TITLE: B-298935.2, M.Braun, Inc., May 21, 2007
BNUMBER: B-298935.2
DATE: May 21, 2007
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B-298935.2, M.Braun, Inc., May 21, 2007

   Decision

   Matter of: M.Braun, Inc.

   File: B-298935.2

   Date: May 21, 2007

   Thomas Dobbins for the protester.

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

   Nora K. Adkins, Esq., Guy R. Pietrovito, Esq., and James A. Spangenberg,
   Esq., Office of the General Counsel, GAO, participated in the preparation
   of the decision.

   DIGEST

   An agency is not permitted to consider a late quotation, where the
   solicitation contained a late submission provision that limited the
   agency's consideration of late quotations, and no exception to the
   provision applied.

   DECISION

   M.Braun, Inc. protests the issuance of a purchase order to Premier
   Technology, Inc. under request for quotations (RFQ) No. RFQ-DC-06-00339,
   issued by the Environmental Protection Agency (EPA), for a glovebox to be
   used by the EPA's National Enforcement Investigations Center in Denver,
   Colorado.

   We sustain the protest.

   The RFQ, issued August 11, 2006 as a small business set-aside and a
   commercial item acquisition, sought quotations for a glovebox, which is a
   container that allows for the rapid identification of the exact chemical
   structure of hazardous substances in an isolated engineering controlled
   environment. Contracting Officer's Statement (COS) at 1. The RFQ requested
   fixed-price quotations and included the following evaluation factors in
   descending order of importance: technical capability, past performance and
   price. The RFQ incorporated by reference the standard "Instructions to
   Offerors--Commercial Items" clause of the Federal Acquisition Regulation
   (FAR) sect. 52.212-1, and required the submission of quotations
   electronically by 2 p.m., September 11, 2006. Vendors were informed that
   issuance of the "purchase order [would be] based upon `best value'
   methodology." RFQ at 2; Id. amend. 2, at 1.

   Three quotations, including M.Braun's, were received by the closing time
   for receipt of quotations. Premier attempted to submit its quotation prior
   to the 2 p.m. closing time, but its quotation, which included "zipped"
   files, was not accepted by the agency's electronic system.[1] After being
   informed by the contracting officer that the EPA could not accept zipped
   files, Premier resubmitted its quotation without zipped files. This
   submission was received by the agency at approximately 2:15 p.m., after
   the time set for receipt of quotations. COS at 2-3.

   Premier's quotation included the following "Clarifications and Exceptions"
   language:

     1. This proposal reflects raw material pricing as of 9/11/06. Due to the
     current volatility of the steel markets, raw material pricing will need
     to be negotiated at time of release for fabrication.

     2. Leak testing can be performed at 10 times normal operating pressure
     as indicated in the RFQ. Premier would like to propose mass spectrometer
     helium leak testing in accordance with American Glovebox Society
     Standards as an alternative to the specified method.

   Agency Report (AR), Tab 9, Premier Quotation, at 11^th unmarked page.

   All four quotations were evaluated by the agency's technical review
   committee, which found that Premier's quotation complied "with the terms,
   expectations and overall quality as outlined in the statement of work
   (SOW)." The other three quotations, including M.Braun's, "while adequate,
   were judged lower in overall quality." In this regard, the evaluation
   committee concluded that the protester's quotation "appeared to be a
   customization of a COTS [commercial off the shelf] production model and
   had limited details on the project plan." AR, Tab 13, Technical Review of
   Quotations, Sept. 19, 2006, at 2.[2]

   After the technical evaluation, Premier transmitted an e-mail to the
   contracting officer, stating that "[h]ere is the revised document we spoke
   of. Let me know if there is anything further you need." AR, Tab 14, E-mail
   from Premier to Contracting Officer, Sept. 20, 2006, at 1. Attached to
   this e-mail was a revision to Premier's "Clarifications and Exceptions,"
   which deleted the section that provided for future price negotiation.

   Thereafter, the contracting officer determined that Premier's quotation
   represented the "best value" to the government. AR, Tab 16, Source
   Selection Memorandum. On September 22, the EPA issued to Premier a
   purchase order, which provided for the installation of the glovebox by
   late May 2007. This purchase order incorporated by reference Premier's
   September 11 quotation, which included Premier's reservation of future
   price negotiation. AR, Tab 19, Purchase Order to Premier, at 2.

   Following a debriefing, on October 4, M.Braun protested to our Office. On
   October 12, the EPA informed our Office that it was taking corrective
   action and would reevaluate the quotations. Thereafter, we dismissed the
   protest as academic.

   On January 4, 2007, after concluding its reevaluation of the quotations,
   the EPA affirmed the selection of Premier's quotation.[3] In its
   reevaluation, the agency concluded that only Premier's quotation was
   technically acceptable. With respect to M.Braun's quotation, the agency
   concluded that the protester had failed to provide sufficient information
   and detail to demonstrate the acceptability of the firm's quotation. AR,
   Tab 24, Technical Reevaluation of Quotations.

   After receiving notice of the EPA's confirmation of Premier's selection,
   the protester promptly filed a Freedom of Information Act (FOIA) request
   with the EPA, seeking information pertaining to the glovebox procurement.
   This protest followed within 10 calendar days of receiving the FOIA
   information from the agency.

   M.Braun contends that the EPA improperly accepted Premier's late quotation
   submission and conducted discussions with Premier while not allowing
   M.Braun to address evaluated deficiencies in its quotation.

   Generally, late quotations may be considered up to the time of issuance of
   the order, because an RFQ, unlike a request for proposals (or an
   invitation for bids), does not seek offers that can be accepted by the
   government to form a contract. Rather, the government's purchase order
   represents an offer that the vendor may accept through performance or by a
   formal acceptance document. DataVault Corp., B-248664, Sept. 10, 1992,
   92-2 CPD para. 166 at 2. Moreover, we have found that language in an RFQ
   requesting quotations by a certain date does not establish a firm closing
   date for receipt of quotations, absent a late submission provision
   expressly providing that quotations must be received by that date to be
   considered. Instruments & Controls Serv. Co., B-222122, June 30, 1986,
   86-2 CPD para. 16 at 3. Here, however, the RFQ incorporated the standard
   "Instruction to Offerors -- Commercial Items" FAR clause, which expressly
   limits the agency's consideration of a late submission. See FAR
   sect. 52.212-1(f).

   The EPA concedes that Premier's quotation was late, but argues that
   consideration of Premier's late quotation was proper, because Premier's
   quotation was the only acceptable quotation received by the agency and
   therefore could be considered under FAR sect. 52.212-1(f)(2)(i)(C).[4]

   The agency's argument, however, is not supported by the record, which
   establishes that, as submitted, Premier's quotation was not acceptable. As
   noted above, the RFQ required the submission of fixed-price quotations.[5]
   Premier did not submit a fixed-price quotation, but conditioned its price,
   stating that "raw material pricing will need to be negotiated" in the
   future. AR, Tab 9, Premier Quotation, at 11^th unmarked page. Where an
   agency solicits fixed-price quotations, it is not permitted to accept
   quotations that are not fixed-price. It is fundamental that an agency may
   not solicit quotes on one basis and then issue an order on a materially
   different basis when other vendors would be prejudiced by such an agency
   action. See The Mangi Envtl. Group, Inc., B-294597, Nov. 29, 2004, 2004
   CPD para. 238 at 2.

   The protest is sustained.[6]

   Ordinarily, we would recommend that the agency terminate the order issued
   to Premier and consider the protester's and other vendors' quotations for
   the issuance of an order. However, here, the record shows that Premier has
   substantially performed the purchase order, such that it is not feasible
   to recommend termination of the order. See AR, Tab 19, Premier Purchase
   Order, at 3^rd unmarked page, Tab 33, Premier's Glovebox Delivery
   Schedule, Mar. 6, 2007. Accordingly, we recommend that the protester be
   reimbursed its costs of quotation preparation and costs of filing and
   pursing the protest, including reasonable attorney's fees. Bid Protest
   Regulations, 4 C.F.R. sect. 21.8(d)(1), (2) (2007). M.Braun should submit
   its certified claim for costs, detailing the time expended and costs
   incurred, directly to the contracting agency within 60 days after the
   receipt of this decision.

   Gary L. Kepplinger
   General Counsel

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

   [1] A "zipped" file is one that is in a compressed, ".zip" format.

   [2] The technical review committee evaluated each quotation with respect
   to overall thoroughness of the proposed technical approach, past
   experience with similar custom gloveboxes, details of the cost estimate,
   and impression of overall quality. AR, Tab 13, Technical Review of
   Quotations, at 1.

   [3] The agency's original technical evaluation report (before the agency's
   corrective action) and the reevaluation report (after the corrective
   action) were signed by the same individual.

   [4] FAR 52.212-1(f)(2)(i)(C), which was incorporated by reference in the
   RFQ, provides that an agency may consider a late submission where the
   submission was received before award, would not unduly delay the
   acquisition, and that "[i]f this solicitation is a request for proposals,
   it was the only proposal received." Even though the present case involves
   a late quotation rather than a late proposal, because the agency relies
   upon this provision to accept Premier's late quotation, we will assume,
   but do not decide, that the provision is applicable in situations where
   only one acceptable quotation was received. As discussed below, we find
   Premier's quotation was not acceptable and this provision is not
   applicable. We note that subparagraph (A) of this clause also provides an
   exception for consideration of late quotations that were submitted
   electronically and were received at the "initial point of entry to the
   Government infrastructure not later than 5:00 p.m. one working day prior
   to the date specified for receipt of offers." Because Premier only
   attempted to electronically submit its quotation on the closing date, this
   exception was also not applicable.

   [5] Agencies are required to provide for fixed-price or fixed-price with
   economic price adjustment orders or awards in commercial item
   acquisitions. See FAR sect. 12.207.

   [6] Because we sustain M.Braun's protest on the basis that the agency
   improperly accepted Premier's late quotation, we need not address the
   firm's complaint that the agency treated the vendors unequally by
   conducting discussions with only Premier.