TITLE:  Payne Construction, B-291629, February 4, 2003
BNUMBER:  B-291629
DATE:  February 4, 2003
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Payne Construction, B-291629, February 4, 2003

   Decision
    
    
Matter of:    Payne Construction
    
File:             B-291629
    
Date:              February 4, 2003
    
Alan Payne for the protester.
L. Benjamin Young, Jr., Esq., Department of Agriculture, for the agency.
Jennifer D. Westfall-McGrail, Esq., and Christine S. Melody, Esq., Office
of the General Counsel, GAO, participated in the preparation of the
decision.
DIGEST
    
Agency should have considered protester's quotation where it was received
prior to agency's commencement of quotation evaluation and other vendors
would not have been prejudiced.
DECISION
    
Payne Construction protests the failure of the Forest Service to consider
its quotation and the agency's issuance of a purchase order to Ridgley
Engineering under request for quotations (RFQ) No. RFQ-17-02-120, for
excavator piling site preparation in Tahoe National Forest, California.
    
We sustain the protest.
    
The RFQ, which was issued on June 17, 2002 using Federal Acquisition
Regulation Part 13 simplified acquisition procedures, requested prices on
13 line subitems (numbered 1A-1F and 2A-2G), representing estimated
acreages at 13 different work sites.  The solicitation contemplated the
issuance of an order to the vendor whose quotation represented the best
value to the government.  Factors to be considered in the determination of
best value included price, experience, delivery, quality, and past
performance.  The RFQ invited interested firms to *[p]lease furnish
quotations to the issuing office in block 5a on or before close of
business July 16, 2002.*
    
Neither Ridgley nor Payne furnished a quotation by the July 16 due date. 
Two other vendors did provide quotations, but the agency determined that
one was unrealistically low in price and that the other was from a vendor
who had experienced difficulties in completing work on time.  Contracting
Officer's Statement  P: 2.  At the time the quotations were received,
funding constraints prevented the agency from issuing a purchase order;
accordingly, the contracting officer determined that he would *take the
opportunity to try to broaden the competition by reopening the
solicitation.*  Id. P: 3.
    
On August 1, the Forest Service issued, and posted on the FedBizOpps
website, amendment No. 1 to the RFQ, which extended the quotation due date
to August 14.[1]  Ridgley and three other vendors submitted quotations by
the new due date; Payne did not submit a quotation.  There is no evidence
in the record that the quotations received were evaluated at any point
between August 14 and October 7.
    
Funding constraints still prevented the agency from issuing a purchase
order.  The contracting officer decided that since the agency would not be
able to issue a purchase order until after the start of the new fiscal
year, he would issue a second amendment to the RFQ reformatting the
schedule of items to request separate totals for items 1 and 2 and
emphasizing that the two items might be awarded to different contractors. 
Id. P: 4.  On September 20, the contracting officer issued amendment No.
2, which extended the quotation due date to October 7, to the four vendors
who had submitted quotations in response to amendment No. 1.[2]  Because
he did not intend to reopen the competition to vendors other than those
four, he did not post the amendment on the FedBizOpps website.
    
Subsequent to the contracting officer's issuance of amendment No. 2, Payne
Construction learned of the RFQ from a Forest Service Internet site.  A
Payne representative contacted the contracting office, which furnished
Payne a copy of the solicitation.  On October 7, the Payne representative
visited the contracting office, where a Forest Service employee furnished
it detailed information regarding the job.  Later the same day, Payne
hand-delivered its quotation to the contracting office.  Protest at 1.
    
The Forest Service received quotations from Payne and Ridgley and from two
of the three other vendors to whom it had distributed amendment No. 2.  Of
the quotations received, Payne's was lowest, and Ridgley's was next
lowest.  The contracting officer did not consider Payne's quotation
because he believed that Payne was ineligible to participate in the
competition, having failed to submit a quotation prior to the due date set
by amendment No. 1.  Contracting Officer's Statement P: 6.  On October 11,
the contracting officer issued a purchase order to Ridgley Engineering.
    
Payne received a letter notifying it of the selection of Ridgley on
October 15.  On October 16, a Payne representative contacted the
contracting office regarding the matter and was told by a member of the
office staff other than the contracting officer that the RFQ had not been
open to his company.  Later the same afternoon, the same Forest Service
employee told a second Payne representative who called to inquire about
the matter that *there appear[ed] to be a serious problem* with the
solicitation, which the Payne representative would need to discuss with
the contracting officer, who would be out of the office until October 21. 
Protest at 2.  On October 21, the Payne representative reached the
contracting officer, who reiterated that the RFQ had not been open to the
protester, but promised to investigate the matter and furnish Payne with a
written explanation as to why its quotation was not considered.
    
In his follow-up letter dated October 25, the contracting officer
explained that he had not considered Payne's quotation because it had been
submitted after the due date established by amendment No. 1.  The
contracting officer noted that amendment
No. 2 had been issued only to those vendors who had furnished quotations
by the due date set by amendment No. 1 and that, in contrast to the
original RFQ and amendment No. 1, it had not been posted on the FedBizOpps
website.  The contracting officer further explained that he had not
considered the protester's quotation because he felt it would be unfair
*both to those who had already responded to the solicitation and to others
who were not in a position to offer a price in August when the competition
closed, but [who] might have been interested in October.*  Contracting
Officer's Letter to the Protester, Oct. 25, 2002.
    
On October 30, Payne protested the agency's failure to consider its
quotation to our Office.  By letter dated November 26, the Forest Service
notified our Office that it was taking corrective action in response to
the protest.  Specifically, the Forest Service informed us that it was
terminating Ridgley's order with regard to those items on which
performance had not been initiated and that it would resolicit the
terminated items the following spring.  The Forest Service requested that
we dismiss Payne's protest on the grounds that corrective action had been
taken.  The protester objected to the agency's request for dismissal,
contending that partial termination followed by resolicitation was neither
appropriate nor what it had requested.  We declined to dismiss because we
were not persuaded that the proposed corrective action was the appropriate
remedy for the alleged impropriety.[3]  Accordingly, we requested that the
agency furnish us with a report on the merits.
    
Timeliness
    
As a preliminary matter, the Forest Service argues that Payne's protest
should be dismissed as untimely because it was filed more than 10 days
after the protester learned of its basis for protest.[4]  In this
connection, the agency notes that the protester was notified of the
selection of Ridgley on October 15, and of the agency determination that
the RFQ was not open to it on October 16, but did not protest to our
Office until October 30.
    
We do not agree that Payne's protest is untimely.  The protester is
objecting to the agency's failure to consider its quotation; accordingly,
we think that Payne's period for filing a protest did not begin to run
until the contracting officer notified it that he had not considered the
quotation.  The notification that the protester received on October 15 did
not start the 10-day period running because, while it informed the
protester of the selection of Ridgley, it did not advise the protester
that its quotation had not been considered; thus, it did not furnish the
protester with the information providing the basis for its protest. 
Further, we do not think that the conversation between the Payne
representative and a contracting office employee on October 16 constituted
notice sufficient to start the 10-day period running because while the
employee initially informed the protester that its quotation had not been
considered because the RFQ was not open to it, she then backtracked,
stating that there appeared to be serious problems with the solicitation
and that the protester would need to speak with the contracting officer. 
Under the circumstances of this case, we do not think that the protester
can be said to have learned of its basis for protest until October 21 at
the earliest, when a representative of the company spoke with the
contracting officer and was told that its quotation had not been
considered.  Accordingly, we consider its protest filed on October 30 to
be timely.
    
Analysis
    
The agency argues that the contracting officer reasonably excluded Payne's
quotation from consideration because it was submitted after the due date
set forth in amendment No. 1, which the contracting officer intended as
the final closing date for purposes of defining the competitive field. 
The Forest Service explains that in issuing amendment No. 2, the
contracting officer did not intend to reopen the competition to additional
vendors; rather, he intended merely to permit those vendors who had
already submitted quotations to revise them.
    
When agencies use simplified acquisition procedures, as the Forest Service
did here, they are not required to meet the standard of full and open
competition; they are, however, required to obtain competition to the
maximum extent practicable.  41 U.S.C. S: 427(c) (2000).  Accordingly, if
the Forest Service viewed Payne's submission as an unsolicited quotation,
that fact alone provided no basis to decline to consider it.  While we
recognize that there may be circumstances where it would not be reasonable
to require an agency to consider an unsolicited quotation, we see no basis
for reaching that conclusion here.
    
Alternatively, the agency may have viewed Payne's quotation as late and
rejected it on that basis.  That basis, as well, is, in our view, legally
unsupported.  We have long held that the requirement to obtain competition
to the maximum extent practicable, whether in the context of simplified
acquisition procedures or the predecessor small purchase procedures, means
that language requesting quotations by a certain date cannot be construed
as establishing a firm closing date for the receipt of quotations absent a
provision--which was not present here--expressly providing that quotations
must be received by that date to be considered.  Instruments & Controls
Serv. Co., B‑222122, June 30, 1986, 86-2 CPD P: 16 at 3.  Instead,
agencies should consider any quotations received prior to source selection
if no substantial activity has transpired in evaluating quotations and
other vendors would not be prejudiced.  Id.  See also KPMG Consulting LLP,
B-290716, B‑290716.2, Sept. 23, 2002, 2002 CPD P: 196 at 11; G.E.G.
Sugar Blues & Noe's Colors, B-284117, Feb. 22, 2000, 2000 CPD P: 29 at 3.
    
In effect, this is what the agency did with respect to vendors, such as
Ridgley, who had failed to respond to the initial RFQ:  quotations they
submitted in response to amendment No. 1 were considered, and properly
so.  We see no legal basis for the agency to then refuse to consider a
quotation from a vendor, such as Payne, who had not responded to amendment
No. 1, but timely submitted a quotation in response to amendment No. 2,
which contained language regarding extension of the quotation due date
virtually identical to the language in amendment No. 1.[5]  The fact that
the contracting officer decided not to post the second amendment to the
FedBizOpps website does not justify the failure to consider Payne's
quotation.
    
Here, the agency had not begun to evaluate the quotations received in
response to amendment No. 2 (indeed, it had apparently not undertaken
substantial, if any, activity in evaluating the quotations received in
response to amendment No. 1) prior to receipt of Payne's quotation. 
Moreover, consideration of Payne's quotation would not have prejudiced
vendors who had previously submitted quotations since they, like Payne,
were given the opportunity to revise their quotations after the due date
set by amendment No. 1.  Further, while the agency conjectures that there
may have been vendors who were not in a position to offer a price in
August, but who would have been interested in October, there is no
evidence in the record that such potential vendors existed; certainly, no
other vendors submitted quotations in the period before the agency began
evaluating the October 7 quotations.
    
We conclude that the contracting officer should have considered Payne's
quotation. Accordingly, we recommend that he now do so, and, in the event
that he determines that, consistent with the evaluation scheme set forth
in the RFQ, Payne's quotation represents the best value to the government,
he award the remaining items under the RFQ to Payne.  We also recommend
that the protester be reimbursed for the costs of filing and pursuing its
protest.  Bid Protest Regulations, 4 C.F.R. S: 21.8(d)(1).  In
accordance with our regulations, Payne's certified claims for such costs,
detailing the time expended and the costs incurred, must be submitted
directly to the agency within 60 days after receipt of the decision.
    
The protest is sustained.
    
Anthony H. Gamboa
General Counsel
    
    

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

   [1] Specifically, amendment No. 1 stated:  *The above solicitation
RFQ-IBET-17-02-120, Excavator Piling Site Preparation on the Nevada City
Ranger District, quotation due date has been extended to August 14, 2002. 
The original solicitation can be seen on the electronic posting system,
http://www.fedbizopps.gov.*
[2] Amendment No. 2 provided in relevant part:  *Quotation due date has
been extended to October 7, 2002.*
[3] We reasoned that if we were to determine that the agency had acted
improperly in excluding Payne's quotation from consideration and sustain
the protest, we would recommend as corrective action not that the agency
resolicit the terminated items, but that the contracting officer consider
Payne's quotation, and, in the event that he determined it to represent
the best value to the government, that he issue a purchase order for the
remaining items under the RFQ to Payne.
[4] Our Bid Protest Regulations, 4 C.F.R. S: 21.2(a)(2) (2002), require
that protests other than those based on alleged improprieties in a
solicitation be filed not later than
10 days after the basis of protest is, or should have been, known.
[5] In our view, this inconsistency in the Forest Service's position
raises concern about whether the agency fulfilled its fundamental duty to
treat vendors fairly.  See Vereinigte Geba:udereinigungsgesellschaft,
B-280805, Nov. 23, 1998, 98-2 CPD P: 117 at 5.