TITLE:  Aqua-Flo, Inc., B-283944, December 30, 1999
BNUMBER:  B-283944
DATE:  December 30, 1999
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Aqua-Flo, Inc., B-283944, December 30, 1999

Decision

Matter of: Aqua-Flo, Inc.

File: B-283944

Date: December 30, 1999

Alden L. Coke for the protester.

Marion T. Cordova, Esq., Agricultural Research Service, for the agency.

Mary G. Curcio, Esq., and John M. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.

DIGEST

Protest that agency improperly selected vendor that did not quote system
specified in synopsis/solicitation is denied where, although no written
amendment was issued, agency advised protester that other systems would be
considered for award; protester therefore was not prejudiced by absence of
written amendment.

DECISION

Aqua-Flo, Inc. protests the selection of Noyes Air Conditioning Contractors
under synopsis/solicitation (RFQ) No. 982019283511, issued by the Department
of Agriculture, Agricultural Research Service, for a chemical-free water
treatment system. Aqua-Flo argues that the selection was improper because
Noyes did not offer the Aqua-Flo model number specified in the
synopsis/solicitation.

We deny the protest.

The agency conducted the procurement using the simplified acquisition
procedures set forth in Federal Acquisition Regulation (FAR) part 13, since
the expected value of the acquisition was under the simplified acquisition
threshold. Memorandum of Law at 3. The agency published a combined
synopsis/solicitation in the Commerce Business Daily, which specified the
Aqua-Flo CT900 system because the agency believed it was the only system
that met its needs. Contracting Officer's Statement (COS) at 1. Following
publication of the synopsis/solicitation, however, the agency received
inquiries from several vendors that were interested in supplying competing
systems. Id. On September 8, after reviewing information provided by these
vendors, the agency sent Aqua-Flo an e-mail notice advising as follows:

After advertising our need . . . , we have found two other companies that
also have a [system which meets our needs]. . . . Because of this, [we will]
be hosting a site visit on Wednesday, Sep 15, 1999 . . . . After the site
visit, quotes will be due Friday, Sep 17, 1999 . . . .

Id.; Agency Report, attach. 4, E-Mail from Contracting Officer to Aqua-Flo,
Sept. 8, 1999. Aqua-Flo and other interested vendors attended the site
visit, during which, the agency maintains, it explained its requirements and
advised that the system was now being procured on a competitive basis. COS
at 1-2. The agency never issued a written amendment setting forth its
intention to accept quotes for other than the Aqua-Flo system. Noyes
submitted the lowest quotation, for other than the Aqua-Flo system, and was
selected.

Aqua-Flo maintains that, since the agency never issued a written amendment
permitting quotes on other systems, the agency was precluded from selecting
other than the Aqua-Flo system; it concludes that the selection of Noyes for
a different system was improper.

As a preliminary matter, we note that the agency properly determined that
the competition should be expanded beyond the Aqua-Flo system. In this
regard, agencies are required to specify their needs in a manner designed to
promote full and open competition and thus may include restrictive
requirements only to the extent necessary to satisfy their actual needs. 41
U.S.C. sect. 253a (1994); Fisons Instruments, Inc., B-261371, July 18, 1995,
95-2 CPD para. 31 at 2. Although simplified acquisition procedures are designed
to streamline procurements, see Federal Acquisition Regulation (FAR)
sect. 13.002, agencies using these procedures still are required to promote
competition to the maximum extent practicable. FAR sect.sect. 13.003(h)(1),
13.104. Given this requirement to maximize competition, once the agency
determined that systems other than the specified Aqua-Flo model would meet
its needs, it could not properly limit the competition to the Aqua-Flo
model. See Ultraviolet Purification Sys., Inc., B-226941, Sept. 10, 1987,
87-2 CPD para. 229 at 2-3; FAR sect. 13.106-1(b)(1) (agency may solicit a single
source only where it determines that, under the circumstances of the
procurement, only one source is reasonably available). The agency thus
properly determined that the competition should be expanded to encompass all
systems that would meet its needs.

Turning to the protester's specific argument, while solicitation amendments
generally must be issued in writing in order to afford firms an opportunity
to respond to changed requirements, we will sustain a protest based on an
agency's failure to issue a written amendment only where the failure
prejudiced the protester. First St. Invs. Ltd. Partnership, B-270894.2,
B-270894.3, Aug. 15, 1996, 96-2 CPD para. 69 at 7-8. There was no prejudice
here. First, since the September 8 e-mail notice clearly indicated that
other systems were found that would meet the agency's needs, and that in
light of this fact a site visit was being held, it should have been clear to
Aqua-Flo that the agency intended to consider quotes for those other
systems. Since Aqua-Flo thus was on actual notice of the agency's changed
requirements, it clearly was not prejudiced by the agency's failure to issue
a written amendment before considering competing systems. See NBI, Inc.,
B-206285.2, Sept. 28, 1982, 82-2 CPD para. 290 at 3-4 (protester was not
prejudiced by absence of written amendment where it was otherwise on notice
of changed requirement). In any case, even if Aqua-Flo were not on notice of
the opening of the competition to other systems, Aqua-Flo does not assert,
and there is no indication, that it would have altered its quotation to its
competitive advantage in response to such notice. We will not sustain a
protest absent a showing of such competitive prejudice. The Ensign-Bickford
Co., B-275423, Feb. 20, 1997, 97-1 CPD para.  93 at 3.

The protest is denied.

Comptroller General
of the United States