TITLE: Matter of: OfficeMax, Inc.
BNUMBER: B-299340.2
DATE: July 19, 2007
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B‑299340.2, OfficeMax, Inc., July 19, 2007

   DOCUMENT FOR PUBLIC RELEASE
   The decision issued on the date below was subject to a GAO Protective
   Order. This redacted version has been approved for public release.

   Decision

   Matter of: OfficeMax, Inc.

   File: B-299340.2

   Date: July 19, 2007

   Lee P. Curtis, Esq., Troy E. Hughes, Esq., and Eric A. Aaserud, Esq.,
   Perkins Coie LLP, for the protester.

   Kristen E. Ittig, Esq., Arnold & Porter LLP, for Corporate Express, an
   intervenor.

   David K. Barnes, Esq., and Lori R. Larson, Esq., Internal Revenue Service,
   for the agency.

   Jonathan L. Kang, Esq., and Ralph O. White, Esq., Office of the General
   Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   1. Agency reasonably determined that vendor's quotation was technically
   unacceptable where it failed to comply with a mandatory solicitation
   requirement.

   2. Protest that agency failed to provide meaningful discussions is denied
   where protester cannot establish prejudice because the record shows that
   protester's ordering systems for office supplies did not comply with a
   mandatory solicitation requirement, and shows that the protester did not
   plan to become compliant.

   DECISION

   OfficeMax, Inc. protests the award of a contract to Corporate Express
   under request for quotations (RFQ) No. TIRNO-06-Q-00031, issued by the
   Internal Revenue Service (IRS) for delivery of office supplies. The
   protester contends that the IRS unreasonably determined that its quotation
   was technically unacceptable, and also failed to conduct meaningful
   discussions.

   We deny the protest.

   This office supply procurement protest involves a single issue--an RFQ
   requirement for an ordering management system that the IRS has termed its
   "fill or kill" policy, and the protester's commitment to comply with this
   policy in its quotation. The policy, in essence, requires the vendor to
   provide an order management service (in addition to providing the office
   supplies) that either completely "fills" each line item of an order for
   office supplies, or "kills," i.e. completely rejects, any line item that
   cannot be filled entirely, so that the purchasing entity can seek the
   supplies from another vendor. Simply put, the IRS wants no
   partially-filled line items. Ultimately, this decision concludes that: (1)
   the fill or kill policy was a material requirement of the RFQ; (2) the
   OfficeMax quotation was reasonably rejected for its failure to comply with
   this requirement; (3) the IRS did not advise OfficeMax during discussions
   that its failure to comply with this policy was a deficiency that would
   result in the disqualification of its quotation; and (4) OfficeMax was not
   prejudiced by the lack of discussions, since the record indicates that
   OfficeMax could not provide the fill or kill service the agency required.

   BACKGROUND

   On April 28, 2006, the IRS issued this RFQ seeking quotations to provide
   next-day-desktop delivery of office supplies to approximately 6,500 order
   points (defined in the solicitation as IRS employees authorized to place
   orders) at 800 IRS facilities in the 48 contiguous United States. The RFQ
   anticipated issuance of one or more blanket purchase agreements (BPAs)
   with a 1-year base term, and four 1-year options. Competition was limited
   to vendors who hold contracts under General Services Administration
   Federal Supply Schedule (FSS) contract No. 75 II A, Office Supplies
   Products and Equipment. The solicitation advised vendors that award of a
   BPA would be made to "the offeror or offerors whose quote contains the
   combination of technical and price features offering the best overall
   value to the IRS." RFQ, Statement of Work (SOW), sect. 11.0.

   As relevant to the protest, the SOW contained a fill or kill policy,
   defined as follows:

   Orders faxed, placed by telephone, or transmitted electronically before
   2:00 p.m., each day, for which acknowledgement from the contractor is
   received by the IRS, are subject to the "fill or kill" policy. "Fill" is
   the requirement that all supplies ordered be delivered within 24 hours of
   the order placement. "Kill" is the requirement that those supplies not
   available for next day delivery are canceled from the order. Thus, there
   will be no back orders on individual orders.

   RFQ, SOW, sect. 2.0.

   The RFQ identified the fill or kill policy as a "specific requirement,"
   and, by amendment, later clarified that vendors were prohibited from
   partially filling orders or backordering items:

   If the initial vendor chosen by the order point cannot fill the entire
   quantity of a line item being ordered then that line item must be
   "killed." The remainder of the order (other line items whose complete
   quantity can be supplied) will be filled by the initial vendor. No partial
   quantities of line items are to be filled. The order point may then
   utilize another vendor's BPA to fulfill the requirement for the items
   "killed" off the initial order. This arrangement eliminates the need for
   backordering thus backordering will not be allowable.

   RFQ amend. 8, SOW, sect. 3.2.

   OfficeMax's initial quotation explained its approach to the fill or kill
   policy as follows: "[A]ll orders . . . will be `filled' (delivered next
   day) or `killed' (items not in stock or that cannot be delivered next day.
   These items will be canceled)." AR,
   Tab 9.1, OfficeMax Quotation, at 8-9. In response to a request for
   clarification by the agency regarding a different solicitation
   requirement, however, OfficeMax indicated that its ordering systems
   allowed partial fills of orders: "For example, if you order 10 of
   something and we ship 9, that entire order line is counted as not filled."
   AR,
   Tab 9.2, OfficeMax response, Sept. 6, 2006, at 2.

   The IRS initially issued BPAs on December 22, 2006 to OfficeMax and
   Corporate Express. On January 3, 2007, Office Depot, Inc. protested the
   issuance of the BPAs; the agency subsequently took corrective action by
   canceling the BPAs and amending the solicitation, and our Office
   accordingly dismissed the protest. On February 9, 2007, the IRS issued
   solicitation amendment No. 9 to formally rescind the earlier BPA issuances
   and to implement the agency's corrective action in response to Office
   Depot's protest.

   RFQ amendment No. 9 revised the technical evaluation factors. Evaluation
   factor 1 stated that quotations must comply with "all of the minimum
   requirements of the Statement of Work ("SOW")." RFQ amend. 9, SOW, sect.
   10.1. Evaluation factor 1 was to be evaluated on a pass/fail basis, and
   the RFQ stated that "[f]ailure to pass this factor on the final revised
   quotes will result in the specific quote being considered non-responsive
   by the IRS. . . [and the quote] will be eliminated from further
   consideration and evaluation by the IRS." Id. The RFQ did not define the
   term "minimum requirements" and did not specifically identify any of the
   SOW requirements as "minimum requirements." All other evaluation
   factors--including factor 3, the fill or kill policy--were to be evaluated
   on a relative merit basis.

   Also on February 9, the IRS provided the vendors a "Technical Evaluation
   Worksheet" addressing the agency's evaluation of their
   previously-submitted quotations. The worksheet provided to OfficeMax
   advised that its quotation received a "fail" rating for factor 1 because
   it did not comply with three "minimum requirements" under the SOW. AR, Tab
   4.5, Evaluation Worksheet for OfficeMax, at 1. The IRS did not list the
   fill or kill policy as one of the three SOW requirements with which
   OfficeMax's quotation failed to comply; instead, the worksheet stated that
   the protester's approach to the fill or kill policy was a "weakness":

   "Fill or Kill" capability in accordance with [SOW] 3.2. Score: 2

   Weaknesses: Section A, page 3 -- They do not count partially filled lines.
   If 10 items are ordered, they will partially fill 9 but that line does not
   count as filled. This goes against our "Fill or Kill Policy," where the
   entire line is to be "Killed" if it can not be filled completely.

   Id. at 3-4.

   The Contracting Officer (CO) explains that at the time of the February 9
   discussions, the agency considered the protester's approach to the fill or
   kill policy as a weakness, rather than a deficiency, because the CO did
   not yet understand that OfficeMax did not intend to comply with the
   policy, or could not do so. CO Statement at 10; Agency Memorandum of Law
   at 5.

   In response to RFQ amendment No. 9, OfficeMax submitted a revised
   quotation. With regard to the fill or kill policy, the quotation
   explained: "Since this contract is a Fill or Kill requirement, no
   backorders will be allowed and all items that cannot be sourced for next
   day delivery will be cancelled." AR, Tab 9.3, OfficeMax revised quotation,
   Mar. 2, 2007, at 6. Following this response, the CO still questioned
   whether OfficeMax understood the fill or kill policy, CO Statement at 10,
   and again requested clarification:

   We are seeking additional clarification as we review the wording of our
   "fill or kill" policy requirement and your response. . . . Your proposal
   wording appears to us that you are trying to assure us that all items that
   can't be delivered the next day, will be "killed." This still leaves the
   question of whether your intent for this is, for instance, if we've asked
   for 10 of an item and you can deliver 8 of them the next day, that you
   will deliver the 8 and not backorder the remaining 2. If this is the case,
   we haven't clearly stated our intent for the policy. In the instance
   given, we would want either 10 or 0, nothing in between. Will you please
   review your response to the weakness noted under Evaluation Factor 7,
   "Fill or Kill" capability in accordance with 3.2, and clarify this for us?

   AR, Tab 5.2, Request for Clarifications, Mar. 29, 2007, at 1.

   In response, OfficeMax stated that its ordering systems did not provide
   fill or kill capabilities in the manner required by the solicitation, but
   stated that the company would consider whether it might be able to change
   its systems in the future:

   OfficeMax Government Solutions strives to fill all orders to the fullest
   extent possible before we cancel any order. This is reflected by our order
   fill rate which is consistently 98% or better. Our fill rate is so high
   because our supply chain model builds in several layers of inventory check
   before an item goes on backorder. Our supply systems are set up to fill
   all orders to the fullest extent possible. Therefore our systems are not
   set up to [deleted]. Our system will check all inventory levels possible
   (OfficeMax distribution centers and wholesalers) and [deleted]. . . .
   OfficeMax Government Solutions will continue to look at this requirement
   and see if any changes to our systems could be accommodated. However
   currently our systems work as stated above.

   AR, Tab 4.7, OfficeMax Response to Request for Clarifications, Apr. 2,
   2007, at 1.

   Upon receipt of this response, the IRS concluded that the protester's
   quotation was technically unacceptable. CO Statement at 10. Specifically,
   the agency found that the protester's quotation merited a "fail" rating
   under factor 1 because it did not comply with the SOW provision for the
   fill or kill policy. AR, Tab 10.7, OfficeMax Final Evaluation, at 1. The
   IRS advised OfficeMax on April 6 that its quotation had been excluded from
   award, and this protest followed.

   DISCUSSION

   OfficeMax challenges the IRS's determination that its quotation was
   technically unacceptable because it did not commit to comply with the fill
   or kill policy in the solicitation. The protester argues that the fill or
   kill policy was not a minimum or mandatory requirement under the
   solicitation, and also argues that the agency did not provide meaningful
   discussions regarding this matter. For the reasons set forth below, we
   deny the protest.

   Where, as here, an agency conducts a formal competition under the FSS
   program for the issuance of a BPA or task order, we will review the
   agency's actions to ensure that the evaluation was reasonable and
   consistent with the solicitation and applicable procurement statutes and
   regulations. Worldwide Language Res., Inc.,
   B-297210 et al., Nov. 28, 2005, 2005 CPD para. 211 at 3; COMARK Fed. Sys.,
   B-278343,
   B-278343.2, Jan. 20, 1998, 98-1 CPD para. 34 at 4-5. In reviewing an
   agency's evaluation, we will not reevaluate vendors' quotations, and an
   protester's mere disagreement with the agency's evaluation is not
   sufficient to render the evaluation reasonable. Advanced Tech. Sys., Inc.,
   B-296493.5, Sept. 26, 2006, 2006 CPD para. 147 at 5.

   Compliance with the Fill or Kill Policy was Mandatory

   OfficeMax first argues that the fill or kill policy of the RFQ was not a
   minimum or mandatory solicitation requirement, and that the IRS erred when
   it decided to reject its quotation for failing to comply with this
   requirement. The protester primarily argues that the RFQ stated that only
   technical evaluation factor 1, regarding minimum SOW requirements, would
   be evaluated on a pass/fail basis and that, in contrast, all others
   evaluation factors, including the fill or kill policy, were to be
   evaluated on the basis of relative merit. Thus, the protester contends
   that its failure to comply with the fill or kill policy could not provide
   a basis for determining that a quotation was technically unacceptable. We
   disagree with the protester's interpretation of the solicitation.

   The protester's argument confuses the issue of whether a solicitation
   identifies a requirement as mandatory with the issue of how that
   requirement will be evaluated. A solicitation need not state that a
   requirement will be evaluated on a pass/fail basis in order for that
   requirement to be mandatory. See AT&T, B-250516, Mar. 30, 1993, 93-1 CPD
   para. 276 at 7 (agency unreasonably interpreted solicitation provision
   that was to be evaluated on relative, rather than a pass/fail basis, as
   non-mandatory where solicitation clearly indicates that offerors were
   required to demonstrate compliance with the provision). Put differently,
   the fact that a solicitation states that certain mandatory requirements
   will be evaluated on a pass/fail basis does not mean that a vendor cannot
   be found technically unacceptable for failing to comply with mandatory
   requirements that are not the subject of pass/fail evaluations. See id.

   As noted above, the solicitation stated that offerors would be evaluated
   as to whether they met all "minimum requirements" of the SOW, but did not
   define which SOW requirements were minimum or mandatory. The SOW
   identified the fill or kill policy as a "specific requirement," and
   explained that orders must be completed in full or cancelled entirely. RFQ
   amend. 8, SOW, sect. 3.2. Specifically, the RFQ stated that "[i]f the
   initial vendor chosen by the order point cannot fill the entire quantity
   of a line item being ordered then that line item must be `killed,'" and
   further that "[n]o partial quantities of line items are to be filled." Id.
   On this record, we conclude that the RFQ clearly advised vendors that the
   fill or kill policy was a mandatory requirement because the solicitation
   cannot be reasonably interpreted to allow a vendor whose quotation did not
   commit to comply with the policy to receive a BPA.

   We further conclude that the IRS reasonably determined that OfficeMax did
   not comply with this requirement. The agency stated that it did not
   understand, based on the protester's initial quotation and its September
   26, 2006 clarification response, that OfficeMax could not comply with the
   fill or kill requirement. In its April 2, 2007 clarification response,
   however, the protester stated, as discussed above, that its "systems are
   not set up to [deleted]. AR, Tab 4.7, OfficeMax Response to Request for
   Clarifications, Apr. 2, 2007, at 1. Based on this final round of
   clarifications, the IRS understood that OfficeMax's approach did not
   comply with the fill or kill requirement. AR, Tab 10.7, OfficeMax Final
   Evaluation, at 1. We agree with the agency's ultimate conclusion that
   OfficeMax was not offering to comply with the RFQ's fill or kill
   requirement because OfficeMax clearly advised that its systems could not
   kill orders where some inventory was on hand, and would instead [deleted].

   Discussions Regarding Fill or Kill Requirement

   OfficeMax next argues that the IRS never advised the company that its
   approach to the fill or kill requirement was unacceptable. As discussed
   below, we agree. To the extent the protester argues that it did not
   receive meaningful discussions on this issue, however, we think the
   protester cannot show that it was prejudiced in this regard because,
   despite numerous indications that the IRS was concerned about this issue,
   OfficeMax advised that it did not have the service that the agency
   required. Additionally, the protester has never clearly stated that it
   could or would have revised its quotation had it been advised of this
   issue.

   Federal Acquisition Regulation (FAR) sect. 15.306 describes a spectrum of
   exchanges that may take place between an agency and an offeror during
   negotiated procurements.[1] Clarifications are "limited exchanges" between
   the agency and offerors that may allow offerors to clarify certain aspects
   of proposals or quotations or to resolve minor or clerical mistakes. FAR
   sect. 15.306(a)(2). Discussions, on the other hand, occur when an agency
   indicates to an offeror significant weaknesses, deficiencies, and other
   aspects of its proposal or quotation that could be altered or explained to
   materially enhance the proposal or quotation's potential for award. FAR
   sect. 15.306(d)(3). When an agency engages in discussions with an offeror,
   the discussions must be meaningful, i.e., they must reasonably lead an
   offeror into the areas of its proposal or quotation requiring correction
   or amplification. Metro Mach. Corp., B-295744, B-295744.2, Apr. 21, 2005,
   2005 CPD para. 112 at 19.

   In the February 9 discussions with vendors in conjunction with RFQ
   amendment
   No. 9, the IRS advised OfficeMax that its approach to the fill or kill
   requirement "goes against" the solicitation requirement. In the
   protester's view, this admonition fell short of advising that the
   quotation was fatally flawed for two reasons. First, as the protester
   notes, OfficeMax's rating under factor 1 clearly stated that its quotation
   failed to comply with three minimum SOW requirements, but did not identify
   the fill or kill policy as one of those requirements; rather, the
   protester's approach to the fill or kill requirement was described as a
   "weakness." Second, as the IRS acknowledges, the CO did not yet understand
   at the time of the February 9 discussions that OfficeMax's quotation did
   not comply with the fill or kill requirement, and thus had no basis to
   communicate to the protester that it was at risk of being found
   technically unacceptable. CO Statement at 10; Agency Memorandum of Law at
   5, 7. On this record, we agree with the protester's assertion that it was
   never advised explicitly during discussions that its quotation was viewed
   as unacceptable for its failure to comply with the fill or kill
   requirement.

   The subsequent exchanges with OfficeMax on March 29 were expressly limited
   by the IRS to "clarifications," i.e. an opportunity to address minor
   issues. By definition, these exchanges were not discussions because the
   protester was not allowed to materially revise its quotation. FAR sect.
   15.306(d)(3); see National Beef Packing Co.,
   B-296534, Sept. 1, 2005, 2005 CPD para. 168 at 11.

   It was only after the protester's April 2 response to the March 29
   clarification request that the IRS first concluded that OfficeMax's
   quotation was technically unacceptable for not complying with the fill or
   kill requirement. AR, Tab 10.7, OfficeMax Final Evaluation, at 1. Hence,
   OfficeMax never had an opportunity to revise its quotation after the
   agency concluded that its fill or kill approach did not comply with the
   solicitation requirement. As set forth below, however, we need not
   address, whether the protester was entitled to receive an opportunity to
   revise its quotation at this point in the procurement.

   As the IRS and intervenor both argue, even if the protester was entitled
   to receive an opportunity to revise its quotation following its April 2
   response, the protester cannot demonstrate prejudice because it did not
   have--and was not offering--the required service. We agree. In this
   regard, our Office will not sustain a protest absent a reasonable showing
   of competitive prejudice, that is, unless the protester demonstrates that,
   but for the agency's actions, it would have a substantial chance of
   receiving award. McDonald-Bradley, B-270126, Feb. 8, 1996, 96-1 CPD para.
   54 at 3; see Statistica, Inc. v. Christopher, 102 F.3d 1577, 1681 (Fed.
   Cir. 1996).

   Here, the contemporaneous record does not indicate that, if the IRS had
   given OfficeMax the opportunity to revise its quotation following the
   April 2 clarifications, the protester would have changed its ordering
   systems to comply with the fill or kill requirement--in fact, the record
   suggests just the opposite. The protester's response to the agency's
   request for clarification clearly stated that its systems "are not set up
   to [deleted]" and that the systems would, contrary to the fill or kill
   requirement, [deleted]." AR, Tab 4.7, OfficeMax Response to Request for
   Clarifications, Apr. 2, 2007, at 1. Moreover, the protester stated that it
   "will continue to look at this requirement and see if any changes to our
   systems could be accommodated. However currently our systems work as
   stated above." Id. In fact, despite repeated inquiries about whether the
   protester could comply with the requirement--albeit, inquiries that did
   not expressly advise that the protester was at risk of being found
   unacceptable--the protester never advised that it could, or would, comply.
   At best, OfficeMax offered to explore modifications to its ordering
   systems at some later date.

   Even during the course of this protest, OfficeMax has not clearly
   indicated that if it had received an opportunity to revise its quotation
   following its April 2 clarifications response, it would have modified its
   ordering systems to comply with the fill or kill requirement. In its
   initial protest, OfficeMax stated, consistent with its response to the
   IRS's request for clarifications, that its "current process is set up to
   [deleted]." Protest at 7. In its comments, OfficeMax finally stated that
   it "can modify its current process in order to avoid the partial
   fulfillment of an order." Protester's Response to Motion to Dismiss, at 4.
   This statement, however, falls well short of establishing that OfficeMax
   could or would have complied with the fill or kill requirement during the
   course of the procurement.[2] On this record, we conclude that although
   the IRS never clearly advised OfficeMax that its failure to comply with
   this mandatory solicitation requirement would result in rejection of its
   quotation, the protester suffered no prejudice as a result. See
   CRAssociates, Inc., B-297686, Mar. 7, 2006, 2006 CPD para. 61 (protest
   denied where record shows that protester could not remedy deficiencies in
   its proposal had it been given opportunity for discussions).

   The protest is denied.

   Gary L. Kepplinger

   General Counsel

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

   [1] This procurement was conducted under the FSS provisions of FAR subpart
   8.4, and thus the negotiated procurement provisions of FAR part 15 do not
   directly apply. However, our Office has held that where agencies use the
   negotiated procurement techniques of FAR part 15 in FSS buys, such as
   discussions, we will review the agency's actions under the standards of
   negotiated procurements to ensure that offerors are treated reasonably and
   fairly. Digital Sys. Group, Inc., B-286931,
   B-286931.2, Mar. 7, 2001, 2001 CPD para. 50 at 6.

   [2] For purposes of determining prejudice, we assume that any requirement
   to conduct discussions would have been first triggered when the IRS
   realized, as a result of OfficeMax's April 2 clarifications response, that
   the protester could not comply with the fill or kill requirement.