BNUMBER:  B-281512 
DATE:  February 22, 1999
TITLE: United Marine International LLC, B-281512, February 22, 1999
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Matter of:United Marine International LLC

File:     B-281512

Date:February 22, 1999

Harry R. Silver, Esq., Ober, Kaler, Grimes & Shriver, for the 
protester.
Willie J. Williams, Esq., Army Corps of Engineers, for the agency.
Christina Sklarew, Esq., and Paul Lieberman, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Protest that agency failed to conduct discussions with protester 
consistent with the  requirements of part 15 of the Federal 
Acquisition Regulation (FAR) is denied where the procurement is a 
commercial item acquisition being conducted under simplified 
acquisition procedures, which is not subject to the FAR part 15 
requirements.

DECISION

United Marine International LLC protests the issuance of a purchase 
order by the Army Corps of Engineers (Corps) to D&D Products, Inc. 
under request for quotations (RFQ) No. DACW69-98-Q-0328 for a debris 
collection vessel with trailer and shore conveyor to be used on 
Fishtrap Lake in Kentucky.  United objects that the Corps improperly 
conducted discussions with D&D after the submission of quotations, 
without holding any discussions with the protester as required by part 
15 of the Federal Acquisition Regulation (FAR).
  
We deny the protest.

The Corps's Huntington, West Virginia office initially posted a notice 
of the procurement in the Commerce Business Daily (CBD) on September 
18, 1998, synopsizing its intention "to commercial item procure" the 
debris collection vessel on a sole-source basis from United.  The CBD 
notice provided performance characteristics that the equipment was 
required to satisfy, and stated that the equipment must meet the FAR  sec.  
2.101 definition of a "Commercial item."  Because several vendors 
responded to the notice, representing that they could satisfy the 
described requirements, the Corps decided to seek competition for the 
requirement.  Accordingly, on September 24, the Corps issued an RFQ as 
a total small business set-aside, under the special procedures of FAR 
part 12 for the acquisition of commercial items, incorporating by 
reference the four clauses required to be included in such 
solicitations.  RFQ at 1.  The procurement was handled under the test 
program using simplified acquisition procedures for commercial items 
which is authorized by FAR subpart 13.5.  The RFQ included performance 
specifications in Section C and, in Section H, advised vendors to 
furnish sufficient information, such as descriptive literature, to 
enable the contracting officer to evaluate the offered equipment's 
compliance with the specifications.

In response, the Corps received the following four quotations:

         Vendor A          $495,000

         United            $438,098

         D&D               $311,500

         Vendor B          $106,500
The agency determined that the equipment in the low-priced quotation 
did not meet the agency's specifications; the equipment offered by 
United and D&D was found to be compliant with the RFQ's technical 
requirements.   Both quotations contained exceptions to the delivery 
schedule, but the Corps considered the exceptions acceptable.  In 
addition, United's quotation contained progress payment terms that the 
Corps did not consider acceptable.  Contracting Officer's Statement at 
5-6.

D&D had listed in its quotation a number of optional items or upgrades 
that were available, such as air conditioning and heating for the cab 
of the vessel, and a stainless steel configuration.   The Corps 
considered these options and decided to add a number of features that 
had not been required by the specifications.  The contract specialist 
met with D&D to discuss the addition of optional features, and D&D was 
permitted to submit a revised quotation adding certain of the 
features, as a result of which D&D's quote was increased to $376,224.  
The Corps determined to purchase the equipment from D&D on the basis 
of its low price, and issued a purchase order to D&D on October 29.  
On November 4, the Corps received D&D's signed acceptance.  This 
protest followed.

United protests that the Corps violated a number of provisions in part 
15 of the FAR by holding what it characterizes as discussions only 
with D&D, and permitting that firm to submit a revised quotation.[1]  
United also argues that because the RFQ did not indicate that the 
source selection would be based on price alone, United "reasonably 
believed that the evaluation would be on a best value to the 
government basis, and that an award would be made after negotiation."  
Protester's Comments at 3.

The Corps's position is that this procurement was not conducted as a 
competitive negotiated procurement under part 15 of the FAR, but as a 
simplified acquisition under the procedures set forth in part 13 of 
the FAR.  While United argues that the solicitation fails to inform 
vendors that simplified acquisition procedures were to govern the 
procurement, the RFQ clearly states that the procurement is a 
commercial item acquisition.   The RFQ was issued on Standard Form 
1449, which bears the legend "SOLICITATION/CONTRACT/ORDER FOR 
COMMERCIAL ITEMS," and incorporates by reference the FAR clauses 
required for commercial item solicitations.  RFQ at 1.  

Part 13 of the FAR prescribes the policies and procedures for the 
acquisition of supplies and services, including commercial items for 
which the aggregate price does not exceed the simplified acquisition 
threshold amount of $100,000.  Subpart 13.5 includes special authority 
to use simplified procedures for acquisitions of commercial items 
exceeding the simplified acquisition threshold of $100,000 but not 
exceeding $5,000,000, as a test program, where the contracting officer 
reasonably expects that offers will include only commercial items.  
FAR  sec.  13.500(a) (FAC 97-03).  This subpart requires contracting 
activities to "employ the simplified procedures authorized by the test 
to the maximum extent practicable" for the period of the test.  FAR  sec.  
13.500(b).  It specifies that the requirements set forth in part 12 of 
the FAR apply when acquiring commercial items using the procedures in 
part 13.  

FAR part 12 prescribes policies and procedures unique to the 
acquisition of commercial items and implements the preference 
established by, and the specific requirements in, the Federal 
Acquisition Streamlining Act of 1994 (FASA), 10 U.S.C.  sec.  2377 (1994), 
for the acquisition of commercial items that meet the needs of an 
agency.  FAR part 12 establishes acquisition policies more closely 
resembling commercial practices, as well as other considerations 
necessary for proper acquisition planning, solicitation, evaluation, 
and award of contracts for commercial items.  FAR part 12 also 
specifies the solicitation provisions and clauses required when 
acquiring commercial items.

In particular, FAR subpart 12.3 sets forth four clauses which must be 
incorporated into solicitations for commercial items and one clause 
which is optional.  As a general rule, such solicitations are to 
include "only those clauses . . . [r]equired to implement provisions 
of law or executive orders applicable to the acquisition of commercial 
items . . . or . . . [d]etermined to be consistent with customary 
commercial practice."  FAR  sec.  12.301(a).  FAR  sec.  12.301(b) lists the 
four mandatory clauses:  (1) "Instructions to Offerors--Commercial 
Items" (FAR  sec.  52.212-1); (2) "Offeror Representations and 
Certifications--Commercial Items" (FAR  sec.  52.212-3); (3) "Contract 
Terms and Conditions--Commercial Items" (FAR  sec.  52.212-4); and (4) 
"Contract Terms and Conditions Required to Implement Statutes or 
Executive Orders--Commercial Items" (FAR  sec.  52.212-5).  All of these 
clauses were  incorporated by reference on the first page of the RFQ.  
The optional clause which is to be used when FAR part 15 type 
procedures may be contemplated, that is, "[w]hen the use of evaluation 
factors is appropriate," FAR  sec.  12.301(c), was not included or 
incorporated. 

In view of these solicitation provisions, United's position that the 
requirements under part 15 of the FAR are applicable is misplaced.  
The Corps was not required to follow the FAR provisions United cites 
because they are inapposite to a commercial item acquisition conducted 
under simplified acquisition procedures.  Where, as here, simplified 
acquisition procedures are used, contracting agencies are to use 
innovative approaches to the maximum extent practicable in order to 
award contracts in the manner that is most suitable, efficient and 
economical in the circumstances of each acquisition.  FAR  sec.  
13.003(g),(h); see Bosco Contracting, Inc., B-270366, Mar. 4, 1996, 
96-1 CPD  para.  140 at 2.  Further, FAR  sec.  13.106-2(b) encourages the 
evaluation of quotations in an efficient and minimally burdensome 
fashion and explicitly states that the evaluation procedures provided 
for in part 15 are not mandatory, nor is a formal evaluation plan, the 
establishment of a competitive range, or the conducting of discussions 
required.  Our Office reviews allegations of improper agency actions 
in conducting simplified acquisitions to ensure that the procurements 
are conducted consistent with the concern for fair and equitable 
competition that is inherent in any federal procurement.  Huntington 
Valley Indus., B-272321, Sept. 27, 1996, 96-2 CPD  para.  126 at 2.  

We think the Corps's actions here were consistent with this standard.  
Faced with a low-priced quotation meeting its specifications on the 
one hand, and a significantly higher-priced quotation that included 
unacceptable payment terms on the other, the Corps's selection of the 
D&D quotation was essentially required by the terms of the RFQ.  
Inasmuch as this is a commercial acquisition which did not include the 
optional technical evaluation clause called for by FAR  sec.  12.301(c) 
where a relative  technical evaluation is contemplated, selection of 
the lowest priced technically acceptable quotation was required.  
Vistron, Inc., B-277497, Oct. 17, 1997, 97-2 CPD  para.  107 at 4.  This is 
consistent with the general rule that, where a solicitation does not 
contain evaluation factors other than price, price is the sole 
evaluation criterion.  AMBAC Int'l, B-234281, May 23, 1989, 89-1 CPD  para.  
492 at 3 n.2.

In light of the fact that the procurement was conducted under 
simplified acquisition procedures, the agency's election to include 
certain optional items and accept a revised quotation from the 
low-priced, acceptable vendor (which quotation remained low after the 
revisions) was consistent with the simplified procedures' purpose of 
allowing flexibility and innovative approaches.  While the protester 
argues now that it could have offered lower prices or could have 
offered the same options if the Corps had held discussions with 
United, the fact remains that United submitted a quotation that was 
qualified by terms viewed as unacceptable, and the Corps was not here 
required to engage in discussions with United for the purpose of 
making its offer acceptable, or otherwise improving its terms.  

Further, to the extent United is alleging that the solicitation should 
have provided for a comparative technical evaluation and 
cost/technical tradeoff analysis, the allegation is untimely, since it 
was clear that the RFQ provided for no such analysis.  Protests based 
upon alleged improprieties in a solicitation which are apparent prior 
to the time set for receipt of initial offers must be filed prior to 
that time.[2]  4 C.F.R.  sec.  21.2(a)(1) (1998).    

The protest is denied.

Comptroller General 
of the United States

1. While United also alleged in its protest that the Corps had misled 
the firm into submitting a quotation for more expensive equipment than 
the Corps required, placing it on uneven competitive footing with 
other vendors, after receiving the agency report which provided the 
Corps's explanation and rebuttal, the protester did not mention this 
contention in its comments, and we deem the allegation abandoned.  TMI 
Servs., Inc., B-276624.2, July 9, 1997, 97-2 CPD  para.  24 at 4 n.3. 
 
2. United also alleges that the agency provided it with neither timely 
notice of award nor a debriefing.  Simplified acquisition procedures 
do not specifically require such notice, and in any event, failure on 
the agency's part to provide timely notification to United is a 
procedural matter which does not affect our denial of the protest on 
its merits.  Since the protest is denied, the protester was not 
prejudiced by any delay in notification.  See Criterion Corp., 
B-266050, Jan. 23, 1996, 96-1 CPD  para.  217 at 5 n.1.