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

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

   [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.