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FAR 7.105: Content of Acquisition Plans |
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Comptroller
General - Key Excerpts |
New The protester asserts that, if properly
evaluated, the LCCs for Dell and non-Dell computers would
be identical, and therefore the LCCs should be removed
from the RFQ. Protest at 7. According to the protester,
the only reason the agency decided to consider the LCCs is
to "orchestrate a defacto or backdoor sole source award to
Dell" through its misapplication of the LCCs. Protester's
Comments at 3.
The FAR requires acquisition plans, where appropriate, to
discuss how LCCs will be considered and, if they are not
to be used, to explain why not. See FAR sect. 7.105(a)(3)(i).
The protester acknowledges that LCCs can be a "valid
factor" for an agency to consider as it determines the
true costs of products or services. Protest at 5. Thus,
the protest issue raised here is not whether an agency may
reasonably include LCCs in its analysis, but whether those
costs could reasonably be anything other than identical
for Dell and non-Dell computers and, as the protester
argues, not a proper component of the agency's price
evaluation.
As an initial matter, assuming that the protester is
correct--i.e., if properly evaluated, the LCCs for Dell
and non-Dell computers would be identical for all
vendors--there is no possibility of prejudice associated
with the agency's inclusion of LCC's in the RFQ.
Competitive prejudice is an essential element of a viable
protest; we will not sustain the protest unless the
protester establishes a reasonable possibility that it has
been prejudiced by the agency's actions. Armed Forces
Hospitality, LLC, B‑298978.2, B‑298978.3, Oct. 1, 2009,
2009 CPD para. 192 at 9-10. In this regard, the protester
does not allege that inclusion of the LCCs is restrictive
of competition or unfairly favors Dell products per se. To
the contrary, the fundamental premise of the protester's
argument is that the LCCs would have equal application to
all firms. To the extent there is any prejudice associated
with the protester's arguments, it stems from the
protester's related assumption that the agency will apply
the LCCs in a way to disadvantage providers of non-Dell
computers. These allegations merely anticipate improper
agency action, however, and are only cognizable after the
agency has completed its evaluation of vendors'
quotations; at this juncture, the allegations are
speculative and premature. Paramount Group, Inc.,
B-298082, June 15, 2006, 2006 CPD para. 98 at 6‑7.
Moreover, we find unpersuasive the protester's underlying
assumption, namely, that if an agency ultimately
calculates LCCs as identical for certain competing
offerors, having included LCCs as part of the evaluation
was improper. Having acknowledged that LCCs are a useful
agency consideration in calculating its true total cost,
the protester here attempts to carve out an
exception--unless the LCCs are identical. Of course, the
knowledge that LCCs are identical for certain offerors is
also useful information for the agency, and we see nothing
inherently unreasonable in a solicitation announcing that
LCCs will be considered, even if those costs are
ultimately determined to be equivalent. The protester's
own allegation is that, where an agency finds LCCs to be
equivalent, the agency "should," not "must," remove the
LCCs from the solicitation. Protest at 7. Because the
protester offers no persuasive legal basis for its claim
that equivalent LCCs may not be included in a
solicitation--nor does it even assert as much--we see no
basis to challenge the reasonableness of the agency's
inclusion of LCCs in this solicitation. (NCS
Technologies, Inc., B-405192.2, October 27, 2011)
(pdf) |
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Comptroller
General - Listing of Decisions |
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For
the Government |
For
the Protester |
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New NCS Technologies,
Inc., B-405192.2, October 27, 2011 (pdf) |
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