Phoenix argues that the agency did not notify Phoenix of the
cancellation of the FSS purchase order and the issuance of the
second RFQ, despite the fact that Phoenix had expressed an
interest in competing for the items covered by the FSS purchase
order. In response, BLM states that the notice it provided was
adequate and in accordance with applicable regulations.
The Federal Acquisition Regulation (FAR) provides that for
proposed contract actions expected to exceed a value of $15,000
but not expected to exceed $25,000, notice can be given by
displaying notice of the solicitation or a copy of the
solicitation in a public place, or by any appropriate electronic
means. FAR § 5.101(a)(2). For contract actions expected to
exceed $25,000, the agency must use the only recognized
Government-wide point of entry--the FedBizOpps website. FAR §§
2.101 and 5.101(a)(1).
Here, as stated above, the notice for the second RFQ listed a
value of $33,380, which would require notice to be given through
FedBizOpps. The contracting officer (CO) asserts, however, in a
statement submitted during the development of the protest
record, that this amount was the original estimated amount that
was listed in the FSS RFQ before the agency received Walking
Point’s $22,634 quotation, and was not accurate. CO Statement at
2, 4-5. The CO explains that the $33,380 amount was
inadvertently included in the second RFQ because it was simply
copied from the earlier FSS RFQ for the same requirements. Id.
Although this assertion regarding the value of the acquisition
was not made at the time the RFQ was posted, our Office
generally will consider post-protest explanations that provide a
more detailed rationale for contemporaneous conclusions in our
review of the rationality of an agency decision, so long as
those explanations are credible and consistent with the
contemporaneous record. Windstream Communs., B-409928, Sept. 9
2014, 2014 CPD ¶ 5 n.5; Remington Arms Co., Inc., B-297374,
B-297374.2, Jan 12, 2006, 2006 CPD ¶ 32 at 12.
Here, we find credible the agency’s post-protest explanation
that the expected value for the second purchase order would be
less than $25,000, given the very recent procurement history,
i.e., the FSS purchase order quotation of $22,634 for the same
requirements. The CO’s explanation for the discrepancy between
the agency’s estimate of the value and the price that was
inadvertently copied onto the second RFQ is also credible under
these circumstances. Accordingly, since the agency did not
expect the second purchase order to exceed $25,000--an
expectation that was also borne out by the value of the
award--we agree that the agency was not required to post notice
of the RFQ on FedBizOpps. Instead, the notice the agency
provided on FedConnect.net, the agency’s publicly accessible
procurement website, met the FAR requirement for providing
notice by “any appropriate electronic means.” FAR § 5.101(a)(2).
Accordingly, we deny the protest. (Sterling
Medical Corporation B-412407, B-412407.2: Feb 3, 2016)
(pdf)
IFC argues that
by using the term "fasteners" instead of the more specific terms
"slide fasteners" or "zippers" in the title of the combined
synopsis/solicitation, UNICOR failed to properly identify the
procurement on FedBizOpps and thereby frustrated IFC's ability
to compete for the slide fasteners portion of the procurement.
Protest at 3. In support of this premise, IFC cites three
previous notices posted to FedBizOpps in which UNICOR used the
words "slide fasteners" and "zippers" in the titles as opposed
to the term "fasteners." Protester Comments, at 1. IFC's
arguments are without merit.
The Competition in Contracting Act of 1984 generally requires
that contracting agencies obtain full and open competition
through the use of competitive procedures. 41 U.S.C. sect.
253(a)(1)(A) (2006). In furtherance of this goal, agencies are
required to use reasonable methods to publicize their
procurement needs. Kendall Healthcare Prods. Co., B-289381, Feb.
19, 2002, 2002 CPD para. 42 at 6. The official public medium for
providing notice of contracting actions by federal agencies is
the FedBizOpps website, which has been designated by statute and
regulation as the government-wide point of entry. 15 U.S.C.
sect. 637(e); 41 U.S.C. sect. 416; FAR sections 2.101,
5.101(a)(1), 5.201(d). The notice provided by an agency must
include an "accurate description" of the property or services to
be purchased, sufficient to provide prospective offerors with
the ability to make an informed business judgment as to whether
to request a copy of the solicitation, see 41 U.S.C. sect.
416(b)(1); TMI Management Sys., Inc., B-401530, Sept. 28, 2009,
2009 CPD para. 191 at 3.
Here, the combined synopsis/solicitation posted by UNICOR on
FedBizOpps was not misleading and provided potential offerors,
such as IFC, with notice of the intended procurement, which
included the acquisition of slide fasteners. As IFC concedes,
the term "fasteners," which appeared in the title of the
combined synopsis/solicitation, refers to a number of different
commercial items--including slide fasteners. Protest at 2-3.
Given that slide fasteners are a type of fastener, the title of
the combined synopsis/solicitation accurately reflected the fact
that the RFP may have potentially included a requirement for
slide fasteners. It was therefore incumbent on IFC to review the
actual synopsis, RFP, and items specifications, all of which
were easily available to IFC, to determine whether the
procurement in fact included a requirement slide fasteners. In
this regard, we have held that potential offerors such as IFC
have an affirmative duty to make every reasonable effort to
obtain solicitation materials. See Jess Bruner Fire Suppression,
B-296533, Aug. 19, 2005, 2005 CPD para. 163, at 3-4.
IFC suggests that UNICOR had established a practice of using the
more specific terms slide fasteners or zippers, as opposed to
the more general term fasteners, when posting notices of
procurements for slide fasteners, and that using these specific
terms would have been more appropriate. IFC's arguments do not
provide a basis for finding the agency's actions unreasonable or
improper. There is nothing in the record to indicate that UNICOR
had an official policy of using these more specific terms. To
the contrary, UNICOR notes--and IFC does not dispute--that it
has on at least two separate occasions posted solicitations to
FedBizOpps which contained only the word "fasteners" in the
title, including one in which the protester was awarded a
contract for slide fasteners. AR, Tab 14, Notice of Award for
Solicitation No. CT1835-07, at 1; AR, Tab 15, Notice of Award
for Solicitation No. CT1704-05, at 1. It is apparent that IFC's
belief regarding how UNICOR titled its solicitation notices was
an assumption made by IFC, and IFC therefore bore the risk that
its assumption was incorrect. As we have held, each procurement
is a separate transaction, and an agency's practices or actions
under one procurement do not bind its practices or actions on
other procurements. See Southern CAD/CAM, B‑254201, Nov. 16,
1993, 93-2 CPD para. 278 at 4; see also The Standard Register
Company, B‑289579, March 5, 2002, 2002 CPD para.54 at 2‑3 (an
agency is not bound by its prior practices "since past practice
lacks the force and effect of law").
The protest is denied. (Ideal
Fastener Corporation, B-404206, January 11, 2011) (pdf)
The RFP, which
was issued on February 27, 2008, contemplated the award of an
indefinite-quantity contract for a base and 4 option years; the
estimated annual quantity to be ordered under the contract was
230,892. The RFP was synopsized and posted on the Federal
Business Opportunities (FedBizOpps) website. The solicitation
was amended three times, with a final closing date of December
4, 2008. Five offerors submitted proposals; the protester was
not among them. The agency awarded a contract to Blond Lighting
Fixture Supply Company on December 23.
The protester argues that it did not submit a proposal because
it was unaware of the RFP and that this was the agency’s fault.
SLG maintains that had the agency properly identified the
protester as an approved source of supply, the agency would have
furnished it with a copy of the RFP and it would have submitted
a proposal; thus, in SLG’s view, it was the agency’s failure to
properly identify it as a source of supply that resulted in SLG
being unaware of the RFP and not participating in the
competition.
The protester is in essence arguing that the agency was required
to furnish it with individual notice of the RFP. We disagree. As
noted above, the solicitation at issue here was posted on the
FedBizOpps website. FedBizOpps has been designated as the
government-wide point of entry (GPE)--that is, the single point
where government business opportunities greater than $25,000,
including synopses of proposed contract actions, solicitations,
and associated information, can be accessed electronically by
the public. Federal Acquisition Regulation sect. 2.101. Offerors
are charged with constructive notice of procurement actions
published on the GPE. DBI Waste Sys., Inc., B-400687,
B-400687.2, Jan. 12, 2009, 2009 CPD para. 15. Thus, even
assuming, as SLG argues, that it should have been listed as an
approved source of supply in the RFP (and therefore would have
received a copy of the RFP directly from the agency), the
protester nevertheless was on constructive notice of the
contents of the RFP as a result of the FedBizOpps posting.
Because the protester had constructive notice, the agency was
under no obligation to furnish it with separate notice of the
RFP. PR Newswire Ass’n, LLC, B-400430, Sept. 26, 2008, 2008 CPD
para. 178 at 2.
The protester also argues that it would have been on notice of
the RFP had the agency not responded in a misleading manner to
an email message SLG sent regarding the status of a prior RFP
for the same item. (According to the protester, the agency
responded to its inquiry regarding the first solicitation with
information pertaining to the second, which resulted in SLG
failing to understand that the second solicitation had been
issued.) The record fails to support the protester’s allegation
that the agency furnished it with misleading information,
however; thus, this argument also is without merit. (Solutions
Lucid Group, B-401128, LLC, April 2, 2009) (pdf)
DBI asserts that the agency should have provided it with
individual notice of the RFP, in addition to the notice on
FedBizOpps, based on its status as an incumbent and the agency’s
course of dealing with it in this and in prior acquisitions in
which DBI asserts it was orally notified of the solicitation.
This argument is without merit. FedBizOpps has been designated
as the GPE, “the single point where Government business
opportunities greater than $25,000, including synopses of
proposed contract actions, solicitations, and associated
information, can be accessed electronically by the public.”
Federal Acquisition Regulation (FAR) sect. 2.101. Protesters are
charged with constructive notice of the contents of procurement
actions published on the GPE. Herndon & Thompson, B‑240748, Oct.
24, 1990, 90-2 CPD para. 327 at 3. The doctrine of constructive
knowledge imputes knowledge to a party without regard to the
party’s actual knowledge of the matter at issue. WorldWide
Language Resources, Inc.; SOS Int’l Ltd., B-296984 et al., Nov.
14, 2005, 2005 CPD para. 206 at 9. Accordingly, the notice of
the RFP published on FedBizOpps was legally sufficient, and the
fact that DBI may not have had actual knowledge of the RFP is
not determinative here. See, e.g., Specialty Marine, Inc.,
B‑292053, May 19, 2003, 2003 CPD para. 106 at 2 (prospective
contractor on constructive notice of the contents of procurement
announcement even when it did not see the announcement).
DBI’s status as an incumbent contractor did not operate to
impose some greater notice obligation on the agency. At one
time--but no longer--the FAR required that “bids shall be
solicited from . . . the previously successful bidder” or
offeror for the requirement. See (superseded) FAR sections
14.205-4 and 15.403. However, the current FAR does not require
such notice to incumbent contractors; thus, VA’s failure to
provide actual notice to DBI provides no valid basis for
protest. See PR Newswire Ass’n, LLC, B-400430, Sept. 26, 2008,
2008 CPD para. 178 at 2 n.1. Nor did the agency’s prior practice
of providing oral notice require the agency to provide DBI with
actual notice of the RFP here. Shirlington Limousine & Transp.,
Inc., B-299241.2, Mar. 30, 2007, 2007 CPD para. 68 at 3.
DBI asserts that, on several occasions, its president met with
two VA employees, who “indicated that they were not sure exactly
what was happening,” but that “VA would let [DBI] know the
particulars of the bid once the details were put in place.”
Comments at 3. However, even as recalled by the protester’s
president, these vague assurances did not include any specific
promise to provide a solicitation other than through legally
required means, i.e., FedBizOpps, and, further, the agency
advises that the employees in question worked in the agency’s
Environmental Management Service, not the contracting office.
ASR exh. 1. We conclude that these conversations did not
establish a commitment on the agency’s part to provide DBI with
actual notice of the RFP. (DBI
Waste Systems, Inc., B-400687; B-400687.2, January 12, 2009)
(pdf)
As stated above, FAR sect.
5.207(h)(3) identifies the FPDS Product and Service Codes Manual
as a standard classification source that may be used to identify
a specific product or service within each code. That Manual,
which was provided by the agency in its report on the protest,
includes code 89, subsistence, under which product code 8940,
entitled "Special Dietary Foods and Food Specialty
Preparations," is listed. Another classification source,
which assists users in choosing the appropriate product or
service code, is the Federal Procurement Data Center PSC Wizard,
an Internet search program. The agency reports, and the record
confirms, that an on-line search of the term "dietary"
directs the user to product code 8940 under classification code
89; if "dietary supplement" is the search term, the
user is informed that there is no product group which contains
that two word search term. AR encl. 13, PSC Wizard Search. These
standard classification sources, one of which is specifically
referenced in the FAR, identified product code 89 as the
classification code that most closely describes the acquisition
at issue here. Accordingly, the contracting officer's
classification determination was consistent with the applicable
regulations, and standard classification sources, as well as the
agency's prior procurement history of using code 89 when
procuring dietary supplements. (Kendall
Healthcare Products Company, B-289381, February 19, 2002)
Protest that agency deliberately
excluded the incumbent protester from competition is denied
where record establishes that protester's name was inadvertently
dropped from bidders' mailing list and adequate competition was
obtained. (Timberland
Logging, B-282461, July 8, 1999)
Where the agency fails to solicit a
successfully-performing incumbent, with the result that there is
only a minimal level of competition, it does not meet its
obligation of obtaining full and open competition. Professional
Ambulance, Inc., B-248474, Sept. 1, 1992, 92-2 CPD para. 145 at
2-5. Similarly, we have sustained protests where the agency
makes a deliberate or conscious attempt to preclude the
protester from competing. Bosco Contracting, Inc., B-270366,
Mar. 4, 1996, 96-1 CPD para. 140 at 3. The record here provides
no basis for sustaining the protest. (Interproperty
Investments, Inc., B-281600, March 8, 1999)
|
