TITLE: Savantage Financial Services, Inc., B-292046; B-292046.2, June 11, 2003
BNUMBER: B-292046; B-292046.2
DATE: June 11, 2003
**********************************************************************
Savantage Financial Services, Inc., B-292046; B-292046.2, June 11, 2003
DOCUMENT FOR PUBLIC RELEASE
The decision issued on the date below was subject to a GAO Protective
Order. This redacted version has been approved for public release.
Decision
Matter of: Savantage Financial Services, Inc.
File: B-292046; B-292046.2
Date: June 11, 2003
Stephen S. Kaye, Esq., and William E. Olson, Esq., Bryan Cave, for the
protester.
John R. Caterini, Esq., and Barry C. Hansen, Esq., Department of Justice;
Thedlus L. Thompson, Esq., General Services Administration; and David L.
King, Esq., and John W. Klein, Esq., Small Business Administration, for
the agencies.
Henry J. Gorczycki, Esq., Guy R. Pietrovito, Esq., and James A.
Spangenberg, Esq., Office of the General Counsel, GAO, participated in the
preparation of the decision.
DIGEST
1. A protester may challenge an agency's decision not to provide the
protester with a solicitation for a purchase under the Federal Supply
Schedule, where this decision was based upon the agency's determination,
pursuant to Federal Acquisition Regulation S: 8.404(b)(3) (which applies
to orders expected to exceed the maximum order threshold), that the
protester did not appear to offer best value, as determined by the agency
from market information obtained from schedule vendors and product
demonstrations; GAO will review the reasonableness of the agency's
determination.
2. Agency decision not to provide the protester with a solicitation for
an acquisition of a unified financial management system under the Federal
Supply Schedule program was reasonable, where, in accordance with Federal
Acquisition Regulation S: 8.404(b)(3), the agency reasonably determined
that the protester did not appear to offer best value (price and other
factors considered) when compared to schedule vendors that were provided
with the solicitation.
DECISION
Savantage Financial Services, Inc. protests the decision of the Department
of Justice (DOJ) not to provide the firm with request for quotations (RFQ)
No. JUJMD-03-0240, which sought quotes from Federal Supply Schedule (FSS)
vendors for software and services for a unified financial management
system (UFMS).
We deny the protest.
In 2001, DOJ decided to replace the seven different financial management
systems that it currently uses with one UFMS. The agency decided that
this system should be a commercial off-the-shelf (COTS) product certified
by the Joint Financial Management Improvement Program (JFMIP) as meeting
core federal accounting and systems security requirements.[1]
DOJ also decided to acquire this system under an FSS contract pursuant to
Federal Acquisition Regulation (FAR) Subpart 8.4. There are seven
JFMIP-certified vendors (including Savantage) of financial management
software systems on the applicable FSS. The maximum order threshold for
this schedule is $500,000; the government estimate of this order is
$[DELETED]. Agency Report at 1, Tab 22, UFMS White Paper, at 1.
In November 2002, DOJ asked all seven JFMIP-certified vendors to complete
a market survey describing their products. The survey, which was
approximately 100 pages in length, stated that the agency planned to
acquire *a core commercial off‑the-shelf (COTS) financial management
product(s),* and that
[t]he implementation approach for UFMS is to minimize any customization to
the base COTS product to support DOJ specific unique business processes.
Agency Report, Tab 1, Market Survey, at 1, 3. Vendors were asked to
indicate whether their products could provide each of these features
without customization or, if customization would be required, whether the
required level of effort would be low (1 week or less), medium (between 1
and 4 weeks) or high (more than 4 weeks ). Id. at 17. Each vendor was
also requested to identify clients who had purchased or were operating the
vendors' federal sector products. Id. at 11.
DOJ also asked each vendor to provide a demonstration of its software
system. Agency Report, Tab 18, Vendor Demonstrations Agenda, at 1. The
request for demonstrations stated the following objectives for the
demonstrations:
. Understand your product's position in the federal government
market and commitment and plans for re‑certification testing with
the JFMIP
. Obtain an overview of the basic operations of your software
package and identify your product's key market discriminators
. Observe basic navigational and ease of use qualities
. Understand through demonstration of generic financial management
transactions basic processing approaches offered by your product
. Better understand the JFMIP-products in the marketplace to focus
the direction and requirements of the government's solicitation.
Id. The request also informed vendors as follows:
Information gleaned from this research will not be used to target a
particular solution or narrow the potential field of products for future
acquisition activities. [2]
Id.
Six vendors, including Savantage, responded to the agency's survey and
provided product demonstrations. After the market survey and product
demonstrations, DOJ decided to solicit quotes for the software and related
services from only four vendors, not including Savantage.
This decision was made by the agency's Director of the Finance Staff,
Justice Management Division, who based his decision on a variety of
information, including his personal experience since 1999 with DOJ's prior
implementations of financial management systems, professional knowledge of
available financial management system products and other federal agencies'
implementations, and personal knowledge of the products and
implementations of a number of the vendors here, including Savantage.[3]
Affidavit of Director of the Finance Staff, Apr. 9, 2003, at 2, 4-5. Of
particular concern to the director, with respect to his decision not to
solicit Savantage, was that the market survey showed that Savantage's
product would require substantially more customization than the vendors
that were selected to receive the RFQ. This, the director found, was
consistent with his knowledge of Savantage's similar federal projects.
Id. at 13-14, 16-17. In addition, the director noted that Savantage had
less extensive experience on similar projects than the selected vendors,
both in total number and in scope of implementation. Savantage, the
director concluded, did not appear to provide the best value as compared
to the other vendors.
On February 14, 2003, Savantage was informed as follows:
The Department, using the results of this market research effort,
evaluated such things as the degree to which vendors have implemented
projects of equivalent size and scope as the UFMS Project, and the
availability of a standard COTS product that can meet the Department's
requirements with minimal customization. Based on its evaluation, the
Department has concluded that your company would have no reasonable chance
of being selected for award over other schedule vendors offering
JFMIP-certified software. Accordingly, I have concluded that it would not
serve the interests of the Department, or be in Savantage's interest, for
you to undergo the expense and effort of responding to an RFQ.
Protest, attach. C, Letter from Contracting Officer (Feb. 14, 2003), at
1. This protest followed a debriefing.
The protester challenges DOJ's decision to exclude Savantage from further
competition on the basis that DOJ's evaluation of the market research
information was unreasonable and unequal, and that DOJ failed to consider
price in selecting which firms would be solicited. In this regard,
Savantage complains that DOJ violated FAR S: 8.404(b)(3). That section
provides that, before an agency places an order that exceeds the maximum
order threshold, it must:
(i) Review additional schedule contractors' catalogs or
pricelists, or use the GSA Advantage! on-line shopping service;
(ii) Based upon the initial evaluation, generally seek price
reductions from the schedule contractor(s) appearing to provide the best
value (considering price and other factors); and
(iii) After seeking price reductions, place the order with the
schedule contractor that provides best value and results in the lowest
overall cost alternative (see [FAR S:] 8.404(a)). If further price
reductions are not offered, an order may still be placed, if the ordering
office determines that it is appropriate.
DOJ argues that its decision not to provide Savantage with the RFQ is not
reviewable by our Office. Specifically, the agency asserts that the
market research, which Savantage challenges as unreasonably and unequally
evaluated, was not a *competition* which can be protested to our Office.
DOJ states that market research merely *informs agency purchasers about
the products that are available to satisfy particular procurement needs.*
Agency Report at 13, citing FAR S: 10.002. Moreover, DOJ contends that
conducting market research to determine which vendors should be solicited
was consistent with FAR S: 8.404(b)(3).[4]
In DOJ's view, our review of agency procurement decisions under FAR
Subpart 8.4 is limited to two situations: (1) *an allegation that an
agency improperly defined its needs so as to exclude a particular vendor,*
Agency Report at 12, citing Delta Int'l, Inc., B-284364.2, May 11, 2000,
2000 CPD P: 78, and (2) review of an agency's conduct of a *formal
competition* after issuance of a solicitation.[5] See, e.g., COMARK Fed.
Sys., B-278343, B-278343.2, Jan. 20, 1998, 98-1 CPD P: 34. DOJ asserts
that neither situation is present here. DOJ argues that, absent the
issuance of a solicitation that includes evaluation criteria, our Office
has no basis to review an agency's *best value* decision as to which FSS
vendor to solicit, Agency Report at 14; elsewhere, DOJ contends that the
language of FAR S: 8.404(b)(3) (regarding the determination of which FSS
vendors *appear[] to provide the best value*) leaves agencies a
*significant degree of discretion.* Id. at 16.
We first address the question of our jurisdiction to hear this protest,
before turning to the question of whether Savantage has stated a valid
basis of protest.
The authority of our Office to decide bid protests is established by the
Competition in Contracting Act of 1984 (CICA), 31 U.S.C. S:S: 3551-3556
(2000), which provides that the Comptroller General shall decide protests
challenging, among other things, solicitations and awards of contracts.
This includes solicitations and awards of orders under the FSS. See
Severn Cos., Inc., B-275717.2, Apr. 28, 1997, 97-1 CPD P: 181, at 2-3
n.1. Our jurisdiction to hear challenges of solicitations includes
jurisdiction to consider a protester's challenge that it was unreasonably
not solicited by an agency. See, e.g., GMA Cover Corp., B-288018,
Aug. 17, 2001, 2001 CPD P: 144 at 3 (failure to solicit a vendor's quote
under simplified acquisition procedures). Because Savantage is
challenging DOJ's decision not to provide the firm a copy of the RFQ (and
thus not to allow the firm to compete for the FSS order), we conclude that
we have jurisdiction to hear the protest.
With respect to whether Savantage has stated a valid basis for protest,
Savantage contends that DOJ's decision to exclude the firm from the RFQ
competition violates FAR S: 8.404. Our authority under CICA provides that
our Office shall decide a *protest concerning an alleged violation of a
procurement statute or regulation.* 31 U.S.C. S: 3552. FAR S: 8.404 is
plainly a procurement regulation, so that Savantage has stated what on its
face appears to be a valid basis of protest.
DOJ, however, apparently believes that the language of FAR S: 8.404 leaves
the agency with unreviewable discretion as to the determination that
Savantage challenges, so that the firm has, in effect, not stated a valid
basis of protest. We disagree.
The FSS program provides federal agencies with a simplified process for
obtaining commonly used commercial supplies and services at prices
associated with volume buying. FAR S: 8.401(a). Section 259(b)(3) (2000)
of title 41 of the United States Code provides that the procedures
established for the GSA's multiple award schedule program (that is, the
FSS program) satisfy the general requirement in 41 U.S.C. S: 253(a)(1) for
use of competitive procedures if participation in the program has been
open to all responsible sources, and orders and contracts under the FSS
procedures result in the lowest overall cost alternative to meet the needs
of the government.
Use of the FSS in lieu of conducting a full and open competition is thus
premised on following the Subpart 8.4 procedures to reach a determination
regarding what the agency's needs are and which FSS vendor meets those
needs at the lowest overall cost. See Delta Int'l, Inc., supra, at 4. As
noted above, DOJ concedes that an agency's failure to follow the
procedures in Subpart 8.4 by, for example, failing to review the catalogs
or pricelists of three FSS vendors, is reviewable in a bid protest.
Agency Report at 12 n.4. Moreover, where an FSS vendor protests the
agency's decision not to solicit from the protester for an FSS purchase
the agency is making, we will review the agency's action for compliance
with applicable law.[6] Thus, in Delta Int'l, Inc., supra, we reviewed an
agency's decision not to consider the protester's product, and instead to
issue an order to another firm based upon the agency's determination that
only that firm's product would meet its needs. In that case, we stated
that the
fundamental principle of government accountability dictates that . . .
determinations [under FAR S: 8.404(a) as to the government's needs and
which products or services meet those needs at the lowest overall cost]
are subject to review, and we view it as axiomatic that, in order to
withstand review when challenged in a bid protest, the agency must be able
to provide a reasonable basis for its determinations regarding its needs
and the FSS supply or service that meets those needs at the lowest overall
cost.
Id. at 4.
Similarly, we believe that an agency must be able to provide a reasonable
basis for its determinations regarding which FSS vendor offers the best
value, which is the determination at issue in this protest. In order to
obtain the benefits of the streamlined procedures of the FSS program, DOJ
was required here to comply with the rules set out in FAR Subpart 8.4,
including, in particular in this case, FAR S: 8.404(b)(3). Specifically,
with respect to orders that are expected to exceed the maximum order
threshold stated in vendors' FSS contracts, such as the $[DELETED] order
anticipated here, FAR S: 8.404(b)(3) requires an ordering agency to review
information about additional schedule contractors products or services
(beyond the three that must be considered for purchases below the maximum
order threshold); *[b]ased upon the initial evaluation, generally seek
price reductions from the schedule contractor(s) appearing to provide the
best value (considering price and other factors)*;[7] and then place the
order with the vendor that provides the best value and results in the
lowest overall cost alternative.
DOJ does not deny that it was required to comply with FAR S: 8.404(b)(3).
The agency conducted a comparative evaluation of the relative merits of
the vendors' products and abilities, through its market survey, in order
to determine which vendors appeared to offer the best value. It was the
best value determination that led to the letter from the agency quoted
above, in which DOJ stated that Savantage did not have a *reasonable
chance of being selected for award* and would therefore be excluded from
further consideration; in particular, it would not be permitted to compete
under the RFQ.[8] Savantage protests the reasonableness of that best
value determination (and the associated decision to exclude Savantage from
the RFQ competition), and, as we said in Delta Int'l, *we view it as
axiomatic that, in order to withstand review when challenged in a bid
protest, the agency must be able to provide a reasonable basis* for its
determinations, including the best value determination at issue here. We
therefore review the agency's best value determination for reasonableness.
While DOJ correctly points out that the vendors were not provided
evaluation criteria on which the agency would perform a best value
analysis, we do not agree with DOJ that this means that we have no basis
to review the reasonableness of the analysis. Instead, we agree with the
statement that DOJ made elsewhere in its agency report, that the
regulatory language calling for a determination as to the *contractor(s)
appearing to provide the best value* leaves agencies a *significant degree
of discretion.* Agency Report at 16. A significant degree of discretion
does not equate to unfettered discretion, nor does it leave our Office
with no meaningful criteria to apply in reviewing an agency's action.
Particularly here, where the agency requested, received, and reviewed
detailed submissions from the vendors, we see no basis to find that even
substantial discretion can entirely shield from review the agency's
decision, based on what was effectively the first phase of a competition,
to exclude a firm from further consideration for a $[DELETED] award.
Nonetheless, as we turn to the merits in our analysis, we review the
reasonableness of DOJ's best value determination in the context of the
significant degree of discretion afforded to the agency by the regulation.
DOJ argues that its decision not to provide Savantage with the RFQ was
reasonable because, based upon the agency's evaluation, Savantage did not
*appear to provide the best value.* Agency Report at 16. DOJ states that
there were two significant considerations in the agency's evaluation of
the vendors: (1) the relative amount of customization that would be
required for vendors' software, and (2) the vendors' relative experience
and performance on previous, similar federal projects. With respect to
software customization, DOJ relied upon the information provided by the
vendors as to the extent to which their COTS software would require
customization to perform 194 identified functions. Savantage identified
28 customizations that would be needed to perform those functions, whereas
the vendors that the agency selected to receive the RFQ identified
significantly less customization (the four vendors identified,
respectively, 1, 6, 7 and 17 customizations).[9] Agency Report, Tab 3,
Analysis of Vendor Responses; Tab 21,Vendor Customization Comparison.
Savantage argues that DOJ's judgment that Savantage's software needed *too
much customization* was not reasonable because of a number of factual
errors in DOJ's analysis. Protester's Comments at 6-8. First, Savantage
complains that two of the customizations it identified in the survey
information provided in 2002 would be eliminated when Savantage issued a
new version of its software, which it informed DOJ was planned for release
in March 2003. Savantage argues that because these two customizations
were expected to be eliminated prior to the order, these customizations
should not have been counted by the agency. Savantage also references
information provided by two vendors that received the solicitation that
states that the vendors' software could not provide certain functions, but
that these functions were not reflected in the agency's account of
customizations required for these vendors.
We find that these arguments, even if accepted on their face, failed to
demonstrate the unreasonableness of the agency's determination that
Savantage's software would require greater customization than that of the
vendors that received the RFQ. That is, accepting these arguments would
only decrease Savantage's number of required customizations to 26 and
increase the other vendors' required customizations to 8 and 19,
respectively. Savantage's software would continue to require
significantly more customization than these two vendors.
Savantage also complains that DOJ failed to consider the relative level of
effort required for the vendors' respective customizations. For example,
Savantage complains that DOJ did not consider whether vendors'
customization was required in mandatory areas.[10]
We agree that the record does not show that DOJ specifically considered
whether vendor customization was required in mandatory areas.
Nevertheless, the record does establish that the Director of Finance Staff
reviewed each vendor's survey information and considered his own knowledge
of, and experience with, the vendors' products. Based on this integrated
assessment, the director concluded that Savantage was likely to need
significantly more customization than the vendors selected to receive the
RFQ. Supplemental Affidavit of the Director of the Finance Staff, Apr.
25, 2003, at 6. Although Savantage disagrees with this assessment and
argues that the agency should have conducted a more formal evaluation, we
find that Savantage has not shown this judgment to be unreasonable. In
this regard, we note that Savantage had far more medium level and low
level of effort customizations identified than other vendors and no vendor
had more high level of effort customizations identified than Savantage.
Agency Report, Tab 3, Analysis of Vendor Responses, at 1, 3, 8, 12, 35.
In the context of determining which vendors *appear to provide best value*
under FAR S: 8.404(b)(3), we find that the agency reasonably concluded
that Savantage's product would require significantly more customization
than that of the other vendors, even though DOJ did not consider whether
vendors' customization would be required in mandatory areas.
Savantage also objects to the agency's conclusion that Savantage had less
experience with projects of similar size and scope as compared to the
other vendors.
The record shows that the Director of Finance Staff was concerned that
*there have been no federal agency implementations of the off-the-shelf
version of the [financial management system] software which Savantage is
marketing to DOJ.* Affidavit of Director of Finance Staff, Apr. 9, 2003,
at 21. In particular, he was concerned with the implementation of
Savantage's product at two of the federal clients identified by
Savantage: the [DELETED] and the [DELETED].[11] In this regard, the
director had personal knowledge of Savantage's implementation efforts at
[DELETED]. Based upon his experience, the director concluded that
Savantage's implementation efforts at [DELETED] had significant problems,
its software was heavily customized, and the implementation exceeded
budget and schedule. Furthermore, the director noted, Savantage's system
is still not used for all major financial functions at [DELETED]. With
respect to Savantage's implementation of its software at [DELETED], the
director noted that during the [DELETED] implementation DOJ had conferred
with [DELETED] concerning Savantage's implementation, and found that
[DELETED] reported similar problems and customization. Id. at 13-14.
With respect to the five other federal clients identified by Savantage,
DOJ determined that these other clients either were not implementing the
same Savantage product that the vendor demonstrated for DOJ, or were
implementing limited systems for specific purposes and not a total
financial management system, as DOJ requires here.
With respect to the other vendors selected to receive the RFQ, DOJ found
that all had a record of numerous and successful implementations of their
products with federal clients. Although not all these implementations
proceeded without problems, DOJ found that those problems were limited and
that in some instances the client agency contributed to the problems. Of
particular importance to DOJ was that the other vendors had numerous
federal implementations of their financial management system software
beyond those where problems were identified, unlike Savantage.
We find no basis from our review of the record to object to DOJ's
determination that Savantage had less extensive experience on similar
projects than the selected vendors, both in total number and in scope of
implementation. Although Savantage complains that other vendors'
implementations required customization, the record shows that DOJ
considered this, but found that these vendors had more experience and a
greater degree of success than did Savantage. Supplemental Affidavit of
the Director of the Finance Staff, Apr. 25, 2003, at 6-7. We also find
unpersuasive Savantage's argument that the agency did not consider the
underlying reason(s) why Savantage's product was not being used for all of
[DELETED]'s financial functions. Apart from implicitly acknowledging that
its software was in fact not used for all [DELETED]'s required functions,
Savantage has not provided us with any basis to question the agency's
conclusion that Savantage's implementation at [DELETED] was less than
successful.
Savantage also complains that DOJ's judgment that Savantage had less
experience than other vendors and that Savantage's software
implementations at [DELETED]and [DELETED]were less than successful was
tantamount to a non-responsibility determination that was required to be
referred to the Small Business Administration (SBA) under that agency's
certificate of competency (COC) procedures. However, as noted above, the
record reflects that DOJ's judgment that Savantage did not appear to offer
the best value was based upon an integrated assessment that Savantage's
product would require more customization than the other vendors and that
Savantage's experience was less favorable than the other vendors. Thus,
even were we to accept Savantage's argument that DOJ's assessment of
Savantage's relative experience concerned a matter of the firm's
responsibility, the determination not to provide Savantage with the RFQ
was not based upon this assessment alone.[12] Referral of a small
business concern's responsibility to the SBA for consideration under COC
procedures is not required where the rejection of that concern's proposal
is for reasons not related to responsibility, as well as for reasons that
properly would be categorized as matters of responsibility. See SBS Tech.
Servs., B-259934, Apr. 19, 1995, 95-1 CPD P: 205 at 5.
Savantage also argues that the agency's judgment that Savantage did not
appear to offer the best value was unreasonable because DOJ did not
consider price in making that determination. Specifically, Savantage
asserts that DOJ currently has a license to use Savantage's software and
that the agency did not consider that the Savantage's price for its system
would reflect no charge for license fees.
DOJ states that vendors' prices were considered in deciding which vendors
appeared to offer best value. Specifically, the agency states that prior
to the market survey and product demonstrations, the Director of Finance
Staff was provided with cost estimates for acquiring the UFMS and that
these estimates were based upon the vendors' published FSS pricing.
Supplemental Agency Report at 3. Furthermore, the director states that he
requested that his program office and support contractor (which were
reviewing the vendors' schedule prices and calculating the cost estimate)
inform him if there were any significant price differences between the
vendors, and no significant price differences were reported. Supplemental
Affidavit of the Director of the Finance Staff, Apr. 25, 2003, at 2. DOJ
also disputes Savantage's contention that the agency did not consider the
benefit of Savantage's *free* license to use the firm's financial
management system software. The director states that he learned of the
allegedly *free* software license on January 30, 2003, but did not
consider the *free* license offer to be significant, because the price for
the software would be a relatively small part of the overall system cost,
especially where extensive system customization is required. This
judgment was based upon the director's review of the overall costs for
Savantage's system at INS, which reflected substantial sums in fiscal year
2003 for maintenance, technical support and other fees and reflected even
greater costs during the years of 1997 to 2000. Affidavit of the Director
of the Finance Staff, Apr. 9, 2003, at 28. The director concluded that
the offer of a free license did not significantly enhance Savantage's
price considering the risk of increased costs associated with the
anticipated customization of Savantage's product. Moreover, the technical
problems associated with extensive customization offset any advantage from
the free software license. Affidavit of the Director of the Finance
Staff, Apr. 9, 2003, at 27-29; Supplemental Affidavit of the Director of
the Finance Staff, Apr. 25, 2003, at 4-5.
Although Savantage disagrees with the director's judgment as to which
vendors appear to offer the best value (price and other factors
considered), the protester offers no evidence to show that there are any
significant differences in the vendors' schedule prices. Furthermore, the
protester does not rebut the director's judgment that there would be
significant implementation, support, and maintenance costs associated with
Savantage's system, which would outweigh the benefit of its free license
to use the software. In short, the protester has provided us with no
basis to question the agency's judgment that Savantage did not offer any
significant price advantage.
In sum, we find from our review of the record that DOJ reasonably
determined under FAR S: 8.404(b)(3) that, given Savantage's lower relative
ranking for experience and customization, Savantage did not appear to
provide best value such that the firm should have been solicited.
The protest is denied.
Anthony H. Gamboa
General Counsel
------------------------
[1] JFMIP is a joint and cooperative undertaking of the General Accounting
Office, the Department of Treasury, Office of Management and Budget (OMB),
and Office of Personnel Management, which, among other things, tests and
certifies core financial management system software. See
; see also OMB Circular No. A-127, *Financial
Management Systems,* Transmittal Memorandum No. 2, June 10, 1999.
[2] Although this statement suggests that the agency's market research was
not a competition, as explained below, the information was used for the
purpose of excluding vendors that did not appear to offer best value. The
protester, however, does not assert that it would have acted differently
had it known of the agency's intent to use this information to determine
which vendors should be solicited.
[3] DOJ's Finance Staff Director is responsible for the agency's financial
policy and reporting, financial systems compliance, and audit corrective
action reporting. He is also responsible for the development and
operation of the financial management systems used by four of DOJ's
organizational components.
[4] In March 2003, after DOJ's decision at issue here, the General
Services Administration (GSA) added the following provision to its special
ordering procedures for orders of services expected to exceed the maximum
order threshold:
In addition, the request shall be provided to any contractor who
specifically requests a copy of the request for the proposed order.
See . A similar provision is included in a proposed rule
that would amend FAR Subpart 8.4. 68 Fed. Reg. 19,294, 19,296 (Apr. 18,
2003). This new requirement appears to apply only to procurements of
services priced at hourly rates.
[5] DOJ concedes, however, that we could also review what it characterizes
as an allegation of an *outright* violation of a requirement of FAR
Subpart 8.4, such as an allegation that an agency had not reviewed the
catalogs or pricelists of three FSS vendors, as required by FAR
S: 8.404(b)(2). Agency Report at 12 n.4. Presumably, DOJ would include
in this category a protest alleging that an agency had failed to consider
*reasonably available information,* as required by FAR S: 8.404(b)(2).
See REEP, Inc., B‑290665, Sept. 17, 2002, 2002 CPD P: 156.
[6] A firm that does not have an FSS contract, however, is not an
interested party to file a protest with our Office challenging an agency's
determinations in the context of an FSS purchase pursuant to FAR Subpart
8.4. Sales Res. Consultants, Inc., B-284943, B-284943.2, June 9, 2000,
2000 CPD P: 102.
[7] While DOJ focuses on the nonbinding word *generally* in the
regulation, Agency Report at 15, we view that to mean that agencies are
not required to seek price reductions for large orders. The issue before
us, however, is not whether DOJ was required to take the step of issuing
an RFQ to seek price reductions, but whether, given that the agency
decided to issue the RFQ only to some of the vendors whose products it had
reviewed, whether it had a reasonable basis for excluding Savantage from
that group.
[8] The protester points out that what DOJ did was akin to a competitive
range determination under negotiated procedures. Protester's Comments at
1.
[9] Although the report states that Savantage's survey response indicated
27 total required customizations, the correct number, as reported in the
agency's Vendor Customization Comparison, is actually 28 customizations.
See Agency Report, Tab 3, Analysis of Vendor Responses, at 33-35; Tab 21,
Vendor Customization Comparison, at 3.
[10] Certain of the functional requirements were identified as having a
*mandatory priority* while others were identified as *value added-high* or
*value added-low.* See Agency Report, Tab 3, Analysis of Vendor
Responses, at 3-5.
[11] [DELETED].
[12] The parties disagree as to whether or not DOJ's assessment of
Savantage's relative experience concerns a matter or responsibility, and,
within the context of this procurement, whether a decision not to solicit
a small business vendor based upon such an assessment would be required to
be referred to SBA. Given our decision above, we do not decide these
issues.