FitNet International Corporation

B-410797 Feb 12, 2015 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights FitNet Purchasing Alliance (FitNet), of Saint Augustine, Florida, a small business, protests the award of a contract to Life Fitness, Inc. (Life Fitness), of Rosemont, Illinois, under request for quotations (RFQ) No. FA6633-14-Q-0009, issued by the Department of the Air Force for fitness equipment, to include delivery and installation. We dismiss the protest in part and deny it in part. We dismiss the protest in part and deny it in part. View Decision Decision Matter of: FitNet Purchasing Alliance File: B-410797 Date: February 12, 2015 Raul Espinosa, FitNet Purchasing Alliance, for the protester. Christopher S. Cole, Esq., Capt. Adam N. Olsen, Department of the Air Force, for the agency. Brent Burris, Esq., and Edward Goldstein, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST 1. Protest arguing that solicitation should have been set aside for small businesses is dismissed as untimely because the face of the solicitation clearly established that the procurement was being conducted using full and open competition and protester did not file its protest until after the closing time for receipt of quotes. 2. Protest that agency improperly rejected the protester’s quote is denied where the protester failed to provide information required by solicitation clause implementing relevant provisions of the Buy American statute. DECISION FitNet Purchasing Alliance (FitNet), of Saint Augustine, Florida, a small business, protests the award of a contract to Life Fitness, Inc. (Life Fitness), of Rosemont, Illinois, under request for quotations (RFQ) No. FA6633-14-Q-0009, issued by the Department of the Air Force for fitness equipment, to include delivery and installation. We dismiss the protest in part and deny it in part. BACKGROUND The RFQ, issued on July 28, 2014, sought seventeen pieces of resistance training equipment on a brand-name-or-equal basis, with award to be made to the vendor submitting the lowest-priced, technically acceptable quote. RFQ at 1, 6. The RFQ contemplated the award of a fixed-price contract and was issued on an unrestricted basis. Id. As relevant to this protest, the solicitation incorporated by reference Department of Defense Federal Acquisition Regulation Supplement (DFARS) clause 252.225‑7001, “Buy American and Balance of Payments Program.” Id. at 5. The clause implements the Buy American statute, 41 U.S.C. §§ 8301-8305 (formerly the Buy American Act, 41 U.S.C. §§ 10a-10d), and the Department of Defense (DOD) Balance of Payments Program by establishing a preference for domestic end products over foreign end products, except for foreign end products of certain qualifying countries. The RFQ also contained DFARS clause 252.225-7000, Buy American--Balance of Payments Program Certificate, which required vendors to certify whether their proposed products were domestic end products from the United States, foreign end products from a qualifying country, or foreign end products from a non-qualifying country. Id. The agency received quotes from two vendors--the protester and Life Fitness--by the solicitation’s closing date of August 29, 2014. Agency Request for Dismissal (ARD) at 2. FitNet quoted a price for the fitness equipment of $38,483.37, while Life Fitness quoted a price of $50,275.91. Id. On September 3, the contracting officer requested via e-mail that both vendors complete and return the certification contained in DFARS clause 252.225-7000. Id. That same day, the Department of the Air Force received a completed certificate from Life Fitness, indicating that the items it quoted were domestic end products; the agency did not receive a response from the protester. Id. On September 5, the contracting officer sent FitNet a second e-mail, requesting the protester to complete the certificate and return it by September 9.[1] Id. The agency, however, never received a response from the protester. Id. As a result, the Department of the Air Force rejected FitNet’s quote for failing to provide the required certification. Id. On November 4, 2014, the agency provided FitNet with notice of award to Life Fitness and, following a requested debriefing, FitNet filed this protest on November 17. DISCUSSION As an initial matter, we dismiss as untimely FitNet’s contention that the agency should have set the solicitation aside for small business concerns since the procurement was valued between $3,000 and $150,000. Our Bid Protest Regulations require that a protest based on alleged improprieties in a solicitation that are apparent prior to the closing time for receipt of initial proposals be filed before that time. 4 C.F.R. § 21.2(a)(1) (2014). Here, the RFQ provided that it was being issued on the basis of “Full and Open Competition.” RFQ at 1.