Navajo Nation Oil & Gas Company

B-261329 Sep 14, 1995 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights Which sets forth specific experience requirements applicable only to offerors who are dealers and not refiner/manufacturer offerors. Which provides in pertinent part that: "[i]f the offeror's source of supply is a firm or refinery independent of the offeror. An offeror that is not performing a significant portion of the contract with its own facilities and personnel must meet the following criteria in addition to meeting the requirements of Clause L2.07. Jet fuels are considered to be of the same general specification. Marine fuels are considered to be of the same general specification. "(2) The offeror must make ongoing and substantial sales to the public of petroleum products which are of the same general specification. View Decision Matter of: Navajo Nation Oil & Gas Company File: B-261329 Date: September 14, 1995 Clause in a solicitation for the supply of jet and diesel fuel, which sets forth specific experience requirements applicable only to offerors who are dealers and not refiner/manufacturer offerors, unduly restricts competition, where the record does not provide a reasonable basis for the agency's determination that the restrictive experience requirements reflect the agency's minimum needs. Attorneys DECISION Navajo Nation Oil & Gas Company (NNOGC) protests the terms of request for proposals (RFP) No. SPO600-95-R-0161, issued by the Defense Fuel Supply Center (DFSC), Defense Logistics Agency, for jet and diesel fuel. The solicitation includes a clause establishing special standards of responsibility, which the protester challenges as being unduly restrictive of competition. We sustain the protest. The RFP, issued on March 31, 1995, as a partial set-aside for small businesses, provides for multiple awards of fixed-price, indefinite quantity contracts with economic price adjustments for the supply of approximately 1.6 billion gallons of fuel for nearly 200 using activities. [1] The solicitation contained an evaluation preference for small disadvantaged businesses (SDB) applicable to various items in the solicitation. The RFP also included at section L2.07 DFSC's standard "Evidence of Responsibility" clause, which provides in pertinent part that: "[i]f the offeror's source of supply is a firm or refinery independent of the offeror, the offeror shall submit evidence of a supply commitment from such source(s) when submitting its offer under this solicitation. . . . . . "Such evidence may be in the form of a signed copy of the contract between the offeror and its supplier or in the form of a contingency letter from the supplier or other satisfactory documentation." Amendment No. 0002 to the RFP, issued on April 24, 1995, added the following clause, relating to the responsibility of non- refiner/manufacturer offerors, which DFSC intends to include as a standard clause in future procurements for its Bulk Fuels program. "Clause L2.07-1 EVIDENCE OF RESPONSIBILITY - ADDITIONAL CRITERIA (DFSC APR 1995)" "(a) To be determined responsible, an offeror that is not performing a significant portion of the contract with its own facilities and personnel must meet the following criteria in addition to meeting the requirements of Clause L2.07, EVIDENCE OF RESPONSIBILITY: "(1) The offeror must purchase and sell petroleum products of the same general specification, quantity, and use as those offered. For products to be considered of the same general specification and use, they must be either identical, or be items for which firms in the same line of business would be an obvious source. For example, jet fuels are considered to be of the same general specification, and marine fuels are considered to be of the same general specification; "(2) The offeror must make ongoing and substantial sales to the public of petroleum products which are of the same general specification, quantity, and use as those offered (where the business would be of the same nature without any Government sales); "(3) The offeror must have at least one year of experience in the purchase and sale of petroleum products which are of the same general specification, quantity, and use as those offered; and "(4) The offeror itself must satisfy the above criteria. "(b) The evidence of responsibility required by this provision is in addition to the responsibility criteria set forth in FAR [Federal Acquisition Regulation Sec. ] 9.104." NNOGC, an Indian Tribal Corporation owned and controlled by the Navajo Nation (a federally recognized Native American tribe), [2] protests that the agency has no reasonable bases for any of the requirements set forth in the Evidence of Responsibility - Additional Criteria clause, and that the protested clause is thus unduly restrictive of competition.