TITLE: B-298123; B-298123.2; B-298123.3, Capitol Supply, Inc., June 28, 2006
BNUMBER: B-298123; B-298123.2; B-298123.3
DATE: June 28, 2006
*********************************************************************
B-298123; B-298123.2; B-298123.3, Capitol Supply, Inc., June 28, 2006
Decision
Matter of: Capitol Supply, Inc.
File: B-298123; B-298123.2; B-298123.3
Date: June 28, 2006
Robert Steinman for the protester.
Kacie A. Haberly, Esq., General Services Administration, for the agency.
John L. Formica, Esq., and James A. Spangenberg, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Proposal preparation instructions included in a commercial item
solicitation for furniture and furnishings that require the submission of
presentation boards which include photographs (rather than line drawings
or renderings) of 90 percent of the items offered are reasonably based and
not overly burdensome, where the solicitation is for commercial items,
requires the submission of current catalogs as well as sample items, and
the agency amended the solicitation to include the protested requirement
because of the difficulties it encountered in evaluating submissions that
included more than a limited number of line drawings and renderings.
DECISION
Capitol Supply, Inc. protests the terms of request for proposals (RFP) No.
3FNH-05-F015-N, issued by the General Services Administration (GSA), for
furniture and furnishings. Capitol argues that certain provisions of the
solicitation as revised are unnecessary and in excess of the agency's
minimum needs, and unduly restrict competition.
We deny the protest.
The RFP, issued April 21, 2005, provides for the award of a fixed-price
requirements contract for a base period of 1 year with four 1-year option
periods in support of the agency's Packaged Home Program (PHP). According
to the agency, the PHP, through a memorandum of understanding between GSA
and the Department of State, has "successfully provided U.S. Government
personnel stationed at diplomatic and consular posts abroad with their
household furniture and furnishing requirements" since the inception of
the PHP in the late 1950s. Contracting Officer's Statement at 1; RFP at
88. Under the contract to be awarded here, furniture and furnishings will
be available to certain "high-level" government personnel "as `package'
orders (i.e., a complete one, two, or three bedroom home) or individual
rooms," and as separate pieces. Agency Report (AR) at 2. The solicitation
specifies that "[t]o ensure availability, furniture and furnishings
supplied under this contract shall be commercial residential products,"
and provides that "[c]ommercial items are supplies or services used for
other than Government purposes and sold or traded to the general public in
the course of normal business operations." RFP at 89.
The solicitation requires that furniture be offered and available to the
agency during the course of contract performance in 18^th Century, Louis
Philippe, Mission, and Contemporary styles, and "broadly define[s]" the
distinguishing characteristics of each of these four styles. RFP at 89.
The solicitation also includes detailed "minimum requirements for
materials to be used in construction and assembly" of the furniture and
furnishings to be provided. RFP at 95-102.
The solicitation includes detailed proposal preparation instructions. The
RFP specifies that the technical proposal is to consist of the following
11 sections: overview, descriptions of each room, index of all deviations
and minor modifications, support services plans, overall management plan,
past performance, commercial product information, presentation boards,
cutaway illustrations, finish step panels, and construction material data
sheets. RFP at 158-60. The commercial product information section of the
technical proposal is to include "current catalogs and price lists for
each style line proposed" and states that "sales data (categorized by
Government and non-Government sales) may be requested for any/all
lines/items." RFP at 159.
The solicitation provides for the award of a contract to the offeror
submitting the proposal determined to represent the best value to the
government, based upon technical/quality, management, and cost/price
evaluation factors.[1] RFP at 163-64. The solicitation informs offerors
that the agency intends to conduct discussions, and that "[s]ource
selection samples will be requested from each offeror who is determined to
be in the competitive range."[2] RFP at 163. The solicitation states that
the agency will be "more concerned with obtaining superior
technical/quality and management features [than] with making an award at
the lowest overall cost to the Government." RFP at 164.
The agency received four proposals by the RFP's closing date of August 9,
2005. The agency found in evaluating proposals for compliance with the
solicitation's proposal preparation instructions and specifications that
the proposals were lacking in certain areas. As noted, the solicitation
requires that offerors include "presentation boards" as part of their
proposals as follows:
Presentation boards must include clear, color photographs of all house
styles, student bedrooms and supplemental items. Each photograph shall
be identified with manufacturer, style or line, model number, and
dimensions. A limited number of line drawings may be used to supplement
the photographs; however, photographs must be provided for each
manufacturer and style offered.
RFP at 160. The agency explains that "presentation boards are intended to
be a collection of photographs from each offeror's catalog, presented on
poster board, to represent the full complement of furniture and
supplemental items being offered in response to the RFP." AR at 6. The
agency found, however, that the presentation boards submitted by the
protester included "many renderings," including "almost 100% renderings of
wood furniture items on some boards." Id. The agency explains that "[t]he
excessive number of line drawings and renderings made it very difficult,
if not impossible, to adequately evaluate the offered product."[3] AR at
7.
Because the agency found that the unexpectedly large quantities of line
drawings and renderings submitted proved impossible to adequately evaluate
in terms of dimensions, hardware, and features, the agency determined that
it was necessary to clarify the solicitation's requirements with regard to
the submission of presentation boards. Id. Specifically, the solicitation
as issued required the submission of "clear, color photographs of all
house styles, student bedrooms and supplemental items," and only allowed
that "[a] limited number of line drawings may be used to supplement the
photographs." RFP at 160. In view of the presentation boards presented,
the agency determined that the phrase "limited amount" needed to be
objectively defined, and that "[i]n order to maximize competition and
allow the protester to remain in the competition, should it choose to,"
"renderings," which had not been mentioned in the initial solicitation,
would be specifically identified in the RFP "as a substitute for line
drawings." AR at 7.
Accordingly, the agency issued amendment 10 to the solicitation on March
17, 2006. Besides presentation boards, Amendment 10 made a number of
revisions to the purchase description, including certain of the minimum
requirements for the construction and assembly of certain items. With
regard to the presentation boards, amendment 10 (at 2) provides as
follows:
`A limited number of line drawings' is defined as not exceeding 10% of
the items shown on a presentation board, broken down by room or
accessory grouping. When making this calculation, each item, as defined
by model number, is counted one time. Calculation results are rounded to
the nearest whole number. Calculations are based on counting only
seating, casegoods (including tables, headboards, mirrors) and lamps
shown on the board(s). Renderings are considered to be in the same
category as line drawings.
Capitol challenges the terms of the solicitation, arguing, among other
things, that the revisions made by amendment 10 to the proposal
preparation instructions for the presentation boards were unnecessary and
"unduly restrictive because only furniture manufacturers who have existing
products will be able to provide photographs." Protest (B-298123) at 4.
Capitol asserts here that "[a]n artistic rendering provides the same
ability to evaluate products as a photograph as an artistic rendering
emphasizes the correct reproduction of light-and-shadow and the surface
properties of the depicted objects." Id. In support of this assertion,
Capitol provided with its protest copies of the presentation boards it had
submitted to the agency with its proposal. Id., exh. B. The protester
represents that its manufacturers "currently do not manufacture furniture
to the Solicitation's specifications and will have to make minor
modifications to their commercial lines to accommodate the GSA's
requirements," and that "[a]s a result, Capitol does not have photographs
and will not have photographs until the first piece of furniture
manufactured to GSA's specifications has been made." Protester's Supp.
Comments (May 24, 2006) at 7-8. Simply put, Capitol states that it "cannot
take photographs of what is not yet in existence." Protester's Supp.
Comments (May 30, 2006) at 2.
The amount of information to be included in proposals and proposal format
requirements are matters properly within the judgment of contracting
officials; we will not sustain a protest challenging that judgment unless
it is unreasonable. Essex Electro Eng'rs, Inc., B-252288.2, July 23, 1993,
93-2 CPD para. 47 at 5. Given the context of this procurement as well as
the agency's explanation for the revisions to the proposal preparation
instructions set forth previously, we conclude that the agency's
requirements regarding the submission of presentation boards are
reasonable.
We have reviewed the copies of the presentation boards submitted by the
protester in support of its protest, as well as certain actual
presentation boards submitted to the agency with initial proposals
(including those submitted by the protester). Based upon our review of
these boards, we find reasonable the agency's position that the extensive
line drawings and renderings of the furniture made it difficult, in
comparison to the presentation boards' photographs, to evaluate the
offered furniture and furnishings in terms of dimensions, hardware, and
features. That is, the photographs appear, consistent with the views of
the agency, to provide more detail with regard to the furniture and
furnishings offered than do the renderings or line drawings.
As to the protester's complaint regarding the burden this requirement
imposed on it, we note that the RFP's proposal preparation instructions
include a section that expressly recognizes that the furniture and
furnishings offered may deviate or "require minor modification" from the
solicitation's purchase description "in terms of materials, construction,
and/or dimensions." RFP at 158. Given this provision, we fail to see why
the protester or any other offeror was precluded from providing
photographs of existing furniture or furnishings and noting how the
offered products deviated from and/or would need minor modification to
meet the solicitation's requirements.
Further, as mentioned previously, the solicitation specifies that "[t]o
ensure availability, furniture and furnishings supplied under this
contract shall be commercial residential products," and provides that
"[c]ommercial items are supplies or services used for other than
Government purposes and sold or traded to the general public in the course
of normal business operations." RFP at 89. We fail to see, and the
protester has not explained, how an offeror that can comply with the
requirement that the furniture or furnishings offered be commercial items
or products, would find it difficult or, in the protester's case based
upon the protester's representations, impossible, to provide photographs
of the offered items under the circumstances here. In this regard, we also
find the protester's position that the presentation board format
requirement is overly burdensome because "Capitol does not have
photographs and will not have photographs until the first piece of
furniture manufactured to GSA's specifications has been made" inconsistent
with a solicitation requiring commercial items and products, the
submission of commercial product information, including "current
catalogs," and the submission of numerous sample items for evaluation
during the conduct of the procurement. RFP at 89, 159, 163; Protester's
Supp. Comments (May 24, 2006) at 8. Thus, we find the agency's requirement
regarding the provision of photographs on the presentation boards to be
reasonable.
Capitol has made a variety of other challenges to the terms of Amendment
10 and to the alleged failure of the agency to provide it adequate
information to submit an acceptable revised proposal.[4] However, as set
out above, Capitol concedes that it cannot comply with the requirement
that the presentation boards contain 90 percent photographs. Because
Capitol, by its own admission, cannot submit a proposal compliant with the
proposal preparation instructions, which we have found to contain
reasonable requirements, it is not an interested party under our Bid
Protest Regulations eligible to pursue the remainder of its protest.
4 C.F.R. sect. 21.0(a) (2006); Carahsoft Tech. Corp., B-297112, Nov. 21,
2005, 2005 CPD para. 208 at 3 n.3.
The protest is denied.
Anthony H. Gamboa
General Counsel
------------------------
[1] The RFP provides that the technical/management factor is comprised of
a workmanship/construction subfactor and an overall presentation/style
subfactor, while the management factor is comprised of program support
services, overall management plan, and past performance subfactors. RFP at
163.
[2] The RFP lists more than 20 pieces of furniture and furnishings that
"must be submitted for evaluation," such as a "dining arm chair." RFP at
160.
[3] According to the agency, "[a] rendering in the context of this
procurement is an artistic representation, in perspective view, of the
furniture items being offered. Renderings are basically `colored/shaded
in' line drawings and were therefore, considered to be in the same
category of illustration as line drawings, which can also be in
perspective view, is generally a pen and ink outline and not shaded or
colored, as is a rendering." AR at 6-7.
[4] Specifically, Capitol also argues that the revisions made by amendment
10 to the number of finish steps and thickness of the back panels required
on certain pieces of furniture (each of which actually relaxed the
requirement set forth in the RFP as issued), as well as the gloss levels
required, are overly restrictive of competition. The protester further
argues that the solicitation's description of the styles required, as set
forth in the solicitation as issued, and the agency's use of the terms
"formal" and "informal" in amendment 10, are ambiguous. Capitol also
asserts that the agency's letters to offerors in anticipation of
establishing the competitive range constituted discussions, which
according to the protester were inadequate.