WKF Friedman Enterprises

B-411208 Jun 16, 2015 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights WKF Friedman Enterprises (WKF), of Clayton, California, protests the terms of request for proposals (RFP) No. SPRDL1-15-R-0083, issued by the Defense Logistics Agency (DLA), DLA Land Warren, for a quantity of level winder winches. WKF contends that the solicitation is unduly restrictive of competition. We deny the protest. We deny the protest. View Decision Decision Matter of: WKF Friedman Enterprises File: B-411208 Date: June 16, 2015 Matthew Lyon for the protester. Darin R. Morency, Esq., Defense Logistics Agency, for the agency. Paula A. Williams, Esq., and Jennifer D. Westfall-McGrail, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST Protest that agency improperly failed to include certain provisions in the solicitation is denied where protester does not show that failure to include those clauses will cause it competitive prejudice. DECISION WKF Friedman Enterprises (WKF), of Clayton, California, protests the terms of request for proposals (RFP) No. SPRDL1-15-R-0083, issued by the Defense Logistics Agency (DLA), DLA Land Warren,[1] for a quantity of level winder winches. WKF contends that the solicitation is unduly restrictive of competition. We deny the protest. The procurement is being conducted on behalf of the United States Army, Tank Automotive Command (TACOM). Issued on February 11, 2015, as a small business set-aside, the RFP requested offers for seven level winder winches with an option to buy an additional seven units. The winches, identified by National Stock Number (NSN) 2590-01-028-4543, are to be manufactured in accordance with TACOM Drawing No. 10867175 Rev. K, and will be used as replacement parts for the M88 recovery vehicles. Contracting Officer’s Statement of Facts at 2, 5. The solicitation provides for award on an “all or none” basis. RFP at 3. Of relevance to this protest, the RFP incorporated by reference Federal Acquisition Regulation (FAR) § 52.211-5, which provides in pertinent part as follows: (c) A proposal to provide unused former Government surplus property shall include a complete description of the material, the quantity, the name of the Government agency from which acquired, and the date of acquisition. (e) Used, reconditioned, or remanufactured supplies, or unused former Government surplus property, may be used in contract performance if the Contractor has proposed the use of such supplies, and the Contracting Officer has authorized their use. RFP at 33; FAR § 52.211-5(c), (e). The solicitation also incorporated TACOM § 52.211-4047, which provides as follows at subsection (c): Used, reconditioned, remanufactured supplies, unused former Government surplus property, or residual inventory shall not be used unless the contractor has proposed the use of such supplies, and the Contracting Officer has authorized their use. Id. at 61. On March 9, prior to the RFP’s March 18 closing date, WKF filed this protest challenging the terms of the solicitation. Specifically, the protester argued that the agency should have included Defense Logistics Acquisition Directive (DLAD) § 52.211-9000 and § 52.211-9003 in the solicitation, rather than TACOM § 52.211-4047. According to the protester, the difference between the referenced DLAD provisions and the TACOM clause is that the DLAD provisions require consideration of surplus material, whereas the TACOM clause does not. The protester also objects to the RFP’s “all or none” provision, arguing that the provision prevented it from competing for the award despite the fact that it had “34 units of Exact Product New Surplus stock available on hand for delivery.” Protest at 2. On March 12, 2015, WKF emailed the contracting officer to express its interest in the procurement and attached a completed Other than New Material Worksheet for the surplus items it planned to propose. Agency Report (AR) exh. 4, Protester’s Email to Contracting Officer (Mar. 12, 2015); exh.5, WKF’s Other than New Material Worksheet. On March 17, the contracting officer informed the protester that the agency’s engineering support activity (ESA) had determined that the surplus items offered by WKF were unacceptable because they were manufactured more than 20 years ago. Id. exh. 6, Agency Email to WKF at 3 (Mar. 17, 2015). On March 18, WKF submitted its offer to supply the initial requirement for seven units, and the optional quantities. Id. exh. 7, WKF’s Standard Form 33 at 5, 8 (Mar. 18, 2015). WKF maintains that DLAD § 11.304-91(a)(1) requires the inclusion of DLAD § 52.211-9000 and § 52.211-9003 in the RFP here.