TITLE: B-296836, Muddy Creek Oil and Gas, Inc., August 9, 2005
BNUMBER: B-296836
DATE: August 9, 2005
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B-296836, Muddy Creek Oil and Gas, Inc., August 9, 2005

   Decision

   Matter of: Muddy Creek Oil and Gas, Inc.

   File: B-296836

   Date: August 9, 2005

   Patricia Pourier for the protester.

   Jeanne A. Anderson, Esq., Department of the Interior, for the agency.

   Andrew J. Stephens, Ralph O. White, Esq., and Christine S. Melody, Esq.,
   Office of the General Counsel, GAO, participated in the preparation of the
   decision.

   DIGEST

   Where a protester's response to a request for quotations altered material
   terms and conditions of the solicitation, the agency reasonably determined
   that the quotation was unacceptable.

   DECISION

   Muddy Creek Oil and Gas, Inc. protests a determination by the Bureau of
   Indian Affairs, Department of the Interior, that Muddy Creek's quotation,
   submitted in response to request for quotations No. RMA00050005 (RFQ) for
   firefighter meals, was unacceptable.

   We deny the protest.

   On June 15, 2005, Muddy Creek received by fax a solicitation to provide
   firefighter meals. On June 22, Muddy Creek replied to the Bureau with its
   quotation, on the face of which the protester had handwritten a number of
   alterations and additions to the terms of the statement of work. The
   agency deemed the Muddy Creek quotation to be unacceptable because it
   altered material terms of the solicitation, and this protest followed.

   The record here shows that where the solicitation specified that all meals
   be delivered to the Airport at Pine Ridge, South Dakota, Muddy Creek
   changed the statement of work to require that all meals be picked up at
   its downtown location. Agency Report, Attach. B at 23. Where the
   solicitation specified that the lunch meal be a sack lunch with a "sub
   style sandwich, chips, fruit, and candy bar," Muddy Creek added "or other
   sandwich of equal value that will add variety to [the] menu for
   example--philly steak sandwich." Id. Where the solicitation stated that
   special or modified meals may be required, Muddy Creek limited this
   provision to a salad option. Id. Finally, where the solicitation required
   that a daily count of the number of meals would be given to the vendor
   each day, Muddy Creek specified that the daily count must be provided one
   day in advance. Id.

   A quotation that fails to conform to material terms and conditions of the
   solicitation should be considered unacceptable and may not form the basis
   for an award. CAMS Inc., B-292546, Oct. 14, 2003, 2003 CPD para. 191 at 2;
   L.S. Womack Inc., B-244245, Sept. 30, 1991, 91-2 CPD para. 309 at 2.
   Material terms of a solicitation are those which affect the price,
   quantity, quality, or delivery of the goods or services offered. Seaboard
   Elecs. Co., B-237352, Jan. 26, 1990, 90-1 CPD para. 115 at 3. Here, Muddy
   Creek's quotation altered several material terms of this solicitation.
   Specifically, Muddy Creek's quotation altered the location of deliveries,
   limited the type of modified meals available, and added terms regarding
   the advance notice of the number of meals to be provided. Since Muddy
   Creek's quotation failed to conform to material terms of the solicitation,
   the agency correctly deemed the quotation unacceptable.

   As a final matter, we recognize that certain conversations between Muddy
   Creek and Bureau employees may have led the company to expect that it
   would be awarded a sole-source contract, and that Muddy Creek apparently
   thought the RFQ here was that sole-source contract, and not a competitive
   solicitation. Once Muddy Creek received the RFQ, however, the protester's
   continued expectation that it was receiving a sole-source contract was
   unreasonable. The solicitation indicated it was a request for quotations
   on its face, and it included a description of the basis for award, which
   listed the factors of past performance, ability to meet schedule, price,
   and responsiveness. Muddy Creek, therefore, should have realized the
   agency was not negotiating a sole-source contract, but was conducting a
   competition, and cannot now prevail in its protest that it was treated
   unreasonably when the agency rejected its quotation because of the changes
   Muddy Creek made to the material terms and conditions of the solicitation.

   The protest is denied.

   Anthony H. Gamboa

   General Counsel