TITLE: REEP, Inc., B-290665, September 17, 2002
BNUMBER: B-290665
DATE: September 17, 2002
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REEP, Inc., B-290665, September 17, 2002
Decision
Matter of: REEP, Inc.
File: B-290665
Date: September 17, 2002
Gilbert J. Ginsberg, Esq., for the protester.
Lt. Col. Daniel K. Poling, Department of the Army, for the agency.
Scott H. Riback, Esq., and John M. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
Protest against agency's issuance of delivery orders under Federal Supply
Schedule (FSS) is sustained, where agency issued orders to firm that was
only vendor on one schedule within the FSS, identical services were
available at lower price from protester and other vendors on another
schedule within the FSS , and agency had knowledge that the services were
available under the second schedule; since agency must review information
reasonably available before awarding FSS delivery orders, it could not
make award without reviewing vendors' prices on second schedule.
DECISION
REEP, Inc. protests the Department of the Army's issuance of delivery
order
Nos. DAKF23-02-F-5215 and DAKF23-02-F-5315 to Worldwide Language
Resources, Inc. under that firm's Federal Supply Schedule (FSS) contract
in connection with its acquisition of language training services for the
5th Special Forces Group (SFG). The protester maintains that the agency
improperly issued these delivery orders on a sole-source basis to
Worldwide, even though REEP could have provided the same services under
its FSS contract at a lower price.
We sustain the protest.
The 5th SFG has an ongoing requirement for language training services and
has been meeting its need through the award of delivery orders under the
FSS. Worldwide had been performing these services under a prior 1-year
delivery order awarded in March 2001 and due to expire on March 15, 2002.
On March 4, 2002, the agency issued request for quotations (RFQ) No.
DAKF-23-02-Q-0040 (RFQ 0040) in an effort to meet its requirement for
language training services. REEP filed a protest in our Office in which
it asserted that the RFQ's terms were unduly restrictive and that
Worldwide had a conflict of interest that should preclude the firm from
competing to provide language training services. In response to that
protest, the agency advised our Office that it intended to cancel the RFQ,
redraft the solicitation and evaluate REEP's conflict of interest
allegation with a view to avoiding, neutralizing or mitigating any
possible conflict on the part of Worldwide. Based on this proposed
corrective action, we dismissed REEP's protest (B-290155, April 29,
2002). On May 24, the agency issued a new solicitation (RFQ No.
DAKF23-02-Q-0059) for its language training services requirement. REEP
has filed a protest in our Office challenging the terms of that RFQ, which
we intend to address in a separate decision.
In order to meet its ongoing requirement for language training services
during this same period, the agency issued two FSS delivery orders to
Worldwide, the first on March 15 and the second on June 3. These delivery
orders were executed without issuance of solicitations or receipt of
competitive quotations. The delivery orders were awarded against
Worldwide's contract under FSS No. 69; Worldwide is the only vendor with a
language training contract under that schedule. In contrast, REEP,
Worldwide and numerous other vendors hold language training contracts
under FSS No. 738-II.
REEP maintains that it was improper for the agency to award the delivery
orders to Worldwide without also considering vendors' prices under FSS No.
738-II. REEP states, and the agency does not dispute, that its prices
under its FSS contract are lower than Worldwide's.
We agree with REEP. Agencies are not required to conduct competitive
acquisitions when making purchases under the FSS; by statutory definition,
the award of a delivery order under the FSS satisfies the requirement for
full and open competition*so long as award is made to the vendor providing
the best value to the government at *the lowest overall cost.* 10 U.S.C.
S: 2302(2)(c) (2000); Federal Acquisition Regulation (FAR) S: 8.404(a).
Provided that agencies satisfy this statutory condition, they are not
required to seek further competition, synopsize the requirement or make a
separate determination of fair and reasonable pricing before awarding an
FSS delivery order. FAR S: 8.404. To ensure that it is meeting the
statutory obligation to obtain the best value at the lowest overall cost
to the government when placing orders under the FSS, an agency is required
to consider reasonably available information, typically by reviewing the
prices of at least three schedule vendors. FAR S: 8.404(b)(2); Commercial
Drapery Contractors, Inc.,
B-271222, B-271222.2, June 27, 1996, 96-1 CPD P: 290 at 3.
Here, the agency's only explanation for its actions is that it placed the
delivery orders with Worldwide because it was the only vendor with a
contract under FSS No. 69. However, the record shows that the agency had
actual knowledge of numerous other vendors that offered the same language
training services under FSS No. 738-II.[1] The agency has not asserted
that there is anything unique about the training offered by Worldwide
under its FSS contract--for example, that it includes features not
available from other vendors--that would provide a basis for paying a
price premium for the services. Accordingly, we find that the agency
failed to meet its obligation to consider reasonably available
information, namely, the prices offered by other vendors under FSS No.
738-II, before placing its delivery orders with Worldwide. Had it done
so, it would apparently have discovered that the same requirement could be
met at a lower overall cost to the government. Under these circumstances,
we sustain REEP's protest.
Since the agency continued (and has completed) performance under the
delivery orders awarded to Worldwide, corrective action is not
practicable. Accordingly, we recommend that REEP be reimbursed the costs
of filing and pursuing its protest, including reasonable attorneys' fees.
4 C.F.R. S: 21.8(d)(1) (2002). REEP's certified claim, detailing the time
spent and the costs incurred, should be submitted to the agency within 60
days of receiving this decision. 4 C.F.R. S: 21.8(f)(1).
The protest is sustained.
Anthony H. Gamboa
General Counsel
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[1] The agency issued RFQ 0040 on March 4 to vendors holding contracts
under FSS No. 738-II; this was prior to issuance of the first delivery
order to Worldwide on March 15.