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.