DGCI Corporation (SPE605-23-R-0210)

B-421830.3 Apr 05, 2024 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights DGCI Corporation, of McLean, Virginia, protests the terms of request for proposals (RFP) No. SPE605-23-R-0210, issued by the Defense Logistics Agency (DLA) for various types of fuel to be delivered to locations throughout Iraq. The protester alleges that the RFP's terms are unduly restrictive, conflicting, and place unreasonable risk on the contractor. We deny the protest. View Decision Decision Matter of: DGCI Corporation File: B-421830.3 Date: April 5, 2024 Lawrence J. Sklute, Esq., Sklute & Associates, for the protester. Christopher S. Colby, Esq., Celia M. DePaolis, Esq., and Steven M. Sosko, Esq., Defense Logistics Agency, for the agency. Hannah G. Barnes, Esq., and Christina Sklarew, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST 1. A solicitation requirement that is burdensome, or even impossible for a particular firm to meet, does not make the requirement objectionable if it properly reflects the agency’s needs. 2. Protest that the solicitation places unreasonable risk on the contractor is denied where the level of risk is reasonably within the agency’s discretion; a solicitation need not be drafted to eliminate all performance uncertainties. 3. Protest that certain solicitation terms conflict is dismissed as untimely where it was not filed prior to the next due date for receipt of proposals following the introduction of the challenged terms. DECISION DGCI Corporation, of McLean, Virginia, protests the terms of request for proposals (RFP) No. SPE605-23-R-0210, issued by the Defense Logistics Agency (DLA) for various types of fuel to be delivered to locations throughout Iraq. The protester alleges that the RFP’s terms are unduly restrictive, conflicting, and place unreasonable risk on the contractor. We deny the protest. BACKGROUND The agency issued the RFP on June 8, 2023, seeking various quantities of midgrade unleaded gasoline (“MUM”), diesel fuel (“DF2”), and turbine fuel (“JP8”), to be delivered to various military bases and warehouses throughout Iraq to be used for vehicles, generators, and aircraft. Agency Report (AR), Tab 2, RFP at 12-16. [1] For context, the agency explains in its report that the Iraqi government requires that fuel be purchased from Iraqi refineries via the Oil Products Distribution Company (OPDC) in southern Iraq. Combined Contracting Officer’s Statement and Memorandum of Law (COS/MOL) at 2. The RFP contemplates the award of a firm-fixed-price requirements contract. RFP at 8. The solicitation provided for award on a lowest-priced, technically acceptable (LPTA) basis considering three factors: technical, past performance, and price. Id. at 123-125. The RFP includes three subfactors under the technical factor: supply, transportation, and storage/distribution. Id. at 123. As relevant here, under the supply subfactor, the solicitation advises that DLA “will evaluate the [o]fferor’s supply plan to assess the [o]fferor’s ability to supply all of the products listed and in the estimated quantities stated in the schedule ([s]olicitation [p]rovision B1.05/DLA [f]uel specifications in [s]ection C).” Id. The solicitation adds that the following items are required to be submitted for consideration: “Certificates of Quality and/or Analysis (COQ/COA) for all products listed in the attached schedule of this solicitation, in accordance with the DLA [f]uel specifications in [s]ection C.”[2] Id. The performance work statement, in section C of the RFP, contains the fuel specifications that ensure the fuel products do not contain excessive amounts of certain chemicals or impurities.[3] RFP at 12-16; 20-24. For example, these specifications dictate the permissible sulfur content in the fuel; the agency explains that a sulfur content exceeding the limits in these fuel specifications “risk[s] significant damage to the combustion engines (e.g., generators, trucks, security lighting) in which it is used,” contributing to air pollution and a shortened lifespan for necessary items like vehicles and generators. AR, Tab 27, Declaration at 3. In section E, pertaining to inspection and acceptance, the solicitation incorporates the text of Federal Acquisition Regulation clause 52.246-2, Inspection of Supplies-Fixed-Price, cautioning offerors that DLA “has the right either to reject or to require correction of nonconforming supplies,” with supplies being nonconforming “when they are defective in material or workmanship or are otherwise not in conformity with contract requirements.” RFP at 26. The solicitation also provides for waivers, giving the agency the option to, “at its discretion, accept nonconforming supplies or services.” Id. at 36.