BNUMBER: B-272313
DATE: September 23, 1996
TITLE: SF & Wellness
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Matter of:SF & Wellness
File: B-272313
Date:September 23, 1996
Jay DelVecchio for the protester.
Lisa M. Carr for Four Star Fitness, an intervenor.
Karen Gearreald, Esq., Department of the Navy, for the agency.
Linda C. Glass, Esq., and Paul Lieberman, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
Protest that contracting agency failed to solicit incumbent contractor
under simplified acquisition procedure is denied where record shows
that rather than deliberately excluding the incumbent, the agency
called the incumbent in an unsuccessful attempt to solicit its quote.
DECISION
SF & Wellness protests the issuance of a purchase order to Four Star
Fitness under an oral request for quotations (RFQ) by the Department
of the Navy for the teaching of aerobics classes during a 17-week
period at the Little Creek Amphibious Base, Norfolk, Virginia. SF,
the incumbent contractor, alleges that the agency improperly failed to
solicit the firm. SF also argues that Four Star should have been
eliminated from consideration.
We deny the protest.
On May 28, 1996, using simplified acquisition procedures as set forth
in part 13 of the Federal Acquisition Regulation (FAR), the agency
orally solicited six contractors from a list of recommended sources to
obtain quotes to conduct certain aerobics classes commencing on July
1. The agency reports that on May 28, it called SF and left a message
on the firm's answering machine concerning the requirement, but did
not receive a response from SF. The agency received the following
quotes:
Four Star Fitness -- $6,375
Fitness Education -- $7,650
While Fitness Education submitted a quote, it indicated that it did
not have the time to perform the contract. Four Star was determined
to be responsible and reasonably priced and received the purchase
order on May 29. SF objects that despite its incumbent status, it was
not contacted by the agency and was therefore improperly excluded from
the competition.
Simplified acquisition procedures are excepted under the Federal
Acquisition Streamlining Act of 1994 (FASA) from the general
requirement that agencies obtain full and open competition through the
use of competitive procedures. 10 U.S.C. sec. 2304(a)(1)(A), (g)(1), and
(g)(3) (1994).[1] These simplified procedures are designed to promote
efficiency and economy in contracting and to avoid unnecessary burdens
for agencies and contractors. To facilitate these stated objectives,
FASA only requires that agencies obtain competition to the maximum
extent practicable when they utilize simplified acquisition
procedures. Id.; 41 U.S.C. sec. 427; see Omni Elevator, B-233450.2, Mar.
7, 1989, 89-1 CPD para. 248. When using simplified acquisition
procedures, contracting agencies are required to solicit quotations
from a reasonable number of qualified sources to promote competition
to the maximum extent practicable and ensure that the purchase is
advantageous to the government based, as appropriate, on either price
alone or price and other factors. FAR sec. 13.106-1(a)(1) (FAC 90-29);
see S.C. Servs., Inc., B-221012, Mar. 18, 1986, 86-1 CPD para. 266.
Generally, for purchases under $25,000, as here, solicitation of three
vendors is sufficient. FAR sec. 13.106-1(a)(3); Omni Elevator, supra.
Under these procedures, where an agency receives a quotation from any
one responsible small business concern at a responsible price, the
contracting officer is to make an award to that concern. FAR sec.
13.105(c)(3).
An agency's failure to solicit an incumbent contractor is not in
itself a violation of the requirement to promote competition under
simplified acquisition procedures. S.C. Servs., Inc., supra. What is
determinative is whether the agency made a deliberate or conscious
attempt to preclude the protester from competing. Bosco Contracting,
Inc., B-270366, Mar. 4, 1996, 96-1 CPD para. 140. Here, the record does
not support the conclusion that the Navy deliberately attempted to
exclude SF. SF was listed on the available sources list, and the
agency has provided an affidavit from the contract specialist
indicating that on May 28 she called all six vendors listed as
recommended sources, including SF. The contract specialist states
that when she received no response from the protester, she left a
message on its answering machine. In addition, the contract
specialist's contemporaneous notes indicate that she placed a call to
the protester at the appropriate telephone number and received no
response. The protester maintains that its office was manned all day
on May 28, that it did not receive any call from the contract
specialist, and that there was no message on its answering machine.
Our Office conducted a telephone conference with the contract
specialist and SF's Vice President during which both essentially
reiterated these statements, and were unable to provide any additional
relevant information. Under the circumstances, we find that weight of
the evidence in the record supports the agency's position that it
attempted to obtain a quote from SF; the fact that it was unsuccessful
in doing so is not evidence of any deliberate attempt to exclude SF,
nor does it provide any basis to warrant resolicitation of the
requirement.
SF also protests that Four Star's instructors do not have the required
current aerobic certification from a recognized certification
organization. The record shows that the awardee provided evidence of
aerobic certification, including current certification from the
International Association of Fitness Professionals (IDEA ), one of the
organizations specifically listed by the agency in the purchase order
as an acceptable certification entity. Accordingly, this allegation is
without merit.[2]
The protest is denied.
Comptroller General
of the United States
1. Prior to FASA, the Competition in Contracting Act of l984 (CICA),
10 U.S.C. sec. 2304(a)(1), (g)(1) (1988), similarly excepted procurements
conducted under small purchase procedures from the full and open
competition requirements.
2. The protester also initially asserted that Four Star should have
been found ineligible for award because its sole owner's spouse is a
government employee. In its report, the Navy stated that it found no
prohibited conflict of interest here because the proprietor's spouse
is an active-duty Navy lieutenant whose duties have no connection with
the physical fitness program for employees of the Little Creek
Amphibious Base, nor does the spouse have any involvement in the work
of Four Star. In addition, the Navy noted that the spouse is
currently away from the base on a 6-month deployment, and the agency
concluded that there is a complete separation between the ownership
and control of the company and the spouse's performance of unrelated
duties as a government employee. The protester failed to address this
determination and explanation in its comments; hence, we consider this
protest ground to have been abandoned. See Datum Timing, Div. of
Datum Inc., B-254493, Dec. 17, 1993, 93-2 CPD para. 328.