TITLE: Metro Business Systems, LLC, B-296371.2, July 13, 2005
BNUMBER: B-296371.2
DATE: July 13, 2005
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Decision
Matter of: Metro Business Systems, LLC
File: B-296371.2
Date: July 13, 2005
Jerry Allen for the protester.
Andrea S. Grill, Esq., Corporation for National & Community Service, and
Thedlus L. Thompson, Esq., General Services Administration, for the
agencies.
Sharon L. Larkin, Esq., and James A. Spangenberg, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Agency that purchases copiers using Federal Supply Schedule procedures is
not required to disclose its requirements for network compatibility and
security features where agency did not shift the burden to vendors to
select what to quote; agency may consider special copier features
discernable from product literature when selecting vendor for award.
DECISION
Metro Business Systems, LLC (MBS), protests the award of purchase order
No. CNSHQG05026 for 16 copiers to Ameritel Corporation, a dealer of Canon
Copiers, issued by the Corporation for National & Community Service under
Ameritel's General Services Administration (GSA) Federal Supply Schedule
(FSS) contract.
We deny the protest.
The agency sought to procure, through a "lease-to-ownership-plan," 16
multi-function copiers from a single FSS vendor to replace their existing
fleet of 15 copiers.[1]
The agency did not issue a solicitation to acquire these copiers.
Instead, it conducted "market surveys" in February, March, and April of
2005 with five vendors and requested quotations from these vendors.
Vendors were provided the model numbers and usage charges for the existing
copiers. The market surveys consisted of discussions with the vendors
about their products and the agency's requirement to replace its entire
fleet of copiers, a review of copier brochures and equipment manuals, and
consultation with the agency's Office of Information Technology (OIT) to
make sure that the copiers were compatible with the agency's network and
security requirements. Declaration of Agency's Support Services
Specialist, June 24, 2005, Paragraphs 11-37; Recorded Tel. Call, June 30,
2005.
Although not specifically disclosed to the vendors, the record indicates
that the agency sought copiers that would fill five "critical needs" of
the agency: (1) acquire new, high-quality copiers with multi-functioning
capabilities at a fair and reasonable price, (2) acquire copiers from one
consolidated vendor, (3) acquire copiers that were entirely compatible and
"seamless" with the agency's Local Area Network (LAN), (4) acquire
multi-functioning copiers that had "seamless" and easy to use security
features, and (5) acquire contractor services that would most efficiently
and economically (in terms of performance and cost) dispose of the current
fleet of all 15 copiers.
Three of the five surveyed vendors submitted quotations. One of those
vendors, Ameritel, submitted a quotation for Canon brand copiers and MBS
submitted a quotation for Konica Minolta brand copiers. On April 21,
2005, the agency issued a purchase order to Ameritel for the copiers for a
base year with four 1-year options, concluding that the quotation of
$109,017.20 per year provided the best value to the government at the
lowest overall price.
In making this determination, the agency found that the Canon copiers
quoted by Ameritel contained "added features . . . that make them a
standout." For example, the agency noted that the Canon copiers included
integrated scanning capability and functions that could be accessed
directly from the copier or the desktop, provided better security
capabilities, and were "optimized for [integration with] the [agency's]
LAN environment" better than the other vendors' products. Furthermore,
Ameritel's quotation included trade-ins on all of their units (other
vendors offered fewer or no trade-ins[2]); and included unlimited
training, toner, and supplies at no additional cost to the government.
The firm also provided "excellent" references and was found to have
"experience and technical knowledge to support the [agency's]
requirements." Agency Report, Tab 16, Best Value Justification, at 1-2.
In addition, Ameritel's quotation was the overall lowest in
price--$30,518.76 lower per year than MBS's next lowest priced quotation.
Agency Report at 9 n.4.
MBS protests to our Office the issuance of the purchase order. It
contends that the agency did not provide adequate information concerning
its requirements, evaluation, and basis for award.[3] Specifically, it
complains that it was not advised of the "special [copier] features," such
as LAN compatibility and security features, that the agency evaluated and
considered to be a "critical" need or requirement, or that the agency
would consider past performance. As a result, MBS argues, its quotation
could not be fairly considered for award.
The FSS program, directed and managed by GSA, gives federal agencies a
simplified process for obtaining commonly used commercial supplies and
services. The procedures for making purchases under the FSS program are
set forth in Federal Acquisition Regulation (FAR) Subpart 8.4. When using
these procedures, an agency is not required to issue a solicitation to
request quotations, but rather may simply review vendors' schedules and,
using business judgment to determine which vendors' goods or services
represent the best value and meet the agency's needs at the lowest overall
cost, may directly place an order under the corresponding vendor's FSS
contract. FAR Section 8.405- 1; KPMG Consulting LLP, B-290716,
B-290716.2, Sept. 23, 2002, 2002 CPD Paragraph 196 at 10-11. This is
contrasted with situations where an agency issues a request for quotations
(RFQ) and thus shifts the burden to the vendors for selecting items from
their schedule. In those instances, an agency must provide guidance about
its needs and selection criteria sufficient to allow vendors to compete
intelligently. See, e.g., KPMG Consulting LLP, supra, at 10-11. However,
when an agency reviews competing vendors' schedule offerings but does not
shift to vendors the burden of selecting items to propose, there is no
requirement that vendors be given notice of the agency's needs or the
selection criteria.[4] See Merck & Co., Inc., B- 295888, May 13, 2005,
2005 CPD Paragraph 98 at 16; COMARK Fed. Sys., B-278343, B-278343.2, Jan.
20, 1998, 98-1 CPD Paragraph 34 at 4- 5.
Here, the agency did not issue an RFQ to FSS vendors or shift the burden
to vendors to determine what to quote. In selecting the vendor with which
to place the order, the agency merely distinguished between vendors'
products based on special features that were discernable from product
literature reviewed. Although the protester disagrees that LAN
compatibility is discernable from the product literature, the agency
provided our Office with the product literature that it reviewed and
explains how the OIT was able to determine LAN compatibility from these
copier manuals. The agency also notes that the brand of copiers quoted by
MBS is not compatible with the agency's LAN network, and MBS has provided
no evidence that they are compatible. Furthermore, MBS admits that it can
provide no other brand copiers. As GSA explains, FAR Section 8.405-1(c)
specifically states that an agency "may consider, among other factors"
past performance, special features, trade-in considerations, and delivery
terms in selecting among competing vendors,[5] and, as discussed above, an
agency is not required to disclose the nature of these desired or required
special features when it requests quotations from vendors, where, as here,
the agency does not shift to vendors the burden of selecting items to
propose. Therefore, the agency did not act improperly by considering
special features such as LAN capability, security capabilities, or past
performance here.
The protest is denied.
Anthony H. Gamboa
General Counsel
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[1] Of the current fleet, 7 were Canon brand copiers and 8 were Kodak
brand.
[2] For example, MBS's quotation only provided to take away 8 of the 15
copiers.
[3] MBS's initial protest raised multiple other protest grounds, which our
Office dismissed because they failed to state valid bases of protest.
[4] As indicated, a requirement to identify selection criteria arises when
vendors are called upon to select a particular configuration among
multiple possibilities with no guidance about how to do so intelligently.
[5] MBS initially raised other violations of FAR Section 8.405-1, but then
later conceded that this provision "was followed without deviation." MBS
Supplemental Comments, June 27, 2005, at 2.