TITLE: B-297077.3, Environmental Protection Agency--Reconsideration, January 25, 2006
BNUMBER: B-297077.3
DATE: January 25, 2006
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B-297077.3, Environmental Protection Agency--Reconsideration, January 25, 2006

   DOCUMENT FOR PUBLIC RELEASE
   The decision issued on the date below was subject to a GAO Protective
   Order. This redacted version has been approved for public release.

   Decision

   Matter of: Environmental Protection Agency--Reconsideration

   File: B-297077.3

   Date: January 25, 2006

   Kenneth A. Redden, Esq., Environmental Protection Agency, for the agency.

   Paul E. Jordan, Esq., and Jerold D. Cohen, Esq., Office of the General
   Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Where, in establishing a blanket purchase agreement under the Federal
   Supply Schedule (FSS) program, an agency conducts a competition, including
   issuing to FSS contractors a solicitation with a statement of work and
   evaluation criteria, the agency is not free to disregard either the
   requirements stated in the solicitation or its evaluation criteria.

   DECISION

   The Environmental Protection Agency (EPA) asks that we reconsider our
   decision in Haworth, Inc., B-297077, B-297077.2, Nov. 23, 2005, 2005 CPD
   para. 215, in which we sustained Haworth's protest of the EPA's issuance
   of a blanket purchase agreement (BPA) to Herman Miller, Inc. (HMI) under a
   request for quotations (RFQ) for furniture, including design and
   installation, for the Potomac Yard Complex buildings in Crystal City,
   Virginia.

   We deny the request for reconsideration.

   The RFQ was issued to six vendors holding contracts under General Services
   Administration Federal Supply Service (FSS) schedule 71 I for office
   furniture. The RFQ contemplated that the EPA would obtain its furniture as
   a single "Project," consisting of design and installation of some 1,520
   workstations and 180 private offices, along with conference rooms and
   miscellaneous furniture. The RFQ contemplated award of the BPA on a "best
   value" basis considering cost/price and four equally-weighted technical
   evaluation factors--product, environmental factors, past performance, and
   management approach. Non-price factors, combined, were considered
   significantly more important than cost/price.

   After receipt of quotations from three vendors, including Haworth and HMI,
   the agency selected HMI as the vendor that had provided the strongest
   technical submission and second-lowest overall cost. Haworth, whose
   quotation was priced higher than HMI's, was ranked second technically. The
   EPA issued a BPA to HMI and subsequently issued a unilateral modification,
   appearing to state that the BPA was an indefinite-quantity contract.
   Haworth filed a protest with our Office challenging the technical
   evaluations, specifically asserting that HMI's quotation was technically
   unacceptable and that the evaluators improperly downgraded Haworth's
   quotation. In sustaining Haworth's protest, we found that the EPA had
   erroneously concluded that HMI's quotation met requirements for
   chair-stacking capacity and provision of Forest Stewardship
   Council-certified wood conference tables.[1] We also found that the agency
   had erroneously downgraded Haworth's quotation under the "environmental
   factors" evaluation factor. We concluded that the EPA appeared to have
   overstated its actual needs as evidenced by the fact that it either did
   not consider certain requirements to be significant to its overall needs,
   or that some items that deviated from the requirements were acceptable.

   Our Bid Protest Regulations require that a party requesting
   reconsideration show that our prior decision contains either errors of
   fact or of law or present information not previously considered that
   warrants reversal or modification of our decision. 4 C.F.R. sect. 21.14(a)
   (2005).

   In requesting reconsideration, EPA asserts that our decision contains an
   error of law regarding the standard of review of this procurement. In this
   regard, our decision stated the following (at 3):

   Under the FSS program, agencies are not required to conduct a competition
   before selecting a vendor that represents the best value and meets the
   agency's needs at the lowest overall cost. Federal Acquisition Regulation
   (FAR) sect. 8.404(a); Computer Prods., Inc., B-284702, May 24, 2000,
   2000 CPD para. 95 at 4. However, where, as here, an agency handles the
   selection of a vendor for an FSS order like a competition in a negotiated
   procurement, and a protest is filed challenging the outcome of the
   competition, we will review the agency's actions to ensure that the
   evaluation was reasonable and consistent with the terms of the
   solicitation. Id. at 4-5.

   EPA asserts that our statement that no competition was required under the
   FSS program was in error, and that, because this procurement involved the
   purchase of services subject to FAR sect. 8.405-2, entitled "Ordering
   procedures for services requiring a statement of work," the agency in fact
   was required to conduct a competition. The cited regulation sets out
   procedures to be used in the circumstances named in the provision,
   including a requirement that an RFQ with the statement of work be
   furnished to schedule contractors, and a requirement to evaluate all
   responses received, and to select the best value quotation, based on
   evaluation criteria provided to the schedule holders.

   EPA further asserts that our finding that the agency's evaluation of
   Haworth's and HMI's quotations was unreasonable reflects a failure on our
   part to appreciate what EPA terms "the relaxed competition requirements of
   the FSS Program" as compared to the competition requirements applicable to
   negotiated procurements conducted under FAR Part 15.

   FAR sect. 8.405-2 requires, where an agency is ordering FSS services at a
   value exceeding the micro-purchase threshold and requiring a statement of
   work (or establishing a BPA for such services), that the agency follow
   certain competitive procedures in the acquisition, including issuing a
   solicitation with a statement of work and evaluation criteria, and then
   evaluating responses received using those evaluation criteria. Our
   decision stated the general rule regarding the lack of a requirement for
   competition under the FSS; to the extent that the agency's contention in
   its request for reconsideration is that there are situations in which
   subpart 8.4 of the FAR requires agencies to issue solicitations and
   conduct competitions before an FSS order can be placed, its point is well
   taken.

   That, however, does not warrant granting the request for reconsideration
   of the merits of our decision. The point of the above-quoted language of
   our decision, as well as the crux of the decision itself, is that whenever
   an agency induces vendors to compete based on stated requirements and
   specified ground rules, the agency is not free to disregard either those
   requirements or those ground rules--regardless of whether the agency
   initiated the competition voluntarily or was required to do so by a
   particular provision in FAR subpart 8.4. We view it as fundamental to any
   acquisition that competitors be treated fairly, Armour of Am., B-237690,
   Mar. 19, 1990, 90-1 CPD para. 304 at 3, and fairness in competitions for
   federal procurements is largely defined by an evaluation that is, as we
   indicated in our decision, reasonable and consistent with the terms of the
   solicitation. While we believe that the government owes this basic
   fairness in the conduct of a competition to the competitors, even where no
   specific provision in a particular regulation calls for it, we note that
   in FAR sect. 8.405-2, which the agency states it was following here, it is
   explicitly required: the "ordering activity shall evaluate all responses
   received using the evaluation criteria provided to the schedule
   contractors." FAR sect. 8.405-2(d). Nothing in FAR sect. 8.405-2, nor any
   aspect of what the agency calls "the relaxed competition requirements of
   the FSS Program," waives the requirement for fairness in the conduct of a
   federal procurement.

   In this procurement, as discussed in our decision, the criteria called for
   an evaluation of products and environmental factors based on the
   information included in the technical submissions. RFQ sections 4.1.1,
   4.1.2. In turn, the RFQ's instructions for the technical submissions
   warned vendors that they had the burden of proof in demonstrating how
   their products best responded to the technical requirements and were
   required both to document environmental features and to "provide products
   that match the requirements." RFQ sect. 3.1.2. As our decision explains,
   the EPA's selection was inconsistent with these provisions.

   The core of EPA's request for reconsideration is its argument that the
   quotations in this procurement were not required to comply precisely with
   the terms of the RFQ since, unlike an offer, a quotation is not subject to
   government acceptance; the agency maintains that any apparent minor
   omissions by the awardee therefore should not provide a basis for
   sustaining a protest.

   We first note that while vendors were given the option of identifying the
   discrepancies between products offered and requirements noted, our
   decision (at 5) makes plain that the RFQ did not give vendors the option
   of supplying a noncompliant product. Notwithstanding the difference
   between offers and quotations (whether under FAR Subpart 8.4 or
   otherwise), a selection based on the competitive quotation of a
   noncompliant product is objectionable where other firms in the competition
   are prejudiced by the selection, that is, where the other firms might have
   been able to meet the agency's needs if afforded an opportunity to compete
   based on the relaxed requirements. Armour of Am., supra, at 4. Here, we
   found that Haworth was prejudiced by the relaxation of the statement of
   work requirements for HMI (and by the agency's conceded error concerning
   Haworth's evaluation under the environmental factors criterion). Where an
   agency determines that an item other than the one specified in the RFQ
   will meet its needs, it generally should amend the RFQ and reopen the
   competition. See Zarc Int'l, Inc., B-292708, Oct. 3, 2003, 2003 CPD
   para. 172 at 2. As we recommended in our decision (at 9), the EPA should
   "review its needs, revise the RFQ, if necessary, to reflect them, and
   solicit new quotations to ensure that all firms are afforded an equal
   opportunity to compete based upon the same set of requirements."

   The request for reconsideration is denied.

   Anthony H. Gamboa
   General Counsel

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

   [1] Our decision did not address all the areas Haworth identified in which
   HMI's quotation allegedly did not comply with other specifications.
   Nonetheless, we expressed our expectation that the agency would review
   those issues in the course of implementing our recommendation.