TITLE: The Refinishing Touch, B-293562; B-293562.2; B-293562.3, April 15, 2004
BNUMBER: B-293562; B-293562.2; B-293562.3
DATE: April 15, 2004
**********************************************************************
The Refinishing Touch, B-293562; B-293562.2; B-293562.3, April 15, 2004
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: The Refinishing Touch
File: B-293562; B-293562.2; B-293562.3
Date: April 15, 2004
Lawrence J. Sklute, Esq., Sklute & Associates, for the protester.
Capt. John P. Dever, Maj. Frank A. March, Raymond M. Saunders, Esq., and
Kevin K. LaChance, Esq., Department of the Army, for the agency.
Susan K. McAuliffe, Esq., and Christine S. Melody, Esq., Office of the
General Counsel, participated in the preparation of the decision.
DIGEST
Protest challenging agency*s affirmative determination of successful
vendor*s responsibility is dismissed where record does not support
allegation that contracting officer failed to consider available relevant
information.
DECISION
The Refinishing Touch (TRT) protests the agency*s issuance of a purchase
order to Commercial Marketing Corporation (CMC) under request for
quotations (RFQ) No. W911RX-04-T-0044, issued by the Department of the
Army for furniture refinishing services. The protester challenges the
agency*s selection of CMC, alleging that CMC*s price is too low to perform
the services the protester believes are required under the RFQ, and
contesting the agency*s affirmative determination of CMC*s responsibility.
We dismiss the protest.
The RFQ, issued as a small business set-aside, sought refinishing services
for Army barracks furniture at Fort Riley, Kansas. The RFQ*s general
performance-based specifications called for furniture reconstitution,
including refinishing, relaminating, reupholstering, and hardware repair
work; each line item of the RFQ*s pricing schedule represented a different
type of furniture to be serviced. The RFQ, issued under simplified
acquisition procedures, contained no evaluation factors for selection
other than price.[1]
Earlier, as part of its market research, the agency had asked TRT to
prepare a cost analysis comparing the anticipated price to do the
reconstitution work to the price of purchasing new furniture. That
analysis supported reconstitution of the furniture, since TRT*s prices for
the work were found by TRT to be lower than the cost of purchasing new
furniture. The agency discounted the analysis, however, because the
prices cited by TRT for purchasing new furniture were deemed to be
extremely high; this apparently also gave the agency some concern about
the adequacy of the prices for furniture reconstitution in TRT*s analysis.
Although the agency had initially considered procuring the services under
the General Services Administration Federal Supply Schedule (FSS), the RFQ
was ultimately issued as an open market competitive small business
set-aside, since TRT had been the only FSS vendor to express any interest
in the work. The agency issued the RFQ with a scope of work derived from
some of the general provisions in TRT*s FSS contract for furniture
refinishing services. Specific technical information or methodologies
were not sought from the vendors; rather, the scope of work included only
general performance-based requirements. For example, vendors were advised
of the following general requirements: to *[r]efinish/[rel]aminate and
reupholster all pieces based on volume count and building count provided*;
that *[a]ll work is to be performed on site*; that *[a]ll surfaces shall
be cleaned with suitable water based solvent to remove oils, grease, wax,
films and dirt to ensure good adhesion of finishing materials*; and that
the vendor use *standard commercial laminate replacement specifications to
achieve a commercial quality installation.* RFQ at 33-34.
Two vendors, TRT and CMC, submitted quotes under the RFQ after having been
given the opportunity at separate site visits to observe the furniture to
be serviced. TRT*s quote (at $404,619.02) was significantly higher than
CMC*s quote (at $184,394). After requesting that vendors confirm the
accuracy of their prices, the agency issued a purchase order to CMC based
on its lower price. This protest followed.
Although TRT generally argues that the agency was required to reject CMC*s
quote because it is substantially lower than TRT*s quote, we see no basis
to question CMC*s eligibility based upon its price. First, in a
fixed-price procurement, the fact that a firm, in its business judgment,
submits a price that is low because it may not include any profit, is
below-cost, or may be an attempted buy-in, does not render the firm
ineligible for award, since below-cost pricing is not prohibited. See
Property Analysts, Inc., B‑277266, Sept. 12, 1997, 97-2 CPD P: 77 at
6. Second, to the extent TRT alleges that the RFQ required higher-priced,
specialized TRT refinishing products and services that are not reflected
in CMC*s price, TRT is factually incorrect. The solicitation did not
require any specific approach to accomplish the scope of work*s general
performance specifications. While the RFQ*s work statement was derived
from TRT*s FSS contract, that contract*s references to TRT-specific
approaches and products were deleted by the agency.[2] Thus, since the
RFQ contains only general performance-based specifications and did not
require any unique or specialized TRT methods, TRT*s argument that CMC
intends an approach substantially lower in price or different from TRT*s
provides no basis to question the firm*s selection.
TRT also generally challenges the agency*s affirmative determination of
responsibility for CMC. CMC asserts that the agency failed to consider
that CMC*s web site (as well as a Dunn and Bradstreet report provided by
TRT) does not indicate that CMC provides furniture refinishing services.
TRT suggests that CMC therefore should have been found nonresponsible for
lacking the capability to do the work.
Because the determination that an offeror is capable of performing a
contract is largely committed to the contracting officer*s discretion, our
Office generally will not consider a protest challenging an affirmative
determination of responsibility, except under limited circumstances. Bid
Protest Regulations, 4 C.F.R. S: 21.5(c) (2004). One specific exception
is where a protest identifies *evidence raising serious concerns that, in
reaching a particular responsibility determination, the contracting
officer unreasonably failed to consider available relevant information or
otherwise violated statute or regulation.* Id. This include protests
where, for example, the protest includes specific evidence that the
contracting officer may have ignored information that, by its nature,
would be expected to have a strong bearing on whether the awardee should
be found responsible. Universal Marine & Indus. Servs., Inc.,
B-292964, Dec. 23, 2003, 2004 CPD P: 7 at 2; Verestar Gov*t Servs. Group,
B-291854, B‑291854.2, Apr. 3, 2003, 2003 CPD P: 68 at 4.
While TRT*s protest was sufficient to satisfy the threshold requirement
that a protest raise serious concerns that the contracting officer may
have failed to consider relevant responsibility information, the fully
developed record in this case shows that TRT*s challenge is unfounded,
since it demonstrates that the contracting officer duly considered the
available information and reasonably confirmed the vendor*s capability to
perform.
In this regard, the record shows that prior to issuing the purchase order
to CMC as the apparent successful vendor, the agency contacted the firm to
confirm its understanding of the RFQ*s requirements, particularly
regarding replacement parts, sanding, refinishing, reupholstering,
laminating, and painting, as well as the required timelines for the work.
Contracting Officer*s Statement of Facts at 3. Further, the record shows
that the contracting officer noted that CMC*s web site did not mention
specific furniture refinishing work. She also noted, however, that it
showed that the firm does business in a wide variety of fields, including
supplying institutional interior products and services involving furniture
and furnishings, food service equipment, construction services and marine
products. The firm*s web site also demonstrated that much of its business
involved CMC*s representation of specialized firms performing various
contract requirements. The contracting officer reasoned that, as an
experienced prime contractor, CMC would likely be able to obtain
additional technical capability by subcontracting a substantial amount of
the work in accordance with the RFQ*s allowance to do so. Moreover, CMC
confirmed for the contracting officer that it had recently performed
furniture refinishing work for the Department of the Navy aboard vessels
in port. Noting CMC*s receipt of government contracts, and the fact that
the firm holds an FSS contract (although not for furniture refinishing
services), the contracting officer also recognized that other government
agencies had affirmatively determined the firm to be responsible.
Given all of the supporting information available to the contracting
officer, it is clear from the record that not only did the contracting
officer indeed consider the information TRT argues was ignored, but that
its significance was reasonably considered in conjunction with the overall
information she obtained supporting the firm*s responsibility.
The protest is dismissed.
Anthony H. Gamboa
General Counsel
------------------------
[1] Vendors were provided a pricing schedule for their line item prices
and were specifically instructed that quotes *will be based on cost per
line item.* RFQ at 2-4, 33.
[2] As TRT notes, the warranty provision of the RFQ sets out the name
*Touch Textiles* as a sub-heading, followed by the warranty terms for the
fabric used in performing the work. RFQ at 35. According to TRT, *Touch
Textiles* is the name of a division of TRT and a registered trademark.
It appears that this reference reflects an oversight by the agency; in any
event, read as a whole, it is simply unreasonable to interpret this sole
reference in the warranty terms as establishing a requirement that the
contractor use Touch Textiles fabrics.