TITLE:  Warden Associates, Inc., B-291440; B-291440.2, December 27, 2002
BNUMBER:  B-291440; B-291440.2
DATE:  December 27, 2002
**********************************************************************
Warden Associates, Inc., B-291440; B-291440.2, December 27, 2002

   Decision
    
    
Matter of:   Warden Associates, Inc.
    
File:            B-291440; B-291440.2
    
Date:              December 27, 2002
    
Harlan Wax for the protester.
Kenneth W. Dodds, Esq., Small Business Administration, for the agency.
Sharon L. Larkin, Esq., and James A. Spangenberg, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
    
Protest that agency established unreasonably short deadline to respond to
request for quotations issued under the Federal Supply Schedule program is
denied, where protester essentially admits it could have timely responded
but chose not to. 
DECISION
    
Warden Associates, Inc. protests the issuance of a task order by the Small
Business Administration (SBA) under request for quotations (RFQ)
SBAHQ-02-Q-0043 for consulting services related to performing cost
comparisons under Office of Management and Budget Circular A-76.  Warden
contends that the RFQ, which sought *a technical and price proposal* under
Warden's General Services Administration (GSA) Federal Supply Schedule
(FSS) contract, did not permit sufficient time for response.  Warden also
challenges the selection of the only vendor that submitted a response,
Jefferson Consulting Group.
    
We deny the protest.
    
The record includes an SBA requisition, dated July 18, 2002, for a
consultant to assist the agency in the conduct of A-76 cost comparison
studies.  The SBA's estimate of the cost of services was approximately
$175,000.  AR Tab C, Requisition for Services.  However, funding did not
become available, and the requisition therefore was not approved, until
approximately 6 p.m. on Friday, September 27.  At 9:15 p.m. that day, the
contracting officer faxed the RFQ to four FSS vendors, including Warden,
and left telephone messages with each vendor as well.  Warden claims it
never received the telephone message.
    
The RFQ sought a *technical and price proposal in accordance with your GSA
schedule contract* for A-76 consulting services.  These services included
providing the SBA with an implementation strategy, expert advice, and
training for conducting A‑76 studies.  Submissions were due by
Monday, September 30, at 1 p.m.
    
On Monday morning, September 30, Warden contacted the contracting officer
and sought an extension of time for filing its response to the RFQ or, in
the alternative, permission to submit its response by e-mail.  Its
requests were denied.  The contracting officer explained that the SBA
needed to place the order that day, which was the last day of the fiscal
year, or else funding would expire.  She explained that the SBA was having
difficulties with its e-mail server, and would therefore not accept e-mail
submissions, but told Warden that it could submit its response by
facsimile.  As explained below, Warden found this to be unacceptable.
    
Only one vendor, Jefferson, submitted a response to the RFQ.  Jefferson
currently performs related A-76 consulting services for the SBA under a
separate task order.  Jefferson's response to the RFQ, which was timely
received by the SBA at 12:50 p.m. on September 30, included a detailed
technical proposal and a quotation to perform the work for approximately
the same amount as the agency estimate.  The SBA placed an order for the
services with Jefferson on a time and materials basis, as contemplated by
the RFQ.
    
Warden timely protested that the SBA had not allowed sufficient response
time to respond to the RFQ.  In a supplemental protest, it also challenged
the SBA's issuance of the task order to Jefferson.
    
Warden first contends that the SBA's establishment of a 3-day response
time violates Federal Acquisition Regulation (FAR) S: 5.203 (requiring a
minimum 30-day response time) and 41 U.S.C. S: 5 (requiring agencies to
advertise for proposals).  However, these rules apply to traditional
negotiated procurements and not to the FSS program, which is governed
instead by FAR Subpart 8.4.[1]  Computer Prods., Inc., B-284702, May 24,
2000, 2000 CPD P: 95 at 4.  Nevertheless, where, as here, an agency
invites firms to submit a *technical and cost proposal* in response to an
RFQ, we will review the agency's actions to ensure that the evaluation is
fair and reasonable and consistent with the terms of the RFQ.  Comark Fed.
Sys., B-278343, B-278343.2, Jan. 20, 1998, 98-1 CPD P: 34 at 4-5.
    
FAR Subpart 8.4 does not require that vendors be permitted a specific
minimum amount of time to respond to an RFQ; what is reasonable and
sufficient depends on the facts and circumstances of the case.  We
recognize that issuing a solicitation late on Friday, September 27, 2002,
and requiring submission by midday on the next business day (Monday,
September 30) allows very little time, particularly where, as here, a
*technical proposal* is sought.  There could be circumstances where such
action by an agency would lead us to sustain a protest.  We have, however,
recently found that almost the same amount of time (and, indeed, over the
same end-of-the-fiscal-year weekend) was unobjectionable under the
circumstances.  Specifically, in USA Info. Sys., Inc., B-291488, Dec. 2,
2002, 2002 CPD P: __, the agency issued an RFQ amendment on the Internet
on Friday (September 27), requiring responses by noon on Monday, an amount
of time that the protester challenged as unreasonably short.  We concluded
that, in the unusual circumstances of that procurement, the amount of time
was unobjectionable:  the amendment made only relatively minor changes in
the solicitation, and the protester failed to avail itself of
opportunities to obtain the amendment promptly, even though it was on
notice of the agency's intent to issue a purchase order before the end of
the fiscal year (on Monday, September 30).  See also Military Agency
Servs. Pty., Ltd., B‑290414, B‑290441, B-290468, B-290496,
Aug. 1, 2002, 2002 CPD P: 130 at 6 (24-hour response time was reasonable
where agency requests only price quotes and all vendors were able to
timely respond).
    
Here, the RFQ's call for *technical proposals* due on the next business
day may well have been objectionable in other circumstances.  In the
context of the unique facts of this case, however, we do not find the
agency's actions to be objectionable.
    
During a telephonic hearing that our Office conducted, Warden admitted
that it could have timely prepared and submitted the requested technical
proposal; instead, according to the protester, the critical issue was the
medium of submission, not its ability to prepare a technical proposal in
the limited time.  Warden apparently believed that it could prepare and
submit its proposal by the deadline, if the agency would accept e-mail
submission.  Warden was unwilling, however, to fax its proposal (as the
contracting officer suggested) because it was concerned that even if
transmission began before 1 p.m., the last faxed page might not be
received by 1 p.m.[2]  Warden did not raise this concern about facsimile
transmission with the SBA during the September 30 telephone calls, and
concedes that it probably could have faxed the proposal before 1 p.m.,
although it would have been close to that deadline.  Furthermore, the
contracting officer stated during the telephonic hearing that she would
have stood by her offer to accept the facsimile of Warden's
submission.[3]  Warden's company personnel nevertheless decided to file a
protest instead.  In other words, Warden could have made a timely
submission to the contracting agency, but instead chose not to.
    
We have no basis to sustain Warden's protest of the SBA's actions here. 
The contracting officer endeavored to contact the potential vendors,
including Warden, by telephone as well as facsimile as soon as she
learned, late on September 27, that the requisition for services had been
approved and funds were available.  Warden contends that the SBA's funding
concerns are due solely to its lack of acquisition planning, which does
not constitute sufficient justification for a short response time. 
Although we recognize that acquisition planning is required under FAR S:
8.404(a)(2), we have also stated that as a general rule obtaining
information from FSS vendors, which the SBA did here, satisfies the
agency's obligation for procurement planning.  See Sales Res. Consultants,
Inc., B‑284943, B-284943.2, June 9, 2000, 2000 CPD P: 102 at 4.
    
More importantly, the record does not establish that Warden was unable to
comply with the deadline set here.  We find unpersuasive Warden's
distinction between e‑mail submission (which, in Warden's view,
would have apparently made the timeframe reasonable) and facsimile
transmission (where Warden viewed the timeframe as unreasonably short). 
Instead, we treat the firm's decision not to respond to the RFQ as a
business judgment.  Accordingly, we deny Warden's protest challenging the
sufficiency of the response time permitted.
    
Warden also protests the selection of Jefferson, alleging that Jefferson's
submission was *non-responsive* to the RFQ and that Jefferson received an
*unfair competitive advantage* because it allegedly had access to
non-public information as a contractor currently performing related A-76
services for the SBA.  Warden is not an interested party to raise these
allegations, however, since it chose not to submit a quotation and because
we have denied its protest challenging the deadline for responding to the
RFQ.  See Loral Fairchild Corp., B‑242957, June 24, 1991, 91-1 CPD
P: 594 at 6 (protester is not an interested party to further challenge
procurement where protester did not submit a proposal and its protest
alleging overly restrictive specifications is denied); Roy's Rabbitry,
B-196452, May 9, 1980, 80-1 CPD P: 334 at 3 (protester is not interested
party to challenge award of contract where it chose not
to submit bid for reasons of convenience).  Therefore, Warden's
supplemental protest is dismissed.
    
The protest is denied.
    
Anthony H. Gamboa
General Counsel
    

   ------------------------

   [1] As a threshold matter, Warden complains it was not specifically
informed which GSA schedule was at issue or that FAR Subpart 8.4 applied. 
We do not find these complaints reasonable.  The cover letter to the RFQ
refers to Warden's GSA schedule contract.  Moreover, Warden has previously
submitted quotations to the SBA for similar services under its GSA
contract.  Warden points to no requirement, and we are aware of none, that
required the SBA to inform Warden that the RFQ responses were going to be
evaluated pursuant to FAR Subpart 8.4.
[2] Warden noted that if e-mail had been permitted, it would have
submitted a proposal by e-mail.  According to Warden, even if the pressure
of time caused such an e-mail proposal to arrive a few minutes past the 1
p.m. deadline, the firm would have left it to the discretion of the
contracting officer whether to accept the late filed submission.  Warden
fails to explain why this same rationale would not apply to a facsimile
transmission.
[3] The RFQ does not prohibit the acceptance of late filed submissions. 
Furthermore, the FAR rules concerning late filed proposals in negotiated
procurements do not apply to this FSS buy.  KPMG Consulting LLP, B-290716,
B-290716.2, Sept. 23, 2002, 2002 CPD P: 196.