Independent Systems, Inc.

B-413246 Sep 15, 2016 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights Independent Systems, Inc. (ISI), of Bristow, Virginia, protests the rejection of its proposal under request for proposals (RFP) No. AG-05G2-S-16-0006, issued by the Department of Agriculture, Forest Service, for bulldozers. The protester contends that the Forest Service unreasonably determined that ISI's proposal took exception to the solicitation's delivery and payment terms. We deny the protest. We deny the protest. View Decision Decision Matter of:  Independent Systems, Inc. File:  B-413246 Date:  September 15, 2016 Alfredo Flores Jr., for the protester. Heather M. Self, Esq., Department of Agriculture, for the agency. Pedro E. Briones, Esq., Noah B. Bleicher, Esq., and Peter H. Tran, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST Protest of rejection of proposal is denied where the agency reasonably found that the proposal took exception to the solicitation’s delivery and payment terms. DECISION Independent Systems, Inc. (ISI), of Bristow, Virginia, protests the rejection of its proposal under request for proposals (RFP) No. AG-05G2-S-16-0006, issued by the Department of Agriculture, Forest Service, for bulldozers.  The protester contends that the Forest Service unreasonably determined that ISI’s proposal took exception to the solicitation’s delivery and payment terms. We deny the protest. BACKGROUND The Forest Service issued the RFP on March 24, 2016, to firms holding blanket purchase agreements (BPA or agreement) with the agency for heavy equipment.  Contracting Officer Statement (COS) ¶¶ 5‑6; RFP at 127.[1]  The solicitation sought two types of bulldozers with specified options, for delivery F.O.B. destination to the Coconino National Forest in Flagstaff, Arizona, on or before August 31, 2016.[2]  RFP amend. 2, at 192, 195.  The RFP stated that award would be made on a lowest‑priced, technically acceptable basis.  Id. at 207. The RFP incorporated the terms of the BPA, which contemplates that solicitations issued under the agreement will specify delivery terms and may include additional requirements, such as technical specifications, instructions for submitting offers, or invoicing and payment terms.  See id. at 195; BPA at 94‑96, 106‑07.  The BPA incorporates standard FAR clause 52.212‑4, Contract Terms and Conditions--Commercial Items (Sept. 2013), which, as relevant here, states that payment shall be made for items accepted by the government that have been delivered to the destinations set forth in the contract; the clause does not provide for prepayments or other forms of contract financing.[3]  See BPA at 97‑101.  Although the RFP included detailed technical specifications for each bulldozer and required delivery F.O.B. destination to Flagstaff, Arizona, the RFP did not specify additional payment terms, other than those outlined in the BPA.  RFP amend. 2, at 188‑208; see RFP at 127‑42; amend. 1, at 143‑44.  The BPA advises that offers that reject the terms and conditions of a solicitation may be excluded from consideration, and that the government may reject any or all offers if such action is in the public interest.  BPA at 106‑07. The agency received proposals from three BPA holders, including ISI.  COS ¶ 12; see Agency Report (AR), Tab 10, Abstract of Offers.[4]  As discussed below, the contracting officer rejected ISI’s proposal because he found that it took exception to the RFP’s delivery and payment terms, and imposed additional terms that were inconsistent with the solicitation.  AR, Tab 13, Decision Mem., at 263; COS ¶¶ 17‑19. Because the other two proposals exceeded the funds available for the procurement, and because ISI’s proposal was rejected, the contracting officer cancelled the RFP and solicited the requirement through the General Services Administration’s e‑Buy system instead.[5]  AR, Tab 13, Decision Mem., at 263; COS ¶¶ 21‑22; RFP amend. 3, at 264‑65 (cancellation).  This protest followed. DISCUSSION ISI maintains that its proposal complied with the solicitation and exceeded the government’s requirements.  ISI argues that the contracting officer rejected the proposal based on his “very subjective” and unfair analysis of the proposal’s delivery and payment terms.  Comments at 1‑2. As relevant here, ISI submitted its offer electronically as three separate files--a proposal and two manufacturer’s brochures (one for each proposed bulldozer).  AR, Tab 9, ISI Revised Proposal (Proposal), at 209‑57; COS ¶ 15.[6]  The proposal included ISI’s pricing and terms for each contract line item number (CLIN),[7] technical descriptions and detailed tables of specifications for each piece of equipment, and--at issue here--a two‑page manufacturer’s “terms and warranty” document.  AR, Tab 9, ISI Revised Proposal (Proposal), at 210‑45.  Each brochure provided photographs depicting the respective bulldozer and described its specifica...