TITLE: B-299092, Encompass Group, LLC, December 22, 2006
BNUMBER: B-299092
DATE: December 22, 2006
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B-299092, Encompass Group, LLC, December 22, 2006

   Decision

   Matter of: Encompass Group, LLC

   File: B-299092

   Date: December 22, 2006

   H. K. Tyler, Jr. for the protester.

   Melbourne A. Noel, Jr., Esq., and Phillipa L. Anderson, Esq., Department
   of Veterans Affairs, for the agency.

   Kenneth Kilgour, Esq., and Christine S. Melody, Esq., Office of the
   General Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Agency reasonably determined that protester's quotation was unacceptable
   where the record supports the agency's conclusion that the protester's
   sample garments failed to comply with multiple solicitation requirements.

   DECISION

   Encompass Group, LLC protests the rejection of its quotation under request
   for quotations (RFQ) No. VA-797-06-RQ-0104, issued by the Department of
   Veterans Affairs (VA) for reusable operating room scrubs. Encompass
   contends that any nonconformity of their samples to the solicitation
   requirements was minor and that it properly indicated in a letter and
   product literature accompanying the samples its intent to deliver scrubs
   that conformed to the terms of the RFQ.

   We deny the protest.

   As part of its efforts to standardize its procurement of medical items, on
   September 13, 2006, the VA issued an RFQ to holders of Federal Supply
   Schedule (FSS) contracts for the required garments. The RFQ, which
   contained a deadline of October 5 for submitting quotations, contemplated
   establishment of a single national blanket purchase agreement (BPA) with a
   5-year performance period. The RFQ informed interested FSS contract
   holders that a BPA would be established with "the offeror whose quotation
   provides the best overall price to the VA upon determining all offered
   products Technically Acceptable in accordance with the requirements shown
   in Attachment A." RFQ at 2. The product requirements for line item 3, the
   unisex scrub top, included the following:

     1. Scrub top must be a pullover, reversible, with expandable neck.

     2. Scrub top must have one left chest pocket on both sides and one right
     bottom pocket on both sides.

     14. Size label must be looped over center back neck and secured with
     bartack.

     15.Size must be visible on both sides of label.

   Id. at 18-19. The agency notes that scrubs conforming to these
   requirements can be pulled on quickly after laundering without the need to
   first reverse them.

   The RFQ required offerors to submit samples for all line items requiring
   sample garments, which included line item 3, and noted that the "[f]ailure
   of these samples to conform to the required requirements will require
   rejection of the offer." Id. at 41. The RFQ advised offerors that "[i]f
   your commercial line of Garments have different common commercial styles
   than described above, your quote must include detailed explanations
   relating to similarities that will satisfy the above requirements in
   writing only. Please provide detailed explanations by line item." Id. at
   42.

   Five offerors, including Encompass, submitted quotations and samples;
   Encompass submitted a quote that included product literature, samples of
   garments, and a cover letter. In the letter, the protester took issue with
   several of the RFQ specifications, but noted that "we have yet to protest
   this situation." Agency Report (AR), exh. 4, Letter from the Protester to
   the Agency, Oct. 4, 2006, at 1.

   The agency found the samples submitted by Encompass for line item 3, the
   unisex scrub top, to be unacceptable and advised the protester that its
   quotation had been rejected as a result. The contracting officer
   identified the following deficiencies in the sample, corresponding to the
   requirements in the RFQ quoted above:

     2. NO -- One chest pocket on one side only and two bottom pockets on the
     other side

     14. NO -- Label sewn on one side and not looped over

     15. NO -- [Size] not on both sides of label

   AR, exh. 6, Letter from Agency to Protester, Oct. 27, 2006, at 1. This
   protest followed.

   Encompass asserts that its quotation was unreasonably rejected based on
   minor deficiencies in one of nine product categories, and that, in any
   event, a provision in the RFQ (set out above) allowed offerors to quote
   "different common commercial styles" than those described in the RFQ if
   "detailed explanations are provided," which Encompass claims it did.
   Protest at 1.

   It is the agency's role to define both its underlying needs and the best
   method of accommodating those needs, and it is within the agency's
   discretion to reject as unacceptable products not meeting the requirements
   that it defines. Dwight Teller Church Organs, Inc., B-292825, Dec. 9,
   2003, 2003 CPD para. 226 at 3. Here, the protester concedes that its
   samples for line item 3 contained the three deficiencies identified by the
   contracting officer; as a result, the agency properly rejected the
   protester's quotation based on the non-conforming samples. American Gov't
   Mktg., Inc., B-294895, Nov. 22, 2004, 2005 CPD para. 109 at 2. In this
   regard, while Encompass characterizes the deficiencies in its samples as
   minor, the record does not support that position. On the contrary, the
   noted deficiencies clearly relate to whether the scrubs can be pulled on
   after laundering without the need to first reverse them, a need described
   in the first of the listed requirements for line item 3 (stating that the
   scrub top must be "reversible").

   The protester argues that its cover letter contained detailed descriptions
   of how the protester's similar, common commercial garments would satisfy
   the agency's requirements, in accordance with the provision in the RFQ
   allowing such explanations. See RFQ at 42. We disagree. Nothing in the
   quotation (or, for that matter, in the protest filings) attempts to
   explain in detail how the protester's non-conforming samples would
   nevertheless satisfy the agency's needs; rather, the protester's cover
   letter simply states that the products it would deliver--unlike its
   samples--would conform to the RFQ's specifications. Indeed, given that the
   agency's intent was to procure scrubs that could be used quickly without
   first being reversed, the deficiencies in the protester's samples--the
   lack of pockets on both sides and the lack of a size tag visible from both
   sides--appear to make them unsusceptible to being made conforming through
   any explanation.

   Encompass raised several other issues in its protest. To the extent that
   the protester alleged solicitation improprieties--for example, that the
   requirements for one garment make it technically impossible to
   produce--such allegations are untimely. See Bid Protest Regulations, 4
   C.F.R. sect. 21.2(a)(1) (2006) (a protest based upon alleged improprieties
   in a solicitation that are apparent prior to the quotation closing time
   must be filed before that time). To the extent that the protester alleges
   other protest grounds--that the awardee's garments are from a non-approved
   country and that some of the awardee's garments are not on its FSS
   schedule-- these arguments, raised for the first time in comments on the
   agency report, are untimely. See 4 C.F.R. sect. 21.2(a)(2). In any event,
   the protester is not an interested party to raise these issues because it
   was properly found to have offered a non-conforming product and because
   there are other offerors that furnished conforming products; thus, the
   protester would not be in line for award even if its protest were
   sustained on these grounds. American Gov't Mktg., Inc., supra. Finally,
   the protester speculates that the agency must have held discussions with
   other offerors, but not the protester, and engaged in technical leveling.
   Because these allegations have no support in the record and are based on
   mere speculation, we will not consider them. See Fabritech, Inc.,
   B-298247, July 27, 2006, 2006 CPD para. 112 at 7.

   The protest is denied.

   Gary L. Kepplinger
   General Counsel