United Marine International LLC, B-281512, February 22, 1999

B-281512 Feb 22, 1999 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights A firm protested an Army Corps of Engineers purchase order for a debris collection vessel, contending that the Corps improperly conducted discussions with only the awardee. GAO held that the procurement was a commercial item acquisition conducted under simplified acquisition procedures, and the Corps was not required to conduct discussions with the protester for the purpose of making its bid acceptable. Accordingly, the protest was denied. View Decision Matter of: United Marine International LLC File: B-281512 Date: February 22, 1999 DIGEST Attorneys DECISION United Marine International LLC protests the issuance of a purchase order by the Army Corps of Engineers (Corps) to D&D Products, Inc. under request for quotations (RFQ) No. DACW69-98-Q-0328 for a debris collection vessel with trailer and shore conveyor to be used on Fishtrap Lake in Kentucky. United objects that the Corps improperly conducted discussions with D&D after the submission of quotations, without holding any discussions with the protester as required by part 15 of the Federal Acquisition Regulation (FAR). We deny the protest. The Corps's Huntington, West Virginia office initially posted a notice of the procurement in the Commerce Business Daily (CBD) on September 18, 1998, synopsizing its intention "to commercial item procure" the debris collection vessel on a sole-source basis from United. The CBD notice provided performance characteristics that the equipment was required to satisfy, and stated that the equipment must meet the FAR Sec. 2.101 definition of a "Commercial item." Because several vendors responded to the notice, representing that they could satisfy the described requirements, the Corps decided to seek competition for the requirement. Accordingly, on September 24, the Corps issued an RFQ as a total small business set-aside, under the special procedures of FAR part 12 for the acquisition of commercial items, incorporating by reference the four clauses required to be included in such solicitations. RFQ at 1. The procurement was handled under the test program using simplified acquisition procedures for commercial items which is authorized by FAR subpart 13.5. The RFQ included performance specifications in Section C and, in Section H, advised vendors to furnish sufficient information, such as descriptive literature, to enable the contracting officer to evaluate the offered equipment's compliance with the specifications. In response, the Corps received the following four quotations: Vendor A $495,000 United $438,098 D&D $311,500 Vendor B $106,500 The agency determined that the equipment in the low-priced quotation did not meet the agency's specifications; the equipment offered by United and D&D was found to be compliant with the RFQ's technical requirements. Both quotations contained exceptions to the delivery schedule, but the Corps considered the exceptions acceptable. In addition, United's quotation contained progress payment terms that the Corps did not consider acceptable. Contracting Officer's Statement at 5-6. D&D had listed in its quotation a number of optional items or upgrades that were available, such as air conditioning and heating for the cab of the vessel, and a stainless steel configuration. The Corps considered these options and decided to add a number of features that had not been required by the specifications. The contract specialist met with D&D to discuss the addition of optional features, and D&D was permitted to submit a revised quotation adding certain of the features, as a result of which D&D's quote was increased to $376,224. The Corps determined to purchase the equipment from D&D on the basis of its low price, and issued a purchase order to D&D on October 29. On November 4, the Corps received D&D's signed acceptance. This protest followed. United protests that the Corps violated a number of provisions in part 15 of the FAR by holding what it characterizes as discussions only with D&D, and permitting that firm to submit a revised quotation. /1/ United also argues that because the RFQ did not indicate that the source selection would be based on price alone, United "reasonably believed that the evaluation would be on a best value to the government basis, and that an award would be made after negotiation." Protester's Comments at 3. The Corps's position is that this procurement was not conducted as a competitive negotiated procurement under part 15 of the FAR, but as a simplified acquisition under the procedures set forth in part 13 of the FAR. While United argues that the solicitation fails to inform vendors that simplified acquisition procedures were to govern the procurement, the RFQ clearly states that the procurement is a commercial item acquisition.