TITLE:  Armed Forces Merchandise Outlet, Inc., B-294281, October 12, 2004
BNUMBER:  B-294281
DATE:  October 12, 2004
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   Decision

   Matter of:   Armed Forces Merchandise Outlet, Inc.

   File:            B-294281

   Date:              October 12, 2004

   Anne B. Perry, Esq., Jonathan S. Aronie, Esq., Louis D. Victorino, Esq.,
and Jaime H. Weinberg, Esq., Sheppard, Mullin, Richter, & Hampton, for the
protester.

   Vera Meza, Esq., and David H. Scott, Esq., U.S. Army Materiel Command, for
the agency.

   Katherine I. Riback, Esq., and David A. Ashen, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Protest that contracting agency*s issuance of a delivery order to a firm
pursuant to its General Services Administration (GSA), Federal Supply
Schedule contract was improper is sustained where the product to be
furnished is outside of the scope of the firm*s GSA schedule contract and
the agency unreasonably determined that the selected product met the
solicitation specifications.

   DECISION

   Armed Forces Merchandise Outlet, Inc. (AFMO) protests the U.S. Army
Materiel Command*s (AMC) issuance of a delivery order to KP Sports, Inc.
under KP Sports* General Services Administration (GSA), Federal Supply
Schedule (FSS) contract, pursuant to request for quotations (RFQ)
No.A W91CRB-04-T-0142, for *Wick Away Sports Bras.*  AFMO argues that the
order to KP Sports was improper because it was outside of the scope of KP
Sports* GSA schedule contract, and contrary to the terms of the
solicitation.

   We sustain the protest.

   BACKGROUND

   The RFQ, issued on May 18, 2004, contemplated the award of a 36-month
indefinite-delivery, indefinite-quantity contract *under the terms and
conditions of General Services Administration (GSA) contract (to be
determined at the time of award), Schedule 078,* Sports, Promotional,
Outdoor, Recreation, Trophies and Signs (SPORTS).  RFQ S B.1.  Likewise,
participation under the RFQ was *limited to contractors possessing GSA
contracts under Schedule 078.*  RFQ B.4.  The RFQ listed performance
specifications, including requirements that the sports bra not have a tag
(other than a blank identification tag heat-sealed onto the outside back
of the garment), that sizing information be heat-sealed on the inside of
the garment, and that the color of the bra was to be black.  In addition,
the RFQ for the sports bras specifically provided that *[t]he shell
material used in production shall consist of 82% Nylon, 18% Spandex.  The
entire garment shall be lined with a material consisting of 84% polyester
and 16%A spandex.*  RFQ Performance Specifications.  Amendment 1, issued
on May 20, revised the solicitation *to request bid samples be provided
along with descriptive literature in order to verify compliance with
specifications.*  Amend. 1.  As amended, the RFP required that *[q]uotes
shall include descriptive literature sufficiently detailed to demonstrate
that the proposed items conform to the above performance requirements, as
well as bid samples.*  Id.  

   As amended, the solicitation provided for award to be made to the vendor
whose quotation represented the best value based on two evaluation
factors:  technical and price.  Technical was significantly more important
than price.  Contractors were cautioned that to receive consideration for
award, a rating of no less than *Acceptable* must be achieved for the
technical factor.  Amend. 2.   

   AMC received quotations from KP Sports, Tactical Gear Now, and a third
contractor by the May 26 closing time.  Following an inquiry by the
contracting officer, it became clear that Tactical Gear Now did not
possess the required GSA contract. 
On May 28, AFMO submitted a quotation for two different bras, signed by
the same person who had submitted Tactical Gear Now*s quotation and using
the same company address, in which it cited AFMO*s GSA contract and asked
that its name be substituted for that of Tactical Gear Now.  On that same
date, AFMO also submitted two bid samples, along with a letter that stated
as follows:  *Enclosed please find twoA *pre-production* samples to
fulfill the above-referenced Request for Quotation number.  Please note
that these are sample room samples, not to exact specifications.* 

   On June 9, the agency evaluation board completed its evaluation of the
samples.  Although AFMO*s quoted price was lower than KP Sports*, AFMO*s
quotation was found to be unacceptable because its samples were determined
not to meet certain of the specifications.  According to the report of the
evaluation board:

   The [AFMO] bid is determined to be unacceptable.  The bid sample does not
meet the purchase description as stated by the offeror in their letter
accompanying the bid sample.  Additionally, the company is a GSA schedule
holder, but this item is not an available item on that schedule.

   Technical Evaluation of Agency Evaluation Board, June 9, 2004.  Among the
deviations from the specifications was that the shell and lining of AFMO*s
bras were comprised of different material than that required in the
specifications; the lining of the bras was white rather than black; the
bras had a tag on the inside; and the samples did not include an
identification tag on the outside.  The quotation of the third vendor also
was found to be unacceptable on the basis that its sample bra did not meet
certain specifications.  The agency concluded that only the quotation
submitted by KP Sports was acceptable; according to the agency*s
evaluation, KP Sports* sample bra met all of the specifications, and was
on KP Sports* GSA schedule contract.  On JuneA 10, AMC advised AFMO by
letter that *[y]our bid/sample/technical quote was evaluated and
determined technically unacceptable since your submitted bid sample did
not meet the specifications stated in the purchase description.*  On June
14, AMC issued an order to KP Sports.  After receiving a debriefing, AFMO
filed this protest with our Office.

   DISCUSSION

   AFMO challenges the determination that its quotation was unacceptable. 
According to AFMO, the requested samples were not required to conform to
the specifications; the protester maintains that AFMO*s *clear and
unequivocal commitment* to comply with the specifications was sufficient
for purposes of establishing acceptability.  AFMO Comments, Aug. 6, 2004,
at 10.  In any case, according to the protester, the agency did not treat
vendors equally when evaluating quotations.

   AFMO Interested Party Status

   As a preliminary matter, we address the argument raised by the agency that
AFMO is not an interested party to protest the order to KP Sports because
the protester*s quotation was submitted after the closing time for receipt
of quotations and, in any case, was technically unacceptable.

   It is well established that the standard for late proposals does not
generally apply to requests for quotations.  An RFQ, unlike a request for
proposals (or an invitation for bids), does not seek offers that can be
accepted by the government to form a contract.  Rather, the government*s
purchase order represents the offer that the vendor may accept through
performance or by a formal acceptance document.  DataVault Corp.,
B-248664, Sept. 10, 1992, 92-2 CPD P 166 at 2.  It follows that language
in an RFQ requesting quotations by a certain date cannot be construed as
establishing a firm closing date for receipt of quotations, absent a late
quotation provision 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 PA 16 at 3.  An agency may consider
*late* quotations or quotation modifications, so long as the award process
has not begun and other offerors would not be prejudiced.  KPMG Consulting
LLP, B-290716, Sept. 23, 2002, 2002 CPD P 196 at 11.  

   Here, AMC considered AFMO*s submission substituting that firm for Tactical
Gear Now.  AMC*s action was consistent with the RFQ, which did not contain
a late quotation provision.  Further, the substitution of AFMO for
Tactical Gear Now was received on May 28, only 2 days after the closing
time on May 26, and apparently before start of the selection process. 
Since there is no apparent basis to find that any competitor was
prejudiced by the agency*s acceptance of the substitution of AFMO for
Tactical Gear Now, we find that AMC acted properly when it accepted AFMO*s
*late* modification of the quotation.

   Further, we also find that AFMO is an interested party to protest the
issuance of an order to KP Sports notwithstanding the unacceptability of
AFMO*s quotation.  As an initial matter, we agree with AMC that,
notwithstanding AFMO*s arguments to the contrary, the agency reasonably
determined that AFMO*s quotation was unacceptable.  AFMO does not dispute,
and indeed conceded in the cover letter accompanying its samples, that the
sample bras it submitted did not comply with all of the specifications set
forth in the RFQ.  While AFMO asserts that only its promise to perform,
and not the characteristics of its samples, should have been determinative
of the acceptability of its quotation, its position ignores the clear
language of the solicitation.  As the first page of Amendment 1 made
clear, *samples [were to] be provided along with descriptive literature in
order to verify compliance with performance specifications.*  Amend. 1,
Standard Form 30.  Given the clear noncompliance of AFMO*s samples with
the required specifications, its quotation was reasonably found
technically unacceptable.

   In addition, we agree with the agency*s technical evaluation panel that
AFMO*s quotation also was unacceptable because the quoted bras were not
available on its GSA schedule contract.  In this regard, as a general
rule, contracting agencies are required to obtain full and open
competition in the procurement of supplies and services.  10 U.S.C.
SA 2304(a)(1)(A) (2000); Federal Acquisition Regulation (FAR) SA 6.101. 
The FSS program gives federal agencies a simplified process for obtaining
commonly used commercial supplies and services.  FAR S 8.401(a).  The
procedures established for the FSS program satisfy the requirement for
full and open competition.  10 U.S.C. S 2302(2)(c); Sales Res.
Consultants, Inc., B-284943, Ba**284943.2, June 9, 2000, 2000 CPD P 102 at
3.  However, non-FSS products and services may not be purchased using FSS
procedures; instead, their purchase requires compliance with the
applicable procurement laws and regulations, including those requiring the
use of competitive procedures.  Symplicity Corp., B-291902, Apr.A 29,
2003, 2003 CPD P 89 atA 3; OMNIPLEX World Servs. Corp., Ba**291105 Nov. 6,
2002, 2002 CPD P 199 atA 4-5.

   Here, while the RFQ did not explicitly state that all solicitation items
were to be procured under FSS contracts, the solicitation did announce the
agency*s intention to order from an existing GSA contractor; in our view,
this was sufficient to place vendors on notice that the agency intended to
order all items using GSA FSS procedures and hence that all items were
required to be within the scope of the vendor*s FSS contract.  Altos Fed.
Group, B-294120, July 28, 2004, 2004 CPD P 172 atA 4.  Since it is
undisputed that AFMO*s quoted bras were not on its GSA schedule contract,
we find that AMC properly determined AFMO*s quotation to be unacceptable
on this basis, as well on account of the deviation of its samples from the
stated specifications. 

   However, the unacceptability of AFMO*s quotation is not determinative of
its interested party status.  It is of course true that under the bid
protest provisions of the Competition in Contracting Act of 1984, 31
U.S.C. SS 3551-3556, only an *interested party* may protest a federal
procurement.  That is, a protester must be an actual or prospective
supplier whose direct economic interest would be affected by the award of
a contract or the failure to award a contract.  4 C.F.R. SA 21.0(a)
(2004).  Determining whether a party is interested involves consideration
of a variety of factors, however, including the nature of the issues
raised, the benefit of relief sought by the protester, and the party*s
status in relation to the procurement.  Black Hills Refuse Serv.,
B-228470, Feb. 16, 1988, 88a**1A CPD P 151 at 2-3.  In general, a offeror
whose offer was properly rejected is not an interested party eligible to
protest an award to another firm where there are other offerors that would
be in line for award if the protest were sustained.  See Aquila Fitness
Consulting Sys., Ltd., Ba**286488, Jan. 17, 2001, 2001 CPD P 4 at 4.

   However, we have found a firm to be an interested party even though its
product sample had been properly rejected as failing to comply with
various required salient characteristics of the solicited product, where
its protest alleges that the product samples of the awardee did not comply
with the salient characteristics and where the awardee was the only other
offeror eligible for award.  Wilcox Indus. Corp., Ba**281437.2 et al.,
June 30, 1999, 99a**2A CPD P 3 at 3-4.  In addition, we will consider a
protest where an offeror protests that it was denied equal treatment
because the agency rejected its nonconforming offer while accepting a
competitor*s similarly nonconforming offer.  GNB Technologies, Industrial
Battery Co., Ba**262187, Dec. 4, 1995, 95-2 CPD P 263 at 2; Maintenance
and Repair, B-251223, Mar. 19, 1993, 93a**1A CPD PA 247 at 5; Dillingham
Ship Repair, B-218653, Aug. 14, 1985, 85-2 CPD PA 167 at 3.  In other
words, we view a protester as an interested party where the basis for
protest is that the protester and the awardee were treated disparately,
even where we agree that the protester*s offer was unacceptable.  Aquila
Fitness Consulting Sys., Ltd., supra.

   Here, as discussed below, AFMO asserts that if its quotation was
unacceptable, then the quotation of KP Sports was as well, and yet that
firm*s quotation was the only one determined by the agency to be
acceptable.  In these circumstances, we consider AFMO to be an interested
party to challenge the evaluation of KP Sports* quotation.

   Acceptability of KP Sports* Quotation

   KP Sports* current FSS contract under Schedule 078 lists a black sports
bra (*JogBra*) which the schedule describes as having a fabric content of
63 percent nylon, 23 percent polyester, and 14 percent lycra.  AFMO argues
that the order to KP Sports is outside the scope of its FSS contract
because the RFQ required a different fabric, that is, that the lining have
a fabric content of 84 percent polyester and 16A percent spandex, and that
the bra shell have a fabric content of 82A percent nylon and 18 percent
spandex.

   AMC recognizes that products not on the GSA schedule may not be purchased
where, as here, the agency is using GSA FSS procedures.  Further, the
agency appears to concede that KP Sports* schedule contract identifies a
sports bra that is described on the schedule as having fabric whose
content is inconsistent with the content required under the RFQ.  AMC,
however, asserts that KP Sports* FSS contract was modified on May 17 to
include the sports bra, part number 1134, specified in its quotation. 
Specifically, according to the agency,

   [w]hile the part number was changed, its fabric content, which differs
from the old part number, was inadvertently not updated.  The fabric
content of part number 1134 is as certified by the awardee in its proposal
and in the sample provided. 

   Agency Comments, Aug. 10, 2004.

   We find AMC*s position to be unpersuasive.  Both on the GSA Advantage
website and in the modification to KP Sports* contract issued by GSA, the
selected sports bra is described as having a fabric content of 63A percent
nylon, 23A percent polyester, and 14A percent lycra, and not the
polyester/spandex blend required by the RFQ.  While the agency asserts
that the fabric content of the sports bra on KP Sports* GSA schedule
contract was *inadvertently not updated* when the contract was modified,
we find that the record indicates otherwise.  Specifically, AMC has
furnished our Office a copy of KP Sports* letter to GSA dated February 26,
2004, requesting that its FSS schedule contract be updated, in which KP
Sports advises GSA that *[w]e have updated our product numbers under SIN
192-45, the products are the same, we just changed our numbering system.* 
In addition, AMC has also furnished our Office a copy of a price list for
KP Sports* product line, which the agency indicates was attached to KP
Sports* request for a modification of its GSA schedule contract.  KP
Sports* price list, which appears to be the same price list that was
attached to GSA*s modification of its schedule contract, likewise
describes the sports bra on the schedule as having a fabric content of
63A percent nylon, 23A percent polyester, and 14A percent lycra.  Since it
is clear from the record that the quoted sports bra was not the sports bra
on KP Sports* schedule contract, we conclude that the order to KP Sports
was improper because the delivery order included items that were outside
the scope of that firm*s GSA schedule contract, and we sustain AFMO*s
protest on this basis.[1] 

   In addition, we find that order to KP Sports also was improper because its
sample did not comply with the RFQ specifications.  Here, the
specifications clearly stated that *[n]o tag is permitted,* RFQ at 4, and
one of the reasons that the agency cited as a basis for rejection of
AFMO*s bid sample was that AFMO*s sample had a tag.  Although the
evaluators determined that KP Sports* sample met the requirement that no
tags were permitted, our Office has examined KP Sports* sample bra, and it
is clear that the sample in fact has a tag.  Because the agency*s
evaluation was inconsistent with the terms of the solicitation, we sustain
the protest on this basis as well.  

   We recommend that the agency terminate the order to KP Sports, assess its
actual requirements, and then either amend the RFQ or issue a new
solicitation, whichever is appropriate.  We also recommend that AFMO be
reimbursed its costs of filing and pursuing the protest, including
reasonable attorneys* fees.  4 C.F.R. S 21.8(d)(1) (2004).  AFMO should
submit its certified claim for costs, detailing the time expended and
costs incurred, directly to the contracting agency within 60 days after
the receipt of this decision.  4 C.F.R. S 21.8(f) (1). 

   The protest is sustained.

   Anthony H. Gamboa

   General Counsel 

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

   [1] We note that KP Sports did not intervene in this protest.  Moreover,
although our Office contacted GSA regarding this protest, as is our
practice with protests related to the FSS, GSA did not submit comments.