TITLE: B-299046.2, Para Scientific Company, February 13, 2007
BNUMBER: B-299046.2
DATE: February 13, 2007
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B-299046.2, Para Scientific Company, February 13, 2007

   Decision

   Matter of: Para Scientific Company

   File: B-299046.2

   Date: February 13, 2007

   Hiram Reinhart for the protester.

   Mogy E. Omatete, Esq., Department of Health and Human Services, 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

   In a procurement conducted under simplified acquisition procedures,
   agency's determination that it was in the best interests of the government
   to make a single award to the vendor that submitted the lowest
   total-priced quotation for all 22 items listed in a request for quotations
   for laboratory supplies was unreasonable where the record demonstrates
   that a second award to the protester for 6 of the requested items would
   have resulted in a lower aggregate cost to the government and there is
   nothing in the record to suggest that such an award would not have been in
   the government's best interests.

   DECISION

   Para Scientific Company protests the award of a contract to Fisher
   Scientific Company LLC under request for quotations (RFQ) No.
   NIH-NIDDK-06-985, issued by the National Institute of Diabetes and
   Digestive and Kidney Diseases, National Institutes of Health, Department
   of Health and Human Services, for laboratory supplies.

   We sustain the protest.

   The RFQ listed 22 items and the quantity of the items that the agency
   sought to purchase. For example, some of the items included "Pipet Sero
   Disposable 25ml 200/cs" with a quantity sought of 10 cases, and "Box with
   cover fiber board 3 inch 12/pack" with a quantity sought of 10 packs. RFQ
   at 2. Next to each of the items listed and quantities sought, the RFQ
   included blank spaces where vendors were to insert their unit price per
   item and total prices based upon the stated quantities. The RFQ did not
   require that vendors submit prices for all items, or indicate whether a
   single award or multiple awards were contemplated.

   The agency received quotations from eight vendors, including Fisher
   Scientific and Para Scientific, with Fisher Scientific's quotation
   providing a total price of $32,159 for all items listed. Para Scientific's
   quotation, which did not include pricing for 2 of the 22 listed items,
   provided a total price for the remaining 20 items of $67,739.[1]
   Contracting Officer's Statement at 2; Agency Report (AR), Tab 5, Para
   Scientific Quotation, at 3. The agency awarded a contract for the items to
   Fisher Scientific.[2]

   The protester argues, among other things, that to the extent that its
   quotation included prices lower than those furnished by the awardee for
   any of the items solicited, the agency should have awarded a contract to
   the protester for those lower priced items.[3] Protester's Comments at
   1-2. The agency responds that "[a]lthough the RFQ package did not state
   that vendors were required to propose on all line items, it was in the
   Government[']s best interest to award to a vendor that could provide all
   requested items with the lowest price." Contracting Officer's Statement at
   1-2.

   Section 13.101(b)(1) of the Federal Acquisition Regulation (FAR) expressly
   recognizes that either single or multiple awards are permissible in the
   context of simplified acquisitions, [4] and our Office has consistently
   held that where, as here, a solicitation does not require a single award,
   multiple awards may be made. See, e.g., Weather Experts, Inc., B-255103,
   Feb. 9, 1994, 94-1 CPD para. 93 at 3 (invitation for bids (IFB)); Goodman
   Ball, Inc., B-217318, Mar. 25, 1985, 85-1 CPD para. 348 at 3 (IFB). Given
   that it was within the agency's discretion to make either a single award
   or multiple awards, we review for reasonableness the agency's exercise of
   that discretion in making a single award to Fisher Scientific. See Weather
   Experts, Inc., supra; American Bank Note Co., B-222589, Sept. 18, 1986,
   86-2 CPD para. 316 (RFP).

   Although the FAR recognizes that multiple awards may be made under FAR
   Part 13 procurements, neither the FAR nor case law provides any specific
   guidance as to when multiple awards are either appropriate or required in
   these procurements. The FAR does, however, provide guidance regarding
   single or multiple awards in the context of sealed bidding and negotiated
   acquisitions. For example, in the context of sealed bidding, the FAR
   advises that IFBs are to provide for multiple awards where the contracting
   officer determines that multiple awards "might be made if doing so is
   economically advantageous to the Government." FAR sect. 14.201-6(q).
   Section 14.201-8(c) of the FAR adds that after the receipt of bids, "[t]he
   contracting officer shall assume, for the purpose of making multiple
   awards, that $500 would be the administrative cost to the Government for
   issuing and administering each contract awarded under a solicitation," and
   that "[i]ndividual awards shall be for the items or combinations of items
   that result in the lowest aggregate cost to the Government, including the
   assumed administrative costs." In the context of negotiated acquisitions,
   the FAR requires that RFPs inform offerors that "the Government reserves
   the right to make multiple awards if, after considering the additional
   administrative costs, it is in the Government's best interest to do so."
   FAR sect. 52.215-1(f)(6); see FAR sect. 15.209(a) (requiring the inclusion
   of FAR sect. 52.215-1). Although neither Part 14 or Part 15 of the FAR is
   applicable to the simplified acquistion here, we believe the
   above-referenced provisions of these parts are instructive regarding the
   reasonableness of the agency's determination that multiple awards were not
   in the government's best interests.

   The agency explains with regard to its determination to make a single
   award to Fisher Scientific as follows:

     This award was for a fixed amount of items that are consistently offered
     commercially by vendors. The rationale for making one award was mainly
     due to making sound business and financial sense. To make multiple
     awards would create an administrative financial burden as well as
     ineffective use of Government resources. For example, to make more than
     one award on one requisition, it would create the same amount of
     administrative burden/resources for each subsequent award (i.e., staff
     time, administrative costs, shipping costs, etc.). Given the small
     amount of the procurement ($32,159.12), it would have been a minimal
     saving for splitting this into two awards. So, in turn, one order is
     financially beneficially to the Government than making more than one
     award to multiple vendors. Thus, the Government determined that it was
     in its best interest to make one complete award which provide the best
     value for the Government.

   Contracting Officer's Supplemental Statement at 1.[5]

   Contrary to the agency's assumptions regarding the potential savings that
   could be achieved given the "small amount of the procurement," a review of
   the item-by-item prices quoted by Para Scientific and Fisher Scientific
   reveals that Para Scientific's prices for six of the items are
   substantially less than the prices quoted by Fisher Scientific, and that
   the agency would have saved the government, absent the consideration of
   any adminstrative costs incurred, a total of $8,363.97, had the agency
   made an award to Para Scientific for those items.[6] Given that in an IFB
   context the administrative expenses are assumed to be $500 for each
   additional award, the savings that could have been achieved through an
   additional award to Para Scientific would appear to more than offset any
   additional administrative costs the agency would have incurred, and as
   such, there is nothing in the record to suggest that it would have been
   other than "economically advantageous to the Government" or other than "in
   the Government's best interest" to make such an award.[7] See FAR sections
   14.201-6(c), 52.215-1(f)(6); Weather Experts, Inc., supra. Accordingly, we
   find that the agency's determination here lacks a reasonable basis, and
   that the agency should have awarded an additional contract under this RFQ
   to Para Scientific for the six items for which Para Scientific quoted
   lower prices.

   The protest is sustained. The agency has informed our Office and the
   protester that because Para Scientific's initial protest to our Office was
   not filed within 10 days of the award to Fisher Scientific "[n]o stay of
   contract award was issued." Agency Corrective Action Letter (Nov. 6,
   2006). The agency adds here that as of November 6, it had taken delivery
   of 21 of the 22 items. Given this, we recommend that the agency reimburse
   the protester its quotation preparation costs, as well as the costs of
   filing and pursuing its protests, including reasonable attorneys' fees.
   4 C.F.R. sect. 21.8(d)(1) (2006). In accordance with section 21.8(f) of
   our Regulations, Para Scientific's claim for such costs, detailing the
   time expended and the costs incurred, must be submitted directly to the
   agency within 60 days after receipt of the decision.

   Gary L. Kepplinger
   General Counsel

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

   [1] Neither Fisher Scientific nor Para Scientific qualified its quotation
   as "all or none."

   [2] The RFQ did not identify any evaluation criteria, nor did it inform
   vendors of the basis for the agency's award selection. Although Federal
   Acquisition Regulation (FAR) sect. 13.106-2 affords contracting officers
   using simplified acquisition procedures, as here, discretion in
   determining how to conduct a procurement and in fashioning suitable
   evaluation procedures, this discretion does not permit a failure to
   identify significant evaluation factors in the RFQ or evaluating
   quotations on the basis of factors not announced in the RFQ. American
   Artisan Prods., Inc., B-278450, Jan. 30, 1998, 98-1 CPD para. 37 at 4.
   Rather, FAR sections 13.106-1(a)(2) and 13.106-2(a)(2) specifically
   require that solicitations advise potential vendors of the basis upon
   which award is to be made, and agencies must conduct evaluations based on
   the criteria set forth in the solicitations. Id. Nevertheless, because
   price was the only term requested by the solicitation at issue here, price
   was necessarily the sole evaluation factor. Brewer-Taylor Assocs.,
   B-277845, Oct. 30, 1997, 97-2 CPD para. 124 at 3.

   [3] The protester also argues that the agency's debriefing was inadequate.
   Whether or not an agency provides a debriefing and the adequacy of a
   debriefing are issues that our Office will not consider, because the
   scheduling and conduct of a debriefing is a procedural matter that does
   not involve the validity of an award. The Ideal Solution, LLC, B-298300,
   July 10, 2006, 2006 CPD para. 101 at 3 n.2; see Symplicity Corp.,
   B-297060, Nov. 8, 2005, 2005 CPD para. 203 at 3 n.4.

   [4] FAR sect. 13.101(b)(1) states, "In making purchases, contracting
   officers should-- (1) Include related items (such as small hardware items
   or spare parts for vehicles) in one solicitation and make award on an
   `all-or-none' or `multiple award' basis provided suppliers are so advised
   when quotations or offers are requested." As indicated above, the RFQ did
   not state whether a single award of all items would be made or whether
   multiple awards would be made.

   [5] In contrast to this post-protest statement, there is no indication in
   the contemporaneous record that the agency engaged in any analysis as to
   whether it was in the government's best interests to make a single award
   or multiple awards.

   [6] The six items are: (1) "Art 1000G filter TP singles 500/pk," (2) "Box
   with cover fiber board 3 inch 12/pack," (3) "200 ul ylw bevtip rack
   ster960/P 5 pack/case," (4) "Cryogvial SS 2ml 500/case," (5) "Tissue/tek
   cryomold 100/pack," and (6) "Cryovial ss 1.2ml 500/case."

   [7] As noted, the agency has provided no non-cost related reasons why
   these items need to be procured from a single vendor.