BNUMBER:  B-280011.2 
DATE:  October 1, 1998
TITLE: Nick Chorak Mowing, B-280011.2, October 1, 1998
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Matter of:Nick Chorak Mowing

File:     B-280011.2

Date:October 1, 1998

Sam Z. Gdanski, Esq., for the protester. 
Anthony G. Beyer, Esq., Environmental Protection Agency, for the 
agency. 
Katherine I. Riback, Esq., and Paul I. Lieberman, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Contracting agency's decision to modify statement of work after 
receipt of initial quotations to reflect its actual needs is 
unobjectionable where offerors were given an equal opportunity to 
revise their quotes based on the reduced requirement.

DECISION

Nick Chorak Mowing protests the issuance of a purchase order to Bill 
Christopher Enterprises under request for quotations (RFQ) No. 
RT-98-00295, issued by the Environmental Protection Agency (EPA) for 
certain full-service landscape maintenance and management services.  
Chorak complains that the agency exhibited bias and conducted a "price 
auction."[1] 

We deny the protest.

The RFQ, issued under simplified acquisition procedures on March 26, 
1998, sought quotes to provide full-service landscape maintenance and 
management at two locations of the National Health and Environmental 
Effects Laboratory complex in Corvallis, Oregon.  The types of 
groundskeeping activities included in the statement of work (SOW) were 
lawnmowing and thatch removal; tree and shrub pruning; debris removal; 
application of bark dust in landscaped areas; weed and insect pest 
control in lawn and landscaped areas; application of fertilizers and 
pesticides by a state of Oregon licensed pesticide applicator; and 
parking lot and sidewalk sweeping.  RFQ SOW at 4.  The RFQ 
contemplated the issuance of a 1-year, fixed-price purchase order to 
the vendor whose quotation represented the best value to the 
government, and indicated that the quotations would be evaluated on 
the basis of past performance, adequacy and completeness of proposed 
work plan, and price.  Id. at 9.

The EPA received quotations from Nick Chorak Mowing and Bill 
Christopher Enterprises in response to the RFQ.  The proposed prices 
were $23,988 and $31,069.08, respectively.  The project officer 
evaluated each vendor's work plan, past performance references, and 
price.  The agency engaged in discussions during which each firm was 
notified of specific deficiencies in its work plan and was provided an 
opportunity to provide a compliant revised work plan.  

During discussions, the contracting officer sent a facsimile to 
Christopher which identified deficiencies in its quote and concluded 
with the following postscript: "P.S. Your quote is more than what we 
had in mind for this effort.  I'd like to discuss your offer."  
Memorandum from the Contracting Officer to Bill Christopher 
Enterprises 2 (Apr. 23, 1998).  Christopher responded to the 
identified deficiencies that same day by facsimile.  In that response 
Christopher reduced its original quote by $1,000, offering a revised 
quote of $30,069.12, and stated that it could provide an additional 
unspecified price reduction if the agency would reduce the fertilizer 
requirements to twice per year, instead of three times per year, and 
allow lawn clippings to be left on the lawn rather than bagged.  
Letter from Bill Christopher Enterprises to the Contracting Officer 
(Apr. 23, 1998).  On April 23, the contracting officer notified Chorak 
and Christopher by facsimile that the agency had reduced the number of 
required fertilizer applications from three to two per year, and 
invited each firm to submit a revised quotation in response to the 
reduced requirements. 

Christopher submitted a very slightly reduced quote of $29,916 in 
response, which remained substantially higher than Chorak's quote of 
$23,988.[2]  The contracting officer concluded after reviewing 
Chorak's past performance references that there would be "significant 
risks" that Chorak's performance would be unsatisfactory.  Contracting 
Officer Basis for "Best Value" Award Memorandum at 2.  The agency also 
determined that three deficiencies remained in Chorak's revised work 
plan.  Christopher received an overall past performance rating of 
"acceptable."  The agency also determined that Christopher's revised 
work plan conformed to the SOW requirements.  Accordingly, the 
contracting officer determined that Christopher's higher quote 
represented the best value to the government and issued a purchase 
order to Christopher on April 30.  This protest followed.

Chorak argues that the agency improperly engaged in a "price auction."  
Chorak acknowledges that the agency did not reveal its price during 
discussion with Christopher, but, argues that "the fact that 
Christopher was given the opportunity to choose what portion of the 
Solicitation to change . . . coupled with the fact that Christopher 
was told that his proposal was too high, should be considered price 
auctioning."  Protester's Comments, July 14, 1998, at 2. 

Solicitations issued after January 1, 1998, such as this one, are 
governed by the Federal Acquisition Regulation (FAR) as amended by the 
Federal Acquisition Circular (FAC) No. 97-02, which includes the Part 
15 rewrite.  While the predecessor Part 15 included constraints on the 
government's use of "auction techniques," FAR  sec.  15.610(e) (June 1997), 
the rewrite does not contain such a provision.  Section 15.306(e) now 
sets forth specific limitations on exchanges with offerors by 
Government personnel involved in an acquisition.  Section 15.306(e)(3) 
proscribes the revealing by government personnel of an offeror's price 
without that offeror's permission, but explicitly provides that, "the 
contracting officer may inform an offeror that its price is considered 
by the Government to be too high, or too low, and reveal the results 
of the analysis supporting that conclusion."  

Here the record establishes that the agency conducted discussions 
consistent with the legal requirements outlined above.  The 
contracting officer did not reveal either offeror's quote to the 
other.  Instead the contracting officer notified Christopher that she 
considered its price too high, which is permissible under the revised 
regulation.    

During the course of discussions with Christopher, the agency 
considered Christopher's suggestion that it reduce the number of 
fertilizer applications and allow the grass clippings to remain on the 
lawn, and while the agency rejected Christopher's grass clippings 
suggestion, it concluded that it was appropriate to reduce the number 
of fertilizer applications in the SOW.  The protester has not 
asserted, and the record does not suggest, that this revised 
requirement fails to reflect the agency's actual needs.  Where, as 
here, an agency discovers that a solicitation overstates its needs, 
the proper remedy generally is revision of the solicitation to reflect 
the agency's actual needs, and affording offerors an opportunity to 
respond to the revision.  Brisk Waterproofing Co., Inc., B-256138.3, 
June 30, 1994, 94-1 CPD  para.  394 at 3-4.  Accordingly, we see no basis to 
object to the agency's reduction of the SOW fertilizer requirement, on 
which each offeror was provided with an opportunity to submit a 
revised quote.    

The protester inaccurately asserts that Christopher was "permitted to 
make changes in the SOW."  Amended Protest, June 24, 1998, at 4.  In 
fact, the agency evaluated Christopher's suggestions during 
discussions, and then decided what best would satisfy its needs, 
adopting one recommendation which had only a minimal price impact.  
The agency's adoption of that suggestion is unobjectionable; 
government procurement officials, who are familiar with the conditions 
under which supplies, equipment, or services have been used in the 
past, and how they are to be used in the future, are generally in the 
best position to know the government's actual needs, and therefore, 
are best able to prepare appropriate specifications.  See AGEMA 
Infrared Sys., B-257168, Aug. 10, 1994, 94-2 CPD  para.  68 at 4.

Finally, the protester argues that the contracting officials were 
biased in favor of Christopher and against Chorak.  This allegation is 
not supported by the record.  Chorak has provided nothing more than 
speculative comments that the agency may have acted in bad faith.  The 
specification change which Chorak sees as evidencing this bias was 
unobjectionable, as discussed above, and had a negligible impact on 
Christopher's price.  This simply does not provide a sufficient basis 
to find bad faith or improper conduct on the part of the agency.  HBD 
Indus., Inc., B-242010.2, 
Apr. 23, 1991, 91-1 CPD  para.  400 at 4-5.[3]

The protest is denied.

Comptroller General 
of the United States

1. Chorak also protested the agency's evaluation of the protester's 
past performance, which our Office previously denied in a separate 
decision.    

2. Chorak did not reduce its price in response to the reduction in the 
SOW requirements.  

3. To the extent that Chorak argues that it was not afforded enough 
time to respond to the revised SOW, this argument is untimely.  
Alleged improprieties which do not exist in the initial solicitation 
which are subsequently incorporated into the solicitation must be 
protested not later than the next closing time following the 
incorporation.  4 C.F.R.  sec.  21.2(a)(1) (1998).