Phoenix Environmental Design, Inc.

B-413373 Oct 14, 2016 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. L16PS0081, issued by the Department of the Interior, Bureau of Land Management (BLM), for herbicides for the Price Field Office in Utah. Phoenix contends that the solicitation, which limits the competition to brand name items, is unduly restrictive of competition. We sustain the protest. We sustain the protest. View Decision Decision Matter of:  Phoenix Environmental Design, Inc. File:  B-413373 Date:  October 14, 2016 C. Chad Gill, Phoenix Environmental Design, Inc., for the protester. Craig T. Donovan, Esq., Department of the Interior, for the agency. Mary G. Curcio, Esq., and Laura Eyester, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST Protest that solicitation for herbicides issued on a brand name only basis is unduly restrictive of competition is sustained where the justification the agency put forth for the restriction is not supported by the record.  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. L16PS0081, issued by the Department of the Interior, Bureau of Land Management (BLM), for herbicides for the Price Field Office in Utah.  Phoenix contends that the solicitation, which limits the competition to brand name items, is unduly restrictive of competition.    We sustain the protest.  On July 2, 2016, the agency posted the solicitation on FedConnect[1] as an SDVOSB set-aside, and also provided a copy to three SDVOSBs.  Contracting Officer’s Statement (COS) at 2.  The solicitation sought the following herbicides, on a brand name only basis:  2,4-D Herbicide (Weedar 64-EPA (Environmental Protection Agency) Registration #71368-1); Plateau Herbicide EPA-Registration #241-365; Escort XP Herbicide-EPA Registration # 352-439; Hi-Light Blue Dye- Becker-Underwood; and Non-Ionic Surfactant- Activator 90- Loveland Products, Inc. (hereinafter referred to as Weedar, Plateau, Escort, Blue Dye, and Activator 90, respectively).  RFQ at 2.  The solicitation provided that a purchase order would be issued to the vendor that submitted the quotation for the requested herbicides that represented the best value to the government.  Id. at 9.  The agency estimated the value of the purchase order at approximately $5,524.  COS at 1.  Since the items are commercial items, and the dollar value of the procurement is below $150,000, the agency conducted the procurement using the commercial item procedures established under Federal Acquisition Regulation (FAR) part 12, and the simplified acquisition procedures established under FAR part 13.  Id. at 2. Phoenix protests that the brand name restriction is unduly restrictive of competition.  In this regard, Phoenix notes that there is a list of commercial herbicides that are approved for use on BLM land, which contains multiple, equal items for each product the agency is procuring.[2] The simplified acquisition procedures established under FAR part 13 are designed to promote efficiency and economy in contracting, and to avoid unnecessary burdens for agencies and contractors, where, as here, the value of the acquisition is less than $150,000.  See FAR § 13.002.  When using simplified acquisition procedures, agencies are required to obtain competition to the maximum extent practicable and must not solicit quotations based on personal preference or restrict the solicitation to suppliers of well-known and widely distributed makes or brands.  Id. § 13.104; see B&S Transport, Inc., B-407589, Dec. 27, 2012, 2012 CPD ¶ 354  at 2.  In a simplified acquisition, an agency is permitted to limit a solicitation to a brand name item when the contracting officer determines that the circumstances of the contract action deem only one source is reasonably available.  FAR §§ 11.105(a)(2)(ii), 13.106-1(b)(1).  In such cases, we review the decision to limit the procurement to a brand name for reasonableness.  See Critical Process Filtration, Inc., B-400746 et al., Jan. 22, 2009, 2009 CPD ¶ 25 at 3.    According to the agency, the brand name herbicides in the solicitation are necessary to satisfy the agency’s needs because they “are currently approved for use” pursuant to the agency’s pesticide use proposal (PUP).  Agency Report (AR), Exh. 6, Brand Name Justification, July 8, 2016, at 1.  With respect to the PUP, the agency explains that there must be an approved pesticide use proposal which lists the pesticides that the agency will be using on a particular piece of land.  COS Supplemental, Aug. 17, 2016, at 2-3.  The agency reports that a PUP must be submitted every three years for approval.  COS at 6; AR, Exh.