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In sum, we find the agency’s exchanges with the vendors and the evaluation of the vendors’ responses were reasonable, fair, and equitable. In this respect, each vendor received pertinent questions concerning their quotations and revisions to their quotations were not invited. The agency then evaluated the vendors’ responses to determine if the initial evaluated weaknesses were overcome by the vendors’ explanations. The agency documented why it found that FedConsulting’s clarification responses alleviated its concerns regarding evaluated weaknesses and uncertainties, and why it found that USGC’s clarification response did not do the same. While USGC disagrees with this evaluation, it simply has not shown why the agency’s evaluation and exchanges with the vendors were not reasonable. Id.  (USGC Inc., B-400184.2; B-400184.3; B-400184.4, December 24, 2008) (pdf)

Seaborn argues that the RFQ’s call for specific on-site supervisory personnel constitutes an improper requirement that vendors price non-FSS services as part of their quotations. Protest at 5-7. Seaborn cites Simplicity Corp., B-291902, Apr. 29, 2003, 2003 CPD para. 89, and other decisions of our Office, for the proposition that non‑FSS products and services may not be purchased using FSS procedures; instead, their purchase requires compliance with generally applicable procurement laws and regulations, including those requiring the use of competitive procedures. See, e.g., OMNIPLEX World Servs. Corp., B‑291105, Nov. 6, 2002, 2002 CPD para. 199; Pyxis Corp., B-282469, B‑282469.2, July 15, 1999, 99-2 CPD para. 18 at 3-4. VA responds that it is “not attempting to procure supervisory services for VA employees or other contractors,” but rather is providing for appropriate contract administration and supervisory services that are inherent in the cost of properly administering the contract. AR at 5. VA points out that, in a non-personal services contract, it cannot provide government supervision of contractor personnel. Id.

We agree with the protester. The RFQ calls for the successful vendor to supply specifically designated and qualified on-site supervisors. As noted, the required personnel are described in detail in the RFQ and have specific minimum experience, capability, and performance requirements. RFQ at 4, 8. Our review of the pertinent FSS contract, “621 I, Professional and Allied Healthcare Staffing Services,” reveals no provision for on-site supervisory personnel or services, and VA points to no such provision.[2] We are not persuaded by the agency’s argument that the specified supervision is unobjectionable because, essentially, supervision by the contractor is inherent in non‑personal services contracts. Even if the agency is correct that some level of supervision necessarily must be provided by the contractor under a non-personal services contract, this “inherent” supervision is something quite different, we think, from an agency’s specifying that specific personnel are to be provided and that supervision will be performed in a particular manner. Even where non-FSS products and services are viewed as incidental or integral to FSS items, they may not be purchased using FSS procedures. SMS Sys. Maint. Servs., Inc., B-284550.2, Aug. 4, 2000, 2000 CPD para. 127 at 2 n.2, citing Pyxis Corp., supra, at 3-4; see Tarheel Specialties, Inc., B‑298197, 298197.2, July 17, 2006, 2006 CPD para. 140 (issuance of FSS task order was improper where RFQ requirements for a “site supervisor” and other labor positions were not “listed in or mapped to” the successful vendor’s FSS contract). Accordingly, we sustain the protest on this ground.  (Seaborn Health Care, Inc., B-400429, October 27, 2008) (pdf)

Allmond complains that in not furnishing the firm a copy of the RFQ, DEA improperly denied it, the incumbent FSS contractor since 2001, an opportunity to compete for DEA’s follow-on requirements.  The FSS program, which is directed and managed by GSA, provides federal agencies with a simplified process for obtaining commonly used commercial supplies and services at prices associated with volume buying. FAR sect. 8.402(a). The procedures established for the FSS program satisfy the general statutory requirement for full and open competition. See 41 U.S.C. sect. 259(b)(3) (2000); FAR sections 6.102(d)(3), 8.404(a); Sales Res. Consultants, Inc., B-284943, B-284943.2, June 9, 2000, 2000 CPD para. 102 at 3.  In this case, the agency issued the RFQ for its follow-on requirements to five FSS contractors, two of which submitted quotations. Generally, for orders not exceeding the maximum order threshold, the solicitation of quotations from three FSS contractors able to meet the agency’s needs is adequate. FAR sect. 8.405-2(c)(2)(ii); see Computer Universal, Inc., B-291890, B-291890.2, Apr. 8, 2003, 2003 CPD para. 81 at 2. The applicable statute[1] and regulations simply do not require an agency to solicit the incumbent FSS contractor. See Cybertech Group, Inc. v. United States, 48 Fed. Cl. 638, 648 (2001). Accordingly, we conclude that DEA complied with the applicable competition requirements here.  (Allmond & Company, B-298946, January 9, 2007) (pdf)

Because GSA administers the FSS program, we solicited GSA’s views on the responsibility determination issue. In its filing, GSA notes that the purpose of the FSS program, as set forth in FAR Part 38, is to provide federal agencies with a simplified process of acquiring commercial supplies and services. In furtherance of this goal, GSA states, it is responsible for awarding indefinite-delivery contracts in accordance with all applicable statutory and regulatory requirements, including compliance with the requirements relating to contractor responsibility (see FAR sect. 38.101(d), (e)). GSA concludes that, because it is tasked with making determinations of responsibility pertaining to the award of FSS contracts, ordering agencies, while not precluded from doing so, are not required to make a responsibility determination prior to placing an FSS order. Letter from GSA to GAO, July 26, 2006, at 1-3. We agree.  Responsibility is a contract formation term that refers to the ability of a prospective contractor to perform the contract for which it has submitted an offer; by law, a contracting officer must determine that an offeror is responsible before awarding it a contract. See 41 U.S.C. sect. 253b(c), (d); FAR sect. 9.103(a), (b). The concept of responsibility expressly applies to “prospective contractors”--not “current” or “existing” contractors--a limitation that is repeated throughout the applicable statutes and regulations, and that indicates that the requirement for a responsibility determination applies before award of a contract. See, e.g., 41 U.S.C. sect. 403 (“As used in this Act . . . the term ‘responsible source’ means a prospective contractor . . . .”); FAR sect. 9.100 (“This subpart prescribes polices, standards, and procedures for determining whether prospective contractors . . . are responsible”); FAR sect. 9.102(a) (“This subpart applies to all proposed contracts with any prospective contractor . . . .”); and FAR sect. 9.103(c) (“A prospective contractor must affirmatively demonstrate its responsibility . . . .”). Consistent with this statutory and regulatory framework, once an offeror is determined to be responsible and is awarded a contract, there is no requirement that an agency make additional responsibility determinations during contract performance. E. Huttenbauer & Son, Inc., B-258018.3, Mar. 20, 1995, 95-1 CPD para. 148 at 2 (holding that a contracting officer was not required to make a new responsibility determination before deciding whether to exercise an option because the concept of responsibility has no applicability with respect to a contract once that contract has been awarded). Contrary to the protester’s position, the extent of the requirement for a determination of responsibility is not tied to the type of contracting vehicle that the government elects to use for an acquisition; thus, there is no basis to conclude that the requirement for a responsibility determination is broader for orders placed under FSS contracts. In this regard, we note that FAR sect. 8.405 and sect. 8.406 set forth the ordering procedures and ordering activity’s responsibilities, respectively, with regard to FSS contracts; there is no requirement in these provisions to make a responsibility determination. In sum, we conclude that the initial responsibility determination made by GSA in connection with the award of the underlying FSS contract satisfies the requirement for a responsibility determination regarding that vendor and that there is no requirement that an ordering agency perform separate responsibility determinations when placing orders under that contract. In view of our conclusion, ATS’s challenge to HUD’s consideration of PSI’s responsibility here does not give rise to a valid basis of protest since HUD was not required to perform a responsibility determination. (Advanced Technology Systems, Inc., B-296493.6, October 6, 2006) (pdf)

In a related argument, MBE asserts that the agency should have placed orders under the protester’s FSS contract instead of competing the requirement because, under the FSS, no further competition is required. In this regard, MBE notes that the agency has previously relied upon Federal Acquisition Regulation (FAR) sect. 8.404 in making FSS purchases, and that FAR sect. 8.002 makes the General Services Administration (GSA), which administers the FSS, a required source of supply. While MBE concedes that use of its FSS contract is not mandatory (Supplemental Protest at 1), it maintains that the agency nevertheless was required to order against its FSS contract based on these FAR provisions and Department of Defense (DoD) policy. MBE’s assertions are without merit. Under a mandatory FSS contract, an agency generally must order its requirements under that FSS if its minimum needs will be met by the products or services listed in the schedule. Adams Magnetic Prods., Inc., B‑256041, May 3, 1994, 94-1 CPD para. 293 at 3. However, as conceded by MBE, its FSS contract is not mandatory; thus, an agency’s use of that contract is voluntary. There is nothing else in the FAR, or elsewhere, that compelled the agency here to meet its requirements under MBE’s FSS contract. FAR sect. 8.404 simply provides guidance on the use of the FSS--e.g., restricting competition to the FSS and eliminating the need for additional determinations of fair and reasonable pricing; it does not require agencies to use the FSS. Similarly, while the list of required sources found in FAR sect. 8.002 places non-mandatory FSS contracts above commercial sources in priority, it does not require an agency to order from the FSS. Further, although an agency’s placement of an FSS order indicates that the agency has concluded that the order represents the best value (FAR sect. 8.404(d)), the regulation does not establish a presumption that all FSS contractors represent the best value, such that the agency would be required to purchase from an FSS contractor. Our conclusion is not changed by MBE’s assertion that DLA has previously placed FSS orders for weapon systems and nuclear application programs and that other agency’s have competed their needs through FSS contracts. Each federal procurement stands on its own; the fact that DLA and other agencies may have made FSS contract purchases in the past does not require DLA to do so here. Sabreliner Corp., B-275163 et al., Dec. 31, 1996, 96-2 CPD para. 244 at 2 n.2. MBE’s reliance on a letter from DoD’s Director of Defense Procurement and Acquisition Policy on use of the FSS is similarly misplaced. The letter represents an internal matter of executive policy for the guidance and benefit of government personnel, and does not have the force and effect of law. Thus, the fact that the procurement may not conform to it does not represent a valid basis for protest. American Contract Servs., Inc., B‑225182, Feb. 24, 1987, 87-1 CPD para. 203 at 4. In any event, while the letter provided guidance on the use of the FSS, it did not require its use. (Murray-Benjamin Electric Company, LP, B-298481, September 7, 2006) (pdf)

The agency originally sought the services here under RFQ No. W91QUZ-05-Q-0005, which was set aside for small business concerns. This resulted in issuance of a task order to McLane Advanced Technologies, LLC, which was followed by the filing of size protests with the Small Business Administration (SBA) challenging McLane’s size status. SBA determined that McLane was not a small business concern, and subsequently denied McLane’s appeal of the determination. Thereafter, the Army terminated McLane’s task order and, on December 6, 2005, posted RFQ-0001 on the General Services Administration’s (GSA) e-Buy electronic service, requesting that vendors holding a specified FSS contract submit quotations for a base year, with four 1-year options. This RFQ is not set aside for small businesses. GAITS asserts that the RFQ should be aside for small businesses because it was previously issued on a set-aside basis. According to GAITS, based on the principles of equity and fairness, where an agency initially competes a requirement as a small business set-aside, it should be required to complete the competition on that basis. The protester also asserts that the Army has violated Federal Acquisition Regulation (FAR) sect. 19.506 requirements regarding the withdrawal of set‑asides. The protest is without merit. As noted above, the agency conducted this procurement as an FSS acquisition under FAR part 8.4. FAR sect. 8.404(a) specifically provides that FAR part 19 (Small Business Programs) does “not apply” (except under circumstances not relevant here) to orders placed against FSS contracts. Thus, the agency was not required to set the requirement aside in the first instance, and was not precluded from subsequently resoliciting the requirement on an unrestricted basis. In this latter regard, we have specifically held that the FAR exempts task orders issued under FSS contracts from application of the set-aside withdrawal requirements found in FAR sect. 19.506. Millennium Data Sys., Inc., B‑292357.2, Mar. 12, 2004, 2004 CPD para. 48 at 9‑10. The protester’s belief that equity and fairness dictate that the set-aside restriction be maintained under the reissued RFQ does not provide a basis for us to conclude that the agency was required to do so.  (Global Analytic Information Technology Services, Inc., B-297200.3, March 21, 2006) (pdf)

FAR sect. 8.405-2 requires, where an agency is ordering FSS services at a value exceeding the micro-purchase threshold and requiring a statement of work (or establishing a BPA for such services), that the agency follow certain competitive procedures in the acquisition, including issuing a solicitation with a statement of work and evaluation criteria, and then evaluating responses received using those evaluation criteria. Our decision stated the general rule regarding the lack of a requirement for competition under the FSS; to the extent that the agency’s contention in its request for reconsideration is that there are situations in which subpart 8.4 of the FAR requires agencies to issue solicitations and conduct competitions before an FSS order can be placed, its point is well taken. That, however, does not warrant granting the request for reconsideration of the merits of our decision. The point of the above-quoted language of our decision, as well as the crux of the decision itself, is that whenever an agency induces vendors to compete based on stated requirements and specified ground rules, the agency is not free to disregard either those requirements or those ground rules--regardless of whether the agency initiated the competition voluntarily or was required to do so by a particular provision in FAR subpart 8.4. We view it as fundamental to any acquisition that competitors be treated fairly, Armour of Am., B‑237690, Mar. 19, 1990, 90-1 CPD para. 304 at 3, and fairness in competitions for federal procurements is largely defined by an evaluation that is, as we indicated in our decision, reasonable and consistent with the terms of the solicitation. While we believe that the government owes this basic fairness in the conduct of a competition to the competitors, even where no specific provision in a particular regulation calls for it, we note that in FAR sect. 8.405-2, which the agency states it was following here, it is explicitly required: the “ordering activity shall evaluate all responses received using the evaluation criteria provided to the schedule contractors.” FAR sect. 8.405‑2(d). Nothing in FAR sect. 8.405-2, nor any aspect of what the agency calls “the relaxed competition requirements of the FSS Program,” waives the requirement for fairness in the conduct of a federal procurement. (Environmental Protection Agency--Reconsideration, B-297077.3, January 25, 2006)  (pdf)

We sustain the protest because the record shows that the agency erroneously concluded that HMI’s quotation met the stated requirements and erroneously downgraded Haworth under the “environmental factors” evaluation factor. Based on the record, including the agency’s position during this protest, it appears that the agency overstated its actual needs, and that either the agency did not consider certain requirements to be significant to its overall needs, or the agency would find some items that deviated from the requirements to be acceptable. For example, the agency now characterizes the stacking chair requirement as an “incidental RFQ requirement.” Supplemental Legal Memorandum at 14. (Haworth, Inc., B-297077; B-297077.2, November 23, 2005) (pdf)

The FSS program, directed and managed by GSA, gives federal agencies a simplified process for obtaining commonly used commercial supplies and services. The procedures for making purchases under the FSS program are set forth in Federal Acquisition Regulation (FAR) Subpart 8.4. When using these procedures, an agency is not required to issue a solicitation to request quotations, but rather may simply review vendors' schedules and, using business judgment to determine which vendors' goods or services represent the best value and meet the agency's needs at the lowest overall cost, may directly place an order under the corresponding vendor's FSS contract. FAR Section 8.405-1; KPMG Consulting LLP , B-290716, B-290716.2, Sept. 23, 2002, 2002 CPD Paragraph 196 at 10-11. This is contrasted with situations where an agency issues a request for quotations (RFQ) and thus shifts the burden to the vendors for selecting items from their schedule. In those instances, an agency must provide guidance about its needs and selection criteria sufficient to allow vendors to compete intelligently. See, e.g., KPMG Consulting LLP , supra , at 10-11. However, when an agency reviews competing vendors' schedule offerings but does not shift to vendors the burden of selecting items to propose, there is no requirement that vendors be given notice of the agency's needs or the selection criteria. See Merck & Co., Inc. , B- 295888, May 13, 2005, 2005 CPD Paragraph 98 at 16; COMARK Fed. Sys. , B-278343, B-278343.2, Jan. 20, 1998, 98-1 CPD Paragraph 34 at 4- 5. Here, the agency did not issue an RFQ to FSS vendors or shift the burden to vendors to determine what to quote. In selecting the vendor with which to place the order, the agency merely distinguished between vendors' products based on special features that were discernable from product literature reviewed. Although the protester disagrees that LAN compatibility is discernable from the product literature, the agency provided our Office with the product literature that it reviewed and explains how the OIT was able to determine LAN compatibility from these copier manuals. The agency also notes that the brand of copiers quoted by MBS is not compatible with the agency's LAN network, and MBS has provided no evidence that they are compatible. Furthermore, MBS admits that it can provide no other brand copiers. As GSA explains, FAR Section 8.405-1(c) specifically states that an agency "may consider, among other factors" past performance, special features, trade-in considerations, and delivery terms in selecting among competing vendors, and, as discussed above, an agency is not required to disclose the nature of these desired or required special features when it requests quotations from vendors, where, as here, the agency does not shift to vendors the burden of selecting items to propose. Therefore, the agency did not act improperly by considering special features such as LAN capability, security capabilities, or past performance here. (Metro Business Systems, LLC, B-296371.2, July 13, 2005)  (pdf)

Knoll also contends that the award to Trade Products was improper because the Trade Products FSS contract will expire prior to the end of the performance period for the TOPRE contract.¹ As explained above, the performance period for the TOPRE contract was anticipated at the time of award to be approximately 2 years, with an option period that could extend performance for a total not to exceed 36 months. Trade Products currently has an FSS contract for the work to be provided under the TOPRE contract, which will expire on January 31, 2006. Knoll notes that the TOPRE contract award in December 2004 would mean that the performance of the contract would conclude by approximately December 2006, and would thus necessarily extend (with or without exercising the TOPRE contract option period) beyond the expiration of the Trade Products FSS contract. The Trade Products FSS contract, however, is in its first of three 5-year performance periods and will be eligible for a 5-year renewal at the conclusion of the current performance period in January 2006. We solicited the views of GSA on this matter, and GSA advised that it regards FSS contracts as being valid for purposes of award of a contract utilizing a schedule as long as there are option periods that can be exercised that would cover the contract award period, and there is no indication that the FSS contract option will not be exercised. GSA Response at 2-3. We agree with GSA and, therefore, deny this ground of protest. (Knoll, Inc.; Steelcase, Inc., B-294986.3; B-294986.4, March 18, 2005) (pdf)
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¹ Total Office Package and Relocation Effort (TOPRE)

Crestridge finally contends that the agency's technical evaluation was unreasonable and that its quotation was technically superior to District's. Based on our review of the record, we agree that the technical evaluation was flawed. The record simply does not support the agency's conclusion that Crestridge's quotation was technically inferior to District's under the technical implementation factor (much less significantly technically inferior, as indicated by the evaluation point scores for the quotations under this factor). For example, the agency asserts that Crestridge's quotation was too general and lacked detail about the firm's technical approach, and provided insufficient detail to determine the extent of available labor to accomplish the required services. Procurement Summary at 3. However, the record shows that Crestridge's quotation was more detailed than District's (and twice as lengthy) regarding the services to be provided and labor hours proposed, and Crestridge provided more detailed information than District about the personnel proposed to perform the work. Moreover, in many instances where Crestridge was criticized for not providing specific information--such as specifics concerning its project schedule, and "proof" that its personnel were "certified" or professionally trained--a review of District's quotation shows that this firm also did not provide the information but was not similarly downgraded. In sum, based on the record, we find the agency's technical evaluation to be unreasonable, and given the predominant weight of the technical evaluation in the evaluation, we conclude that there is a reasonable possibility that this error prejudiced the protester. (Crestridge, Inc., B-295424, February 23, 2005) (pdf)

Out of a possible 100 points, CSC's technical score was 70 and KEI's technical score was 55. CSC's evaluated cost/price ($22,806,569) was 248,418, or approximately 1 percent, higher than KEI's evaluated cost/price ($22,558,151). GSA determined that CSC's higher technically rated, higher cost/price quotation represented the best value to the government. On June 9, GSA issued the task order to CSC. The "grand total" of the CSC task order was $21,470,101.54. CSC's Task Order, June 9, 2004, at 2. The task order stated that the total of non-schedule other direct cost items was below the $25,000 amount and that "[n]o other nonschedule items are authorized under this task order." Id. The task order also stated that the "[c]ontractor's most recent updated proposal in response to this solicitation [ i.e., CSC's May 28 quotation] is hereby incorporated into this task order." Id. KEI protests, among other things, that GSA could not properly issue the task order to CSC because, according to CSC's revised final cost/price quotation of May 28, the BEA products were not being purchased by CSC through a vendor's FSS contract, but rather were being purchased by CSC pursuant to a non-schedule "alliance agreement" between CSC and BEA, which was not in accordance with the rules governing the use of the FSS and the terms of the RFQ. We agree.  (KEI Pearson, Inc., B-294226.3; B-294226.4, January 10, 2005) (pdf)

Pitney Bowes first protests that the agency lacked a proper basis to cancel the initial delivery order. Pitney Bowes does not dispute that its submission failed to reflect any prices for meter head bases or scales in the option years. Nonetheless, Pitney Bowes maintains that the RFQ only sought vendors quotations to purchase meter head bases and scales during the base year, and that no such purchases were contemplated during the option years. The record is to the contrary. As noted above, the solicitation expressly advised the vendors that they were to complete the following pricing, that [t]he number of units to be provided in the option years has not been determined, and that the vendors quotations for the option-year quantities would be used for the purpose of evaluating bids. RFQ at 1. Accordingly, it is clear that quotations for all line items, including option-period line items was required. (Pitney Bowes Inc., B-294868; B-294868.2, January 4, 2005) (pdf)

In addition, we agree with the agency's technical evaluation panel that AFMOs quotation also was unacceptable because the quoted bras were not available on its GSA schedule contract. In this regard, as a general rule, contracting agencies are required to obtain full and open competition in the procurement of supplies and services. 10 U.S.C. 2304(a)(1)(A) (2000); Federal Acquisition Regulation (FAR) 6.101. The FSS program gives federal agencies a simplified process for obtaining commonly used commercial supplies and services. FAR 8.401(a). The procedures established for the FSS program satisfy the requirement for full and open competition. 10 U.S.C. 2302(2)(c); Sales Res. Consultants, Inc. , B-284943, B284943.2, June 9, 2000, 2000 CPD 102 at 3. However, non-FSS products and services may not be purchased using FSS procedures; instead, their purchase requires compliance with the applicable procurement laws and regulations, including those requiring the use of competitive procedures. Symplicity Corp. , B-291902, Apr.29, 2003, 2003 CPD 89 at3; OMNIPLEX World Servs. Corp. , B291105 Nov. 6, 2002, 2002 CPD 199 at4-5. Here, while the RFQ did not explicitly state that all solicitation items were to be procured under FSS contracts, the solicitation did announce the agencys intention to order from an existing GSA contractor; in our view, this was sufficient to place vendors on notice that the agency intended to order all items using GSA FSS procedures and hence that all items were required to be within the scope of the vendors FSS contract. Altos Fed. Group , B-294120, July 28, 2004, 2004 CPD 172 at4. Since it is undisputed that AFMOs quoted bras were not on its GSA schedule contract, we find that AMC properly determined AFMOs quotation to be unacceptable on this basis, as well on account of the deviation of its samples from the stated specifications. (Armed Forces Merchandise Outlet, Inc., B-294281, October 12, 2004) (pdf)

Quotations in response to an RFQ are not offers that can be accepted by the government to form a contract. FAR 13.004; KPMG Consulting LLP , B-290716, B-290716.2, Sept. 23, 2002, 2002 CPD 196 at 11, Intelligent Decisions, Inc. , B-274626, B-274626.2, Dec. 23, 1996, 97-1 CPD 19 at 7; Eastman Kodak Co. , B-271009, May 8, 1996, 96-1 CPD 215 at 2 n.2. Rather, they are informational responses that indicate the products that vendors would propose to meet the agency's requirements and the prices of those products and related services that the government may use as the basis for issuing a purchase order. Intelligent Decisions, Inc. , supra ; Crown Furniture Mfg. Inc. , B-225575, May 1, 1987, 87-1 CPD 456 at 2, and it is the government's purchase order which represents the offer that the vendor may accept through performance or by a formal acceptance document. KPMG Consulting LLP , supra . We find that the agency's issuance of a purchase order to Serena here was not improper, notwithstanding that Serena's quoted price discount had expired, because the vendor's submission was not an offer to which the standard for expired bids generally applies. As set forth above, the USDA evaluated Serena's prices based on the discounts within the vendor's revised price quotation. Following its evaluation and source selection decision, the agency issued a purchase order to Serena at the discount prices contained in Serena's quotation, an offer that Serena accepted. Serena was under no duty to accept the USDA's offer here, irrespective of any expiration date in the vendor's quotation, because it did not constitute an offer. Quite simply, the agency's decision to offer a purchase order to Serena here was not improper, because it did not violate a procurement statute or regulation, nor was it unreasonable. (Computer Associates International, Inc., B-292077.3, B-292077.4, B-292077.5, January 22, 2004) (pdf)

The statement of work further reveals that the contractor will be responsible for a variety of additional services that clearly do not qualify as information technology services, such as: creating promotional materials; preparing Space Life Sciences Research Highlights; performing in-depth literature searches; updating, maintaining, and retaining the repository of space life sciences literature in an office library or files; and validating bibliographic entries in Office of Biological and Physical Research reports. RFO, Statement of Work, ¶¶ 7-11, at 3-4. While it may be true, as GSA contends, that NASA might save time, expense, and manpower if the work were obtained from “qualified [information technology] personnel,” these considerations do not provide a valid basis for using Schedule 70 to purchase services that are not reasonably contemplated under the schedule. Accepting such a notion would negate the fundamental concept that when an agency obtains non-FSS items it must comply with the applicable procurement laws and regulations, including those requiring the use of competitive procedures.  (Information Ventures, Inc., B-293743, May 20, 2004) (pdf)

We recognize that, in practice, agencies and vendors often treat quotations just as they treat offers. Nonetheless, as a matter of law, quotations are different from bids or offers. The submission of a bid or proposal constitutes, by its very nature, an offer by a contractor that, if accepted, creates a binding legal obligation on both parties. Because of the binding nature of bids and offers, they are held open for acceptance within a specified or reasonable period of time, and our case law has necessarily developed rules regarding the government’s acceptance of “expired” bids or proposals. See, e.g., Consultants Ltd., B-286688.2, May 16, 2001, 2001 CPD ¶ 92 (holding that where a bidder agrees to hold its bid open for the minimum acceptance period required and extends its acceptance period with each agency request, the integrity of the bidding system is not compromised if the bidder is subsequently permitted to revive its expired bid); Esprit Int’l Corp., B-276294, Mar. 10, 1997, 97-1 CPD ¶ 106 at 2 (allowing bidder with shorter acceptance period to revive its bid after it had expired would afford the bidder an unfair advantage since its initial exposure to the risk of the marketplace was for a shorter period of time); CDA Inv. Tech., Inc.‑‑Recon., B‑27209.3, Mar. 11, 1997, 97-1 CPD ¶ 103 at 8 (stating that “it is not improper for an agency to accept an expired offer without opening negotiations where . . . acceptance is not prejudicial to the competitive system). A quotation, on the other hand, is not a submission for acceptance by the government to form a binding contract; rather, vendor quotations are purely informational, Zarc Int’l, Inc., B‑292708, Oct. 3, 2003, 2003 CPD ¶ 172 at 2. In the RFQ context, it is the government that makes the offer, albeit generally based on the information provided by the vendor in its quotation, and no binding agreement is created until the vendor accepts the offer. Federal Acquisition Regulation (FAR) § 13.004(a). A vendor submitting a price quotation therefore could, the next moment, reject an offer from the government at its quoted price. Because vendors in the RFQ context hold the power of acceptance and their submissions are purely informational, there is nothing for vendors to hold open; thus, it simply does not make sense to apply the acceptance period concept or the attendant rules regarding expiration of bids or offers to RFQs. As a consequence, notwithstanding the statement in Serena’s revised price quotation that “[t]his offer is valid through June 31 [sic], 2003,” Serena’s discounted price was “valid,” or not, at Serena’s option, both before and after the date mentioned in the quotation--on whatever date the agency might present an offer to the firm. (Computer Associates International, Inc.--Reconsideration, B-292077.6, May 5, 2004) (pdf)

2.  Turning to the remainder of the agency’s technical evaluation, under the FSS program, FAR Subpart 8.4 anticipates that an agency will review vendors’ schedules and place an order with the vendor whose goods or services represent the best value and meet the agency’s needs at the lowest overall cost. KPMG Consulting LLP, B‑290716, B-290716.2, Sept. 23, 2002, 2002 CPD ¶ 196 at 10-11; OSI Collection Servs., Inc.; C.B. Accounts, Inc., B-286597.3 et al., June 12, 2001, 2001 CPD ¶ 103 at 4. If, however, the agency issues an RFQ and thus shifts the burden to the vendors for selecting the items from their schedules, the agency must provide guidance about its needs and selection criteria sufficient to allow the vendors to compete intelligently. Where, as here, the agency intends to use the vendors’ responses as the basis of a detailed technical evaluation and selection decision, the agency has elected to use an approach that is more like a competition in a negotiated procurement than a simple FSS buy, and the RFQ is therefore required to provide for a fair and equitable competition. COMARK Fed. Sys., B‑278343, B‑278343.2, Jan. 20, 1998, 98-1 CPD ¶ 34 at 4-5. While we recognize that the FAR Part 15 procedures, for contracting by negotiation, do not govern the FSS program, Computer Prods., Inc., B-284702, May 24, 2000, 2000 CPD ¶ 95 at 4, where, as here, the agency has conducted such a competition and a protest is filed, we will review the record to ensure that the evaluation is reasonable and consistent with the terms of the solicitation and with standards generally applicable to negotiated procurements. KPMG Consulting LLP, supra. With regard to the evaluation, CourtSmart alleges that the agency unreasonably evaluated York’s and CourtSmart’s quotations under the section 508 compliance evaluation criterion, and that York’s quotation should have been regarded as technically unacceptable. Based on our review of the record, we agree.

3.  While the agency states that this experience requirement was a minimum agency requirement,[7] the record shows that the agency determined that at least one other vendor did not have the experience and ability to handle a contract of similar size and scope, but it was rated “neutral” and this lack of experience was found “not sufficient to eliminate [the vendor’s quotation] from consideration for award.”[8] Agency Report, Tab 23, Technical Evaluation Report, at 10-12, Tab 25, Summary of Award, at 7. Even though it appears from the record that CourtSmart had more relevant digital audio recording system experience than this vendor (as well as York, whose qualifying experience was for installing video teleconference systems in SSA’s hearing rooms), CourtSmart’s past performance was found unacceptable and the other vendor’s was not. Thus, the record suggests that the quotations were not evaluated on an equitable basis with respect to the experience requirement.

4.  The protester also alleges that the agency unreasonably evaluated CourtSmart’s software as unacceptable. At the hearing concerning this protest, CourtSmart’s software was demonstrated and the agency representatives explained why the software was considered unacceptable. While the agency provided a long list of reasons in the contemporaneous evaluation and the agency report as to why CourtSmart’s software was considered unacceptable, the agency representatives indicated at the hearing that their concern was limited to three or four areas, and our analysis is focused on these areas. See VT at 18:02‑28, 18:42-19:00, 19:07-46, 20:02-09. Based on the record, including the hearing testimony, it appears that CourtSmart’s software was not fairly or reasonably evaluated in these areas.  (CourtSmart Digital Systems, Inc., B-292995.2; B-292995.3, February 13, 2004) (pdf)

Here, FSI was on a footing completely different from the four large businesses whose quotations were solicited. This was so because EPA determined that the large businesses had the capability of performing the BPA requirements whereas EPA had doubts whether any small business could perform these requirements. Thus, EPA, in accordance with FAR § 8.404(b)(2), conducted a competition among the four solicited large businesses to determine which one represented the best value. Because the agency solicited at least three qualified vendors, there was no legal requirement for EPA to issue the “sources sought” notice to the small business vendors to determine whether any had the capability of satisfying the BPA requirements. Without endorsing the course that EPA took, we note that the agency was not considering whether any of the small business responses represented the best value, but only determining whether any of the small businesses had the capability that would justify their being solicited for a quotation. Accordingly, we do not believe that EPA was obligated to consider FSI's response to the “sources sought” notice in the same manner that it evaluated the large business vendors' responses to the RFQ. Nevertheless, having requested that small businesses respond to the “sources sought” notice, EPA was required to evaluate the small business responses in a reasonable manner. Based on our review, we find that the agency did so, and it had a reasonable basis for determining that FSI did not show that it had the capability of satisfying the BPA requirements. In this regard, after noting that FSI's response was “difficult to evaluate” because it was not in accordance with the 10 capability areas listed the “sources sought” notice, EPA found that either FSI failed to address or did not sufficiently address several of these areas. For example, while FSI's response to the “sources sought” notice stated that a recycling program for the toner cartridges and batteries “will be established,” the agency noted that FSI's response did not include any mention of its track record with similar recycling programs or any plans detailing how its recycling plan would work. In addition, even though FSI stated that it has thousands of “green” products available for purchase, the agency noted that FSI did not mention how many of the products available on its on-line ordering system met the EPA's EPP criteria. EPA also noted that although FSI touted its knowledge and environmental capabilities, it “did not have correct information on EPA's paper requirements.” EPA also found that FSI's “on‑line system is very far from [EPA's] requirements.” Finally, FSI's response failed to mention a commitment by the firm to the development and utilization of “green” delivery vehicles and fleet maintenance programs, a training module, or the firm's implementation of Environmental Management Systems plans. Agency Report, Tab 6, Review of Small Business Submission in Response to Sources Sought, at 2. (Future Solutions, Inc., B-293194, February 11, 2004) (pdf)

Where, as here, an agency solicits FSS vendor responses and arrives at its source selection decision using negotiated procurement procedures, our Office will review the agency’s actions, if challenged pursuant to our bid protest regulations, to ensure that the evaluation was reasonable and consistent with the terms of the solicitation. See COMARK Fed. Sys., B-278343, B-278343.2, Jan. 20, 1998, 98-1 CPD ¶ 34 at 4-5. (ACS Government Services, Inc., B-293014, January 20, 2004) (pdf)

As noted above, the evaluation was conducted under the FSS program. Under this program, an agency is not required to conduct a competition before using its business judgment in determining whether ordering supplies or services from an FSS vendor represents the best value and meets the agency's needs at the lowest overall cost. FAR § 8.404; OSI Collection Servs., Inc., B-286597, B-286597.2, Jan. 17, 2001, 2001 CPD ¶ 18 at 6. However, where an agency decides to conduct a formal competition for award of a task order contract, as is the case here, we will review the agency's actions to ensure that the evaluation was fair and reasonable and consistent with the solicitation. In sum, the agency has not reasonably explained why MindLeaf's experience is relevant. If MindLeaf has no relevant experience, it deserved a neutral past performance rating under this RFQ evaluation scheme, which would be inferior to KMR's very good past performance rating, thus requiring a cost/technical tradeoff analysis that was not needed previously. We sustain the protest. (KMR, LLC, B-292860, December 22, 2003)  (pdf)

First, contrary to the position VA takes in its justification for canceling the competitive acquisition, the VA's decision to conduct a competition under rules similar to those used in negotiated procurements did not violate FAR § 8.402. It is not clear from the record what aspect of the process followed--which took approximately 2 weeks, from issuance of the RFQ to the announcement of the results--the VA thought was improper. FAR Subpart 8.4 (which governs the use of the FSS) does not prohibit the use of negotiated procurement-type procedures for an FSS buy (although it also does not require use of those procedures). Similarly, under the DFARS provision quoted above, which the VA now relies on for its subsequent actions, an agency is not prohibited from conducting an FSS buy using negotiated procurement-type procedures (although, again, an agency is also not required to use those procedures). The ordering procedures found at DFARS § 208.404-70(c), quoted above, set a minimum competition requirement which, it is true, is simpler than the process in FAR Part 15. The VA's competition among three vendors certainly appears to have complied with the DFARS requirement (assuming that three vendors who could fulfill the requirements responded). Thus, the VA's position that its initial competition violated FAR Subpart 8.4 is misplaced. In reaching our conclusion about the merits of the VA's decision to cancel, we do not mean to suggest that the ultimate user of these services, the Air Force Surgeon General's Office, does not urgently need them. At this point, the AFSG has documented the need to avoid further disruption to its mission to provide medical services. On the other hand, this record suggests that the urgency here may spring more from the VA's inability to properly complete this procurement, than from any other source. We conclude that the VA has unreasonably canceled a competitive acquisition, after receiving and evaluating quotations and selecting one for award, without a reasonable basis. (SMF Systems Technology Corporation, B-292419.3, November 26, 2003) (pdf)

We agree that the record does not show that DOJ specifically considered whether vendor customization was required in mandatory areas. Nevertheless, the record does establish that the Director of Finance Staff reviewed each vendor's survey information and considered his own knowledge of, and experience with, the vendors' products. Based on this integrated assessment, the director concluded that Savantage was likely to need significantly more customization than the vendors selected to receive the RFQ. Supplemental Affidavit of the Director of the Finance Staff, Apr. 25, 2003, at 6. Although Savantage disagrees with this assessment and argues that the agency should have conducted a more formal evaluation, we find that Savantage has not shown this judgment to be unreasonable. In this regard, we note that Savantage had far more medium level and low level of effort customizations identified than other vendors and no vendor had more high level of effort customizations identified than Savantage. Agency Report, Tab 3, Analysis of Vendor Responses, at 1, 3, 8, 12, 35. In the context of determining which vendors “appear to provide best value” under FAR § 8.404(b)(3), we find that the agency reasonably concluded that Savantage's product would require significantly more customization than that of the other vendors, even though DOJ did not consider whether vendors' customization would be required in mandatory areas. (Savantage Financial Services, Inc., B-292046; B-292046.2, June 11, 2003)

There is no applicable statute or regulation that required the agency to set the requirement here aside for small businesses in lieu of purchasing from FSS vendors.  Indeed, FAR § 8.404(a) provides that:

. . . when placing orders under Federal Supply Schedules, ordering offices need not seek further competition, synopsize the requirement, make a separate determination of fair and reasonable pricing, or consider small business programs . . . .

This provision obviates the need for agencies to apply small business set-aside procedures where, as here, they are purchasing from the FSS.  Nat'l Office Sys., Inc., B‑274785, Jan. 6, 1997, 97-1 CPD ¶ 12 at 3.  Thus, there was nothing improper in the agency's not setting this requirement aside for small businesses.  (Information Ventures, Inc., B-291952, May 14, 2003)  (pdf)

Here, while the RFQ required submission of a technical proposal, and stated that award would be made to the vendor submitting the low-priced technically acceptable proposal, it did not provide any details of what the agency expected the technical proposal to address, so that a fair and intelligent competition could be achieved. Instead the RFQ stated only that the technical proposal was to be "in accordance with the [SOW]."  Where, as here, an agency completely fails to provide guidance as to the desired content of technical proposals or the basis for evaluating them, we believe that any doubt as to the acceptability of a vendor's technical proposal should be resolved in favor of the vendor.  See COMARK Fed. Sys., supra, at 5-6; cf. SKJ & Assoc., Inc., B-291533, Jan. 13, 2003, 2003 CPD P: __ at 5 (same presumption where agency fails to provide such guidance in solicitation issued under simplified acquisition procedures).  (Garner Multimedia, Inc., B-291651, February 11, 2003)  (txt version)

We have no basis to sustain Warden's protest of the SBA's actions here.  The contracting officer endeavored to contact the potential vendors, including Warden, by telephone as well as facsimile as soon as she learned, late on September 27, that the requisition for services had been approved and funds were available.  Warden contends that the SBA's funding concerns are due solely to its lack of acquisition planning, which does not constitute sufficient justification for a short response time.  Although we recognize that acquisition planning is required under FAR § 8.404(a)(2), we have also stated that as a general rule obtaining information from FSS vendors, which the SBA did here, satisfies the agency's obligation for procurement planning.  See Sales Res. Consultants, Inc., B‑284943, B-284943.2, June 9, 2000, 2000 CPD ¶ 102 at 4.  (Warden Associates, Inc., B-291440; B-291440.2, December 27, 2002)

CDM argues that its FSS contract should be applicable to this RFQ because its approach to meeting the requirement involved “creating or enhancing” a web site. However, the fundamental purpose of the RFQ was not to procure a vendor to establish or enhance a web site, but instead was to obtain a vendor to assess the agency's ChalleNGe programs. Even accepting that the requirement could be partially met through a web-based approach, as CDM asserts was incorporated in its quote, the fact remains that CDM's quote was based on providing personnel under labor categories not contained in its FSS contract. Moreover, because the record established that what CDM was offering at its fixed price was not within the scope of its FSS contract, we find meritless CDM's argument that the RFQ's request for a fixed-price quote meant that CDM's quote was not limited to the labor categories listed in its GSA FSS contract and rendered irrelevant the labor categories listed in its quote that formed the basis for its fixed price. Thus, the agency properly rejected CDM's quote.  (The CDM Group, Inc., B-291304.2, December 23, 2002)

It is well established that the standard for late quotations does not generally apply to requests for quotations. An RFQ, unlike a request for proposals (or an invitation for bids), does not seek offers that can be accepted by the government to form a contract. Rather, the government's purchase order represents the offer that the vendor may accept through performance or by a formal acceptance document. DataVault Corp., B-­248664, Sept. 10, 1992, 92-2 CPD ¶ 166 at 2. It follows that language in an RFQ requesting quotations by a certain date cannot be construed as establishing a firm closing date for receipt of quotations, absent a late quotation provision expressly providing that quotations must be received by that date to be considered. Instruments & Controls Serv. Co., B-222122, June 30, 1986, 86-2 CPD ¶ 16 at 3. An agency may consider “late” quotations or quotation modifications, so long as the award process has not begun and other offerors would not be prejudiced. Id.; ATF Constr. Co., Inc., B-260829, July 18, 1995, 95-2 CPD ¶ 29 at 2.  Here, the RFQ did not contain a late quotation provision. Therefore, the agency was not required to reject a modification received after the date stated in the RFQ for submission of quotations. In the case of IBM's modification of its quotation, the agency received this modification several days after the SSAB had requested a reevaluation and prior to the SSEB's completion of that reevaluation, and prior to the oral presentations and the SSA's award decision. No competitor was prejudiced by the agency's acceptance of IBM's modification. Therefore, the agency could accept IBM's removal of Arthur Andersen from its quotation.  (KPMG Consulting LLP, B-290716; B-290716.2, September 23, 2002)  (pdf)

Here, the agency's only explanation for its actions is that it placed the delivery orders with Worldwide because it was the only vendor with a contract under FSS No. 69.  However, the record shows that the agency had actual knowledge of numerous other vendors that offered the same language training services under FSS No. 738-II. The agency has not asserted that there is anything unique about the training offered by Worldwide under its FSS contract--for example, that it includes features not available from other vendors--that would provide a basis for paying a price premium for the services.  Accordingly, we find that the agency failed to meet its obligation to consider reasonably available information, namely, the prices offered by other vendors under FSS No. 738-II, before placing its delivery orders with Worldwide.  Had it done so, it would apparently have discovered that the same requirement could be met at a lower overall cost to the government.  Under these circumstances, we sustain REEP's protest.  (REEP, Inc., B-290665, September 17, 2002) (pdf)

We conclude that, in light of the purpose of the Act and the absence of any specific statutory or regulatory prohibition, there is nothing objectionable in an agency's requiring that FSS vendors responding to a task order RFQ be small as of the date quotations are due, instead of relying on the original FSS self-certification, which may not reflect a vendor's current small business status.  (CMS Information Services, Inc., B-290541, August 7, 2002)  (pdf)

As a preliminary matter, the procedures of FAR part 15--including FAR § 15.306, the provision on which Avalon relies--do not govern competitive procurements under the FSS program.  Computer Prods., Inc., B-284702, May 24, 2000, 2000 CPD ¶ 95 at 4.  Rather, because the RFP here provided for issuance of a task order under the selected vendor's FSS contract, the provisions of FAR subpart 8.4 apply.  There is no requirement in FAR subpart 8.4 that an agency soliciting vendor responses prior to issuing an order under an FSS contract conduct discussions with vendors regarding the content of those responses.  Accordingly, and consistent with the nature of FSS purchases, we conclude that agencies are not required to conduct discussions, even in the absence of a solicitation clause warning vendors that award might be made without discussions.
 
Further, while the use of the term “competitive range” was probably inappropriate here--since, at least in a negotiated procurement using FAR part 15 procedures, the purpose of establishing a competitive range is to hold discussions with those offerors whose proposals are the most highly rated, see FAR § 15.306(c)(1)--we do not believe that the agency's decision to include the vendors' proposals in a “competitive range” created an obligation to conduct discussions.  While it is not clear what purpose is served by creating a competitive range if no discussions are conducted, the failure to conduct discussions does not create a basis of protest, at least in the context of this FSS purchase.  (Avalon Integrated Services Corporation, B-290185, July 1, 2002)

Where, as here, an agency requests competition among FSS vendors and decides to shift to the vendors the burden of selecting items on which to quote, the vendors must be given sufficient detail to allow them to compete intelligently and fairly; the agency's description of its needs must be free from ambiguity and state the agency's needs accurately. See COMARK Fed. Sys., B-278343, B-278343.2, Jan. 20, 1998, 98-1 CPD para. 34 at 4-5; Haworth, Inc.; Knoll N. Am., Inc., B-256702.2, B-256702.3, Sept. 9, 1994, 94-2 CPD para. 98 at 5. Specifically, to satisfy its obligation to treat vendors fairly, the agency should in some fashion inform vendors of its essential requirements, so that a fair and intelligent competition can be achieved. [3] Haworth, Inc.; Knoll N. Am., Inc., supra, at 5-6; see FAR sect. 1.102-2(c)(3); Computer Prods., Inc., B-284702, May 24, 2000, 2000 para. __ at 5.  (Draeger Safety, Inc., B-285366; B-285366.2, August 23, 2000)

Where, in connection with an FSS purchase in excess of the micro-purchase threshold, a bid protest challenges an agency's definition of its needs that excludes consideration of supplies or services offered by the protesting FSS vendor, we will review the agency's documentation, including its report to our Office, in order to determine whether the agency's definition of its needs has a reasonable basis. See Design Contempo, Inc., B-270483, Mar. 12, 1996, 96-1 CPD para. 146 at 3; National Mailing Sys., B-250441, Jan. 28, 1993, 93-1 CPD para. 75 at 2, recon. denied, B-250441.2, June 28, 1993, 93-1 CPD para. 496; TSI Inc., B-249815, Dec. 22, 1992, 92-2 CPD para. 429 at 2. In FSS buys, as in other procurements, the determination of what the agency needs and which products meet those needs is within the agency's discretion, and we will not sustain a protest in this area unless the determination lacks a reasonable basis. See Design Contempo, Inc., supra. Here, we conclude that the FBI lacked a reasonable basis for its determination that the protester's system did not meet the agency's needs.  (Delta International, Inc., B-284364.2, May 11, 2000)