Commercial Drapery Contractors, Inc.

Commercial Drapery Contractors, Inc. BNUMBER: B-271222; B-271222.2 DATE: June 27, 1996 TITLE: Commercial Drapery Contractors, Inc. ********************************************************************** Matter of:Commercial Drapery Contractors, Inc. File: B-271222; B-271222.2 Date:June 27, 1996 Alan M. Grayson, Esq., and Victor A. Kubli, Esq., Law Offices of Alan M. Grayson, for the protester. C. Joseph Carroll, Department of Justice, for the agency. Adam Vodraska, Esq., and James A. Spangenberg, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST Agency's issuance of purchase orders for draperies from a Multiple Award Schedule Federal Supply Schedule (FSS) vendor at higher prices than offered by other FSS vendors that could have satisfied the agency's requirements, based on the agency's need for urgent delivery which only the selected vendor assertedly could satisfy, was improper where the urgency was caused by the delays incident to the agency's prior improper issuance of purchase orders to the same vendor for the same requirement and the subsequent cancellation of these orders in response to prior clearly meritorious protests. DECISION Commercial Drapery Contractors, Inc. protests the issuance of purchase orders by Federal Prison Industries, Inc., doing business as UNICOR, to Contract Decor, Inc., for the supply of fabric and the installation of draperies under Contract Decor's Federal Supply Schedule (FSS) contract for draperies. We sustain the protests. The draperies were ordered by the Department of Veterans Affairs (VA) for its new Extended Care and Rehabilitation Center in Baltimore, Maryland. Specifically, VA needed delivery and installation of cubicle curtains and various decorative window top treatments no later than April 30, 1996, in time for the opening of its new facility. The VA contracting officer determined that UNICOR was a mandatory source for the draperies under 18 U.S.C. sec. 4124 (1994) and Federal Acquisition Regulation (FAR) sec. 8.602(a), which require government agencies to purchase supplies listed in UNICOR's schedule so long as the prices charged do not exceed current market prices. Draperies are on the schedule although UNICOR does not itself supply the fabric, which is cut and sewn into draperies at UNICOR's drapery factory, or perform the installation of the finished products. On September 14, 1995, VA issued purchase orders to UNICOR for the top treatments and the curtains, in the amounts of $76,818.06 and $49,530, respectively. UNICOR permits the ordering agency to specify an FSS contractor for the furnishing of the drapery fabric and the installation of the finished products. VA selected Contract Decor and its purchase orders to UNICOR referred to a quotation from Contract Decor for the specified fabrics, sizes, design, and colors, and required that the draperies be ready for installation in April 1996. On November 30, 1995, UNICOR issued Contract Decor purchase order No. 042-PID-124-96-CS-00 for the window top treatments and purchase order No. 042-PID-0123-96-CS-00 for the fabric for the cubicle curtains from Contract Decor's Multiple Award Schedule FSS contract. On December 18, Commercial, another FSS contractor for draperies, protested the issuance of the purchase orders to Contract Decor, alleging that the agencies failed to make award to the vendor with the lowest price available under the FSS. In response to the protests, UNICOR found that the purchase orders were improperly issued because neither it nor VA had considered prices from other FSS vendors as required by FAR sec. 8.404(b), (c). UNICOR informed our Office on January 29, 1996, that it intended to cancel the purchase orders and requested that we dismiss the protests as academic, which we did on March 12. Meanwhile, UNICOR determined that to ensure delivery of the draperies to the VA facility in April, as required, it needed the fabric supplied to its drapery factory no later than March 19. UNICOR's drapery factory manager and another contracting official telephoned Contract Decor, Commercial, and two other FSS vendors on February 2 to inquire as to the availability of the specified fabrics and the earliest date the material could be delivered to UNICOR. Contract Decor informed UNICOR that the longest it would take to deliver one of the fabrics was 6 weeks, and that the other fabric was in stock and ready for immediate delivery. Commercial reported that it could deliver one of the specified fabrics in 8 weeks and that delivery of additional quantities of the other fabric beyond the quantity it had in stock would take between 4 and 6 weeks. The other vendors UNICOR contacted had longer delivery times. UNICOR also reviewed price lists from Contract Decor, Commercial, and a third vendor.