TITLE:  Flowlogic, B-289173, January 22, 2002
BNUMBER:  B-289173
DATE:  January 22, 2002
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Decision

Matter of: Flowlogic

File: B-289173

Date: January 22, 2002

Adindu A. Uzoma for the protester.

Ken Reed, for Training Technologies, Inc., an intervenor.

Craig R. Schmauder, Esq., and Christopher J. Wood, Esq., U.S. Army Corps of
Engineers, for the agency.

Jacqueline Maeder, Esq., and John M. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.

DIGEST

Argument that request for quotations overstated agency's real needs, as
evidenced by allegedly relaxed requirements in subsequent sole-source
purchase order, is without merit, where record shows that agency's needs,
although relaxed due to unforeseeable circumstances, were not overstated,
and that protester's quotation would have been unacceptable even under
relaxed requirements.

DECISION

Workflow Systems, Inc. d/b/a Flowlogic protests the decision by the U.S.
Army Corps of Engineers to issue a sole-source purchase order to Training
Technologies, Inc. (TTI) for software, technical support, training and
maintenance to administer

360-degree performance review surveys and organizational surveys at the
Engineering and Support Center, Huntsville, Alabama.

We deny the protest.

On August 2, 2001, the agency issued request for quotations (RFQ) No.
DACW87-01-Q-0012 using simplified acquisition procedures, for a commercial
software package to administer the performance review and organizational
surveys for a base year, with three 1-year options. The RFQ set forth
specific requirements for the software, including, for example, that the
surveys be accessible through an Internet browser, that responses to the
surveys be anonymous, and that the software support a minimum of 50
concurrent users. The RFQ also specified that the software had to allow
users to write comments for each survey question and that each comment field
allow a minimum of 2,000 characters. The RFQ specified that vendors were to
deliver the software no later than September 5, 2001, and load the software
and train the systems and technical administrators during the week of
September 5-12. Quotations were to be evaluated based on technical
capability and price, with award to be made to the responsible vendor whose
quotation, conforming to the RFQ, was most advantageous to the government.

Six quotations were received by the August 13 due date. In its initial
review, the technical evaluation board (TEB) determined that four of the six
quotations, including Flowlogic's, were unacceptable and, after discussions
with the remaining

two vendors, the TEB determined that none of the quotations met the minimum
requirements of the RFQ. Agency Report (AR), Tab A, Contracting Officer's
Statement (COS), at 5-6. Flowlogic's quotation was determined to be
unacceptable because it did not address the survey reporting requirements,
and because it stated that Flowlogic could not meet the September 5-12
training delivery date. In this regard, the quotation stated that "due to
the customization effort required to develop the reports needed by [the
agency] training of the systems and technical administrators cannot be
accomplished until on or about the first week in October." AR, Tab E,
Flowlogic Quotation, at 5.

In early September, the agency determined to cancel the solicitation, since
none of the quotations met its requirements. [1] The agency re-examined its
needs and, because it was aware of at least two companies which could meet
the RFQ requirements, determined that the requirements were not overly
restrictive of competition or overstated. AR, Tab A, COS, at 6-7. Because
the agency needed to have the software in place in early September, the
agency determined that it did not have sufficient time to resolicit.
Instead, based on prior market research and knowledge that TTI's software
was used at another Corps office, the agency reviewed TTI's products on the
Internet, contacted the vendor on September 6, and requested an oral
quotation. After a technical and price review of TTI's Survey Tracker
software and training program, the agency issued a purchase order to TTI
that same day, for 1 year, with no options. TTI delivered the software to
the agency on September 7. The training for agency personnel was scheduled
for September 13 and 14, but, because of the terrorist attacks of September
11, it was delayed until September 17-20. AR, Tab A, COS, at 8. The agency
provided Flowlogic an informal debriefing by telephone on October 3,
informing the protester why its quotation was unacceptable. Flowlogic filed
this protest with our Office on October 15.

Flowlogic maintains that the requirements under the RFQ were overly
restrictive, as evidenced by the agency's alleged waiver of certain
requirements for TTI. In particular, the protester cites the RFQ's September
5 installation date as a requirement that TTI was not required to meet.
Flowlogic concludes that, had the relaxed requirements been set forth in the
RFQ, its quotation would not have been unacceptable and it would have been
able to meet the requirements at the lowest price.

We find nothing improper in the agency's actions. First, there is no basis
for finding that the RFQ's delivery schedule overstated the agency's needs.
In this regard, the Corps explains that the September timeframe was critical
because, under applicable guidelines, personnel of a certain rank have an
annual rating period of October 1 through September 30. AR, Tab A, COS, at
1. The protester does not challenge this explanation. While the agency did
extend the delivery dates for TTI, it did so, not because its needs had
changed or because TTI could not meet them, but solely due to the time taken
for the unsuccessful competition, and the delay caused by the events of
September 11. Most importantly, even as extended, delivery still was
required in September. This being the case, there is no basis for
Flowlogic's claim that it could have met the agency's relaxed delivery
requirements had they been included in the RFQ, since the September
timeframe remained critical, and Flowlogic's quotation specifically stated
that it could not provide the training until October. In light of this fact,
and since the other quotations received were unacceptable, the Corps
reasonably determined that TTI was the only source available that could meet
its needs within the September timeframe, and therefore properly proceeded
on a sole-source basis. See Federal Acquisition Regulation (FAR) sect.sect. 13.104,
13.106-1(b); Aleman & Assocs., Inc., B-287275, May 17, 2001, 2001 CPD para. 93
at 3. [2]

The protest is denied.

Anthony H. Gamboa

General Counsel

Notes

1. A written amendment, dated September 6, canceling the amendment was
drafted but never issued. AR, Tab A, COS, at 7. Flowlogic was notified of
the cancellation by telephone on or about September 11. Id.

2. In its November 26 comments, the protester for the first time argues that
TTI's software did not provide the required comment field for each question
or provide the minimum 2,000-character length for the comment field. Under
our Bid Protest Regulations, protests based on other than apparent
solicitation improprieties must be filed within 10 days of when the
protester knew or should have known the basis for protest. 4 C.F.R. sect.
21.2(a)(2) (2001). Flowlogic knew of the award to TTI on October 3, and on
that date "determined that the Survey Tracker software could not meet the
[a]gency's stated solicitation requirements." Protester's Comments at 2.
Thus, Flowlogic was required to protest on this basis within 10 days after
October 3. Because it did not do so, this ground of protest is untimely and
will not be considered.