Phoenix Environmental Design, Inc.

B-411044 Apr 27, 2015 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights Phoenix Environmental Design, Inc., of Newman Lake, Washington, a service-disabled veteran-owned small business (SDVOSB), protests the terms of request for quotations (RFQ) No. VA786-15-Q-0066, issued by the Department of Veterans Affairs (VA) for Wisdom EZ lawn pesticide for Willamette National Cemetery in Portland, Oregon. Phoenix primarily contends that the solicitation, which limits the competition to the brand name item, is unduly restrictive of competition. We deny the protest. We deny the protest. View Decision Decision Matter of:      Phoenix Environmental Design, Inc. File:                B-411044 Date:              April 27, 2015 C. Chad Gill, Phoenix Environmental Design, Inc., for the protester. Elyse M. Griffiths, Esq., Department of Veterans Affairs, for the agency. Peter D. Verchinski, Esq., and Nora K. Adkins, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST Protester’s contention that an agency procurement for brand-name pesticide improperly limits competition is denied where the agency reasonably justified that only the brand name product would meet the agency’s needs. DECISION Phoenix Environmental Design, Inc., of Newman Lake, Washington, a service‑disabled veteran-owned small business (SDVOSB), protests the terms of request for quotations (RFQ) No. VA786-15-Q-0066, issued by the Department of Veterans Affairs (VA) for Wisdom EZ lawn pesticide for Willamette National Cemetery in Portland, Oregon.  Phoenix primarily contends that the solicitation, which limits the competition to the brand name item, is unduly restrictive of competition. We deny the protest. BACKGROUND On January 9, 2015, the agency posted a synopsis on the federal government’s FedBizOpps (Federal Business Opportunities) website, informing potential offerors of the upcoming requirement for pesticide and stating that the pesticide would be purchased on a brand name or equal basis.  Shortly after the agency posted the synopsis, however, the contracting officer executed a justification and approval (J&A) to procure the pesticide on a brand name only basis.  The J&A stated Local cemetery experience has demonstrated that no other commercially available pesticide formulation approaches the effectiveness of Wisdom-EZ Granular in dealing with the species of crane fly present in the Portland Area. Agency Report (AR), Tab 2, Justification for Brand Name, Jan. 13, 2014, at 1. On January 14, the agency issued the RFQ as a SDVOSB set-aside under the commercial item procedures of Federal Acquisition Regulation (FAR) Part 12.  The RFQ contemplated the award of a fixed-price contract for 1360 bags of Wisdom EZ lawn pesticide, and required that the pesticide be delivered in 5-7 business days following award.  Award was to be made on a lowest-priced, technically-acceptable basis.  RFQ at 32.      Prior to the January 21 closing time, Phoenix filed this protest, alleging that the brand name only requirement unduly restricts competition.  Phoenix asserts that its product, Talstar PL, contains the “same composition and active ingredients” as Wisdom EZ and thus the agency should be procuring this product on a brand name or equal basis.[1]  Protest at 5.  Phoenix also challenges, among other things, the agency’s 5-7 day delivery requirement. Approximately two weeks after Phoenix filed its protest, the agency conducted field testing of the protester’s Talstar PL product, in order to determine if the protester’s product was the “functional equivalent” of the brand name product.  AR, Tab 3, Declaration of Cemetery Director, at 1.  The agency explains that it tested the Talstar PL pesticide in walk-behind rotary spreaders, rather than the tractor-towed spreaders the agency will use in distributing the pesticide, because the walk-behind spreaders “adjust[] to smaller granule sizes” than the larger machines.  In this regard, the agency notes that the Talstar PL granule size is approximately one-fifth the granule size of Wisdom EZ.  Id. The agency’s testing found that the Talstar PL pesticide leaked from the machine at the second lowest setting, and at the lowest setting (for smallest granule size), the pesticide failed to provide adequate coverage from a single pass.  Id.  The agency concluded that, had Talstar PL been used in the larger spreaders, the pesticide would have leaked out of the larger machine, resulting in not only “significant loss of product but [] localized concentration of that product on the turf beneath.”  Id. at 2.