Marvin J. Perry & Associates, B-277684; B-277685, November 4,

Marvin J. Perry & Associates, B-277684; B-277685, November 4, BNUMBER: B-277684; B-277685 DATE: November 4, 1997 TITLE: Marvin J. Perry & Associates, B-277684; B-277685, November 4, 1997 ********************************************************************** Matter of:Marvin J. Perry & Associates File: B-277684; B-277685 Date:November 4, 1997 Malcolm D. Wilson for the protester. Georgia Vlahos, Esq., and Kenneth J. Densmore, Esq., Department of the Navy, for the agency. Charles W. Morrow, Esq., and James A. Spangenberg, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST Modifications of orders under General Services Administration Federal Supply Schedule for red oak sleeping room furniture to allow a change in the type of wood to ash, which is less expensive than red oak, materially changed the nature of the orders from those originally issued and thereby prejudiced the protester, a competing vendor. DECISION Marvin J. Perry & Associates protests the modifications of delivery order No. GS-27-F-028B and purchase order No. N00210-96-M-0566, issued by the Department of the Navy, Naval Training Center, Great Lakes, Illinois, to DCI for red oak sleeping room furniture. Perry essentially contends that the modifications were beyond the scope of these orders. We sustain the protest. This procurement was for 563 10-piece sets of red oak sleeping room furniture to furnish a bachelor enlisted quarters (BEQ) that was under construction. Prior to the procurement, the Navy contracted with an architectural firm to design the interior space for the project. The firm recommended Perry as the vendor holding a General Services Administration (GSA) Federal Supply Schedule (FSS) contract offering the lowest-priced red oak furniture that met the functional needs of the agency with respect to aesthetics and quality.[1] In order to ensure that Perry's products represented the best value, the Navy decided to solicit quotes from those vendors with similar products on the FSS. Only 9 of the 10 pieces of each set could be obtained from the FSS, and on April 1, 1996, the Navy solicited quotes for these 9 pieces of red oak furniture under request for quotations (RFQ) No. N00210-96-Q-1496. On that same date, quotes were solicited for the remaining piece--the red oak footboard to the bed--under RFQ No. N00210-96-Q-1497.[2] The Navy received eight quotes for the nine pieces of furniture and six quotes for the footboard by the May 30 closing dates. DCI submitted the lowest quote of $557,127.91 for the nine items; Perry was next low with a quote of $572,709. Perry submitted the lowest quote of $18,016 for the footboard; DCI submitted the next lowest quote of $19,789.45. Since DCI's quotes reflected the lowest total price, the Navy issued the delivery order from the FSS for the nine pieces to DCI on June 11 and the purchase order for the footboard to DCI on June 18. The original delivery date for the furniture was scheduled for September 30, but several construction delays resulted in the delivery date being pushed back to June 9, 1997. In May 1997, DCI advised the Navy that its supplier had mistakenly delivered ash instead of red oak. Because of this, DCI proposed that the Navy either accept furniture made with ash at the same price or postpone the delivery date. In support of accepting ash furniture, DCI provided the Navy with samples of ash stained to match the color of red oak. After comparing the samples with the red oak furniture already in the BEQ, the Navy determined that the ash furniture was an acceptable substitute. The parties agreed to the substitution on May 19. The Navy accepted delivery of the ash furniture in June. In late June, Perry learned that the Navy had permitted DCI to substitute ash furniture for red oak furniture. Perry initially sought an explanation from the agency by letter dated June 30, in which it complained that changing the wood from red oak to ash would be unfair to those quoters who based their quotes on providing furniture made from red oak, because ash is a lower grade and lower priced wood, and that if "there was no authorization" to change the wood, the Navy should reject DCI's furniture and make award to the next low quoter--Perry. The Navy responded by letter dated July 21 (received by the protester on July 25) asserting that the change was insignificant. On August 4, Perry protested the Navy's actions to our Office. The Navy initially argues that the August 4 protest is untimely because it was filed more than 10 working days after late June when the protester knew of the basis of protest. We disagree. Although the protester's June 30 letter to the agency was not expressly characterized as a protest, we will treat it as an agency-level protest because it clearly conveyed an expression of dissatisfaction and a request for corrective action.