FAR 13.5:  Test for certain commercial items

Comptroller General - Key Excerpts

New The protester asserts that the VA failed to consider “that [OEM] certification was unnecessary and in practical terms, meaningless,” and because of that, the sole-source award was without a rational basis, because iMed could perform the requirement. Protest at 3. Moreover, iMed argues that “[e]vidence that a contractor is qualified to perform is not solely limited to a formal contractual relationship with an OEM.” Id. The agency contends that the sources sought requirements are reasonable, given “the agency’s discretion” and the “agency’s need to consider any impact on patient care.” Memorandum of Law at 6.

As noted, these services are being procured under the simplified acquisition procedures of FAR subpart 13.5. AR, Tab 5, J&A, at 2. When conducting a procurement utilizing simplified acquisition procedures, contracting officers must promote competition to the maximum extent practicable to obtain supplies and services from the source whose offer is the most advantageous to the government. 41 U.S.C. § 3305(d); FAR § 13.104; Information Ventures, Inc., B-293541, Apr. 9, 2004, 2004 CPD ¶ 81 at 3. As an exception to the general competition requirement, a contracting officer may solicit from one source if the contracting officer determines that the circumstances of the contract action deem only one source was reasonably available (e.g., urgency, exclusive licensing agreements, brand-name or industrial mobilization). FAR§13.106-1(b)(1)(i). We review an agency’s decision to limit competition under such circumstances for reasonableness. Critical Process Filtration, Inc., B-400746 et al., Jan. 22, 2009, 2009 CPD ¶ 25 at 3. Provided that there is a reasonable basis for the agency’s determination of its actual needs, we will not question the agency’s requirements. Military Agency Servs. Pty., Ltd., B-290414 et al., Aug. 1, 2002, 2002 CPD ¶ 130 at 4. Moreover, when a requirement relates to human safety, the agency has the discretion to define solicitation requirements to achieve not just reasonable results, but the highest possible reliability and effectiveness. Id. at5.

The agency has explained that it required “services from either OEM Bayer or [an] authorized representative” because the equipment being maintained is “critical for patient care.” AR, Tab 5, J&A, at 5; COS at 1. The protester does not challenge the agency’s assertion that the performance of the contract--maintenance of the Bayer MEDRAD injectors--implicates VA patient safety. Consequently, the agency has the discretion to define the requirement for the maintenance of that equipment to achieve the highest possible reliability and effectiveness, and we find the requirements here to be reasonable.

In response to the sources sought notice, iMed offered only an assertion that it is able “to provide OEM equivalent quality of service at a more affordable cost.” Protest, attach. D, iMed Response to Sources Sought. IMed did not provide any evidence that it was an authorized OEM representative or distributor; only NovaMed produced the required documentation. We thus have no basis on which to question the reasonableness of the sole-source award, where the requirements were reasonable, and the record contains no dispute that NovaMed’s response to the sources sought notice was the only one to offer full compliance with the agency’s stated requirements.  (iMed Biomedical, Inc. B-416195: Jul 3, 2018)

The RFP, which was issued using the simplified acquisition procedures of Federal Acquisition Regulation (FAR) subpart 13.5, was set aside for small business concerns to provide multimedia services, such as photography, video production, graphic design, and illustration, at Kessler Air Force Base, Mississippi.  (sentences deleted)

The solicitation explained the evaluation and award selection process as follows. First, the agency would rank offerors’ proposals in order of price (including option year pricing) and evaluate prices for reasonableness. RFP at 8, 10. Next, the contracting officer “shall seek relevant performance information on all offerors” based on: (1) information obtained from the Contractor Performance Assessment Report (CPAR) system; (2) references provided by the offeror; and (3) data independently obtained from other government and commercial sources. Id. at 8‑9. The agency would then evaluate the offeror’s past performance to assess its ability to perform the effort based on the offeror’s demonstrated present and past performance, and assign an overall performance confidence assessment rating in that regard. Id. at 9. The RFP reserved the agency’s right to give greater consideration to contracts deemed most relevant to the requirement. Id.

The RFP explained the final steps of the evaluation and award process as follows:

If the lowest priced evaluated offer is judged to have a Substantial Confidence performance assessment, that offer represents the best value for the government and the evaluation process stops at this point. Award shall be made to that offeror without further consideration of any other offers.

If the lowest priced offeror is not judged to have a Substantial Confidence performance [] assessment, the next lowest priced offeror will be evaluated and the process will continue (in order by price) until an offeror is judged to have a Substantial Confidence performance assessment or until all offerors are evaluated. The Source Selection Authority shall then make an integrated assessment best value award decision.

(sections deleted)

K-MAR challenges every aspect of the Air Force’s past performance evaluation. K‑MAR complains that the agency failed to evaluate the past performance of any offeror other than MMMA, contrary to the terms of the solicitation. K-MAR argues that had the agency properly considered past performance and conducted a proper past performance/price tradeoff, as contemplated by the solicitation, it would have received the award because its incumbent experience provides the most relevant past performance. K‑MAR also challenges the agency’s evaluation of the awardee’s past performance. In this respect, K‑MAR compares every aspect of MMMA’s four past performance contracts, to argue that they are not relevant in scope, magnitude, or complexity to the requirement.

The Air Force argues that it evaluated MMMA’s past performance reasonably and consistent with the terms of the RFP, and that K-MAR’s protest reflects little more than its untimely disagreement with the RFP’s evaluation scheme.

The evaluation of an offeror’s past performance, including the agency’s determination of the relevance and scope of an offeror’s performance history, is a matter of agency discretion, which we will not find improper unless it is inconsistent with the solicitation’s evaluation criteria. National Beef Packing Co., B‑296534, Sept. 1, 2005, 2005 CPD ¶ 168 at 4; see MFM Lamey Group, LLC, B‑402377, Mar. 25, 2010, 2010 CPD ¶ 81 at 10. The evaluation of experience and past performance is, by its very nature, subjective, and an offeror’s disagreement with an agency’s evaluation judgments does not demonstrate that those judgments are unreasonable. Glenn Def. Marine-Asia PTE, Ltd., B‑402687.6, B-402687.7, Oct. 13, 2011, 2012 CPD ¶ 3 at 7. We find, based on our review of the record, that the agency’s evaluation of MMMA’s past performance was reasonable and consistent with the terms of the solicitation.

The RFP here plainly stated that if the lowest‑priced proposal was evaluated as having an overall substantial confidence performance assessment, that proposal would represent the best value to the government. RFP at 9. Contrary to the protester’s argument, the solicitation’s requirement that the contracting officer seek relevant performance information for each offeror did not, in our view, also require the Air Force to evaluate the past performance, including past performance relevance, of each offeror. Instead, the agency was required to stop its evaluation process and make the award “without further consideration of any other offers.” Id. at 9. Accordingly, we find that the agency properly awarded the contract to MMMA, as the lowest-price offer with a substantial confidence rating, and reasonably did not evaluate any other offeror’s past performance.  (K-MAR Industries, Inc. B-411262, B-411262.2: Jun 23, 2015)  (pdf)

GCS protests, among other things, that the agency improperly issued the delivery order to GSI in an amount exceeding the applicable $5 million limitation, as reflected in the terms of the solicitation against which GCS submitted its quotation. Under the terms of FAR Part 13 applicable to this solicitation, the contracting officer was not authorized to use simplified acquisition procedures to acquire supplies and services when the anticipated award exceeded $5 million. We are unpersuaded that the agency had a reasonable expectation that, “due to the introduction of competition,” the value of this acquisition would decrease below $5 million. Nothing in the record indicates that the agency conducted any market survey or Internet product search to support its view that the required items could be purchased at a price below the $5 million threshold. To the contrary, the only documented research performed by the agency, conducted in connection with the planned sole-source award to GSI, indicated that the procurement value was [DELETED]. AR, Tab 6, Price Reasonableness Memo, at 3. In short, the record shows that the agency’s estimated value of this acquisition was in excess of $5 million, yet the agency proceeded with this procurement on the basis of authority that had application only to acquisitions below $5 million. Further, the record indicates that the agency’s violation of the applicable FAR Part 13 provisions prejudiced GCS. GCS maintains that, had the agency amended the solicitation to place vendors on notice of its intent to proceed pursuant to the $5.5 million threshold, GCS would have added additional enhanced features to its product, just as GSI did in its quotation that exceeded the $5 million threshold, and that GCS’s enhancements would have led the agency to conclude that GCS’s quotation reflected the best value to the government. Protester Comments, Dec. 11, 2006, at 19-21. In this context, GCS states that it considered the $5 million threshold in FAR Part 13 to constitute a ceiling on its quotation. Id. We view GCS’s understanding in this regard to be reasonable. (Global Communications Solutions, Inc., B-299044; B-299044.2, January 29, 2007) (pdf)

At the outset, we disagree with the protester that WAPA was required to solicit full and open competition in conducting this procurement. As noted above, the RFQ was issued pursuant to FAR subpart 13.5, which allows simplified acquisition procedures for the acquisition of commercial items less than $5 million. 41 U.S.C. sect. 253(g)(1)(B) (Supp. III 1997). Procurements conducted under simplified acquisition procedures are specifically exempt from the statutory requirement to obtain full and open competition; instead, contracting officers are required to promote competition to the maximum extent practicable. 41 U.S.C. sect. 253(g)(4) (1994); FAR sect.sect. 13.104, 13.501(a).  (American Eurocopter Corporation, B-283700, December 16, 1999)

Here, we conclude that the selection decision was flawed because the contracting officer made no qualitative comparison of the technical differences between the proposals to determine whether the awardee's technical superiority justified the price premium. Further, the award decision was not adequately supported and documented.  (Universal Building Maintenance, Inc., B-282456, July 15, 1999)

Comptroller General - Listing of Decisions

For the Government For the Protester
New iMed Biomedical, Inc. B-416195: Jul 3, 2018 Global Communications Solutions, Inc., B-299044; B-299044.2, January 29, 2007 (pdf)
K-MAR Industries, Inc. B-411262, B-411262.2: Jun 23, 2015  (pdf) Universal Building Maintenance, Inc., B-282456, July 15, 1999 (commercial item acquisition)
American Eurocopter Corporation, B-283700, December 16, 1999  


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