Future Solutions, Inc., B-293194, February 11, 2004

B-293194 Feb 11, 2004 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights Protest that procurement should have been set aside for small businesses is denied. Where the agency reasonably determined that the items to be procured were available under the Federal Supply Schedule (FSS). Protest that agency unreasonably and unfairly evaluated protester's response to "sources sought" notice to small business Federal Supply Schedule vendors to ascertain their capability of meeting the agency's requirements is denied. Argues that it was treated disparately from other vendors who were solicited to submit quotations for the services. The protester was on a footing completely different from the vendors whose quotations were solicited. Its response did not have to be considered in the same way as the other vendors' quotations because it was solicited for a different purpose. 3. View Decision Future Solutions, Inc., B-293194, February 11, 2004 DIGEST Attorneys DECISION Future Solutions, Inc. (FSI) protests the award by the Environmental Protection Agency (EPA) of a blanket purchase agreement (BPA) for office supplies to Corporate Express, Inc., pursuant to request for quotations (RFQ) No. DC-03-00233. FSI, a small business concern, argues that the requirements should be set aside for small business concerns and that it was not given an equitable opportunity to compete for this requirement. FSI also contends that the consolidation of the agency's office supply requirements into the BPA constitutes improper bundling. We deny the protest. The RFQ contemplated award of a BPA for the procurement of office supplies, with an emphasis on environmentally preferable products (EPP) /1/ and products of organizations for the blind or other severely handicapped as authorized by the Javits-Wagner-O'Day Act, 41 U.S.C. Sec. 46-48c (2000). These products will be provided to approximately 2,000 purchase cardholders, within approximately 70 EPA facilities, located in the contiguous United States. The vendor selected for award of the BPA was required to be a current holder of a contract under the General Services Administration's (GSA) Federal Supply Schedule (FSS) 75 IIA, Office Supplies Products and Equipment. The items covered by the RFQ included all general office supplies offered under Special Item Number 75 200. The base term of the BPA was 1 year, with four 1-year options, and a maximum 15 months of award-term incentive options. In January 2003, the EPA obtained and evaluated the quotations and oral presentations of four large business FSS 75 IIA contractors. On May 22, the agency issued a "sources sought" notice seeking information on the capability of small business FSS 75 IIA contractors for consideration for the BPA. Capability statements were limited to 5 pages, and were to address the BPA's statement of work and 10 other specific capabilities. EPA received capability statements from nine small business FSS contractors, including FSI. Based on her review, the contracting officer determined that none of the small business respondents would be able to perform the BPA's requirements. Although the EPA's Office of Small and Disadvantaged Business Utilization (OSDBU) concurred with this determination, the OSDBU requested that the contracting officer participate in a teleconference with two of the small business respondents (not including FSI), so that the contracting officer could obtain additional information that might demonstrate that these small business FSS vendors could meet the requirements. After the teleconference, the contracting officer again concluded that no small business FSS contractors could meet the RFQ requirements. The contracting officer then reevaluated the quotations from the four large business FSS contractors and awarded the BPA to Corporate Express, Inc. on October 23. /2/ FSI argues that the agency's purchase from the FSS should have been set aside for small business concerns and that EPA's failure to do so violates Federal Acquisition Regulation (FAR) Sec. 19.502-2(b), which generally requires an agency to set aside acquisitions for small businesses where there is a reasonable expectation of receiving fair market price offers from at least two responsible small business concerns. However, no statute or regulation required the agency to set aside this requirement for small businesses in lieu of purchasing from FSS vendors. Indeed, FAR Sec. 8.404(a)(1) as it read when the solicitation for this BPA was issued, provided in pertinent part: Parts 13 [simplified acquisition procedures] and 19 [small business programs] do not apply to orders placed against [FSS], except for [a provision not relevant here]. Orders placed against a Multiple Award Schedule . . . using the procedures in this subpart are considered to be issued using full and open competition . . .