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
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[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.