TITLE: B-297053.4, Haworth Inc., June 7, 2006
BNUMBER: B-297053.4
DATE: June 7, 2006
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B-297053.4, Haworth Inc., June 7, 2006
Decision
Matter of: Haworth Inc.
File: B-297053.4
Date: June 7, 2006
David W. Burgett, Esq., and Allison D. Pugsley, Esq., Hogan & Hartson LLP,
for the protester.
Robert J. Conlan, Esq., Sidley Austin LLP, for Herman Miller, Inc., an
intervenor.
Cecillia Chu, Esq., GSA Public Buildings Service, for the agency.
Scott H. Riback, Esq., and John M. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
1. Protest that agency unreasonably rejected protester's quotation for
failing to timely include all quoted items under its Federal Supply
Schedule (FSS) contract is denied where agency advised firms that it
required all quoted items to be included under FSS contract by a specific
date, and protester failed to ensure that all of its quoted items were in
fact included under its FSS contract by that date.
2. Protest assertion raised initially in protester's comments is dismissed
as untimely where record shows that protester had all necessary
information to raise argument at time initial protest was filed.
DECISION
Haworth, Inc. protests the award of a blanket purchase agreement (BPA) to
Herman Miller, Inc. under its Federal Supply Schedule (FSS) contract,
pursuant to request for quotations (RFQ) No. RFQ78965, issued by the
General Services Administration (GSA) to acquire furniture for a new
federal office building in San Francisco, California. Haworth asserts that
the agency improperly rejected its quotation as unacceptable.
We deny the protest.
The agency issued the RFQ in April 2005, soliciting quotations to provide
the furniture requirements of the tenant organizations that are to occupy
the new San Francisco Federal Building. Vendors were required to offer
both a stand-alone and a modular line of furniture. In June 2005, GSA
awarded a blanket purchase agreement (BPA) to Herman Miller. Haworth
challenged the award in an agency-level protest and, subsequently, filed a
protest with our Office. After reviewing the protest filed in our Office,
the agency took corrective action by terminating the BPA and reevaluating
the quotations; based on the reevaluation, the agency awarded a BPA to
Haworth. Herman Miller challenged this award in a protest filed in our
Office. After investigating the bases for protest, GSA again took
corrective action, terminating Haworth's BPA and reopening the
acquisition. Both of these protests were based on assertions that the
awardees of the BPAs did not have all of their quoted furniture items
included under their respective FSS contracts at the time contemplated by
the RFQ.
Thereafter, the agency issued a series of amendments to the RFQ. Amendment
No. 0004 established a revised deadline for having quoted furniture items
included under vendors' FSS contracts.[1] After receiving new quotations,
the agency determined that the vendors still did not have all of their
products included under their respective FSS contracts. Accordingly, GSA
issued amendment No. 0008, which provided as follows:
All products offered must be on GSA schedule contract no later than
February 8, 2006. Note, it is the contractor's full responsibility to
ensure that all products in their offer are entirely on the FSS Schedule
by the referenced date. The Government will consider an offeror's
failure to do so as non-responsive and may be grounds for default.
Agency Report (AR), exh. 17.
Haworth submitted a preliminary revised quotation, based on which the
agency determined that not all of the firm's quoted items were on its FSS
contract. The agency brought this to Haworth's attention in a series of
correspondence; Haworth submitted various iterations of revised materials
(the last of which was submitted on February 8) to demonstrate that, in
fact, all of its quoted products were included under its FSS contract. On
February 9, the agency engaged in discussions with Haworth, during which
it noted (among other things), that it appeared that the firm still did
not have all of its quoted items included under its FSS contract.
Thereafter, during another series of correspondence between the agency and
Haworth, GSA again pointed out (among other things) that it appeared that
some of Haworth's quoted items still were not included under its FSS
contract. On February 24, Haworth submitted its final revised quotation,
which included information showing that, on February 16, eight days after
the deadline established in the solicitation, Haworth had apparently
finally succeeded in having all of its products included under its FSS
contract. Thereafter, on May 2, the agency advised Haworth that its
quotation had been rejected for failure to meet the requirement that all
quoted items be included under its FSS contract by February 8. Haworth
then filed this protest in our Office.
Haworth concedes that not all of its quoted items were included under its
FSS contract by February 8. It asserts, however, that it nevertheless was
unreasonable for the agency to reject its quotation, since, according to
Haworth, only two items were omitted from its FSS contract, and even those
items were included by February 16, that is, prior to the February 24
deadline for final revised quotations. The protester essentially asserts
that the agency's actions elevate form over substance.
We conclude that the agency's actions were reasonable. The RFQ, in this
third iteration of the acquisition, established an unequivocal
deadline--February 8--for vendors to have all of their quoted items
included under their FSS contracts. The RFQ was equally clear in stating
that it was the vendors' responsibility to ensure that this requirement
was met, and that the consequences of a failure to do so would be that the
agency would find the quotation "nonresponsive" (i.e., unacceptable).
Moreover, the agency repeatedly advised Haworth, both before and after the
issuance of amendment No. 0008, of its continuing concern that the firm
had not met the requirement.[2] Haworth never demonstrated that all of its
quoted items had in fact been timely included under its FSS contract, nor
did Haworth request that the agency extend the February 8 deadline. Under
these circumstances, we conclude that the agency properly rejected
Haworth's quotation.
Haworth argues that the agency should have evaluated its quotation
notwithstanding its failure to timely include all of its quoted items
under its FSS contract. According to the protester, even if the agency
properly disregarded the items in question, it had other equivalent items
under its FSS contract that the agency should have considered. The
protester maintains that this was permissible, since this was a best value
acquisition with technical evaluation criteria.[3]
Protest grounds such as these must be raised no later than 10 days after
the information on which they are based was known or should have been
known. Bid Protest Regulations, 4 C.F.R. sect. 21.2(a)(2) (2006). Further,
where, after filing a timely protest, the protester later supplements it
with new protest grounds, the later-raised grounds must independently
satisfy our timeliness requirements. L-3 Sys. Co. Wescam Sonoma, Inc.,
B-297323, Dec. 3, 2005, 2005 CPD para. 219 at 4-5. Here, Haworth had all
of the information necessary to raise these arguments when it filed its
protest on March 10. Specifically, Haworth was aware that its quotation
had been rejected for failing to timely include all of its quoted items
under its FSS contract, even though its quotation included what it now
claims are equivalent items. Thus, to the extent Haworth believed the
agency should have evaluated its equivalent items instead of rejecting the
quotation, it was required to raise this argument at the time it filed its
protest. Haworth did not do so; it raised this argument for the first time
in its comments on the agency report. Haworth Comments, Apr. 24, 2006, at
4-6. Under these circumstances, this aspect of the protest is untimely and
will not be considered.[4]
The protest is denied.
Anthony H. Gamboa
General Counsel
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[1] Haworth filed another protest as well (B-297053.3), complaining that
the electrical specifications in the solicitation were unduly restrictive;
we dismissed that protest as untimely on February 22, 2006.
[2] The agency advised Haworth of its continuing concern in letters dated
January 27, February 1, 10 and 21. AR, exhs. 18, 20, 23, 26.
[3] In its initial letter of protest, Haworth made a similar argument,
namely, that the agency had erred in finding its quotation nonresponsive
overall. In this regard, Haworth argued that, since the items omitted from
its FSS contract were solely from its stand-alone line of furniture, and
the RFQ provided for the possibility of awarding the two furniture lines
separately, the agency should have evaluated its quotation for award of
the modular furniture only. Haworth Initial Letter of Protest, Mar. 10,
2006, at 5. In its comments on the agency report, Haworth expressly
withdrew this ground of protest. Haworth Comments, Apr. 24, 2006, at 5-6
n.7.
[4]To the extent Haworth believes this assertion constitutes a more
specific argument under its more general assertion that the agency erred
in rejecting its quotation overall rather than evaluate it exclusive of
the items not timely included under its FSS contract, it nonetheless is
untimely. Where a protester raises a broad ground of protest in its
initial submission, but fails to provide details within its knowledge
until later, so that a further response from the agency is needed, these
latter, more specific, arguments must independently satisfy our timeliness
requirements. L-3 Sys. Co. Wescam Sonoma, Inc., supra, at 5.