TITLE: B-299156, Free&Ben Inc., February 20, 2007
BNUMBER: B-299156
DATE: February 20, 2007
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B-299156, Free&Ben Inc., February 20, 2007

   Decision

   Matter of: Free&Ben Inc.

   File: B-299156

   Date: February 20, 2007

   Ben Emosivbe for the protester.

   Lynne Georges, Esq., Defense Logistics Agency, for the agency.

   Jennifer D. Westfall-McGrail, Esq., and Christine S. Melody, Esq., Office
   of the General Counsel, GAO, participated in the preparation of the
   decision.

   DIGEST

   Under procurement for plastic tent stakes, agency properly did not
   consider thickness of stakes in its evaluation of quotations where
   solicitation neither requested such information nor provided for
   evaluation on such a basis.

   DECISION

   Free&Ben Inc. protests the Defense Logistics Agency's (DLA) issuance of a
   purchase order for 25,000 plastic tent stakes to Middle Tennessee
   Plastics, Inc. (MTP). The protester speculates that MTP was given the
   opportunity to lower its price after the date set for receipt of
   quotations, thereby displacing the protester as the lowest-priced vendor.
   The protester also argues that the agency improperly failed to consider
   the thickness of the stakes offered in its evaluation.

   We deny the protest.

   BACKGROUND

   On June 22, 2006, DLA's Defense Supply Center Philadelphia (DSCP) posted a
   presolicitation notice on the Federal Business Opportunities (FedBizOpps)
   website announcing its intention to issue a request for quotations (RFQ)
   for 25,000 plastic tent stakes, National Stock Number 8340-01-478-0136. On
   September 8, the agency posted a second notice furnishing additional
   information regarding the forthcoming RFQ. The second notice informed
   prospective vendors that the RFQ would be posted on DLA's Internet
   Bulletin Board System (DIBBS) and that the response date would be
   September 30.

   When, on September 11, the contracting officer attempted to post the RFQ
   to the DIBBS, she was unable to do so. Due to the low dollar value of the
   acquisition and the fact that she "was only interested in the
   lowest-priced quotation that could meet the requirements of the RFQ," the
   contracting officer decided to solicit those vendors who had expressed an
   interest in the procurement via e-mail. Agency Report (AR), Tab 4,
   Contracting Officer's Affidavit at 1. The e-mail, dated September 11,
   explained to the prospective vendors that quotations should be sent via
   fax to a specified fax number and that the closing date was September 14.
   AR, Tab 5. The e-mail referred vendors to the modified synopsis posted on
   the FedBizOpps website on September 8 and furnished them with a copy of
   the specifications pertaining to the stakes. It also notified vendors that
   no drawings were available. Due to the inconsistency between the closing
   date specified in the presolicitation notice (September 30) and the
   closing date specified in the e-mail (September 14), the contracting
   officer subsequently extended the closing date to October 4 and notified
   each of the vendors who had expressed interest of the extension, via
   telephone.

   The specifications did not furnish a great deal of information regarding
   required characteristics of the stakes, noting only that they were to be
   12 inches long, polycarbonate, and black; that they were to be in
   accordance with the DSCP baseline unit (which could be examined by
   appointment with the contracting officer) and CN Purchase Description (PD)
   01-03; that each stake was to be labeled with a pressure sensitive barcode
   identification; and that they needed to be packaged in a particular type
   of box. CN PD 01-03 described the modular general purpose tent system of
   which the stakes were a component; the only additional information in the
   PD regarding required characteristics of the stakes was that they "must be
   able to be installed by an individual soldier without power equipment" and
   that they must be able "to secure the tent through snow, rain and wind
   testing." AR, Tab 5, CN PD 01-03, para. 3.2.4.

   On September 18, Free&Ben, which had apparently just learned of the
   acquisition, contacted DSCP via e-mail and requested a copy of the
   specifications. The acquisition specialist complied with the request and
   advised Free&Ben that the agency was in the process of soliciting
   quotations and thus that Free&Ben should submit its quotation as soon as
   possible. AR, Tab 7. In a subsequent e-mail, the protester sought
   additional detail regarding required characteristics of the stakes, such
   as their thickness, and requested a photo or a sample. The acquisition
   specialist responded (via e-mail dated September 26) that since the
   specification was "performance based only," it did not specify the stakes'
   thickness, and that there were no drawings, photos, or samples that could
   be furnished. Id. On September 30, Free&Ben submitted a quotation for the
   stakes.

   Eight quotations were received by the October 4 closing date. MTP's unit
   price of $.87 was low, and Free&Ben's price of $.93 was second low.
   Because the prices of the two vendors were lower than she had expected,
   the contracting officer asked each to confirm its price. Each did. On
   November 7, the contracting officer issued a purchase order to MTP for
   25,000 stakes at a unit price of $.87.

   ANALYSIS

   The protester argues that the agency would not have asked it to confirm
   its price if its price had not been the lowest one submitted, meaning that
   MTP must have been given the opportunity to lower its price after the
   closing date. The protester is incorrect in assuming that the acquisition
   specialist's request for verification of its price signaled that the price
   was low. As noted above, Free&Ben's price was not lowest; it was second
   lowest. There is nothing in the record to support the protester's
   speculation that MTP was allowed to amend its price after the closing
   date.[1]

   The protester further argues that the agency should have considered the
   thickness of the stakes offered by the various vendors vis-`a-vis the
   vendors' prices in its evaluation of quotations.

   The only information pertaining to the stakes requested of the vendors
   here was price, i.e., no information regarding features of the stakes,
   such as their thickness, was requested. This was sufficient to place
   offerors on notice that price would be the only evaluation criterion. See
   Vistron, Inc., B-277497, Oct. 17, 1997, 97-2 CPD para. 107 at 4 (where a
   solicitation does not contain evaluation factors other than price, the
   general rule is that price is the sole evaluation criterion); AMBAC Int'l,
   B-234281, May 23, 1989, 89-1 CPD para. 492 at 3 n.2 (since price was the
   only term requested by the solicitation, price was obviously the sole
   evaluation criterion). Moreover, to the extent that the protester is
   objecting to the agency's failure to define the required thickness of the
   stakes in the specifications, its complaint pertains to an impropriety
   that was apparent prior to the time set for receipt of quotations; as
   such, to be timely, any protest of the matter would have had to be filed
   prior to the closing time. Bid Protest Regulations, 4 C.F.R. sect.
   21.1(a)(1) (2006); QuickHire, LLC, B-293098, Jan. 30, 2004, 2004 CPD para.
   33 at 4 n.4.

   Finally, Free&Ben complains that it was not informed of the extension of
   the closing date for receipt of quotations to October 4. Even if true, we
   fail to see how this resulted in any prejudice to the protester. MTP did
   not gain any advantage over the protester by virtue of the extension since
   it submitted its quotation on September 14, more than 2 weeks prior to the
   protester's submission. Moreover, while the protester alleges that
   delaying submission of its quotation by 4 days (September 30 to October 4)
   might have had an impact on its price if it had learned during the interim
   that the agency was soliciting quotations via e-mail and/or it had been
   furnished with additional information pertaining to stake thickness, we
   find neither argument persuasive. With regard to the protester's assertion
   that the agency's furnishing of additional information regarding stake
   thickness would have had an impact on its price, it is clear from the
   record that the agency never intended to, and in fact did not, furnish
   vendors with additional information regarding stake thickness. (The
   acquisition specialist had, after all, responded to the protester's
   request for such information only a few days earlier by noting that
   because the specification was "performance based only," it did not specify
   the stakes' thickness.) Regarding the protester's argument that it would
   have adjusted its price if it had known that the agency was soliciting
   quotations via e-mail because it would have anticipated more quotations
   clustered around the $25,000 threshold, Protester's Comments, Jan. 14,
   2007, at 2, we see no reasonable basis to think that the protester would
   have lowered its price, which was already well below $25,000, just because
   it expected other vendors to submit prices in the vicinity of $25,000.

   The protest is denied.

   Gary L. Kepplinger
   General Counsel

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

   [1] It appears that the protester's misunderstanding as to the status of
   its quotation may have stemmed in part from the fact that when, after
   receiving the request for verification of its price, the protester's
   president contacted the contracting officer to inquire as to the reason
   for the request, the contracting officer told him that she "wanted to make
   sure that he knew what he was offering on given his low price." AR, Tab 4,
   Contracting Officer's Affidavit at 2. While the contracting officer
   apparently intended her reference to the protester's "low price" to mean
   the protester's lower than expected price, the protester appears to have
   understood the reference to mean that its price was the lowest one
   received. To the extent that the protester asserts that the agency should
   reimburse it for costs that it incurred in reliance upon its mistaken
   understanding that it was in line for receipt of the order, there is no
   basis for recovery since the protester's expenditures were the result of a
   business judgment exercised prior to issuance of an order and the
   government received no benefit as a result. Brackett Aircraft Radio Co.,
   B-246282, Jan. 8, 1992, 92-1 CPD para. 43 at 2-3.