BNUMBER: B-281359; B-281359.2
DATE: February 1, 1999
TITLE: West Coast Research Corporation, B-281359; B-281359.2,
February 1, 1999
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Matter of:West Coast Research Corporation
File:B-281359; B-281359.2
Date:February 1, 1999
H. M. Spivack for the protester.
Howard E. Ward for Able Corporation, an intervenor.
Capt. Mark D. Pollard, Department of the Air Force, for the agency.
C. Douglas McArthur, Esq., and Michael R. Golden, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
1. Where solicitation required vendors to provide detail sufficient
to show compliance with listed salient characteristics of brand name
model, determination that protester's quotation, which did not address
certain of those characteristics, was technically unacceptable was
reasonable and consistent with the solicitation.
2. In procurement conducted under Federal Acquisition Regulation
Subpart 12.6, providing streamlined procedures for solicitation and
evaluation of commercial items, and Part 13, governing simplified
acquisition procedures, where agency determined that the only
technically acceptable quotation was unreasonably priced, protest
against decision to solicit additional quote for the purpose of
expanding competition is denied.
DECISION
West Coast Research Corporation (WCRC) protests the issuance of a
purchase order to Able Corporation under request for quotations (RFQ)
No. F05611-98-T-2008, issued by the United States Air Force Academy,
for the purchase of equipment to be used in a scientific laboratory.
The protester contends that the agency improperly rejected its
quotation.
We deny the protest.
On September 3, 1998, the agency issued the RFQ as a combined
synopsis/ solicitation for commercial items--a "sophisticated"
five-force one-moment balance, calibration body, and master tape
gauge, in accordance with a statement of objectives (SOO), which
appeared in a Commerce Business Daily (CBD) notice announcing the
solicitation. Air Force Memorandum of Law, Nov. 5, 1998 at 1; CBD
Notice dated Sept. 9, 1998 at exhibit 2 to WCRC protest. The agency
advised potential vendors that it had prepared the notice in
accordance with Federal Acquisition Regulation (FAR) Subpart 12.6,
which prescribes streamlined procedures for the solicitation and
evaluation of commercial items. CBD Notice at 1. The notice
referenced FAR sec. 52.212-1, Instructions to Offerors--Commercial Items,
subparagraph (b)(4) which requires vendors to provide enough detail to
evaluate compliance, for example, through the submission of
descriptive literature, product samples, or technical features. Page
3 of the notice advised potential vendors that the agency would
evaluate technical acceptability and price and make an award based
upon the ability of the quoted item to meet requirements of the SOO
and price.[1]
The notice contained a list of salient characteristics for a 0.5-inch
diameter force balance, model 0.75MKXIII, manufactured by the Able
Corporation, which represented the "minimum needs" of the government.
CBD Notice at 1. The required balance was of a two shell design
(floating frame) with the inner shell (rod) being mounted to the wind
tunnel sting support and the outer shell (case or sheath) being
mounted to the model. That is, a concentric sleeve envelops a rod
with sensors and transmits the forces that the model encounters to the
sensors; the rod is attached to a "sting," or bolt, attached to the
supports. Protester's submission, exhibit 1 to the protest; CBD
notice at 1; Able Corporation letter dated Nov. 9, 1998 at 1-2. The
listed salient characteristics included general requirements as well
as specific requirements for dimensions, rated loads, temperature
sensitivity, excitation and sensitivity, interaction, and wiring. CBD
Notice at 1-3. In pertinent part, the general requirements stated as
follows:
Failure of any or all of the force and moment sensing elements
shall not cause separation of the model from the balance or
sting. . . . [E]ach force and moment sensing element shall be
repairable or replaceable by the contractor without replacing the
entire set of elements. The load range of the force and moment
sensing elements shall be changeable by removing the original
elements and replacing any or all of them with elements having a
new load range.
CBD Notice at 2.
Two firms responded prior to the stated closing date of September 18,
one with a quotation of the brand name item. The protester quoted a
lower price but few details; its quotation principally addressed the
protester's experience and expertise in designing wind tunnel
balances. It provided a drawing of a "proposed" balance, as well as a
"preliminary design" for a concentric sleeve. The agency provided a
copy of the quotation to evaluators on September 22.
Evaluators noted that the protester's quotation failed to address many
of the required characteristics and found evidence that the proposed
design would fail to meet certain others. For example, the quotation
did not address separation of the model from the balance or sting;
although WCRC indicated that the elements were replaceable, it did not
indicate whether users could replace individual elements without
removing all of them. Evaluators determined that the quotation was
technically unacceptable because it did not demonstrate that the
design offered by WCRC would satisfy all of the agency's minimum
needs.
The other quotation, for the brand name model, appeared technically
acceptable but the price of $90,208.12 exceeded funds available for
the procurement and the contracting officer considered that price
unreasonable. On September 23, he contacted Able, the brand name
manufacturer, which had not seen the initial notice but requested an
opportunity to submit a quotation. Able provided its quotation at a
price of $85,102.00 that afternoon. Since Able's quotation was the
lower-priced of the two technically acceptable quotations, the agency
issued a purchase order to Able on September 24. This protest
followed.
WCRC objects to the evaluation of its proposal. While acknowledging
that it did not address all of the requirements that the CBD notice
included, the protester contends that it was unreasonable for the
agency to expect vendors to address every one of the listed salient
characteristics in their quotations. A requirement to address each
characteristic specifically, WCRC argues, overburdens the quotation
with minor details. Rather, WCRC contends, the agency should presume
that vendors have the qualifications to understand requirements and
can meet them, where as here the quotation is silent, since such
silence creates an implied acceptance of "basic technical
requirements." Protest at 3.
In reviewing protests against an allegedly improper evaluation, where
the agency uses simplified acquisition procedures, we examine the
record to ensure that the agency reasonably exercised its discretion
and that it evaluated quotations in accordance with the terms of the
solicitation. Environmental Tectonics Corp., B-280573.2, Dec. 1,
1998, 98-2 CPD para. 140 at 4. Where a solicitation sets forth the
agency's requirements and a vendor fails to address certain of those
requirements, an agency need not presume that the vendor accepts those
requirements and may, in fact, reject the quotation if it contains
insufficient affirmative evidence that the item as quoted will meet
the agency's requirements. See Cirrus Tech., Inc., B-244461, Oct. 21,
1991, 91-2 CPD para. 348 at 2-3. Since the record here shows that WCRC
did not, in fact, address several of the requirements listed in the
CBD notice, the agency's determination that the protester's quotation
was technically unacceptable was reasonable.
We examine here several of the bases upon which the agency rejected
the protester's quotation. See Keco Indus., Inc., B-261159, Aug. 25,
1995, 95-2 CPD para. 85 at 8 (where agency finds an offer technically
unacceptable in several areas, GAO need not address every finding,
since finding of unacceptability in any area would be sufficient to
justify rejection of the proposal). As quoted above, the CBD notice
required, as general features, that failure of any sensing element not
cause the model to separate from balance or sting and that each
element be repairable or replaceable without replacement of all the
other elements. It required that, in order to change the load range,
the agency should be able to remove an individual element and replace
it with one having the new load range. The protester's quotation did
not address whether failure of a sensing element would cause
separation of the model; although it stated that elements were
replaceable, it did not address whether a user could replace one
element--either because of failure or to change the load
range--without replacing the others. The failure to provide an
affirmative indication that the protester's product would meet these
requirements provided a sufficient basis, under the solicitation, for
the agency to reject the quotation as technically unacceptable.
After receipt of the agency report filed in response to the protest,
WCRC filed a supplemental protest, asserting that it was improper for
the agency to extend the due date for quotations, for the benefit of
Able, while not affording the protester an opportunity to provide
additional information. The protester argues that, if the agency had
conducted discussions with WCRC, the protester could have satisfied
the agency's technical concerns in a "10 minute" telephone
conversation with evaluators. Protest at 5.
FAR sec. 13.106-2(b)(2), which applies to simplified acquisition
procedures, emphasizes efficiency rather than formal procedure and
provides that it is not necessary to develop formal evaluation plans,
establish a competitive range, or conduct discussions. Where using
simplified acquisition procedures, an agency has considerable
discretion in its approach, as long as it promotes competition to the
maximum extent practicable. Cromartie and Breakfield, B-279859, July
27, 1998, 98-2 CPD para. 32 at 2; FAR sec. 13.003(h). An RFQ, unlike a
request for proposals or an invitation for bids, does not seek offers
or bids that can be accepted by the government to form a contract; our
Office has raised no objection to agencies seeking and considering
revisions to quotations submitted any time prior to award. Safety
Storage, Inc., B-275076, Jan. 21, 1997, 97-1 CPD para. 32 at 2; Cf. John
Blood, B-274624, Dec. 19, 1996, 96-2 CPD para. 233 at 2. Where, as here,
the purpose is to enhance competition, and given that the agency had
no technically acceptable quotations at a price the contracting
officer considered reasonable, we see nothing improper in allowing
Able, the brand name manufacturer, to submit a quotation after the
closing date. At the same time, given that this was a simplified
acquisition, the agency was not required to discuss the material
deficiencies in the protester's quotation. See CDS Network Sys.,
Inc., B-281200, Dec. 21, 1998, 98-2 CPD para. 154 at 3. In any event,
based on the record, we do not think the protester has established
that the deficiencies in its quote were readily correctable.
WCRC also complains that, in the course of these proceedings, the
agency supplied a copy of its protest, including one page marked as
protected, to the Able Corporation. Absent any basis to conclude that
the agency's action had any effect on the evaluation and award process
for this or any other specific solicitation, WCRC's arguments in this
regard fail to state a valid basis of protest. Advanced Seal Tech.,
Inc., B-280980, Dec. 14, 1998, 98-2 CPD para. 144 at 4 n.3.
The protest is denied.
Comptroller General
of the United States
1. In conducting this procurement, the agency also used the procedures
authorized under Part 13 for simplified acquisitions.