BNUMBER:  B-277845 
DATE:  October 30, 1997
TITLE: Brewer-Taylor Associates, B-277845, October 30, 1997
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Matter of:Brewer-Taylor Associates

File:     B-277845

Date:October 30, 1997

Charles E. Brewer for the protester.
Craig R. Schmauder, Esq., and Margaret P. Simmons, Esq., U.S. Army 
Corps of Engineers, for the agency.
Paul E. Jordan, Esq., and Paul Lieberman, Esq., Office of the General 
Counsel, GAO, participated in the preparation of the decision.

DIGEST

Under request for quotations (RFQ), where agency has the option to 
delete certain contract requirements, and where price is the only 
evaluation factor, agency reasonably issued purchase order to vendor 
whose price quotation, as adjusted to account for eliminated contract 
requirements, was lower than protester's quotation. Agency decision is 
unobjectionable even though the protester's quoted price, if adjusted 
for the same eliminated requirements, would be lower than selected 
vendor's adjusted price where determination to eliminate preparatory 
contract requirements was based on firm having certain specific 
experience which selected vendor possessed, and protester did not.  

DECISION

Brewer-Taylor Associates (BTA) protests the issuance of a purchase 
order to MSC Associates, Inc. under request for quotations (RFQ) No. 
DACW87-97-Q-0036, issued by the U.S. Army Corps of Engineers for 
instructional services.  BTA contends that the agency's price analysis 
was flawed.

We deny the protest.

The RFQ was issued on January 31, 1997, under simplified acquisition 
procedures to obtain instructional services for a 5-day course 
entitled "DPW Support Services Contract Administration."  The 
statement of work (SOW) provided that the contractor must use the 
government-furnished schedule of instruction, lesson plans, course 
manual/materials, and tests.  The SOW identified minimum experience 
requirements for the lead and assistant instructors.  The RFQ provided 
for the contractor to attend a 1-day post-award meeting to discuss in 
detail the expected services/supplies and to conduct a 1-day dry run 
of a condensed version of the classroom instruction, but also stated 
that the "government has the option to delete [each of these] 
meeting[s]."  

In response to the RFQ, firms were required to submit a total price 
quote and a "cost breakdown."  The RFQ did not provide any specific 
format for the breakdown.  The RFQ also did not provide any technical 
evaluation criteria.  The agency explains that it selected the 
respondent which met the SOW qualifications at the lowest quoted 
price.   

The RFQ sought the submission of quotes by February 21.  MSC submitted 
its quote of $7,200, without a breakdown, on February 11.  BTA 
submitted its quote of $7,250, with a breakdown, on February 18.  At 
the agency's request, MSC submitted its breakdown on March 4.  The 
agency found both quotes technically acceptable and determined to 
issue a purchase order to MSC since it submitted the lowest quotation.  
Subsequently, the agency determined that, based on MSC's prior 
experience in teaching the course, the agency would delete the 
requirements for the post-award meeting and dry run (the remaining 
services are referred to hereinafter as the "reduced requirement").  
Since MSC's cost breakdown priced the two meetings at $200, the 
purchase order amendment reduced the price to $7,000.

Upon learning of the purchase order, BTA requested a debriefing.  At 
the debriefing, BTA learned of the amendment to the purchase order.[1]  
BTA then filed an agency-level protest challenging the agency's price 
analysis.  In that protest, BTA requested that it be issued the 
purchase order at $7,250 for the full requirement, or $5,750 for the 
reduced requirement.  MSC performed the contract in July 1997.  In 
August, the agency dismissed the protest and BTA filed this protest 
with our Office.

BTA first protests the agency's decision to allow MSC to submit its 
cost breakdown after the closing date for this RFQ.  This procurement 
was conducted under the simplified acquisition procedures set forth in 
part 13 of the Federal Acquisition Regulation (FAR).  Unlike a sealed 
bid or a proposal, a quotation is not a legally binding offer which 
can be accepted by the government to form a contract.  ACCESS for the 
Handicapped, 68 Comp. Gen. 432, 434 (1989), 89-1 CPD  para.  458 at 3.  A 
contract comes into being solely upon the supplier's acceptance of a 
government order for supplies or services in response to the 
supplier's quotation, and the government may withdraw its order 
anytime prior to acceptance.  FAR  sec.  13.108(a), (c).  Therefore, the 
language of an RFQ is not generally construed as establishing a firm 
closing date, absent a late quotation provision (not present here), 
expressly providing that quotations must be received by that date in 
order to be considered.  ACCESS for the Handicapped, supra, at 3-4.

Here, inasmuch as at the time the agency requested the cost breakdown, 
no award had been made and no substantial activity had transpired in 
the evaluation, the agency's actions were consistent with the 
competitive rules that may be used in procurements conducted under 
simplified acquisition procedures.  A & B Trash Serv., B-250322, Jan. 
22, 1993, 93-1 CPD  para.  53 at 2.  Absent any evidence of an improper 
public disclosure of the protester's price, the protester was not 
prejudiced by the agency's action.  Id. at 3.[2]

BTA next challenges the price analysis under which its quotation for 
the entire requirement was considered in comparison with MSC's 
quotation for only the reduced requirement.  Since BTA's price for the 
reduced requirement is $1,250 less than MSC's comparable price, BTA 
argues that the agency should have issued the purchase order to BTA at 
its lower price.  

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.  
13.106-2(a)(1); SF & Wellness, B-272313, Sept. 23, 1996, 96-2 CPD  para.  
122 at 2.  Here, since price was the only term requested by the 
solicitation, price was necessarily the sole evaluation criterion.[3]  
AMBAC Int'l, B-234281, May 23, 1989, 89-1 CPD  para.  492 at 3 n.2.  

Under the circumstances of this procurement, we find unobjectionable 
the agency's decision to modify MSC's purchase order rather than to 
consider BTA for a purchase order on the reduced requirement.  BTA 
correctly observes that its price for the reduced requirement is lower 
by $1,250 than MSC's price.  However, the agency explains that it 
would not have been able to reduce the requirement if the purchase 
order had been issued to BTA.  In this regard, the record shows that 
MSC's lead instructor had taught the course which was the subject of 
the RFQ under two previous contracts and had participated in 
developing the course materials for use in this contract.  Since BTA's 
instructors did not possess the same experience, the agency reasonably 
concluded that, if issued the purchase order, BTA would need to 
perform both the post-award meeting and the dry run requirements.  
Thus, in issuing the purchase order amendment, the agency properly 
considered the price difference to be between MSC's reduced price of 
$7,000 and BTA's full price of $7,250.[4]

BTA next argues that the agency improperly eliminated the post-award 
meeting and dry run requirements because MSC did not use the 
experienced instructor it had proposed to perform the contract, and 
used an inexperienced substitute.  It also alleges that the assistant 
instructor did not possess the proper qualifications.  These 
allegations have no basis in fact; the individual whom BTA believed to 
be MSC's proposed instructor was not proposed by MSC.  The record 
shows that the alleged substitute instructor was the one originally 
proposed by MSC.  The record also shows that the proposed instructor 
possessed prior experience in teaching the course which was the 
subject of the RFQ.  Further, both he and the assistant instructor 
possessed the requisite experience listed in the SOW.  Thus, we have 
no basis for finding that the agency was unreasonable in eliminating 
the two preliminary course preparation requirements for MSC.  

BTA finally argues that MSC's quotation is suspect because it is 
significantly lower than that proposed in prior contracts for teaching 
the same course.[5]  With respect to a fixed-price award, a 
protester's claim that an offeror submitted an unreasonably low 
price--or even that the price is below the cost of performance--is not 
a valid basis for protest.  An offeror, in its business judgment, 
properly may decide to submit a price that is extremely low.  
Diemaster Tool, Inc., B-238877, Apr. 5, 1990, 90-1 CPD  para.  375 at 2.  An 
agency decision that the firm can perform the contract at the offered 
price is an affirmative determination of responsibility which we will 
not review absent a showing of possible bad faith on the part of 
procurement officials, or that definitive responsibility criteria in 
the solicitation may not have been met.  Bid Protest Regulations, 4 
C.F.R.  sec.  21.5(c); JWK Int'l Corp., B-237527, Feb. 21, 1990, 90-1 CPD  para.  
198 at 3-4.  Where, as here, there is no such showing, we have no 
basis to review the protest.

The protest is denied. 

Comptroller General
of the United States

1. In its comments, BTA states that the agency easily could have 
backdated the purchase order amendment in order to justify its award 
to MSC.  However, BTA provides no evidence to support its claim, which 
assumes bad faith on the part of agency personnel.  Such personnel are 
presumed to act in good faith and BTA's mere supposition is 
insufficient to support a finding of bad faith.  Watson Indus., Inc., 
B-238309, Apr. 5, 1990, 90-1 CPD  para.  371 at 5.

2. BTA apparently challenges the agency's position that it did not 
disclose BTA's cost breakdown or quote prior to receipt of MSC's cost 
breakdown.  As with another allegation, noted above, in which BTA 
assumes bad faith on the part of agency personnel, we need not decide 
this issue, since BTA furnished nothing in its protest to substantiate 
this challenge.

3. In its comments on the agency report, BTA questions whether price 
should have been the only evaluation factor.  To the extent BTA is 
objecting to the lack of evaluation criteria in the RFQ, its argument 
is untimely; protests alleging apparent solicitation improprieties 
must be filed prior to the closing time.  Bid Protest Regulations, 4 
C.F.R.  sec.  21.2(a)(1) (1997).

4. To the extent BTA also challenges the initial award selection, the 
agency reasonably determined to issue the purchase order to MSC, since 
its price for the full requirement was $50 less than BTA's price.

5. In a related argument, BTA contends that the agency should have 
deleted more than $200 from MSC's quote because the cost of the 
eliminated requirements would exceed that amount.  While this is a 
matter of contract administration, we note that, since MSC's cost 
breakdown included $200 for the eliminated items, there was nothing 
unreasonable in the agency's determination to reduce the purchase 
order price by that amount.