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FAR 8.404:  Using Federal Supply Schedules

Comptroller General - Key Excerpts

Here, the RFQ provided for award to be made on a best-value basis. Where an acquisition conducted pursuant to FAR subpart 8.4 provides for award on a “best‑value” basis, it is the function of the source selection authority to perform a price/technical tradeoff to determine whether a quotation’s technical superiority is worth its higher price. Millenium Corp., Inc., B-412866, B-412866.2, June 14, 2016, 2016 CPD ¶ 168 at 7. For FAR subpart 8.4 acquisitions that require a statement of work, such as this one, FAR § 8.405-2(f) specifically requires documentation of the rationale for any tradeoffs made in the selection. This rationale, or source selection decision documentation, must include sufficient detail to show that it is reasonable. Millenium Corp., Inc., supra.

In this case, the record does not reflect that the agency performed a price/technical tradeoff. The FTA’s procurement summary documents the selection of OST, but contains no price/technical tradeoff analysis comparing OST’s quotation to the protester’s quotation.[6] AR, Tab 8.h, Procurement Summary. The only discussion of price in the summary is an analysis of the reasonableness of OST’s price when compared to the independent government cost estimate. Id. at 3. The record also contains a technical recommendation memorandum, in which the agency provides a comparison of OST’s and Harmonia’s quotations considering technical merit, but does not include a comparison of the vendors’ proposed prices. AR, Tab 8.b, Technical Recommendation Memorandum. In this regard, the review panel indicated that it recommended award to OST because “OST is more technically qualified and has insignificant ‘weaknesses,’ and Harmonia has weaknesses, which could yield unfavorable results impacting the overall [w]eb [a]pplications contract.” Id. at 1.

The agency made several arguments in an attempt to justify its failure to document a tradeoff decision, but we find none of them persuasive. First, the agency argues that a tradeoff was not necessary because this procurement was conducted under FAR subpart 8.4 instead of under negotiated procurement procedures in FAR part 15. As noted above, for procurements conducted pursuant to FAR subpart 8.4 that require a statement of work, such as this one, the agency’s evaluation and tradeoff judgments must be documented in sufficient detail to show that they are reasonable. The mere fact that this procurement is being conducted pursuant to FAR subpart 8.4 does not excuse the agency from documenting a tradeoff.

Next, the agency argues that its findings regarding the realism of Harmonia’s proposed price justified its failure to conduct a tradeoff. In this regard, the agency has provided two different theories as to why it was not required to conduct a tradeoff between Harmonia and OST. First, according to the agency, the evaluators rejected Harmonia’s quotation after finding that its price for CLIN [DELETED] was unrealistically low. As noted above, the RFQ established that the agency would evaluate whether (1) the proposed pricing was realistic for the requirement; (2) the pricing reflected a clear understanding of the contract requirements; and (3) the pricing included all requested services. RFQ at 60. Additionally, the RFQ advised vendors that the agency might find a quotation unacceptable if the proposed prices were found to be unbalanced (i.e. despite an acceptable total evaluated price, one or more contract line items was significantly overstated or understated). Id.

Regarding Harmonia’s proposed price, while Harmonia based its price on the use of [DELETED] full time equivalents (FTEs), [DELETED], evaluators had concerns about Harmonia’s allocation of FTEs across CLINS. AR, Tab 6.b. Harmonia’s Cost Proposal; Tab 8.b., Technical Recommendation Memorandum, at 2. Specifically, the agency concluded that “Harmonia did not adequately price CLIN [DELETED] and was wholly inaccurate on the level of effort for this [DELETED] CLIN.”  AR, Tab 8.b., Technical Recommendation Memorandum, at 2.

While the record documents some concerns with Harmonia’s pricing for CLIN [DELETED], the record contains nothing indicating that, as the agency now argues, Harmonia’s quotation was rejected on that basis. Further, because the solicitation is permissive rather than prescriptive, in that it provides that an agency “might” find unacceptable a quotation in which one or more contract line items was found to be significantly overstated or understated, we will not infer that the agency deemed Harmonia’s quotation unacceptable absent an express determination in the contemporaneous record.

The agency also contends that, if Harmonia’s price for CLIN [DELETED] was adjusted to a realistic level, Harmonia’s price would have been $[DELETED] higher than OST’s price. AR at 13. According to the agency, Harmonia would then have a higher price and lower technical score such that no tradeoff would be necessary. Id. This argument, however, relies upon an improper use of a price realism analysis in the context of a fixed-price procurement.[10]

Where an RFQ contemplates the award of a fixed-price contract, or a fixed-price portion of a contract, an agency may, as here, provide in the solicitation for the use of a price realism analysis for the limited purpose of measuring an offeror’s understanding of the requirements or to assess the risk inherent in an offeror’s quotation. Ball Aerospace & Techs. Corp., B-402148, Jan. 25, 2010, 2010 CPD ¶ 37 at 8. Although the FAR does not use the term “price realism,” it states that cost realism analysis may be used to evaluate fixed-price proposals for purposes of assessing proposal risk, but not for the purpose of adjusting an offeror’s evaluated price. Id.; FAR § 15.404-1(d)(3). Because the record contains little discussion about price, it is unclear whether the agency actually relied upon an adjusted evaluated price for Harmonia when making its selection decision. To the extent the agency did rely on adjusted price, however, such reliance would have been an improper use of a price realism analysis in the context of competition for a fixed‑price task order.

In sum, the record here does not indicate that the agency eliminated Harmonia’s quotation from consideration prior to its source selection decision. As such, the agency was required to compare Harmonia’s technical ratings and price with OST’s technical ratings and price when selecting the quotation deemed most advantageous to the agency. Here, while the record contains a comparison of the vendors’ technical ratings, the record contains no documentation reflecting a meaningful comparative analysis of quotations on the basis of price. Accordingly, we sustain Harmonia’s complaint that the agency failed to conduct a price/technical tradeoff.  (Harmonia Holdings Group, LLC B-413464, B-413464.2: Nov 4, 2016)


The protester principally objects to the use of FSS procedures, arguing that the agency failed to conduct market research in accordance with FAR part 8, and that the products purchased were not included on Walking Point Farms’ FSS contract.

Regarding Phoenix’s allegation that the agency’s use of FSS procedures for this procurement were improper and that the agency failed to conduct market research in accordance with FAR part 8, the FSS program provides federal agencies a simplified process for obtaining commonly used commercial supplies and services. Where, as here, an agency is ordering supplies from the FSS in excess of the micro-purchase threshold but not exceeding the simplified acquisition threshold, an agency shall place orders with the schedule contractor that can provide the supply that represents the best value. FAR § 8.405-1(c). Before placing an order, an agency must consider “reasonably available information about the supply” by “surveying at least three schedule contractors through the GSA Advantage! On-line shopping service, by reviewing the catalogs or pricelists of at least three schedule contractors, or by requesting quotations from at least three schedule contractors.” FAR § 8.405-1(c)(1).

Here, the agency determined that it could meet its needs through the FSS, and that there were sufficient numbers of contractors holding FSS contracts to permit a competition. Contracting Officer Statement at 2-3. The requirements of FAR § 8.405-1(c) were met by the agency requesting quotations from at least three schedule contractors. Limiting the pool of competition to vendors holding FSS contracts is legally permissible, even if an individual protester may be unable to compete because it does not hold an FSS contract. See Information Ventures, Inc., B‑299422, B‑299422.2, May 1, 2007, 2007 CPD ¶ 88 at 3. We find that the agency reasonably met the requirements of FAR subpart 8.4, and deny Phoenix’s protest that the agency failed to comply with the FAR requirements to utilize the FSS.

Phoenix further argues that Walking Point Farms’ FSS contract did not include all of the products requested by the agency. Protest at 1. The purchase of items not on Walking Point Farms’ FSS contract would be tantamount to a sole-source award of a contract, and Phoenix’s direct economic interest would be affected if the agency failed to conduct a competition for these requirements for which Phoenix would have had an opportunity to complete. 4 C.F.R. § 21.0(a)(1); see also Onix Networking Corp., B‑411841, Nov. 9, 2015, 2015 CPD ¶ 330 at 5-6.

According to the record before us, the products that the agency purchased under this solicitation were listed under the Walking Point Farms’ GSA schedule. AR, Tab 7, Walking Point Farms’ Quotation; Intervenor Supp. Comments (Dec. 13, 2016). We therefore deny Phoenix’s protest allegation that the agency purchased items that were not included on Walking Point Farm’s schedule contract.  (Phoenix Environmental Design, Inc. B-413833: Jan 5, 2017)


The RFQ stated that BPAs would be established with the vendors whose quotations offer the best value to the government, considering (in descending order of importance) technical capability, past performance, small business participation plan, and price. RFQ at 67. Under the technical capability factor, vendors were instructed to submit the following:

(sections deleted)

(3) a “certifying statement indicating that they can meet all service requirements as defined in the [statement of work].”

(sections deleted)

govSolutions maintains that the VA erroneously found its quotation unacceptable. The firm argues that the language in its cover letter met the requirement to provide a certifying statement that it can meet all of the service requirements identified in the statement of work. The protester asserts, in particular, that two sentences in its cover letter--which state that it will provide complete coordination, and which acknowledge and take no exception to the solicitation and amendments--provide the necessary assurances. govSolutions also asserts that other statements in its cover letter, such as discussion of its past performance, provide additional proof of its capabilities.

Where, as here, an agency issues an RFQ to GSA FSS contractors under FAR subpart 8.4 and conducts a competition, we will review the record to ensure that the agency’s evaluation is reasonable and consistent with the terms of the solicitation and applicable procurement laws and regulations. DigitalSpec, LLC, B-412344, Jan. 20, 2016, 2016 CPD ¶ 72 at 5. It is a vendor’s responsibility to submit a well-written quotation for the agency to evaluate, and a vendor that fails to do so runs the risk that its quotation will be evaluated unfavorably. InfoZen, Inc., B-408234 et al., July 23, 2013, 2013 CPD ¶ 211 at 5.

Based on the record before us, we find that the VA reasonably concluded that the protester did not provide the required certifying statement. The first statement in the cover letter that govSolutions identified above as providing the substance required by the RFQ refers to coordination services and does not make reference to the various other services required by the solicitation, such as design and layout services, relocation of existing furniture, and installation services. Likewise, the statement that the vendor acknowledges the solicitation and amendments, and takes no exceptions, does not specifically address the vendor’s ability to provide the required services. Indeed, the RFQ specifically provided a page on which vendors were to acknowledge receipt of the amendments that was separate from the requirement for a certifying statement. See RFQ at 3.

With respect to the other statement in the cover letter that govSolutions asserts meets the intent of the RFQ requirement with respect to services, we again see no basis to conclude that the agency acted unreasonably in finding the protester’s proposal did not provide the required certifying statement. For example, govSolutions identifies a statement concerning its past performance as providing assurances that it can meet the requirements. However, the protester’s performance on prior contracts does not address its current ability to provide the services required under this solicitation.

To the extent that govSolutions argues that the cover letter in its entirety serves as its certifying statement, we note that the inclusion of a discussion of the protester’s past performance and pricing in the cover letter suggest that--regardless of its placement after the cover sheet for the technical capability volume--the letter was in fact not meant to serve as the required certifying statement, or indeed to be specific to the technical capability volume.

In sum, we see nothing in the record before us to suggest that govSolutions provided a certifying statement that it had the ability to provide the services required by the statement of work, and therefore no basis to conclude that the agency erred in rejecting the protester’s quotation.  (govSolutions, Inc. B-413166.3: Sep 2, 2016)


There is no requirement that an agency soliciting vendors for orders under FSS contracts conduct discussions with vendors in accordance with FAR § 15.306. Avalon Integrated Servs. Corp., B-290185, July 1, 2002, 2002 CPD ¶ 118 at 4. Nonetheless, exchanges that do occur with vendors in a FAR Subpart 8.4 procurement must be fair and equitable. COMARK Fed. Sys., B‑278343, B‑278343.2, Jan. 20, 1998, 98-1 CPD ¶ 34 at 5. While FAR Part 15 does not control here, our Office has looked to the standards in FAR Part 15, and the decisions interpreting that part, for guidance in determining whether exchanges with vendors under a FAR Subpart 8.4 procurement were fair and equitable. TDS, Inc., B-292674, Nov. 12, 2003, 2003 CPD ¶ 204 at 6.

In our decisions under FAR Part 15, we have held that the content of discussions is largely a matter of the contracting officer’s judgment. FAR § 15.306(d)(3); American States Utils. Servs., Inc., B-291307.3, June 30, 2004, 2004 CPD ¶ 150 at 5. An agency may not, however, mislead an offeror through the framing of a discussion question into responding in a manner that does not address the agency’s actual concerns, or otherwise misinform the offeror concerning a problem with its proposal. Metro Mach. Corp., B-281872 et al., Apr. 22, 1999, 99-1 CPD ¶ 101 at 6. Thus, for example, where an agency advises an offeror in discussions to revise its proposal in a way that does not reflect the agency’s evaluation, the discussions are misleading. SeKON Enter., Inc.; Signature Consulting Grp., B-405921, B-405921.2, Jan. 17, 2012, 2012 CPD ¶ 26 at 7.

The record shows that, despite the language of the EN and the emails, USTRANSCOM did not in fact object to Paragon’s assumptions. Rather, the agency’s concern was that Paragon’s total proposed hours for option periods [DELETED] were lower than the historical amounts. As discussed below, although Paragon’s final proposal retained certain assumptions about reductions in program support in [DELETED], the agency nevertheless found it to be technically acceptable. AR, Tab 66, SSDD, at 8. See also tr. at 36:6‑10 (agency found the proposal technically acceptable “despite the assumptions”); tr. at 188:12‑18 (agency’s instruction regarding the assumptions was a means of “telegraph[ing]” to Paragon to increase its staffing). Indeed, the agency “effectively disregarded” Paragon’s assumptions, tr. at 58:1-14, and if the EN were re-written, “it would just say [that] the hours” were the problem. Tr. at 74:11-12.

We find that the agency conducted misleading discussions by directing the protester to remove certain assumptions from its proposal, when those assumptions were not, in fact, of concern to the agency. The record shows that, contrary to the language in the EN, it was possible for Paragon to have retained the assumptions, reduced its staffing by a lesser amount, and still been found technically acceptable. Tr. at 73:18-20 (“[T]here was no threshold, no magic number of [whether a staffing reduction] beyond [DELETED] percent or [DELETED], or whatever number” would still be acceptable). We conclude that, because the EN directed the protester to change its proposal in a manner that did not reflect the basis of the agency’s concern, the discussions were misleading. See SeKON, supra. Accordingly, we sustain this basis of protest.  (Paragon Technology Group, Inc. B-412636, B-412636.2: Apr 22, 2016)  (pdf)


Diversity challenges the terms of the amended solicitation. Diversity maintains that the evaluation of prime contractor experience unduly restricts competition, as it has prevented Diversity from submitting a quotation in response to the revised RFQ. Specifically, Diversity asserts this requirement restricts it from competing because it must rely upon its subcontractors to demonstrate experience with the SOW’s new focus on internet media.

The agency asserts that the goal of this experience evaluation was to determine whether the prime contractor has the necessary experience to perform the contract. The agency explains that “the work contemplated by this contract involves managing the public face of the Agency in a wide range of highly visible marketing efforts,” and thus, “the prime contractor, who will be directly answerable on these projects, must have adequate experience in this type of work.” Agency Legal Memorandum at 10. Given the high visibility of the work, the agency states that it has a clear business need to reduce its risk by ensuring that the agency has a direct contract with a firm that has experience performing projects of similar size, scope, and complexity to the work being performed here.

In FSS buys, as in other procurements, a contracting agency has the discretion to determine its needs and the best method to accommodate them. 41 U.S.C. §§ 3306(a)(1)(A), (2)(B); Boehringer Ingelheim Pharm., Inc., B-294944.3, B-295430, Feb. 2, 2005, 2005 CPD ¶ 32 at 4. Where a protester challenges a solicitation provision as unduly restrictive of competition, the procuring agency must establish that the provision is reasonably necessary to meet the agency’s needs. HK Consulting, Inc., B-408443, Sept. 18, 2013, 2013 CPD ¶ 224 at 2. We examine the adequacy of the agency’s justification for a restrictive solicitation provision to ensure that it is rational and can withstand logical scrutiny. See SML Innovations, B-402667.2, Oct. 28, 2010, 2010 CPD ¶ 254 at 2. The determination of a contracting agency’s needs, including the selection of evaluation criteria, is primarily within the agency’s discretion and we will not object to the use of particular evaluation criteria so long as they reasonably relate to the agency’s needs in choosing a contractor that will best serve the government’s interests. HK Consulting, Inc., supra.

Here, we think the record supports the agency’s position that the prime contractor experience restriction is reasonably related to its needs. In this regard, the agency claims it needs to limit the risk of unsuccessful performance with respect to its high-visibility project, and as we have concluded in similar circumstances, the agency’s desire to reduce the risk of unsuccessful performance can be rationally achieved by restricting consideration of experience and past performance to the firms contractually obligated to meet the agency’s requirements. Valor Constr. Mgmt., LLC, B-405365, Oct. 24, 2011, 2011 CPD ¶ 226 at 3 (agency’s decision not to consider team member’s experience and past performance was not unduly restrictive of competition); see Emax Fin. & Real Estate Advisory Servs., LLC, B‑408260, July 25, 2013, 2013 CPD ¶ 180 at 6 (agency’s concern with limiting risk of unsuccessful performance by favoring experience of firms that will be in privity with the government reasonably relates to agency’s needs in choosing a contractor that will best serve its interests with respect to a complex project). Given this, we find nothing improper about the RFQ provision that restricts the agency’s evaluation of experience to the prime contractor. While the protester contends that it cannot compete under the amended RFQ, the fact that a requirement may be burdensome, or even impossible for a particular firm, does not make it objectionable if it meets the agency’s needs. Advanced Commc’n Cabling, Inc., B-410898.2, Mar. 25, 2015, 2015 CPD ¶ 113 at 6-7.  (Diversity Marketing and Communications, LLC B-412196.2: Mar 9, 2016)  (pdf)


The protester argues that the resumes of its key personnel showed that the personnel in question possessed the [independent verification and validation  services] IV&V experience required by the RFQ, and that the agency’s evaluation of key personnel failed to follow the evaluation criteria. Protest at 19, 25; Protester’s Comments at 5.

The agency asserts that its evaluation was reasonable. LM/COS at 5-12. With respect to the project manager, the agency explains that the project manager’s resume did not clearly demonstrate IV&V management experience, but rather, showed more experience for project management and testing or quality assurance, and notes, further, that this was just one of several weaknesses identified. Id. at 5. With respect to the IV&V lead analyst, the agency also explains that it could not conclude that the person proposed possessed the experience required for this position, as his resume did not mention or discuss any experience he might have had with code review. Id. Further, while DSPEC’s quotation asserted that the proposed IV&V lead analyst possessed more than 30 years of “experience in IT design, development, testing, implementation, and operations/maintenance,” the proposed person’s resume did not reflect or adequately convey this experience, or place it in the context of the IV&V requirements here. Id. at 6, 11. Similarly, the agency found that the IV&V experience claimed by the proposed IV&V test lead could not be verified from his resume. Id. at 12.

Where, as here, an agency issues an RFQ to GSA FSS contractors under FAR subpart 8.4 and conducts a competition, we will review the record to ensure that the agency’s evaluation is reasonable and consistent with the terms of the solicitation and applicable procurement laws and regulations. Digital Solutions, Inc., B-402067, Jan. 12, 2010, 2010 CPD ¶ 26 at 3-4; DEI Consulting, B-401258, July 13, 2009, 2009 CPD ¶ 151 at 2. It is a vendor’s burden to submit an adequately-written quotation, and the vendor’s disagreement with an unfavorable rating of a poorly-written quotation, without more, does not establish that the evaluation was unreasonable. VariQ Corp., B-407193, Nov. 27, 2012, 2013 CPD ¶ 233 at 3.

We find no basis to sustain the protest. The RFQ required that the resumes of key personnel demonstrate certain minimum IV&V experiences. RFQ at 59. The record shows that the resumes for the project manager and the test lead did not contain references to, or sufficient details on, IV&V experience, respectively. Additionally, while the lead analyst’s resume included code analysis experience, it did not include references to code review, which was one of the minimum requirements of the SOW. The protester’s reiteration or summary of experience included in these resumes, without more, represents disagreement with the agency, and does not show that the agency’s evaluation was improper. In light of OPM’s determination that DSPEC’s key personnel did not meet the minimum requirements of the SOW, we conclude that the agency reasonably found the quotation to be unacceptable.  (DigitalSpec, LLC B-412344: Jan 20, 2016)


In its protest, Tiber Creek challenges the evaluation of proposals and the resulting source selection decision. Where, as here, an agency issues a solicitation to FSS contractors under FAR subpart 8.4 and conducts a competition, we will review the record to ensure that the agency’s evaluation is reasonable and consistent with the terms of the solicitation. SRM Group, Inc., B-410571, B-410571.2, Jan. 5, 2015, 2015 CPD ¶ 25 at 4. A protester’s disagreement with the agency’s judgment, without more, does not establish that an evaluation was unreasonable. See DEI Consulting, B-401258, July 13, 2009, 2009 CPD ¶ 151 at 2. Here, we have considered all of Tiber Creek’s arguments and find that none furnish a basis for questioning the selection of Arrowpoint’s proposal as the best value. We discuss several of Tiber Creek’s arguments below.

Price Realism

Tiber Creek, the incumbent contractor, asserts that the agency failed to perform an adequate price realism analysis. Tiber Creek primarily complains that while Arrowpoint indicated in its technical proposal that it would rely on incumbent personnel to perform the contract, it failed to propose sufficient labor rates to hire and retain incumbent personnel. Tiber Creek also complains that the price realism analysis is inadequate because the agency compared Arrowpoint’s price against the prices of offerors that were considered technically unacceptable.

Where a solicitation anticipates award of a fixed-price contract, there is no requirement that an agency conduct a price realism analysis, in the absence of a solicitation provision requiring such an analysis. B&B Medical Services, Inc., B-409705.2, Apr. 17, 2015, 2015 CPD ¶ 142 at 3. An agency, however, may, as here, provide for the use of a price realism analysis in the solicitation for the award of a fixed-price contract to assess the risk inherent in an offeror’s proposal or its understanding of the requirements. Id. The depth of an agency’s price realism analysis is a matter within the sound exercise of the agency’s discretion; our review of a price realism analysis is limited to determining whether it was reasonable and consistent with the terms of the solicitation. Id.

Here, contrary to Tiber Creek’s assertion, Arrowpoint did not focus its staffing plan on the use of incumbent personnel, and there is no basis for concluding that the agency credited Arrowpoint in the evaluation for proposing the use of incumbent personnel. In this regard, in its proposal, Arrowpoint explained that: “Our approach to staff for the contract includes engaging [Team Arrowpoint] technology experienced staff . . . for knowledge and support, a full set of key personnel, and the ability to engage technology experienced staff through recruiting if needed.” Arrowpoint Technical Proposal at 54. Likewise, in its staffing plan, Arrowpoint proposed that: “Team Arrowpoint . . . will first look to fill the positions with existing staff by having each company search, identify, and present candidates to the Staffing Manager.” Id. at 107. Thus, while in its proposal Arrowpoint does state that in order to reduce risk and maintain continuity of operations, it will make “every reasonable effort to hire qualified and high-performing incumbent personnel,” Id. at 108, that was not its primary approach to staffing the contract.

With respect to Tiber Creek’s argument that the agency used the prices of unacceptable offerors in its price realism analysis, the cost analyst prepared a price analysis in which he compared the prices quoted by the offerors and the number of hours proposed for line items against the prices for all other offerors and the government estimate. Price Proposal Evaluation at 7-28. Contrary to Tiber Creek’s argument, however, the basis of the price realism analysis in the source selection decision was not a comparison of the prices proposed by all offerors, including the technically unacceptable offerors. In this regard, in his source selection decision, the SSA discarded the government estimate, which was substantially higher than the prices proposed by any offeror, and focused on the prices of the three offerors that were evaluated as technically acceptable. SSDD at 6.

The SSA compared the proposed prices of the three acceptable offerors for CLINs 1 (RCMS operations and maintenance support), 2 (SMMS operation and maintenance support), and 3 (training), which comprised the great majority of the required staffing. While the SSA recognized that for CLIN 1 Arrowpoint’s price ($DELETED) was less than Tiber Creek’s ($DELETED), he noted that the offerors proposed “different technical approaches,” resulting in Arrowpoint proposing DELETED fewer hours than Tiber Creek (DELETED versus DELETED hours), and that incumbent offerors such as Tiber Creek tend to have higher labor costs. SSDD at 6; Supplemental Contracting Officer’s Statement (COS) at 4. The SSA also considered the prices in the work breakdown structure for each performance area, and determined that while the proposed prices varied, they were within DELETED percent of each other, which did not indicate any issues with price realism. Supplemental COS at 5. The SSA was of the view that given the different technical approaches, it was not unexpected that there would be a difference in proposed prices between the offerors; he found that the difference was relatively small and that each offeror understood the requirements. SSDD at 6. The SSA thus concluded that Arrowpoint’s price was consistent with its technical approach, and not so low as to indicate a lack of understanding or create risk. Id.; Supplemental COS at 4-5. Tiber Creek has not shown this conclusion to be unreasonable.  (Tiber Creek Consulting, Inc. B-411550.4, B-411550.5: Jan 6, 2016)  (pdf)


Specifically, KMBS argues that the Army’s exchanges with offerors actually constituted discussions, and that the agency therefore was required to identify other proposal concerns. We disagree.

As a preliminary matter, we note that this competition was limited to FSS vendors. As we have previously noted in our decisions, the procedures of FAR part 15 governing contracting by negotiation--including those concerning exchanges with offerors after receipt of proposals--do not govern competitive procurements under the FSS program. FAR § 8.404(a); USGC Inc., B‑400184.2 et al., Dec. 24, 2008, 2009 CPD ¶ 9 at 3. There is no requirement in FAR subpart 8.4 that an agency conduct discussions with vendors or offerors. See USGC Inc., supra. However, exchanges that do occur with vendors in a FAR subpart 8.4 procurement, like all other aspects of such a procurement, must be fair and equitable; our Office has looked to the standards in FAR part 15 for guidance in making this determination. A‑Tek, Inc., B‑404581.3, Aug. 22, 2011, 2011 CPD ¶ 188; USGC Inc., supra.

In this regard, FAR part 15 defines clarifications as “limited exchanges” that agencies may use to allow offerors to clarify certain aspects of their proposals or to resolve minor or clerical mistakes. See FAR § 15.306(a)(1), (2); Diversified Collection Servs., Inc., B‑406958.3, B‑406958.4, Jan. 8, 2013, 2013 CPD ¶ 23 at 11 (using FAR part 15 definitions of post-proposal communications, or exchanges, as guidance in FSS context). Discussions, by contrast, occur when an agency communicates with an offeror for the purpose of obtaining information essential to determine the acceptability of a proposal or quotations, or provides the offeror with an opportunity to revise or modify its proposal. Diversified Collection Servs., Inc., supra, at 11‑12; see FAR § 15.306(d).

Here, the protester’s insistence that the communications the agency had with the offerors constituted discussions (and not clarifications) is unavailing. Our review of the record confirms that the exchanges here were limited to clarifying whether the items offered and the respective unit prices were on the offerors’ GSA schedule. More specifically, the record reflects that an Army contract specialist asked all offerors the same two questions via email.[4] First, the specialist sought verification that “all part numbers and model numbers proposed” were on the offeror’s schedule, and she requested that the offeror provide the “GSA Schedule number, page number[,] modification etc.” to confirm that the item was on the schedule, as well as the specification sheet for the model proposed. AR, Tab F, Request for Clarification to KMBS, at 1. Second, with respect to pricing, she sought the formula and calculation used to arrive at the proposed unit prices, along with the specific portion of the offeror’s schedule that substantiated the calculation. Id. She also requested the GSA Special Item Number under which the proposed prices were authorized. Id. The contract specialist’s email expressly stated, “No changes to your company’s proposal are authorized. Any changes made will not be accepted by the government.” Id. In our view, these exchanges merely sought confirmation and verification to ensure that the items and prices proposed were on the offerors’ GSA schedule--offerors were not given an opportunity to materially change proposals--and fall quintessentially within the nature of clarifications.

On the other hand, had the Army advised KMBS that its proposal was unacceptable for failing to address its approach to phase-out and provided the firm with an opportunity to submit additional information to make its proposal acceptable, the agency’s actions would have been more analogous to discussions, and not additional clarifications as the protester contends. See Allied Tech. Group, Inc., B‑402135, B‑402135.2, Jan. 21, 2010, 2010 CPD ¶ 152 at 6 (“The ‘acid test’ for deciding whether discussions have been held is whether it can be said that an offeror was provided the opportunity to modify or revise its proposal.”). To the extent that the protester alternatively asserts that the agency should have engaged in discussions with the firm to remedy any issues, the argument is also without merit. The solicitation expressly warned offerors that the agency contemplated making award on the basis of initial proposals, without discussions. RFP, attach. 4, Basis for Award, at 1. Thus, the agency was not required to contact the protester to obtain information regarding its approach to phase-out. See Verizon Fed., Inc., B‑293527, Mar. 26, 2004, 2004 CPD ¶ 186 at 6. Rather, as discussed above, it was incumbent on KMBS to affirmatively demonstrate the merits of its proposal, and it risked rejection by failing to do so. See HDL Research Lab, Inc., B-294959, Dec. 21, 2004, 2005 CPD ¶ 8 at 5.  (Konica Minolta Business Solutions U.S.A., Inc. B-411888: Nov 10, 2015)  (pdf)


CLR contends that Spectrum’s quote was unacceptable based on the following alleged defects: (1) three of Spectrum’s CTA [Contractor Teaming Arrangements] partners’ GSA schedule contracts were terminated either prior to award or during the timeframe of the agency’s OCI investigation; and (2) Spectrum’s teaming arrangement with one of its teaming partners resulted in Spectrum proposing labor categories as “open market” items, in violation of the terms of the RFQ. For the reasons discussed below, we find that neither of the protester’s allegations provides a basis to sustain the protest.

As discussed above, the RFQ required that vendors hold three schedule contracts--MOBIS, IT, and AIMS--or enter into contractor teaming arrangements with teaming partners holding these schedules. RFQ, App. B, Evaluation Criteria, at 3. In this regard, the solicitation explained that contractor teaming arrangements were anticipated to ensure that all of the labor categories in the task order were quoted. Id. at 17. Spectrum itself holds a MOBIS schedule contract and IT schedule contract. AR, Tab 9, Spectrum Quote, pt. 2, at 1. In addition, Spectrum entered into CTA agreements with six teaming partners: A.T. Kearney; Decisive Analytics Corporation (DAC); Dar Public Relations, Inc.; Engility Corporation; Eventive Inc.; and Post Modern Company. AR, Tab 9, Spectrum Quote, pt. 2, at 3. These partners collectively held three MOBIS schedule contracts, four AIMS schedule contracts, and three IT schedule contracts. Id.

As relevant here, the RFQ specified that, “[n]o work shall be completed in support of this task order that isn’t prepriced on the prime contractor or their subsequent CTA partner schedule contracts.” RFQ at 17. The solicitation also stated that “[o]fferors must have a valid and approved GSA Schedule/SIN contract prior to submission of a quote,” and advised: “If any Offeror’s GSA Schedule contracts are not valid . . . the quote . . . will be considered unacceptable for consideration for this Task Order.” RFQ, App. C, Quote Format, at 1.

In addition, the RFQ required that vendors provide a cross-walk between the labor categories identified in the performance work statement (PWS) for the requirements, and the labor categories from the vendor’s proposed task order schedule contracts. RFQ at 16. In responding to this requirement, Spectrum’s quote mapped the PWS labor categories and requirements to Spectrum’s MOBIS and IT schedule contracts, as well as to the MOBIS schedule contract and IT schedule contract of one of Spectrum’s CTA partners, DAC, and the AIMS schedule contract of another Spectrum CTA partner, Post Modern. AR, Tab 17, Spectrum Revised Quote, pt. 2, at 23. Spectrum’s quote also used pricing from Spectrum’s, DAC’s and Post Modern’s schedule contracts for its proposed labor categories and mix. Id. In responding to the PWS task order requirements, Spectrum’s quote did not specifically rely on any labor categories or pricing from any of the other teaming partners. Id.

CLR first argues that Spectrum’s quotation was unacceptable because three of the FSS schedule contracts proposed by Spectrum’s CTA partners were terminated either prior to award or during the timeframe of GSA’s OCI investigation. Specifically, the protester contends that Spectrum’s CTA partner, Engilty, did not possess a valid AIMS schedule contract at the time of award, and that another of Engility’s FSS contracts--its IT schedule contract--was terminated during the agency’s OCI investigation, which took place during the agency’s corrective action in response to CLR’s initial protest. In addition, CLR asserts that the AIMS schedule contract of one of Spectrum’s other CTA partners, Eventive, was also terminated during the agency’s OCI investigation.

GSA does not dispute that these three GSA schedule contracts were terminated at the times indicated by the protester. Supp. AR (Dec. 22, 2014), at 2. GSA asserts, however, that based on the RFQ’s requirements and the contents of Spectrum’s proposal, it did not know, and could not have known, at the time of award or prior to this protest, that any of the GSA schedule contracts held by Spectrum’s CTA partners had been terminated. GSA further argues that, because Spectrum’s proposed solution and pricing relied solely on valid FSS schedule contracts--and not on any of the three terminated schedule contracts--the unavailability of the three terminated schedule contracts does not impact Spectrum’s ability to provide its proposed solution at its proposed price.

The protester contends that Spectrum’s failure to notify GSA regarding the terminated status of its CTA partners’ schedule contracts was tantamount to an intentional misrepresentation. Protester’s Comments (Dec. 15, 2014), at 7 n.4. We recognize that a vendor has a duty to notify an agency of material changes in proposed staffing and resources, even after submission of proposals. See Greenleaf Constr. Co., Inc., B-293105.18, B‑293105.19, Jan. 17, 2006, 2006 CPD ¶ 19 at 10; Dual, Inc., B-280719, Nov. 12, 1998, 98-2 CPD ¶ 133 at 5-6. Even if Spectrum was required to notify GSA of the changes to its CTA partners’ FSS contracts, the protester has failed to demonstrate any prejudice based on the awardee’s failure to do so. McDonald-Bradley, B‑270126, Feb. 8, 1996, 96-1 CPD ¶ 54 at 3 (competitive prejudice is a necessary element of any viable bid protest).

While CLR argues that Spectrum’s proposal was unacceptable because it incorporated the terminated schedule contracts, the protester fails to point to any evidence that Spectrum’s proposed solution for performing the PWS requirements relied upon the now terminated schedule contracts. Rather, as discussed above, the record reflects that Spectrum’s quotation did not map the PWS labor categories or requirements to the labor categories of any of the three terminated schedule contracts, and that Spectrum’s quoted pricing did not rely on the pricing from any of the three terminated schedule contracts. AR, Tab 17, Spectrum Revised Quote, pt. 2, at 23. In addition, the protester does not argue, nor does the record reflect, that the selection decision was based on the terminated schedule contracts, or that removal of the terminated schedule contracts from Spectrum’s quote would render any portion of Spectrum’s quote infeasible, or in any way prevent the awardee from performing as proposed.

Although we agree with the protester that the RFQ stated that a quote would be considered unacceptable if the vendor’s schedule contracts were not valid at the time of proposal submission, this provision must be read in conjunction with the RFQ’s requirement that a vendor “must have a valid and approved GSA Schedule/SIN contract prior to submission of a quote in response to this RFQ.” RFQ, App. C, Quote Format, at 1. As discussed above, the solicitation required only that the vendor, or a teaming partner, hold one of each of the three schedules identified in the RFQ. Id. Even removing the three terminated schedule contracts from consideration, Spectrum’s quote still clearly met this RFQ requirement. Based on this record, the protester has failed to demonstrate prejudice, and therefore, we have no basis for sustaining CLR’s protest on this ground.  (Council for Logistics Research, Inc. B-410089.2, B-410089.3: Feb 9, 2015) (pdf)


Cleo asserts that the agency improperly issued the task order to Ricoh Americas Corporation under GSA FSS schedule contract No. GS-35F-0196V when, according to the protester, this schedule contract is actually held by Ricoh USA, Inc., a different business entity and the entity that actually submitted the quotation.

Where, as here, an agency issues an RFQ to FSS contractors under Federal Acquisition Regulation subpart 8.4 and conducts a competition, we will review the record to ensure that the agency's evaluation is reasonable and consistent with the terms of the solicitation. Digital Solutions, Inc., B-402067, Jan. 12, 2010, 2010 CPD ¶ 26 at 3-4; DEI Consulting, B-401258, July 13, 2009, 2009 CPD ¶ 151 at 2.

Cleo’s argument is without merit. In this regard, the agency explains that solicitations are posted to specific GSA schedules and only holders of a contract under the specific schedule have direct access to that solicitation. Agency Email, Dec. 13, 2014. When an offeror posts a response the agency sees the offeror’s identifying information, including the name, DUNS number, and schedule contract it holds. Id. Here, the record indicates that the GSA eBuy portal identified Ricoh Americas Corporation as the sender and listed it as the holder of schedule contract No. GS-35F-0196V. Supplemental Agency Report (SAR) (Dec. 11, 2014) at 5. The agency used the GSA Electronic Contract Management System (eCMS) to produce the contract documentation, which resulted in the order being issued with the name Ricoh Americas Corporation. Id.

However, the quotation that the agency printed out had Ricoh USA, Inc., not Ricoh Americas Corporation, as the vendor. Agency Email, Dec. 19, 2014. In this regard, Ricoh USA had signed a novation agreement with Ricoh Americas Corporation that transferred GSA FSS contract No. GS-35F-0196V to Ricoh USA. SAR at 5. GSA, however, had not yet updated eCMS, which resulted in the award being issued under the name Ricoh Americas Corporation. Id. The Federal Procurement Data System, however, lists Ricoh USA as the awardee, reflecting the updated name of the contract holder. Id. As Ricoh USA is the successor in interest to Ricoh Americas Corporation as a result of the novation, is currently the holder of contract No. GS-35F-0196V, and submitted the quotation, we find that the award was not improper on this basis.  (Cleo Communications US, LLC B-410552: Jan 6, 2015)  (pdf)


VHSS argues that the RFQ is overly restrictive and precludes its participation. VHSS asserts that it is a SDVOSB with a FSS Schedule 65 II A contract, and that it has a current teaming agreement in place with CAS Medical Systems, Inc. (an OEM), which has a FSS contract under the required SIN. VHSS contends that there is no valid reason for the solicitation to restrict CTAs to only those entities that have both the FSS Schedule contract and SIN for the items here, and argues that the RFQ should permit all applicable FSS contract holders who have a team arrangement with the OEM to compete. Protest at 2.

The agency responds that the requirement that each member of a CTA have an FSS contract under the applicable schedule and SIN is not unduly restrictive or otherwise improper. The VA points out that this procurement is for supplies contained only under SIN A-50A, and that VHSS’s FSS contract does not have these supplies. The agency contends that allowing a vendor (such as the protester) to team with an OEM that would provide all of the required items while the vendor provides none would be contrary to GSA’s guidelines for CTAs and would undermine the SDVOSB set-aside. AR, June 26, 2014, at 5.

The FSS program, directed and managed by GSA, gives federal agencies a simplified process for obtaining commonly used commercial supplies and services. See generally FAR subpart 8.4. Where an agency announces its intention to order from an existing FSS, all items quoted and ordered are required to be on the vendor’s schedule contract as a precondition to its receiving the order. Desktop Alert, Inc., B-408196, July 22, 2013, 2013 CPD ¶ 179 at 4; Science Applications Int’l Corp., B-401773, Nov. 10, 2009, 2009 CPD ¶ 229 at 2 n.1.

In FSS buys, as in other procurements, a contracting agency has the discretion to determine its needs and the best method to accommodate them. 41 U.S.C. §§ 3306(a)(1)(A), (2)(B) (2012); Boehringer Ingelheim Pharm., Inc., B-294944.3, B-295430, Feb. 2, 2005, 2005 CPD ¶ 32 at 4. Where a protester challenges a solicitation provision as unduly restrictive of competition, the procuring agency must establish that the provision is reasonably necessary to meet the agency’s needs. See Total Health Res., B-403209, Oct. 4, 2010, 2010 CPD ¶ 226 at 3. We examine the adequacy of the agency’s justification for a restrictive solicitation provision to ensure that it is rational and can withstand logical scrutiny. HealthDataInsights, Inc.; CGI Federal Inc., B-409409 et al., Apr. 23, 2014, 2014 CPD ¶ 134 at 4; SMARTnet, Inc., B-400651.2, Jan. 27, 2009, 2009 CPD ¶ 34 at 7.

A CTA under GSA schedule contracts is a written agreement between two or more schedule contractors to work together to meet an agency’s requirements and to maximize a vendor’s competitiveness. See GSA CTA Guidance, www.gsa.gov/contractorteamarrangements. Ordering activities may, because of the existence of CTAs, procure a total solution rather than making separate buys for each part of a requirement. Id. The CTA details the responsibilities of each team member. Id. CTAs under GSA schedule contracts differ from traditional prime contractor-subcontractor arrangements in that: (1) each team member has privity of contract with the government for the goods or services that it is providing, (2) each team member is responsible for its duties laid out in the CTA document, and (3) each team member must have a GSA schedule contract. Id.; see also Brooks Range Contract Servs., Inc., B-405327, Oct. 12, 2011, 2011 CPD ¶ 216 at 4.

In response to our request, GSA provided the following comments on VHSS’s protest:

Ordinarily, Contractor Team Arrangement (CTA) members’ combined capabilities are aimed at a “total solution” and allow for the members collectively to meet government needs that each may not otherwise be capable of doing individually. In a conventional CTA, each CTA member would have at least one SIN on its respective schedule contract in furtherance of meeting the Government’s needs. Here, however, the VA is setting up a BPA for a single SIN only (the items to be procured are solely available under Schedule 65II-A, SIN A-50A).

* * * * *

If the procurement at issue is for a single SIN, then it would stand that both/all members of a CTA would need to have the particular SIN on their respective FSS contract . . . . [F]or the RFQ at issue, if a CTA is being used (which is permitted by the solicitation terms), both/all team members would need to hold a Schedule 65II-A contract with SIN A-50A.

GSA Comments, July 31, 2014, at 2.

We find that the solicitation requirement here--that each member of a CTA hold its own FSS contract under schedule 65 II and SIN A-50A--is not unduly restrictive of competition or otherwise improper. As noted above, all the vital signs monitors that will be procured under the BPA are on a single SIN, and VHSS’s FSS contract does not contain these vital signs monitors and this SIN. Consequently, VHSS would not under its CTA with CAS Medical provide any of the required supplies from its own FSS contract. This would be inconsistent with GSA’s view that “CTA members are to be prime contractors with respect to each member’s particular [items] being offered as part of a total solution.” GSA Comments, July 31, 2014, at 3. Rather, VHSS’s interpretation of the solicitation’s CTA requirement would result in a situation where VHSS would not be in privity of contract with the government, and would not actually receive any orders under its schedule contract. Accordingly, we find that the RFQ’s restriction of CTAs to only those under which all members have schedule contracts under the identified schedule and SIN is reasonable.

VHSS does not dispute that all of the vital signs monitors it plans to quote would come from CAS Medical’s schedule contract, and none from its own FSS contract. Rather, VHSS points out that CAS Medical is not an SDVOSB concern, and therefore could not directly compete for an order here. VHSS Comments, Aug. 5, 2014, at 1. Quite simply, VHSS’s purported CTA with CAS Medical was for the purpose of allowing it to receive FSS orders for supplies not on its FSS contract, while allowing CAS Medical to participate in a procurement for which it, as a non‑SDVOSB concern, was not eligible. We agree with the VA and GSA that such an arrangement is inconsistent with both the rules for conducting FSS procurements and the purpose for setting aside such procurements for SDVOSBs.  (Veterans Healthcare Supply Solutions, Inc., B-409888: Sep 5, 2014)  (pdf)


MSC argues that despite the RFQ’s admonition that unbalanced pricing might lead to rejection of a quotation, Grainger and several other vendors quoted prices that were grossly unbalanced as between the market basket and the non-market basket items. The protester contends that Grainger and the other firms manipulated the market basket analysis by dramatically reducing their schedule prices for the market basket items prior to submitting their quotes, which allowed them to achieve low evaluated prices, but without offering meaningful discounts for the non-market basket items.

For example, regarding the hardware category, based on the discounts offered from its GSA schedule prices for the market-basket items, MSC committed to a non‑market basket discount threshold of [deleted]. Because the other vendors had drastically cut their GSA schedule prices for the market basket items prior to submitting their quotes, the discounts they had to offer for the non-market basket items were much smaller. Specifically, Grainger committed to a non-market basket discount threshold of only [deleted], and Wrigglesworth, WECsys, The Office Group, and Premier committed to non-market basket discount thresholds of [deleted] respectively. AR, Tab 6. In other words, these vendors achieved low evaluated prices without committing to offering significant discounts on the non-market basket items. According to MSC, the government may ultimately pay higher prices overall as a result of the successful vendors’ pricing strategy.

Unbalanced pricing exists where the prices of one or more line items are significantly overstated, despite an acceptable total evaluated price (typically achieved through under pricing of one or more other line items). General Dynamics--Ordnance & Tactical Sys., B-401658, B-401658.2, Oct. 26, 2009, 2009 CPD ¶ 217 at 5. To prevail on an allegation of unbalanced pricing, a protester must show that one or more prices in the allegedly unbalanced quotation are overstated; that is, it is insufficient for a protester to show simply that some line item prices in the quotation are understated. See Academy Facilities Mgmt.--Advisory Opinion, B-401094.3, May 21, 2009, 2009 CPD ¶ 139 at 15. This is so because low prices (even below-cost prices) are not improper and do not themselves establish (or create the risk inherent in) unbalanced pricing. Id.

Here, MSC’s allegation of unbalanced pricing has no basis. As an initial matter, we find MSC’s argument to be fundamentally misplaced since it is premised on a comparison of vendor’s market basket item prices with their non-market basket prices. Such a comparison has no basis in the solicitation since it did not provide for evaluation of the non-market basket items. Moreover, the protester does not establish that any prices offered by Grainger (or any other successful vendor) are overstated. Indeed, given that the market basket prices of all successful vendors are offered at a discount from the vendors’ schedule prices, which have already been determined fair and reasonable, see FAR § 8.404(d) (GSA has already determined the prices of supplies under schedule contracts to be fair and reasonable), it is not apparent how these vendors’ BPA prices could be overstated.  (MSC Industrial Direct Company, Inc., B-409585, B-409585.4, B-409585.9: Jun 12, 2014)  (pdf)


Where an agency conducts a formal competition for the establishment of BPAs, we will review the agency’s actions to ensure that the evaluation was reasonable and consistent with the solicitation and applicable procurement statutes and regulations. OfficeMax, Inc., B-299340.2, July 19, 2007, 2007 CPD ¶ 158 at 5.

The protester contends that five of the selected vendors listed--on their [maintenance, repair, and office] MRO supplies quote sheets--an item manufactured in a country not on the [Trade Agreements Act] TAA designated country list, in violation of the RFQ requirement for TAA compliance. Specifically, Kipper argues that for item T056 (Arbor Mount Flap Disc), SPS, The Office Group, Grainger, Premier, and WECsys all offered an item manufactured in Turkey.

As an initial matter, the record reflects that each vendor provided a declaration assuring that the items were TAA compliant or that it would continue to assure compliance with its TAA certification in connection with its underlying GSA schedule contract. Moreover, with regard to T056 specifically, the record shows that, SPS, The Office Group, and Grainger each identified the country of origin for the listed item as CA [Canada], whereas both WECsys and Premier identified the country of origin as US. Canada is on the designated country list; accordingly, there was nothing on the face of the quote sheets that would have placed the agency evaluators on notice that the country of origin for any vendor’s item might be other than the U.S. or a TAA designated country. See Leisure-Lift, Inc., B-291878.3, B-292448.2, Sept. 25, 2003, 2003 CPD ¶ 189 at 8 (an agency may properly rely upon a firm’s representations/certification of TAA compliance unless the agency has reason to believe that the firm will not provide a compliant product).

Kipper further argues that four of the selected vendors (i.e., Premier, The Office Group, WECsys, and SPS) were not authorized resellers of Snap-On tools as of the RFQ closing date, and thus fail to comply with the solicitation requirement that all items included in their quotations be available on their MAS 51 V contracts prior to RFQ closing.

Availability, per the solicitation, however, was simply a question of whether a vendor listed item was on the vendor’s MAS 51 V contract at the time the RFQ closed. RFQ at 2. Whether a vendor is capable of supplying items listed on its quote sheets, in this case Snap-On tools, is a performance requirement, which does not affect the award decision except as a matter of responsibility. See Wright Tool Co., B-272413, Sept. 11, 1996, 96-2 CPD ¶ 113 at 3. Since the responsibility determinations were made in connection with the successful vendors’ MAS 51 V contracts, no such further determination was required here. Synergetics, Inc., B-299904, Sept. 14, 2007, 2007 CPD ¶ 168 at 3 n.2.  (Kipper Tool Company, B-409585.2, B-409585.3: Jun 19, 2014)  (pdf)


The protesters argue that the payment terms of these solicitations are inconsistent with customary commercial practice . . . .

Customary Commercial Practice

First, both protesters assert that the solicitations’ payment terms, which require the contractors to wait more than 120 days and as long as 420 days to invoice for payment, are inconsistent with customary commercial practice, and thus could not be properly included in these commercial item acquisitions. HDI Protest at 9; CGI Protest at 6. In support of this assertion, the protesters point to their incumbent contracts, which provided for payment once the overpayment was collected; payment was not conditioned on the appeals process. HDI Protest at 10; CGI Protest at 6-7; see also CGI AR, Tab 4, Contract No. HHSM-500-2009-00003C, § B.3. The protesters argue that it was improper for the agency to include in the solicitations payment terms different than those in the incumbent contracts without first issuing a waiver, in accordance with the procedures outlined in FAR § 12.302. HDI Protest at 10; CGI Protest at 6. In this regard, FAR § 12.302(c) bars the tailoring of solicitations for commercial items in a manner inconsistent with customary commercial practice unless a waiver is approved. FAR § 12.302(c); see also, e.g., Smelkinson Sysco Food Servs., B-281631, Mar. 15, 1999, 99-1 CPD ¶ 57 at 6 (sustaining protest of the terms of a solicitation where the agency failed to obtain a waiver prior to including terms in the solicitation that were inconsistent with customary commercial practice).

We disagree with the protesters that CMS was required to follow FAR Part 12 procedures, including those concerning the tailoring of solicitations or contracts, when it ordered the recovery audit services off of a GSA schedule contract. In this regard, FAR Part 12 identifies policies and procedures for the acquisition of commercial items, and contracting officers are instructed to use Part 12 procedures in conjunction with those prescribed in FAR Parts 13 (simplified acquisition procedures), 14 (sealed bidding), or 15 (contracting by negotiation), as appropriate for the particular acquisition. FAR §§ 12.102(b), 12.203. FAR Part 12 does not mandate its use in connection with FAR Subpart 8.4 procurements, like the acquisition here. Instead, agencies are required to use the procedures detailed in FAR Subpart 8.4 when placing orders (or establishing a blanket purchase agreement (BPA)) against a GSA schedule contract. FAR § 8.405. Moreover, FAR Subpart 8.4 does not require agencies to issue a waiver before including terms or conditions that are inconsistent with customary commercial practice in a solicitation. Accordingly, because FAR Part 12 procedures do not apply to orders being placed against the FSS, and CMS was not required to issue a waiver before including any provisions in the solicitations that were inconsistent with customary commercial practices, the protesters arguments in this regard do not provide a basis to sustain the protest.

Additionally, in support of their position that CMS was required to issue a waiver before including the payment terms in the RFQs, the protesters rely on our decision in Verizon Wireless, B-406854, B-406854.2, Sept. 17, 2012, 2012 CPD ¶ 260. See HDI Protest at 9-10; CGI Protest at 6. In Verizon Wireless, we sustained a challenge to the terms of a GSA solicitation establishing a BPA under FAR Subpart 8.4, holding that GSA had not performed adequate market research to demonstrate that certain solicitation terms were consistent with customary commercial practice, and that the agency erred by not issuing a waiver before it included the terms in the RFQ. Verizon Wireless, supra, at 6. In that case, unlike the one here, the applicability of FAR § 12.302 to the establishment of a BPA pursuant to FAR Subpart 8.4 was not disputed. Moreover, the protester in Verizon Wireless argued that some of the RFQ clauses being challenged were “substantially different” from related clauses in the underlying FSS contract, creating a conflict, and other clauses were inconsistent with GSA regulations, points not raised in this protest. See id. at 7, 11. We note further that we sustained Verizon Wireless in part because the agency there failed to respond to the merits of various arguments presented by the protester. Id. at 14. Accordingly, we distinguish Verizon Wireless on these bases. To the extent that the decision here, as it relates to the applicability of FAR Part 12 procedures to FSS procurements, contradicts our holding in Verizon Wireless, that case will no longer be followed in this respect.  (HealthDataInsights, Inc.; CGI Federal Inc., B-409409, B-409449, B-409449.2, B-409470, B-409470.2, B-409482, B-409482.2: Apr 23, 2014)  (pdf)


Homecare contends that the VA is required to procure the ramps using the FSS, since the ramps are readily available for purchase through the FSS, and that the installation services should be separately purchased from the FSS vendors when the ramps are ordered, since the cost for each installation would be under the micro-purchase threshold. Protest at 1-2; Protester’s Comments at 4-6.

As a general matter, the FSS program gives federal agencies a simplified process for obtaining commonly used commercial supplies and services. See generally FAR subpart 8.4. In FSS buys, as in other procurements, the determination of what the agency needs, and which products or services meet those needs, is within the agency’s discretion. Draeger Safety, Inc., B-285366, B-285366.2, Aug. 23, 2000, 2000 CPD ¶ 139 at 4. Contracting agencies may only place orders with an FSS vendor whose schedule contract contains the goods or services sought by the government. Altos Fed. Group, Inc., B-294120, July 28, 2004, 2004 CPD ¶ 172 at 4. The sole exception to this requirement is for items that do not exceed the micro-purchase threshold of $3,000 since such items may be purchased outside the normal competition requirements. FAR §§ 13.201, 13.202; see SMS Sys. Maint. Servs., Inc., B-284550.2, Aug. 4, 2000, 2000 CPD ¶ 127 at 2; CourtSmart Digital Sys., Inc., B-292995.2, B-292995.3, Feb. 13, 2004, 2004 CPD ¶ 79 at 5.

As noted above, the VA conducted market research to identify potential FSS vendors capable of meeting the agency’s need to purchase both prosthetic ramps and ramp installation services. In reviewing the responses to the e-buy posting, the agency found that ramp installation services were not included in the vendors’ FSS contracts. Nonetheless, the protester maintains that the agency should establish the BPA’s under the FSS and simply order installation services from the FSS contractors as non-FSS items under the micro-purchase authority. We disagree. The agency properly concluded that this was not a viable acquisition strategy since the total value of the non-FSS portion of the requirement (the ramp installation services) significantly exceeds the $3,000 micro-purchase threshold over the contemplated 5-year ordering period. As we explained in SMS Sys. Maint. Servs., Inc., supra, an agency may properly consider the overall value of items to be ordered during the life of a FSS contract for the purpose of determining whether non-FSS items or services would exceed the micro-purchase threshold. Moreover, because contracting officers are prohibited from dividing requirements into several purchases to avoid exceeding the micro-purchase threshold, see id., the VA properly considered the overall value of all the installation requirements, as opposed to the value of each order, when it decided on the appropriate acquisition strategy.  (Homecare Products, Inc., B-408898.2: Mar 12, 2014)  (pdf)


Lastly, VariQ challenges the selection official’s price/technical tradeoff and selection decision. Supp. Protest at 2. The protester argues that the alleged evaluation flaws, discussed above, resulted in an unreasonable source selection decision. Comments/Second Supp. Protest at 32. VariQ also complains that the selection official gave undue weight to the past performance factor. Id. at 23.

Where, as here, a procurement conducted pursuant to FAR subpart 8.4 provides for issuance of a task order on a best-value basis, it is the function of the source selection authority to perform a price/technical tradeoff, that is, to determine whether one quotation’s technical superiority is worth its higher price. InnovaTech, Inc., B-402415, Apr. 8, 2010, 2010 CPD ¶ 94 at 6; The MIL Corp., B-297508, B‑297508.2, Jan. 26, 2006, 2006 CPD ¶ 34 at 13. Even where a solicitation issued under FAR subpart 8.4 emphasizes technical merit over price, an agency properly may select a lower-priced, lower-rated quotation if the agency reasonably concludes that the price premium involved in selecting a higher-rated, higher-priced quotation is not justified in light of the acceptable level of technical competence available at a lower price. Belzon, Inc., supra, at 11; George G. Sharp, Inc., B-401077, B‑401077.2, Apr. 15, 2009, 2009 CPD ¶ 87 at 6; LEADS Corp., B-311002, B‑311002.2, Mar. 26, 2008, 2008 CPD ¶ 86 at 3. The extent to which technical superiority is traded for a lower price is governed only by the test of rationality and consistency with the stated evaluation criteria. Belzon, Inc., supra.

Contrary to the protester’s assertion, the record here shows a reasonable, adequately-documented source selection that is consistent with the terms of the RFQ. As discussed above, the contracting officer provided the selection official a memorandum that detailed the SET’s findings--including the specific individual strengths and weaknesses associated with the vendors’ quotations--and the results of the price evaluation. See AR, Tab 14, Contracting Officer’s Negotiation Memorandum, at 1-52. The record reflects that the selection official considered the evaluation results and ultimately agreed with the contracting officer’s recommendation to issue the task order to BITS. Despite VariQ’s quotation’s “numerous strengths” and “exceptional approach,” the selecting official reasonably concluded that any technical advantage enjoyed by VariQ’s quotation was simply not worth the “significant” 72.64 percent price premium as compared to BITS’s quotation. AR, Tab 15, Award Decision Document, at 34, 45. Since, as discussed above, there was nothing objectionable in BITS’s technical evaluation, we do not object to the source selection on this basis. Further, we see no indication in the record that the selection official, in making the source selection, placed undue emphasis on past performance, as the protester alleges. On the contrary, the selection official’s tradeoff analysis was consistent with the RFQ, and the record adequately supports the source selection.  (VariQ Corporation, B-409114, B-409114.2, B-409114.4: Jan 27, 2014)  (pdf)


Teknion argues that Kimball’s quote should have been rejected as nonresponsive because it relied on an unsigned contractor teaming agreement to satisfy the RFQ’s requirements. Supp. Protest at 4-9. To support its arguments, the protester cites the RFQ’s requirement that products quoted must be on the vendor’s FSS contract at the time of receipt of the quote. Teknion contends that since the teaming agreement submitted with Kimball’s quote was unsigned, the agreement was not valid, and therefore, Kimball’s quote offered items that were not on its FSS contract at the time of quotes.

FSS procedures provide agencies a simplified process for obtaining commonly used commercial supplies and services, Federal Acquisition Regulation (FAR) § 8.401(a), and, although streamlined, satisfy the requirement for full and open competition. 41 U.S.C. § 259(b)(3) (2006); FAR § 6.102(d)(3). Where an agency announces its intention to order from an existing FSS, all items quoted and ordered are required to be on the vendor’s schedule contract as a precondition to its receiving the order. LS3 Techs. Inc., supra, at 9; Science Applications Int’l Corp., B-401773, Nov. 10, 2009, 2009 CPD ¶ 229 at 2.

Here, the awardee’s quote notified the agency that Kimball planned to provide the requested items using a contractor teaming agreement. The quote offered only items that were on the FSS contracts of Kimball or its teaming partners, and prior to issuance of the order, the agency received a signed copy of the agreement. The RFQ required that the requested items be on the offerors’ FSS contracts at the time of submission of the quote, but the RFQ did not establish a deadline for submission of signed teaming agreements. Kimball submitted a quote that notified the agency of the existence of a teaming agreement and, in compliance with the RFQ’s requirements, demonstrated that all of the offered items were on the FSS contracts of Kimball or its teaming partners. Further, the agency confirmed that the teaming agreement was valid by receiving a signed version of the agreement prior to making award. Under these circumstances, the awardee’s quote satisfied the requirements of the RFQ and the FAR. Therefore, we deny the protester’s argument that Kimball’s quote was nonresponsive.  (Teknion LLC B-407989, B-407989.2, May 8, 2013)  (pdf)




SoBran challenges the agency’s evaluation of its past performance and the best value determination. Essentially, the protester complains that its overall past performance rating of very good was too low and argues that the agency failed to properly consider SoBran’s superior performance in the best value tradeoff. The protester also complains that the agency failed to adequately document or explain its evaluation.

Where, as here, an agency issues an RFQ to FSS contractors under FAR subpart 8.4 and conducts a competition, we will review the record to ensure that the agency’s evaluation is reasonable and consistent with the terms of the solicitation and applicable procurement laws and regulations. Digital Solutions, Inc., B-402067, Jan. 12, 2010, 2010 CPD ¶ 26 at 3-4; DEI Consulting, B-401258, July 13, 2009, 2009 CPD ¶ 151 at 2.

The record shows that the agency considered SoBran’s past performance record consistent with the RFQ’s evaluation methodology, which required a qualitative assessment of past performance. RFQ at 58. Despite the protester’s focus on the evaluation ratings, the record actually shows that the contracting officer considered the CPAR evaluators’ narrative assessments, not simply the adjectival ratings. For example, the contracting officer acknowledged that the CPAR evaluators found that SoBran provides timely, high quality reports, that it exceeds contract requirements, that it ships warehouse items with over 99 percent accuracy, and that it is proactive and efficient, among other things. AR, Tab 8, Evaluation & Award Memorandum, at 10-11. The contracting officer also considered the Secret Service evaluator’s positive assessment that it would issue a new contract to SoBran given the opportunity. Id. at 11. In other words, the agency complied with the RFQ by qualitatively evaluating the protester’s past performance.

The contracting officer then determined that the protester’s superior performance was not worth the $425,000 price differential. Where, as here, a procurement conducted pursuant to FAR subpart 8.4 provides for award on a “best value” basis, it is the function of the source selection authority to perform a price/technical tradeoff, that is, to determine whether a quotation’s technical superiority is worth its higher price. InnovaTech, Inc., B-402415, Apr. 8, 2010, 2010 CPD ¶ 94 at 6; The MIL Corp., B-297508, B-297508.2, Jan. 26, 2006, 2006 CPD ¶ 34 at 13. Although SoBran disagrees with the agency’s best value determination, we do not see, and the protester has not persuasively demonstrated, that it was unreasonable, under a FSS best value procurement, for a federal agency to determine that it was not worth paying nearly half a million dollars more for warehousing services based on the protester’s superior past performance.

In sum, the record here shows that the agency conducted a reasonable past performance evaluation and cost/technical tradeoff.  (SoBran, Inc. B-408420, B-408420.2, Sep 10, 2013)  (pdf)


University Loft again protests the Marine Corps’ evaluation of Dehler’s quotation, arguing that Dehler’s bed does not meet the RFQ’s specification for a tool-free hook assembly and that the agency improperly relaxed a material requirement when it found the bed technically acceptable. Protest at 6-9. The protester provides illustrations from various bed vendors and manufacturers, as well as copies of relevant patents, to support its argument that a hook assembly is an industry standard or commonly used term. Protester’s Comments at 3, exhs. A-G. According to University Loft, this term refers to a bed railing with curved metal protrusions on its ends that hook into the bed’s headboard and footboard without fasteners such as nuts and bolts. See Protest at 5-6. The protester points out that, in contrast, Dehler’s bedrails have no hooks, but must be fastened with a nut and bolt. Protest at 5. The protester asserts, therefore, that the agency relaxed the hook assembly specification for the awardee, and that it was improper to do so without amending the RFQ. Id. at 6-9.

The Marine Corps disputes that there is an industry standard for a tool-free hook assembly, and states that the technical evaluator and contracting officer relied on reason and common usage in determining the meaning of this term. AR at 3-4. According to the agency, a hook assembly can, in addition to the protester’s construction of the term, also describe a bed rail that, like Dehler’s, “catches on” or “hooks over” a protruding bolt. See id. The Marine Corps insists that the agency did not relax or waive the requirement for a tool-free hook assembly, and maintains that the agency reasonably found that Dehler’s bed met the specification. See id. at 5-6; Agency Response to GAO Interrogatory at 2.

Where, as here, an agency conducts a competition under FAR subpart 8.4, we will review the record to ensure that the agency’s evaluation is reasonable and consistent with the terms of the solicitation. CMI Mgmt., Inc., B-404645, Mar. 2, 2011, 2011 CPD ¶ 66 at 4; GC Servs. Ltd. P’ship, B-298102, B-298102.3, June 14, 2006, 2006 CPD ¶ 96 at 6. In reviewing a protest challenging an agency’s technical evaluation, our Office will not reevaluate the quotations; rather, we will examine the record to determine whether the agency’s evaluation conclusions were reasonable and consistent with the terms of the solicitation and applicable procurement laws and regulations. Maybank Indus., LLC, B-403327, B-403327.2, Oct. 21, 2010, 2010 CPD ¶ 249 at 5; OPTIMUS Corp., B-400777, Jan. 26, 2009, 2009 CPD ¶ 33 at 4.

Clearly stated technical requirements are considered material to the needs of the government, and a quote that fails to conform to material solicitation requirements is technically unacceptable and cannot form the basis for award. Carahsoft Tech. Corp., B-401169, B-401169.2, June 29, 2009, 2009 CPD ¶ 134 at 5. It is well established that a technically unacceptable proposal cannot be considered for award. Analytic Servs., Inc., B-405737, Dec. 28, 2011, 2012 CPD ¶ 16 at 13.

We find that the Marine Corps did not reasonably evaluate the technical acceptability of Dehler’s quotation in a manner consistent with the RFQ. The contemporaneous evaluation record does not evidence that the agency considered whether Dehler’s bed included a hook assembly. See AR, Tab D, Technical Evaluation, at 5. While we are mindful that where, as here, an agency places an order under a BPA, limited documentation of the source selection is permissible, the agency must at least provide a sufficient record to show that the source selection was reasonable. See, e.g., e-LYNXX Corp., B-292761, Dec. 3, 2003, 2003 CPD ¶ 219 at 8. Here, as we discuss above, the record consists of the technical evaluator’s sheet with three checkmarks and no comments. AR, Tab D, Technical Evaluation, at 5. Moreover, as we also discuss above, Dehler’s quotation did not describe (and the quotation’s one-page technical drawing did not depict) its bed’s assembly method. AR, Tab C, Dehler Quotation, at 3, 6.

To the extent that the agency now purports to explain the basis for its evaluation and source selection decisions, arguing that Dehler’s quoted bed complied with the specifications, we find its explanations unpersuasive and unsupported by the contemporaneous evaluation record. The RFQ explicitly required that vendors’ bunk beds have a hook assembly. RFQ at 9. As the protester correctly points out, however, Dehler’s bed frame assembly simply does not include a curved “hook” as that term is plainly understood. Further, we agree that the agency’s interpretation of the term “tool-free hook assembly” to include “where bed rails catch on a bolt” is unreasonable. See Carasoft, supra, at 4-5 (protest sustained where agency unreasonably found that awardee satisfied RFQ’s minimum technical specifications); see, e.g., Window Sys. Eng’g, B-222599, Aug. 27, 1986, 86-2 CPD ¶ 230 at 3 (protest sustained where solicitation specifications may not have reflected agency’s need and protester’s interpretation of specification as requiring a different item is reasonable).  (J. Squared Inc., dba University Loft Company, B-407302, Dec 17, 2012)  (pdf)


HP argues that the solicitation did not require vendors to demonstrate prior to award that their underlying GSA schedule contracts would be active at the time the 9-month option period was scheduled to be exercised. In the alternative, the protester maintains that it provided adequate assurance that its contract would be active, but that the agency improperly ignored those assurances.

With regard to the protester’s first argument, where a dispute exists as to the meaning of a solicitation provision, our Office will resolve the matter by reading the solicitation as a whole and in a manner that gives effect to all its provisions; to be reasonable, an interpretation of a solicitation must be consistent with such a reading. The Boeing Co., B-311344 et al., June 18, 2008, 2008 CPD ¶ 114 at 35. Here, the agency advised offerors as follows, “In order to be eligible for award, the Contractor’s GSA Schedule contract has to still be in an active period by the time the option to extend the term of the proposed contract Task Order will be exercised.” AR, Tab 5b, supra.

Although the agency’s instruction was awkwardly drafted, it essentially required each vendor to demonstrate, by the time of award, that it would have an active GSA schedule contract at the time the 9-month task order option was scheduled to be exercised. HP’s reading of the provision as requiring only that vendors have a contract vehicle in place “by the time” the option was to be exercised is inconsistent with the express terms of the provision, which state that the agency would address the matter at the time of award, not at some future date, as HP’s interpretation suggests.

Turning to the protester’s second argument, the record shows that the agency concluded that the only way to be certain that the contract would be active at the time it would need to exercise the 9-month option was to examine the question as of the time of the award. While it would have been reasonable for the agency to have required something less than absolute assurance at the time of award, there was nothing impermissible about the Air Force’s decision to require, in its solicitation, that the question be resolved at the time of award. We note for the record that this solicitation term was not challenged by HP, and the agency evaluated HP’s quotation accordingly.  (HP Enterprise Services, LLC, B-405692, Dec 14, 2011)  (pdf)


In its protests, Carahsoft alleges that MicroLink's quotation failed to meet three of the minimum technical specifications of the RFQ and therefore should have been found to be technically unacceptable.

Where, as here, an agency issues an RFQ to FSS contractors under FAR subpart 8.4 and conducts a competition (see FAR sect. 8.405), we will review the record to ensure that the agency’s evaluation is reasonable and consistent with the terms of the solicitation. See GC Servs. Ltd. P’ship, B-298102, B-298102.3, June 14, 2006, 2006 CPD para. 96 at 6; RVJ Int’l, Inc., B-292161, B-292161.2, July 2, 2003, 2003 CPD para. 124 at 5. In reviewing a protest challenging an agency’s technical evaluation, our Office will not reevaluate the quotations; rather, we will examine the record to determine whether the agency’s evaluation conclusions were reasonable and consistent with the terms of the solicitation and applicable procurement laws and regulations. OPTIMUS Corp., B-400777, Jan. 26, 2009, 2009 CPD para. 33 at 4.

Carahsoft argues that Microlink’s quotation did not comply with technical specification B-8. MicroLink’s quotation provided, for technical specification B-8, that its system [REDACTED]. AR, Tab 7, MicroLink’s Quotation, at 13. This failed to account for modification No. 6, which tightened the effective date for the implementation of the B-8 requirement from within 1 year of implementation to any time after implementation. Carahsoft argues that this failure rendered MicroLink’s quotation unacceptable.

The agency responds that MicroLink’s “mislabeling” of its response to technical specification B-8 did not render its quotation technically unacceptable because other information provided within MicroLink’s quotation and its answers to questions asked after receipt of its quotation evidence that MicroLink’s proposed system fully satisfied the requirement. Supplemental (Supp.) AR at 6. In this regard, NGA argues that when read together MicroLink’s responses to technical specifications B-7 and B‑8 show compliance with the B-8 specification. Id. For example, MicroLink’s B‑7 response stated, [REDACTED]. AR, Tab 7, MicroLink’s Quotation, at 11. In response to technical specification B-8, MicroLink stated, [REDACTED]. Id. at 13. From these comments, the agency argues that MicroLink’s quotation clearly demonstrates that it is [REDACTED] as required by B-8, since it can provide an [REDACTED]. Supp. AR at 6. NGA also references MicroLink’s answer to the question posed by NGA during the evaluation of quotations about the hardware computing requirements required to process half a billion records. MicroLink responded to this question that the agency would need [REDACTED]. AR, Tab 9, MicroLink Response to Agency Clarification (Jan. 13, 2009). The agency argues that this demonstrates that MicroLink’s software currently complies with the requirement of supporting half a billion records at any time after implementation since scalability is a function of hardware configuration. Supp. AR at 6. According to the agency, MicroLink’s answer was also consistent with Carahsoft’s answer, which identified [REDACTED]. Id.

However, while MicroLink may have the capacity to scale up to the required half a billion records, nowhere in its quotation does it agree to do so at any time after implementation as required by the RFQ’s minimum technical specifications. The quoted language referenced by the agency describes the performance capability of the software and the means of implementing this capability, and does not address when this capability will be fully available. To the contrary, MicroLink’s quotation only promised [REDACTED]. Clearly stated solicitation technical requirements are considered material to the needs of the government, and a quotation that fails to conform to such material terms is technically unacceptable and may not form the basis for award. 4D Sec. Solutions, Inc., B-400351.2, B-400351.3, Dec. 8, 2008, 2009 CPD para. 5 at 4. A vendor is responsible for affirmatively demonstrating the merits of its quotation and risks the rejection of its quotation if it fails to do so. Id. Thus, we find unreasonable the agency’s finding that Microlink’s quotation satisfied the minimum requirement that the scalability be available any time after implementation. We sustain the protest on this basis.  (Carahsoft Technology Corporation, B-401169; B-401169.2, June 29, 2009)  (pdf)


The RFQ sought quotations from firms holding FSS contracts for therapeutic hospital mattresses and pumps. The RFQ required that vendors provide "descriptive literature and/or brochure information of the mattress specifications and other characteristics specified in the description." RFQ at 3. The RFQ, as amended, provided for the issuance of an order to the vendor whose quotation was determined to represent the best value to the government, with quotations to be evaluated on the basis of the following equally weighted factors: technical, past performance and price. The technical factor consisted of six equally weighted subfactors: ease of use, pressure management, stability and reliability, comfort, warranty, and delivery.

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Encompass argues that the agency improperly evaluated its proposed mattress and unreasonably placed the order for Sizemore's higher priced mattress.

In the context of an RFQ, where an agency solicits FSS vendors responses and uses an evaluation approach similar to that used in FAR Part 15 negotiated procurements, our Office will review the agency's actions to ensure that the evaluation of vendors' submissions was reasonable and consistent with the solicitation's evaluation criteria. Advanced Tech. Sys., Inc., B‑298854; B-298854.2, Dec. 29, 2006, 2007 CPD para. 22 at 8. A protester's mere disagreement with the agency's judgment or its belief that its quotation deserved a higher technical rating is not sufficient to establish that the agency acted unreasonably. Id. at 8-9.

Encompass complains that the agency improperly evaluated its mattress's perimeter firmness as "poor." As indicated above, in evaluating the perimeter firmness of Encompass's mattress the agency noted that there was "[n]o literature provided re [initial load deflection], and [the evaluators] 'didn't sense any firmness at [the] edge'" of the sample mattress provided. AR, exh. 9, Technical Evaluation, at 4. The agency noted that the firmness of the perimeter of the mattress was important because "[o]ur patient population is vulnerable to falls since many of them have mobility problems associated with aging or medical conditions such as spinal cord injuries. The perimeter firmness of the mattress is important in reducing the risk of patients slipping or falling since a firm mattress perimeter provides more stability as they enter and exit the beds." AR, exh. 18, Agency Letter to Encompass (Dec. 30, 2008), at 2. Because Encompass failed to provide the required documentation to support this subfactor and the evaluators found that the perimeter of its proposed mattress appeared "mushy," we have no reason to question the agency's evaluation of this subfactor.

Encompass also complains that it should not have been downgraded because its proposed mattress lacked side handles. Encompass primary argument in support of this contention was that Sizewise's mattress with handles was not listed on its FSS contract. However, the agency has provided evidence and Encompass now concedes that Sizewise's proposed mattress is on its FSS contract. Agency E-Mail to GAO (Feb. 19, 2009), attach.; Encompass Letter to GAO (Feb. 24, 2009). Encompass nevertheless argues that handles are ordinarily not provided "for apparent safety reasons," but that its quotation indicated that it would "provide handles if, after training clinical personnel [it was determined] that handles were a requirement." Protester's Comments at 3. However, as the agency advised Encompass, "[t]he lack of handles can increase . . . injuries [to] our staff when they need to reposition or turn mattresses." AR, exh. 18, Agency Letter to Encompass (Sept. 27, 2008), at 1. Given that Encompass did not unequivocally offer the side handles in its quotation notwithstanding the solicitation's expressed preference for this feature, the agency could reasonably downgrade its proposal under this subfactor.

Encompass finally contends that the agency failed to produce documentation that fully supported its technical evaluation of the mattress proposed by Sizewise or of the past performance evaluation. Inasmuch as no protective order was issued in this case because the protester was not represented by counsel, we reviewed, in camera, the agency's documentation regarding the evaluation of Sizewise's quotation, which contained material that was protected by the agency, and the other evaluation documentation in the file, and have found that this documentation reasonably supports the agency's evaluation conclusions.  (Encompass Group LLC, B-310940.3, March 17, 2009) (pdf)


USGC argues that the agency failed to conduct meaningful discussions in accordance with FAR Part 15 because the exchanges the agency had with the vendors were assertedly discussions and the “clarification question” USGC received had insufficient specificity to allow USGC to address the agency’s concerns.

There is no requirement in FAR Subpart 8.4 that an agency soliciting vendor responses prior to issuing an order under an FSS contract conduct discussions with vendors in accordance with FAR sect. 15.306 regarding the content of those responses. Avalon Integrated Servs. Corp., B‑290185, July 1, 2002, 2002 CPD para. 118 at 4. However, exchanges that do occur with vendors in a FAR Subpart 8.4 procurement, like all other aspects of such a procurement, must be fair and equitable. See COMARK Fed. Sys., B- 278343, B-278343.2, Jan. 20, 1998, 98‑1 CPD para. 34 at 5. Our Office has looked to the standards in FAR Part 15, and the decisions interpreting that part, for guidance in determining whether exchanges with vendors under a FAR Subpart 8.4 procurement were fair and equitable, for example, in situations where the agency’s approach in conducting exchanges with the vendors was like FAR Part 15 discussions (in which case the discussions should be meaningful). See TDS, Inc., B-292674, Nov. 12, 2003, 2003 CPD para. 204 at 6.

Here, however, the RFQ did not indicate that the agency would conduct discussions like those described in FAR Part 15 and, in fact, the exchanges conducted with the vendors were not like FAR Part 15 discussions. As noted above, the RFQ invoked FAR Subpart 8.4 procedures, did not suggest that FAR Part 15 procedures would apply, and announced that discussions were not contemplated. See RFQ at 1. In addition, the exchanges involved the agency’s request for certain limited “clarifications” from all of the vendors that submitted quotations regarding certain weaknesses and uncertainties that the TET found in the initial evaluation of those quotations. Although the responses to the clarification questions were considered in the technical evaluation and led to one vendor’s quotation receiving a higher technical rating, the agency did not allow any vendor an opportunity to modify its quotation, specifying in its clarification requests that quotation revisions would not be accepted. Thus, because the approach to exchanges here were not like FAR Part 15 discussions, we do not believe that FAR Part 15, and the decisions interpreting that part, should be the applicable standard in deciding whether the exchanges in this FSS procurement were fair and equitable.

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In sum, we find the agency’s exchanges with the vendors and the evaluation of the vendors’ responses were reasonable, fair, and equitable. In this respect, each vendor received pertinent questions concerning their quotations and revisions to their quotations were not invited. The agency then evaluated the vendors’ responses to determine if the initial evaluated weaknesses were overcome by the vendors’ explanations. The agency documented why it found that FedConsulting’s clarification responses alleviated its concerns regarding evaluated weaknesses and uncertainties, and why it found that USGC’s clarification response did not do the same. While USGC disagrees with this evaluation, it simply has not shown why the agency’s evaluation and exchanges with the vendors were not reasonable. Id.  (USGC Inc., B-400184.2; B-400184.3; B-400184.4, December 24, 2008) (pdf)


Seaborn argues that the RFQ’s call for specific on-site supervisory personnel constitutes an improper requirement that vendors price non-FSS services as part of their quotations. Protest at 5-7. Seaborn cites Simplicity Corp., B-291902, Apr. 29, 2003, 2003 CPD para. 89, and other decisions of our Office, for the proposition that non‑FSS products and services may not be purchased using FSS procedures; instead, their purchase requires compliance with generally applicable procurement laws and regulations, including those requiring the use of competitive procedures. See, e.g., OMNIPLEX World Servs. Corp., B‑291105, Nov. 6, 2002, 2002 CPD para. 199; Pyxis Corp., B-282469, B‑282469.2, July 15, 1999, 99-2 CPD para. 18 at 3-4. VA responds that it is “not attempting to procure supervisory services for VA employees or other contractors,” but rather is providing for appropriate contract administration and supervisory services that are inherent in the cost of properly administering the contract. AR at 5. VA points out that, in a non-personal services contract, it cannot provide government supervision of contractor personnel. Id.

We agree with the protester. The RFQ calls for the successful vendor to supply specifically designated and qualified on-site supervisors. As noted, the required personnel are described in detail in the RFQ and have specific minimum experience, capability, and performance requirements. RFQ at 4, 8. Our review of the pertinent FSS contract, “621 I, Professional and Allied Healthcare Staffing Services,” reveals no provision for on-site supervisory personnel or services, and VA points to no such provision.[2] We are not persuaded by the agency’s argument that the specified supervision is unobjectionable because, essentially, supervision by the contractor is inherent in non‑personal services contracts. Even if the agency is correct that some level of supervision necessarily must be provided by the contractor under a non-personal services contract, this “inherent” supervision is something quite different, we think, from an agency’s specifying that specific personnel are to be provided and that supervision will be performed in a particular manner. Even where non-FSS products and services are viewed as incidental or integral to FSS items, they may not be purchased using FSS procedures. SMS Sys. Maint. Servs., Inc., B-284550.2, Aug. 4, 2000, 2000 CPD para. 127 at 2 n.2, citing Pyxis Corp., supra, at 3-4; see Tarheel Specialties, Inc., B‑298197, 298197.2, July 17, 2006, 2006 CPD para. 140 (issuance of FSS task order was improper where RFQ requirements for a “site supervisor” and other labor positions were not “listed in or mapped to” the successful vendor’s FSS contract). Accordingly, we sustain the protest on this ground.  (Seaborn Health Care, Inc., B-400429, October 27, 2008) (pdf)


Allmond complains that in not furnishing the firm a copy of the RFQ, DEA improperly denied it, the incumbent FSS contractor since 2001, an opportunity to compete for DEA’s follow-on requirements.  The FSS program, which is directed and managed by GSA, provides federal agencies with a simplified process for obtaining commonly used commercial supplies and services at prices associated with volume buying. FAR sect. 8.402(a). The procedures established for the FSS program satisfy the general statutory requirement for full and open competition. See 41 U.S.C. sect. 259(b)(3) (2000); FAR sections 6.102(d)(3), 8.404(a); Sales Res. Consultants, Inc., B-284943, B-284943.2, June 9, 2000, 2000 CPD para. 102 at 3.  In this case, the agency issued the RFQ for its follow-on requirements to five FSS contractors, two of which submitted quotations. Generally, for orders not exceeding the maximum order threshold, the solicitation of quotations from three FSS contractors able to meet the agency’s needs is adequate. FAR sect. 8.405-2(c)(2)(ii); see Computer Universal, Inc., B-291890, B-291890.2, Apr. 8, 2003, 2003 CPD para. 81 at 2. The applicable statute[1] and regulations simply do not require an agency to solicit the incumbent FSS contractor. See Cybertech Group, Inc. v. United States, 48 Fed. Cl. 638, 648 (2001). Accordingly, we conclude that DEA complied with the applicable competition requirements here.  (Allmond & Company, B-298946, January 9, 2007) (pdf)


Because GSA administers the FSS program, we solicited GSA’s views on the responsibility determination issue. In its filing, GSA notes that the purpose of the FSS program, as set forth in FAR Part 38, is to provide federal agencies with a simplified process of acquiring commercial supplies and services. In furtherance of this goal, GSA states, it is responsible for awarding indefinite-delivery contracts in accordance with all applicable statutory and regulatory requirements, including compliance with the requirements relating to contractor responsibility (see FAR sect. 38.101(d), (e)). GSA concludes that, because it is tasked with making determinations of responsibility pertaining to the award of FSS contracts, ordering agencies, while not precluded from doing so, are not required to make a responsibility determination prior to placing an FSS order. Letter from GSA to GAO, July 26, 2006, at 1-3. We agree.  Responsibility is a contract formation term that refers to the ability of a prospective contractor to perform the contract for which it has submitted an offer; by law, a contracting officer must determine that an offeror is responsible before awarding it a contract. See 41 U.S.C. sect. 253b(c), (d); FAR sect. 9.103(a), (b). The concept of responsibility expressly applies to “prospective contractors”--not “current” or “existing” contractors--a limitation that is repeated throughout the applicable statutes and regulations, and that indicates that the requirement for a responsibility determination applies before award of a contract. See, e.g., 41 U.S.C. sect. 403 (“As used in this Act . . . the term ‘responsible source’ means a prospective contractor . . . .”); FAR sect. 9.100 (“This subpart prescribes polices, standards, and procedures for determining whether prospective contractors . . . are responsible”); FAR sect. 9.102(a) (“This subpart applies to all proposed contracts with any prospective contractor . . . .”); and FAR sect. 9.103(c) (“A prospective contractor must affirmatively demonstrate its responsibility . . . .”). Consistent with this statutory and regulatory framework, once an offeror is determined to be responsible and is awarded a contract, there is no requirement that an agency make additional responsibility determinations during contract performance. E. Huttenbauer & Son, Inc., B-258018.3, Mar. 20, 1995, 95-1 CPD para. 148 at 2 (holding that a contracting officer was not required to make a new responsibility determination before deciding whether to exercise an option because the concept of responsibility has no applicability with respect to a contract once that contract has been awarded). Contrary to the protester’s position, the extent of the requirement for a determination of responsibility is not tied to the type of contracting vehicle that the government elects to use for an acquisition; thus, there is no basis to conclude that the requirement for a responsibility determination is broader for orders placed under FSS contracts. In this regard, we note that FAR sect. 8.405 and sect. 8.406 set forth the ordering procedures and ordering activity’s responsibilities, respectively, with regard to FSS contracts; there is no requirement in these provisions to make a responsibility determination. In sum, we conclude that the initial responsibility determination made by GSA in connection with the award of the underlying FSS contract satisfies the requirement for a responsibility determination regarding that vendor and that there is no requirement that an ordering agency perform separate responsibility determinations when placing orders under that contract. In view of our conclusion, ATS’s challenge to HUD’s consideration of PSI’s responsibility here does not give rise to a valid basis of protest since HUD was not required to perform a responsibility determination. (Advanced Technology Systems, Inc., B-296493.6, October 6, 2006) (pdf)


In a related argument, MBE asserts that the agency should have placed orders under the protester’s FSS contract instead of competing the requirement because, under the FSS, no further competition is required. In this regard, MBE notes that the agency has previously relied upon Federal Acquisition Regulation (FAR) sect. 8.404 in making FSS purchases, and that FAR sect. 8.002 makes the General Services Administration (GSA), which administers the FSS, a required source of supply. While MBE concedes that use of its FSS contract is not mandatory (Supplemental Protest at 1), it maintains that the agency nevertheless was required to order against its FSS contract based on these FAR provisions and Department of Defense (DoD) policy. MBE’s assertions are without merit. Under a mandatory FSS contract, an agency generally must order its requirements under that FSS if its minimum needs will be met by the products or services listed in the schedule. Adams Magnetic Prods., Inc., B‑256041, May 3, 1994, 94-1 CPD para. 293 at 3. However, as conceded by MBE, its FSS contract is not mandatory; thus, an agency’s use of that contract is voluntary. There is nothing else in the FAR, or elsewhere, that compelled the agency here to meet its requirements under MBE’s FSS contract. FAR sect. 8.404 simply provides guidance on the use of the FSS--e.g., restricting competition to the FSS and eliminating the need for additional determinations of fair and reasonable pricing; it does not require agencies to use the FSS. Similarly, while the list of required sources found in FAR sect. 8.002 places non-mandatory FSS contracts above commercial sources in priority, it does not require an agency to order from the FSS. Further, although an agency’s placement of an FSS order indicates that the agency has concluded that the order represents the best value (FAR sect. 8.404(d)), the regulation does not establish a presumption that all FSS contractors represent the best value, such that the agency would be required to purchase from an FSS contractor. Our conclusion is not changed by MBE’s assertion that DLA has previously placed FSS orders for weapon systems and nuclear application programs and that other agency’s have competed their needs through FSS contracts. Each federal procurement stands on its own; the fact that DLA and other agencies may have made FSS contract purchases in the past does not require DLA to do so here. Sabreliner Corp., B-275163 et al., Dec. 31, 1996, 96-2 CPD para. 244 at 2 n.2. MBE’s reliance on a letter from DoD’s Director of Defense Procurement and Acquisition Policy on use of the FSS is similarly misplaced. The letter represents an internal matter of executive policy for the guidance and benefit of government personnel, and does not have the force and effect of law. Thus, the fact that the procurement may not conform to it does not represent a valid basis for protest. American Contract Servs., Inc., B‑225182, Feb. 24, 1987, 87-1 CPD para. 203 at 4. In any event, while the letter provided guidance on the use of the FSS, it did not require its use. (Murray-Benjamin Electric Company, LP, B-298481, September 7, 2006) (pdf)


The agency originally sought the services here under RFQ No. W91QUZ-05-Q-0005, which was set aside for small business concerns. This resulted in issuance of a task order to McLane Advanced Technologies, LLC, which was followed by the filing of size protests with the Small Business Administration (SBA) challenging McLane’s size status. SBA determined that McLane was not a small business concern, and subsequently denied McLane’s appeal of the determination. Thereafter, the Army terminated McLane’s task order and, on December 6, 2005, posted RFQ-0001 on the General Services Administration’s (GSA) e-Buy electronic service, requesting that vendors holding a specified FSS contract submit quotations for a base year, with four 1-year options. This RFQ is not set aside for small businesses. GAITS asserts that the RFQ should be aside for small businesses because it was previously issued on a set-aside basis. According to GAITS, based on the principles of equity and fairness, where an agency initially competes a requirement as a small business set-aside, it should be required to complete the competition on that basis. The protester also asserts that the Army has violated Federal Acquisition Regulation (FAR) sect. 19.506 requirements regarding the withdrawal of set‑asides. The protest is without merit. As noted above, the agency conducted this procurement as an FSS acquisition under FAR part 8.4. FAR sect. 8.404(a) specifically provides that FAR part 19 (Small Business Programs) does “not apply” (except under circumstances not relevant here) to orders placed against FSS contracts. Thus, the agency was not required to set the requirement aside in the first instance, and was not precluded from subsequently resoliciting the requirement on an unrestricted basis. In this latter regard, we have specifically held that the FAR exempts task orders issued under FSS contracts from application of the set-aside withdrawal requirements found in FAR sect. 19.506. Millennium Data Sys., Inc., B‑292357.2, Mar. 12, 2004, 2004 CPD para. 48 at 9‑10. The protester’s belief that equity and fairness dictate that the set-aside restriction be maintained under the reissued RFQ does not provide a basis for us to conclude that the agency was required to do so.  (Global Analytic Information Technology Services, Inc., B-297200.3, March 21, 2006) (pdf)


FAR sect. 8.405-2 requires, where an agency is ordering FSS services at a value exceeding the micro-purchase threshold and requiring a statement of work (or establishing a BPA for such services), that the agency follow certain competitive procedures in the acquisition, including issuing a solicitation with a statement of work and evaluation criteria, and then evaluating responses received using those evaluation criteria. Our decision stated the general rule regarding the lack of a requirement for competition under the FSS; to the extent that the agency’s contention in its request for reconsideration is that there are situations in which subpart 8.4 of the FAR requires agencies to issue solicitations and conduct competitions before an FSS order can be placed, its point is well taken. That, however, does not warrant granting the request for reconsideration of the merits of our decision. The point of the above-quoted language of our decision, as well as the crux of the decision itself, is that whenever an agency induces vendors to compete based on stated requirements and specified ground rules, the agency is not free to disregard either those requirements or those ground rules--regardless of whether the agency initiated the competition voluntarily or was required to do so by a particular provision in FAR subpart 8.4. We view it as fundamental to any acquisition that competitors be treated fairly, Armour of Am., B‑237690, Mar. 19, 1990, 90-1 CPD para. 304 at 3, and fairness in competitions for federal procurements is largely defined by an evaluation that is, as we indicated in our decision, reasonable and consistent with the terms of the solicitation. While we believe that the government owes this basic fairness in the conduct of a competition to the competitors, even where no specific provision in a particular regulation calls for it, we note that in FAR sect. 8.405-2, which the agency states it was following here, it is explicitly required: the “ordering activity shall evaluate all responses received using the evaluation criteria provided to the schedule contractors.” FAR sect. 8.405‑2(d). Nothing in FAR sect. 8.405-2, nor any aspect of what the agency calls “the relaxed competition requirements of the FSS Program,” waives the requirement for fairness in the conduct of a federal procurement. (Environmental Protection Agency--Reconsideration, B-297077.3, January 25, 2006)  (pdf)


We sustain the protest because the record shows that the agency erroneously concluded that HMI’s quotation met the stated requirements and erroneously downgraded Haworth under the “environmental factors” evaluation factor. Based on the record, including the agency’s position during this protest, it appears that the agency overstated its actual needs, and that either the agency did not consider certain requirements to be significant to its overall needs, or the agency would find some items that deviated from the requirements to be acceptable. For example, the agency now characterizes the stacking chair requirement as an “incidental RFQ requirement.” Supplemental Legal Memorandum at 14. (Haworth, Inc., B-297077; B-297077.2, November 23, 2005) (pdf)


The FSS program, directed and managed by GSA, gives federal agencies a simplified process for obtaining commonly used commercial supplies and services. The procedures for making purchases under the FSS program are set forth in Federal Acquisition Regulation (FAR) Subpart 8.4. When using these procedures, an agency is not required to issue a solicitation to request quotations, but rather may simply review vendors' schedules and, using business judgment to determine which vendors' goods or services represent the best value and meet the agency's needs at the lowest overall cost, may directly place an order under the corresponding vendor's FSS contract. FAR Section 8.405-1; KPMG Consulting LLP , B-290716, B-290716.2, Sept. 23, 2002, 2002 CPD Paragraph 196 at 10-11. This is contrasted with situations where an agency issues a request for quotations (RFQ) and thus shifts the burden to the vendors for selecting items from their schedule. In those instances, an agency must provide guidance about its needs and selection criteria sufficient to allow vendors to compete intelligently. See, e.g., KPMG Consulting LLP , supra , at 10-11. However, when an agency reviews competing vendors' schedule offerings but does not shift to vendors the burden of selecting items to propose, there is no requirement that vendors be given notice of the agency's needs or the selection criteria. See Merck & Co., Inc. , B- 295888, May 13, 2005, 2005 CPD Paragraph 98 at 16; COMARK Fed. Sys. , B-278343, B-278343.2, Jan. 20, 1998, 98-1 CPD Paragraph 34 at 4- 5. Here, the agency did not issue an RFQ to FSS vendors or shift the burden to vendors to determine what to quote. In selecting the vendor with which to place the order, the agency merely distinguished between vendors' products based on special features that were discernable from product literature reviewed. Although the protester disagrees that LAN compatibility is discernable from the product literature, the agency provided our Office with the product literature that it reviewed and explains how the OIT was able to determine LAN compatibility from these copier manuals. The agency also notes that the brand of copiers quoted by MBS is not compatible with the agency's LAN network, and MBS has provided no evidence that they are compatible. Furthermore, MBS admits that it can provide no other brand copiers. As GSA explains, FAR Section 8.405-1(c) specifically states that an agency "may consider, among other factors" past performance, special features, trade-in considerations, and delivery terms in selecting among competing vendors, and, as discussed above, an agency is not required to disclose the nature of these desired or required special features when it requests quotations from vendors, where, as here, the agency does not shift to vendors the burden of selecting items to propose. Therefore, the agency did not act improperly by considering special features such as LAN capability, security capabilities, or past performance here. (Metro Business Systems, LLC, B-296371.2, July 13, 2005)  (pdf)


Knoll also contends that the award to Trade Products was improper because the Trade Products FSS contract will expire prior to the end of the performance period for the TOPRE contract.1 As explained above, the performance period for the TOPRE contract was anticipated at the time of award to be approximately 2 years, with an option period that could extend performance for a total not to exceed 36 months. Trade Products currently has an FSS contract for the work to be provided under the TOPRE contract, which will expire on January 31, 2006. Knoll notes that the TOPRE contract award in December 2004 would mean that the performance of the contract would conclude by approximately December 2006, and would thus necessarily extend (with or without exercising the TOPRE contract option period) beyond the expiration of the Trade Products FSS contract. The Trade Products FSS contract, however, is in its first of three 5-year performance periods and will be eligible for a 5-year renewal at the conclusion of the current performance period in January 2006. We solicited the views of GSA on this matter, and GSA advised that it regards FSS contracts as being valid for purposes of award of a contract utilizing a schedule as long as there are option periods that can be exercised that would cover the contract award period, and there is no indication that the FSS contract option will not be exercised. GSA Response at 2-3. We agree with GSA and, therefore, deny this ground of protest. (Knoll, Inc.; Steelcase, Inc., B-294986.3; B-294986.4, March 18, 2005) (pdf)
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1 Total Office Package and Relocation Effort (TOPRE)


Crestridge finally contends that the agency's technical evaluation was unreasonable and that its quotation was technically superior to District's. Based on our review of the record, we agree that the technical evaluation was flawed. The record simply does not support the agency's conclusion that Crestridge's quotation was technically inferior to District's under the technical implementation factor (much less significantly technically inferior, as indicated by the evaluation point scores for the quotations under this factor). For example, the agency asserts that Crestridge's quotation was too general and lacked detail about the firm's technical approach, and provided insufficient detail to determine the extent of available labor to accomplish the required services. Procurement Summary at 3. However, the record shows that Crestridge's quotation was more detailed than District's (and twice as lengthy) regarding the services to be provided and labor hours proposed, and Crestridge provided more detailed information than District about the personnel proposed to perform the work. Moreover, in many instances where Crestridge was criticized for not providing specific information--such as specifics concerning its project schedule, and "proof" that its personnel were "certified" or professionally trained--a review of District's quotation shows that this firm also did not provide the information but was not similarly downgraded. In sum, based on the record, we find the agency's technical evaluation to be unreasonable, and given the predominant weight of the technical evaluation in the evaluation, we conclude that there is a reasonable possibility that this error prejudiced the protester. (Crestridge, Inc., B-295424, February 23, 2005) (pdf)


Out of a possible 100 points, CSC's technical score was 70 and KEI's technical score was 55. CSC's evaluated cost/price ($22,806,569) was 248,418, or approximately 1 percent, higher than KEI's evaluated cost/price ($22,558,151). GSA determined that CSC's higher technically rated, higher cost/price quotation represented the best value to the government. On June 9, GSA issued the task order to CSC. The "grand total" of the CSC task order was $21,470,101.54. CSC's Task Order, June 9, 2004, at 2. The task order stated that the total of non-schedule other direct cost items was below the $25,000 amount and that "[n]o other nonschedule items are authorized under this task order." Id. The task order also stated that the "[c]ontractor's most recent updated proposal in response to this solicitation [ i.e., CSC's May 28 quotation] is hereby incorporated into this task order." Id. KEI protests, among other things, that GSA could not properly issue the task order to CSC because, according to CSC's revised final cost/price quotation of May 28, the BEA products were not being purchased by CSC through a vendor's FSS contract, but rather were being purchased by CSC pursuant to a non-schedule "alliance agreement" between CSC and BEA, which was not in accordance with the rules governing the use of the FSS and the terms of the RFQ. We agree.  (KEI Pearson, Inc., B-294226.3; B-294226.4, January 10, 2005) (pdf)


Pitney Bowes first protests that the agency lacked a proper basis to cancel the initial delivery order. Pitney Bowes does not dispute that its submission failed to reflect any prices for meter head bases or scales in the option years. Nonetheless, Pitney Bowes maintains that the RFQ only sought vendors quotations to purchase meter head bases and scales during the base year, and that no such purchases were contemplated during the option years. The record is to the contrary. As noted above, the solicitation expressly advised the vendors that they were to complete the following pricing, that [t]he number of units to be provided in the option years has not been determined, and that the vendors quotations for the option-year quantities would be used for the purpose of evaluating bids. RFQ at 1. Accordingly, it is clear that quotations for all line items, including option-period line items was required. (Pitney Bowes Inc., B-294868; B-294868.2, January 4, 2005) (pdf)


In addition, we agree with the agency's technical evaluation panel that AFMOs quotation also was unacceptable because the quoted bras were not available on its GSA schedule contract. In this regard, as a general rule, contracting agencies are required to obtain full and open competition in the procurement of supplies and services. 10 U.S.C. 2304(a)(1)(A) (2000); Federal Acquisition Regulation (FAR) 6.101. The FSS program gives federal agencies a simplified process for obtaining commonly used commercial supplies and services. FAR 8.401(a). The procedures established for the FSS program satisfy the requirement for full and open competition. 10 U.S.C. 2302(2)(c); Sales Res. Consultants, Inc. , B-284943, B284943.2, June 9, 2000, 2000 CPD 102 at 3. However, non-FSS products and services may not be purchased using FSS procedures; instead, their purchase requires compliance with the applicable procurement laws and regulations, including those requiring the use of competitive procedures. Symplicity Corp. , B-291902, Apr.29, 2003, 2003 CPD 89 at3; OMNIPLEX World Servs. Corp. , B291105 Nov. 6, 2002, 2002 CPD 199 at4-5. Here, while the RFQ did not explicitly state that all solicitation items were to be procured under FSS contracts, the solicitation did announce the agencys intention to order from an existing GSA contractor; in our view, this was sufficient to place vendors on notice that the agency intended to order all items using GSA FSS procedures and hence that all items were required to be within the scope of the vendors FSS contract. Altos Fed. Group , B-294120, July 28, 2004, 2004 CPD 172 at4. Since it is undisputed that AFMOs quoted bras were not on its GSA schedule contract, we find that AMC properly determined AFMOs quotation to be unacceptable on this basis, as well on account of the deviation of its samples from the stated specifications. (Armed Forces Merchandise Outlet, Inc., B-294281, October 12, 2004) (pdf)


Quotations in response to an RFQ are not offers that can be accepted by the government to form a contract. FAR 13.004; KPMG Consulting LLP , B-290716, B-290716.2, Sept. 23, 2002, 2002 CPD 196 at 11, Intelligent Decisions, Inc. , B-274626, B-274626.2, Dec. 23, 1996, 97-1 CPD 19 at 7; Eastman Kodak Co. , B-271009, May 8, 1996, 96-1 CPD 215 at 2 n.2. Rather, they are informational responses that indicate the products that vendors would propose to meet the agency's requirements and the prices of those products and related services that the government may use as the basis for issuing a purchase order. Intelligent Decisions, Inc. , supra ; Crown Furniture Mfg. Inc. , B-225575, May 1, 1987, 87-1 CPD 456 at 2, and it is the government's purchase order which represents the offer that the vendor may accept through performance or by a formal acceptance document. KPMG Consulting LLP , supra . We find that the agency's issuance of a purchase order to Serena here was not improper, notwithstanding that Serena's quoted price discount had expired, because the vendor's submission was not an offer to which the standard for expired bids generally applies. As set forth above, the USDA evaluated Serena's prices based on the discounts within the vendor's revised price quotation. Following its evaluation and source selection decision, the agency issued a purchase order to Serena at the discount prices contained in Serena's quotation, an offer that Serena accepted. Serena was under no duty to accept the USDA's offer here, irrespective of any expiration date in the vendor's quotation, because it did not constitute an offer. Quite simply, the agency's decision to offer a purchase order to Serena here was not improper, because it did not violate a procurement statute or regulation, nor was it unreasonable. (Computer Associates International, Inc., B-292077.3, B-292077.4, B-292077.5, January 22, 2004) (pdf)


The statement of work further reveals that the contractor will be responsible for a variety of additional services that clearly do not qualify as information technology services, such as: creating promotional materials; preparing Space Life Sciences Research Highlights; performing in-depth literature searches; updating, maintaining, and retaining the repository of space life sciences literature in an office library or files; and validating bibliographic entries in Office of Biological and Physical Research reports. RFO, Statement of Work, ¶¶ 7-11, at 3-4. While it may be true, as GSA contends, that NASA might save time, expense, and manpower if the work were obtained from “qualified [information technology] personnel,” these considerations do not provide a valid basis for using Schedule 70 to purchase services that are not reasonably contemplated under the schedule. Accepting such a notion would negate the fundamental concept that when an agency obtains non-FSS items it must comply with the applicable procurement laws and regulations, including those requiring the use of competitive procedures.  (Information Ventures, Inc., B-293743, May 20, 2004) (pdf)


We recognize that, in practice, agencies and vendors often treat quotations just as they treat offers. Nonetheless, as a matter of law, quotations are different from bids or offers. The submission of a bid or proposal constitutes, by its very nature, an offer by a contractor that, if accepted, creates a binding legal obligation on both parties. Because of the binding nature of bids and offers, they are held open for acceptance within a specified or reasonable period of time, and our case law has necessarily developed rules regarding the government’s acceptance of “expired” bids or proposals. See, e.g., Consultants Ltd., B-286688.2, May 16, 2001, 2001 CPD ¶ 92 (holding that where a bidder agrees to hold its bid open for the minimum acceptance period required and extends its acceptance period with each agency request, the integrity of the bidding system is not compromised if the bidder is subsequently permitted to revive its expired bid); Esprit Int’l Corp., B-276294, Mar. 10, 1997, 97-1 CPD ¶ 106 at 2 (allowing bidder with shorter acceptance period to revive its bid after it had expired would afford the bidder an unfair advantage since its initial exposure to the risk of the marketplace was for a shorter period of time); CDA Inv. Tech., Inc.‑‑Recon., B‑27209.3, Mar. 11, 1997, 97-1 CPD ¶ 103 at 8 (stating that “it is not improper for an agency to accept an expired offer without opening negotiations where . . . acceptance is not prejudicial to the competitive system). A quotation, on the other hand, is not a submission for acceptance by the government to form a binding contract; rather, vendor quotations are purely informational, Zarc Int’l, Inc., B‑292708, Oct. 3, 2003, 2003 CPD ¶ 172 at 2. In the RFQ context, it is the government that makes the offer, albeit generally based on the information provided by the vendor in its quotation, and no binding agreement is created until the vendor accepts the offer. Federal Acquisition Regulation (FAR) § 13.004(a). A vendor submitting a price quotation therefore could, the next moment, reject an offer from the government at its quoted price. Because vendors in the RFQ context hold the power of acceptance and their submissions are purely informational, there is nothing for vendors to hold open; thus, it simply does not make sense to apply the acceptance period concept or the attendant rules regarding expiration of bids or offers to RFQs. As a consequence, notwithstanding the statement in Serena’s revised price quotation that “[t]his offer is valid through June 31 [sic], 2003,” Serena’s discounted price was “valid,” or not, at Serena’s option, both before and after the date mentioned in the quotation--on whatever date the agency might present an offer to the firm. (Computer Associates International, Inc.--Reconsideration, B-292077.6, May 5, 2004) (pdf)


2.  Turning to the remainder of the agency’s technical evaluation, under the FSS program, FAR Subpart 8.4 anticipates that an agency will review vendors’ schedules and place an order with the vendor whose goods or services represent the best value and meet the agency’s needs at the lowest overall cost. KPMG Consulting LLP, B‑290716, B-290716.2, Sept. 23, 2002, 2002 CPD ¶ 196 at 10-11; OSI Collection Servs., Inc.; C.B. Accounts, Inc., B-286597.3 et al., June 12, 2001, 2001 CPD ¶ 103 at 4. If, however, the agency issues an RFQ and thus shifts the burden to the vendors for selecting the items from their schedules, the agency must provide guidance about its needs and selection criteria sufficient to allow the vendors to compete intelligently. Where, as here, the agency intends to use the vendors’ responses as the basis of a detailed technical evaluation and selection decision, the agency has elected to use an approach that is more like a competition in a negotiated procurement than a simple FSS buy, and the RFQ is therefore required to provide for a fair and equitable competition. COMARK Fed. Sys., B‑278343, B‑278343.2, Jan. 20, 1998, 98-1 CPD ¶ 34 at 4-5. While we recognize that the FAR Part 15 procedures, for contracting by negotiation, do not govern the FSS program, Computer Prods., Inc., B-284702, May 24, 2000, 2000 CPD ¶ 95 at 4, where, as here, the agency has conducted such a competition and a protest is filed, we will review the record to ensure that the evaluation is reasonable and consistent with the terms of the solicitation and with standards generally applicable to negotiated procurements. KPMG Consulting LLP, supra. With regard to the evaluation, CourtSmart alleges that the agency unreasonably evaluated York’s and CourtSmart’s quotations under the section 508 compliance evaluation criterion, and that York’s quotation should have been regarded as technically unacceptable. Based on our review of the record, we agree.

3.  While the agency states that this experience requirement was a minimum agency requirement,[7] the record shows that the agency determined that at least one other vendor did not have the experience and ability to handle a contract of similar size and scope, but it was rated “neutral” and this lack of experience was found “not sufficient to eliminate [the vendor’s quotation] from consideration for award.”[8] Agency Report, Tab 23, Technical Evaluation Report, at 10-12, Tab 25, Summary of Award, at 7. Even though it appears from the record that CourtSmart had more relevant digital audio recording system experience than this vendor (as well as York, whose qualifying experience was for installing video teleconference systems in SSA’s hearing rooms), CourtSmart’s past performance was found unacceptable and the other vendor’s was not. Thus, the record suggests that the quotations were not evaluated on an equitable basis with respect to the experience requirement.

4.  The protester also alleges that the agency unreasonably evaluated CourtSmart’s software as unacceptable. At the hearing concerning this protest, CourtSmart’s software was demonstrated and the agency representatives explained why the software was considered unacceptable. While the agency provided a long list of reasons in the contemporaneous evaluation and the agency report as to why CourtSmart’s software was considered unacceptable, the agency representatives indicated at the hearing that their concern was limited to three or four areas, and our analysis is focused on these areas. See VT at 18:02‑28, 18:42-19:00, 19:07-46, 20:02-09. Based on the record, including the hearing testimony, it appears that CourtSmart’s software was not fairly or reasonably evaluated in these areas.  (CourtSmart Digital Systems, Inc., B-292995.2; B-292995.3, February 13, 2004) (pdf)


Here, FSI was on a footing completely different from the four large businesses whose quotations were solicited. This was so because EPA determined that the large businesses had the capability of performing the BPA requirements whereas EPA had doubts whether any small business could perform these requirements. Thus, EPA, in accordance with FAR § 8.404(b)(2), conducted a competition among the four solicited large businesses to determine which one represented the best value. Because the agency solicited at least three qualified vendors, there was no legal requirement for EPA to issue the “sources sought” notice to the small business vendors to determine whether any had the capability of satisfying the BPA requirements. Without endorsing the course that EPA took, we note that the agency was not considering whether any of the small business responses represented the best value, but only determining whether any of the small businesses had the capability that would justify their being solicited for a quotation. Accordingly, we do not believe that EPA was obligated to consider FSI's response to the “sources sought” notice in the same manner that it evaluated the large business vendors' responses to the RFQ. Nevertheless, having requested that small businesses respond to the “sources sought” notice, EPA was required to evaluate the small business responses in a reasonable manner. Based on our review, we find that the agency did so, and it had a reasonable basis for determining that FSI did not show that it had the capability of satisfying the BPA requirements. In this regard, after noting that FSI's response was “difficult to evaluate” because it was not in accordance with the 10 capability areas listed the “sources sought” notice, EPA found that either FSI failed to address or did not sufficiently address several of these areas. For example, while FSI's response to the “sources sought” notice stated that a recycling program for the toner cartridges and batteries “will be established,” the agency noted that FSI's response did not include any mention of its track record with similar recycling programs or any plans detailing how its recycling plan would work. In addition, even though FSI stated that it has thousands of “green” products available for purchase, the agency noted that FSI did not mention how many of the products available on its on-line ordering system met the EPA's EPP criteria. EPA also noted that although FSI touted its knowledge and environmental capabilities, it “did not have correct information on EPA's paper requirements.” EPA also found that FSI's “on‑line system is very far from [EPA's] requirements.” Finally, FSI's response failed to mention a commitment by the firm to the development and utilization of “green” delivery vehicles and fleet maintenance programs, a training module, or the firm's implementation of Environmental Management Systems plans. Agency Report, Tab 6, Review of Small Business Submission in Response to Sources Sought, at 2. (Future Solutions, Inc., B-293194, February 11, 2004) (pdf)


Where, as here, an agency solicits FSS vendor responses and arrives at its source selection decision using negotiated procurement procedures, our Office will review the agency’s actions, if challenged pursuant to our bid protest regulations, to ensure that the evaluation was reasonable and consistent with the terms of the solicitation. See COMARK Fed. Sys., B-278343, B-278343.2, Jan. 20, 1998, 98-1 CPD ¶ 34 at 4-5. (ACS Government Services, Inc., B-293014, January 20, 2004) (pdf)


As noted above, the evaluation was conducted under the FSS program. Under this program, an agency is not required to conduct a competition before using its business judgment in determining whether ordering supplies or services from an FSS vendor represents the best value and meets the agency's needs at the lowest overall cost. FAR § 8.404; OSI Collection Servs., Inc., B-286597, B-286597.2, Jan. 17, 2001, 2001 CPD ¶ 18 at 6. However, where an agency decides to conduct a formal competition for award of a task order contract, as is the case here, we will review the agency's actions to ensure that the evaluation was fair and reasonable and consistent with the solicitation. In sum, the agency has not reasonably explained why MindLeaf's experience is relevant. If MindLeaf has no relevant experience, it deserved a neutral past performance rating under this RFQ evaluation scheme, which would be inferior to KMR's very good past performance rating, thus requiring a cost/technical tradeoff analysis that was not needed previously. We sustain the protest. (KMR, LLC, B-292860, December 22, 2003)  (pdf)


First, contrary to the position VA takes in its justification for canceling the competitive acquisition, the VA's decision to conduct a competition under rules similar to those used in negotiated procurements did not violate FAR § 8.402. It is not clear from the record what aspect of the process followed--which took approximately 2 weeks, from issuance of the RFQ to the announcement of the results--the VA thought was improper. FAR Subpart 8.4 (which governs the use of the FSS) does not prohibit the use of negotiated procurement-type procedures for an FSS buy (although it also does not require use of those procedures). Similarly, under the DFARS provision quoted above, which the VA now relies on for its subsequent actions, an agency is not prohibited from conducting an FSS buy using negotiated procurement-type procedures (although, again, an agency is also not required to use those procedures). The ordering procedures found at DFARS § 208.404-70(c), quoted above, set a minimum competition requirement which, it is true, is simpler than the process in FAR Part 15. The VA's competition among three vendors certainly appears to have complied with the DFARS requirement (assuming that three vendors who could fulfill the requirements responded). Thus, the VA's position that its initial competition violated FAR Subpart 8.4 is misplaced. In reaching our conclusion about the merits of the VA's decision to cancel, we do not mean to suggest that the ultimate user of these services, the Air Force Surgeon General's Office, does not urgently need them. At this point, the AFSG has documented the need to avoid further disruption to its mission to provide medical services. On the other hand, this record suggests that the urgency here may spring more from the VA's inability to properly complete this procurement, than from any other source. We conclude that the VA has unreasonably canceled a competitive acquisition, after receiving and evaluating quotations and selecting one for award, without a reasonable basis. (SMF Systems Technology Corporation, B-292419.3, November 26, 2003) (pdf)


We agree that the record does not show that DOJ specifically considered whether vendor customization was required in mandatory areas. Nevertheless, the record does establish that the Director of Finance Staff reviewed each vendor's survey information and considered his own knowledge of, and experience with, the vendors' products. Based on this integrated assessment, the director concluded that Savantage was likely to need significantly more customization than the vendors selected to receive the RFQ. Supplemental Affidavit of the Director of the Finance Staff, Apr. 25, 2003, at 6. Although Savantage disagrees with this assessment and argues that the agency should have conducted a more formal evaluation, we find that Savantage has not shown this judgment to be unreasonable. In this regard, we note that Savantage had far more medium level and low level of effort customizations identified than other vendors and no vendor had more high level of effort customizations identified than Savantage. Agency Report, Tab 3, Analysis of Vendor Responses, at 1, 3, 8, 12, 35. In the context of determining which vendors “appear to provide best value” under FAR § 8.404(b)(3), we find that the agency reasonably concluded that Savantage's product would require significantly more customization than that of the other vendors, even though DOJ did not consider whether vendors' customization would be required in mandatory areas. (Savantage Financial Services, Inc., B-292046; B-292046.2, June 11, 2003)


There is no applicable statute or regulation that required the agency to set the requirement here aside for small businesses in lieu of purchasing from FSS vendors.  Indeed, FAR § 8.404(a) provides that:

. . . when placing orders under Federal Supply Schedules, ordering offices need not seek further competition, synopsize the requirement, make a separate determination of fair and reasonable pricing, or consider small business programs . . . .

This provision obviates the need for agencies to apply small business set-aside procedures where, as here, they are purchasing from the FSS.  Nat'l Office Sys., Inc., B‑274785, Jan. 6, 1997, 97-1 CPD ¶ 12 at 3.  Thus, there was nothing improper in the agency's not setting this requirement aside for small businesses.  (Information Ventures, Inc., B-291952, May 14, 2003)  (pdf)


Here, while the RFQ required submission of a technical proposal, and stated that award would be made to the vendor submitting the low-priced technically acceptable proposal, it did not provide any details of what the agency expected the technical proposal to address, so that a fair and intelligent competition could be achieved. Instead the RFQ stated only that the technical proposal was to be "in accordance with the [SOW]."  Where, as here, an agency completely fails to provide guidance as to the desired content of technical proposals or the basis for evaluating them, we believe that any doubt as to the acceptability of a vendor's technical proposal should be resolved in favor of the vendor.  See COMARK Fed. Sys., supra, at 5-6; cf. SKJ & Assoc., Inc., B-291533, Jan. 13, 2003, 2003 CPD P: __ at 5 (same presumption where agency fails to provide such guidance in solicitation issued under simplified acquisition procedures).  (Garner Multimedia, Inc., B-291651, February 11, 2003)  (txt version)


We have no basis to sustain Warden's protest of the SBA's actions here.  The contracting officer endeavored to contact the potential vendors, including Warden, by telephone as well as facsimile as soon as she learned, late on September 27, that the requisition for services had been approved and funds were available.  Warden contends that the SBA's funding concerns are due solely to its lack of acquisition planning, which does not constitute sufficient justification for a short response time.  Although we recognize that acquisition planning is required under FAR § 8.404(a)(2), we have also stated that as a general rule obtaining information from FSS vendors, which the SBA did here, satisfies the agency's obligation for procurement planning.  See Sales Res. Consultants, Inc., B‑284943, B-284943.2, June 9, 2000, 2000 CPD ¶ 102 at 4.  (Warden Associates, Inc., B-291440; B-291440.2, December 27, 2002)


CDM argues that its FSS contract should be applicable to this RFQ because its approach to meeting the requirement involved “creating or enhancing” a web site. However, the fundamental purpose of the RFQ was not to procure a vendor to establish or enhance a web site, but instead was to obtain a vendor to assess the agency's ChalleNGe programs. Even accepting that the requirement could be partially met through a web-based approach, as CDM asserts was incorporated in its quote, the fact remains that CDM's quote was based on providing personnel under labor categories not contained in its FSS contract. Moreover, because the record established that what CDM was offering at its fixed price was not within the scope of its FSS contract, we find meritless CDM's argument that the RFQ's request for a fixed-price quote meant that CDM's quote was not limited to the labor categories listed in its GSA FSS contract and rendered irrelevant the labor categories listed in its quote that formed the basis for its fixed price. Thus, the agency properly rejected CDM's quote.  (The CDM Group, Inc., B-291304.2, December 23, 2002)


It is well established that the standard for late quotations does not generally apply to requests for quotations. An RFQ, unlike a request for proposals (or an invitation for bids), does not seek offers that can be accepted by the government to form a contract. Rather, the government's purchase order represents the offer that the vendor may accept through performance or by a formal acceptance document. DataVault Corp., B-­248664, Sept. 10, 1992, 92-2 CPD ¶ 166 at 2. It follows that language in an RFQ requesting quotations by a certain date cannot be construed as establishing a firm closing date for receipt of quotations, absent a late quotation provision expressly providing that quotations must be received by that date to be considered. Instruments & Controls Serv. Co., B-222122, June 30, 1986, 86-2 CPD ¶ 16 at 3. An agency may consider “late” quotations or quotation modifications, so long as the award process has not begun and other offerors would not be prejudiced. Id.; ATF Constr. Co., Inc., B-260829, July 18, 1995, 95-2 CPD ¶ 29 at 2.  Here, the RFQ did not contain a late quotation provision. Therefore, the agency was not required to reject a modification received after the date stated in the RFQ for submission of quotations. In the case of IBM's modification of its quotation, the agency received this modification several days after the SSAB had requested a reevaluation and prior to the SSEB's completion of that reevaluation, and prior to the oral presentations and the SSA's award decision. No competitor was prejudiced by the agency's acceptance of IBM's modification. Therefore, the agency could accept IBM's removal of Arthur Andersen from its quotation.  (KPMG Consulting LLP, B-290716; B-290716.2, September 23, 2002)  (pdf)


Here, the agency's only explanation for its actions is that it placed the delivery orders with Worldwide because it was the only vendor with a contract under FSS No. 69.  However, the record shows that the agency had actual knowledge of numerous other vendors that offered the same language training services under FSS No. 738-II. The agency has not asserted that there is anything unique about the training offered by Worldwide under its FSS contract--for example, that it includes features not available from other vendors--that would provide a basis for paying a price premium for the services.  Accordingly, we find that the agency failed to meet its obligation to consider reasonably available information, namely, the prices offered by other vendors under FSS No. 738-II, before placing its delivery orders with Worldwide.  Had it done so, it would apparently have discovered that the same requirement could be met at a lower overall cost to the government.  Under these circumstances, we sustain REEP's protest.  (REEP, Inc., B-290665, September 17, 2002) (pdf)


We conclude that, in light of the purpose of the Act and the absence of any specific statutory or regulatory prohibition, there is nothing objectionable in an agency's requiring that FSS vendors responding to a task order RFQ be small as of the date quotations are due, instead of relying on the original FSS self-certification, which may not reflect a vendor's current small business status.  (CMS Information Services, Inc., B-290541, August 7, 2002)  (pdf)


As a preliminary matter, the procedures of FAR part 15--including FAR § 15.306, the provision on which Avalon relies--do not govern competitive procurements under the FSS program.  Computer Prods., Inc., B-284702, May 24, 2000, 2000 CPD ¶ 95 at 4.  Rather, because the RFP here provided for issuance of a task order under the selected vendor's FSS contract, the provisions of FAR subpart 8.4 apply.  There is no requirement in FAR subpart 8.4 that an agency soliciting vendor responses prior to issuing an order under an FSS contract conduct discussions with vendors regarding the content of those responses.  Accordingly, and consistent with the nature of FSS purchases, we conclude that agencies are not required to conduct discussions, even in the absence of a solicitation clause warning vendors that award might be made without discussions.
 
Further, while the use of the term “competitive range” was probably inappropriate here--since, at least in a negotiated procurement using FAR part 15 procedures, the purpose of establishing a competitive range is to hold discussions with those offerors whose proposals are the most highly rated, see FAR § 15.306(c)(1)--we do not believe that the agency's decision to include the vendors' proposals in a “competitive range” created an obligation to conduct discussions.  While it is not clear what purpose is served by creating a competitive range if no discussions are conducted, the failure to conduct discussions does not create a basis of protest, at least in the context of this FSS purchase.  (Avalon Integrated Services Corporation, B-290185, July 1, 2002)


Where, as here, an agency requests competition among FSS vendors and decides to shift to the vendors the burden of selecting items on which to quote, the vendors must be given sufficient detail to allow them to compete intelligently and fairly; the agency's description of its needs must be free from ambiguity and state the agency's needs accurately. See COMARK Fed. Sys., B-278343, B-278343.2, Jan. 20, 1998, 98-1 CPD para. 34 at 4-5; Haworth, Inc.; Knoll N. Am., Inc., B-256702.2, B-256702.3, Sept. 9, 1994, 94-2 CPD para. 98 at 5. Specifically, to satisfy its obligation to treat vendors fairly, the agency should in some fashion inform vendors of its essential requirements, so that a fair and intelligent competition can be achieved. [3] Haworth, Inc.; Knoll N. Am., Inc., supra, at 5-6; see FAR sect. 1.102-2(c)(3); Computer Prods., Inc., B-284702, May 24, 2000, 2000 para. __ at 5.  (Draeger Safety, Inc., B-285366; B-285366.2, August 23, 2000)


Where, in connection with an FSS purchase in excess of the micro-purchase threshold, a bid protest challenges an agency's definition of its needs that excludes consideration of supplies or services offered by the protesting FSS vendor, we will review the agency's documentation, including its report to our Office, in order to determine whether the agency's definition of its needs has a reasonable basis. See Design Contempo, Inc., B-270483, Mar. 12, 1996, 96-1 CPD para. 146 at 3; National Mailing Sys., B-250441, Jan. 28, 1993, 93-1 CPD para. 75 at 2, recon. denied, B-250441.2, June 28, 1993, 93-1 CPD para. 496; TSI Inc., B-249815, Dec. 22, 1992, 92-2 CPD para. 429 at 2. In FSS buys, as in other procurements, the determination of what the agency needs and which products meet those needs is within the agency's discretion, and we will not sustain a protest in this area unless the determination lacks a reasonable basis. See Design Contempo, Inc., supra. Here, we conclude that the FBI lacked a reasonable basis for its determination that the protester's system did not meet the agency's needs.  (Delta International, Inc., B-284364.2, May 11, 2000)

Comptroller General - Listing of Decisions

For the Government For the Protester
Phoenix Environmental Design, Inc. B-413833: Jan 5, 2017 Harmonia Holdings Group, LLC B-413464, B-413464.2: Nov 4, 2016
govSolutions, Inc. B-413166.3: Sep 2, 2016 Paragon Technology Group, Inc. B-412636, B-412636.2: Apr 22, 2016  (pdf)
Diversity Marketing and Communications, LLC B-412196.2: Mar 9, 2016  (pdf) J. Squared Inc., dba University Loft Company, B-407302, Dec 17, 2012  (pdf)
DigitalSpec, LLC B-412344: Jan 20, 2016  (pdf) Carahsoft Technology Corporation, B-401169; B-401169.2, June 29, 2009  (pdf)
Tiber Creek Consulting, Inc. B-411550.4, B-411550.5: Jan 6, 2016  (pdf) Seaborn Health Care, Inc., B-400429, October 27, 2008 (pdf)
Konica Minolta Business Solutions U.S.A., Inc. B-411888: Nov 10, 2015  (pdf) Haworth, Inc., B-297077; B-297077.2, November 23, 2005 (pdf)
Council for Logistics Research, Inc. B-410089.2, B-410089.3: Feb 9, 2015 (pdf) Crestridge, Inc., B-295424, February 23, 2005 (pdf)
Cleo Communications US, LLC B-410552: Jan 6, 2015  (pdf) KEI Pearson, Inc., B-294226.3; B-294226.4, January 10, 2005 (pdf)
Veterans Healthcare Supply Solutions, Inc., B-409888: Sep 5, 2014  (pdf) Information Ventures, Inc., B-293743, May 20, 2004 (pdf)
MSC Industrial Direct Company, Inc., B-409585, B-409585.4, B-409585.9: Jun 12, 2014  (pdf) ACS Government Services, Inc., B-293014, January 20, 2004 (pdf)
Kipper Tool Company, B-409585.2, B-409585.3: Jun 19, 2014  (pdf) KMR, LLC, B-292860, December 22, 2003 (pdf)
HealthDataInsights, Inc.; CGI Federal Inc., B-409409, B-409449, B-409449.2, B-409470, B-409470.2, B-409482, B-409482.2: Apr 23, 2014  (pdf) SMF Systems Technology Corporation, B-292419.3, November 26, 2003 (pdf)
Homecare Products, Inc., B-408898.2: Mar 12, 2014  (pdf) Garner Multimedia, Inc., B-291651, February 11, 2003  (txt version)
VariQ Corporation, B-409114, B-409114.2, B-409114.4: Jan 27, 2014  (pdf) REEP, Inc., B-290665, September 17, 2002 (pdf)
Teknion LLC B-407989, B-407989.2, May 8, 2013  (pdf) Delta International, Inc., B-284364.2, May 11, 2000
SoBran, Inc. B-408420, B-408420.2, Sep 10, 2013  (pdf)  
HP Enterprise Services, LLC, B-405692, Dec 14, 2011  (pdf)  
Encompass Group LLC, B-310940.3, March 17, 2009 (pdf)  
USGC Inc., B-400184.2; B-400184.3; B-400184.4, December 24, 2008 (pdf)  
Allmond & Company, B-298946, January 9, 2007) (pdf)  
Advanced Technology Systems, Inc., B-296493.6, October 6, 2006 (pdf)  
Murray-Benjamin Electric Company, LP, B-298481, September 7, 2006 (pdf)  
Global Analytic Information Technology Services, Inc., B-297200.3, March 21, 2006 (pdf)  
Environmental Protection Agency--Reconsideration, B-297077.3, January 25, 2006  (pdf)  
Metro Business Systems, LLC, B-296371.2, July 13, 2005  (pdf)  
Knoll, Inc.; Steelcase, Inc., B-294986.3; B-294986.4, March 18, 2005 (pdf)  
Pitney Bowes Inc., B-294868; B-294868.2, January 4, 2005 (pdf)  
Armed Forces Merchandise Outlet, Inc., B-294281, October 12, 2004 (pdf)  
Computer Associates International, Inc., B-292077.3, B-292077.4, B-292077.5, January 22, 2004 (pdf)  
Computer Associates International, Inc.--Reconsideration, B-292077.6, May 5, 2004 (pdf)  
Future Solutions, Inc., B-293194, February 11, 2004 (pdf)  
Savantage Financial Services, Inc., B-292046; B-292046.2, June 11, 2003  
Information Ventures, Inc., B-291952, May 14, 2003  (pdf)  
Computer Universal, Inc., B-291890; B-291890.2, April 8, 2003  (pdf)  
Warden Associates, Inc., B-291440; B-291440.2, December 27, 2002  
The CDM Group, Inc., B-291304.2, December 23, 2002  
KPMG Consulting LLP, B-290716; B-290716.2, September 23, 2002  
Nextira Federal, LLC, B-290820; B-290820.2, October 4, 2002  (pdf)  
CMS Information Services, Inc., B-290541, August 7, 2002   (pdf)  
Avalon Integrated Services Corporation, B-290185, July 1, 2002  
Cox & Associates CPAs, PC, B-287272.2; B-287272.3, June 7, 2001  
Draeger Safety, Inc., B-285366; B-285366.2, August 23, 2000  
ViON Corporation, B-283804.2, January 24, 2000  

U. S. Court of Federal Claims- Key Excerpts

New C. Concourse has not Shown That the Army’s Discussions were Unfair

The Army conducted its solicitation under the Federal Supply Schedule (FSS), which is governed by FAR Subpart 8.4. See AR Tab 52 at 3560.38. However, Concourse appears to argue that the Army was required to hold “meaningful” discussions as required under FAR Part 15. See Pl. Mot. at 19, Dkt. No. 32. Courts have regularly recognized that “procurements conducted under [FAR] Subpart 8.4 are different from those conducted under Part 15, even if some procedures also present in Part 15 are utilized.” Allied Tech. Grp., Inc. v. United States, 94 Fed. Cl. 16, 44 (2010), aff’d, 649 F.3d 1320 (Fed. Cir. 2011) (citations and internal punctuation omitted). Part 15’s “more formal and rigorous” requirements do not apply to a FAR Subpart 8.4 procurement. Id. (citations omitted). Therefore, the Court does not look to a “meaningful discussions” standard, as Concourse suggests; rather, the protestor “must demonstrate that the agency’s procedures were arbitrary and capricious.” Id. (citation omitted). As such, “[a]lthough FAR Part 15 does not apply, the Court will review [an agency’s] actions” in conducting discussions “to ensure they comply with FAR’s requirement of fundamental fairness in the procurement process.” Distributed Sols., Inc. v. United States, 106 Fed. Cl. 1, 16 n.9 (2012), aff’d, 500 F. App’x 955 (Fed. Cir. 2013) (citation omitted).

The Court finds that the Army’s discussions were fair. First, as the Government notes, the discussions could only have benefited Concourse. See Def. Mot. at 25, Dkt. No. 40. The Army had rated RER’s proposal acceptable in its entirety, see AR Tab 38 at 2991, so discussions could only have helped Concourse improve its proposal.

Second, the Army did not submit “generic” Evaluation Notices (“ENs”) to Concourse. Rather, the administrative record shows that the Army gave Concourse detailed suggestions as to how Concourse might improve its proposal. For example, the Army’s recommendation in subfactor element 2(a) states:

The SSEB found that [Concourse’s] proposal lacks sufficient information to demonstrate how the contractor shows experience with Projects under Army MHPI Authority in dealing with the ability to respond to changes in the Basic allowance for housing, stationing, Army resizing, etc. to analyze the results as they affect Army projects. These requirements include assisting and advising Government in developing a position when meeting with and negotiating with Wall Street investment bankers, rating agencies, insurance and surety providers, bond holders representatives and other relevant private sector parties in order to mitigate (or take advantage of) exigencies associated with these externally driven events for Army privatized housing and privatized lodging.” AR Tab 42 at 3028.

Just this statement gave Concourse notice of avenues it could take to address the Army’s concerns (for example, providing information that related to the “requirements” referenced in the EN). The ENs are filled with such recommendations. See generally AR Tab 42.

Third, Concourse fails to recognize that it revised its proposal in response to the Army’s ENs, which caused the Army to change its evaluation of six different elements from unacceptable to acceptable. See AR Tab 60 at 4440–42. This fact alone shows that the Army conducted fair discussions. If the discussions were unfair and the Army’s responses were generic, then it would follow that Concourse’s evaluation would not change after the discussion rounds.

Finally, the thrust of Concourse’s argument appears to be that any discussions would have been meaningless because the Army was always going to award the contract to the bidder with Army MHPI experience (RER). If this were the case, then a lack of meaningful discussions would not have prejudiced Concourse, as any improvement in Concourse’s proposal would have been for naught. Because Concourse’s “meaningful discussions” argument is therefore intertwined with its “unstated criterion” argument, Concourse cannot demonstrate any prejudice that a lack of meaningful discussions could have created. See JWK Int’l Corp. v. United States, 279 F.3d 985, 988 (Fed. Cir. 2002) (noting that a protestor must demonstrate a “substantial chance” it would have received an award had the agency not erred). Therefore, the Court finds that Concourse has not shown any unfairness or prejudice in the Army’s discussion process.  (Concourse Group, LLC, v. U. S. and RER Solutions, LLC, No. 17-129C, April 27, 2017)


A. The Meaning of “Manufacturer” Under the Solicitation’s CSP Provision

1. The Text of the Provision

The primary issue raised by AvKARE’s bid protest claim is a legal one: whether AvKARE is a “manufacturer” or is instead a “dealer/reseller” within the meaning of the CSP clause, which was included in the solicitation pursuant to the requirements of the GSA regulation codified at 48 C.F.R § 515.408. The Court begins its analysis by reviewing the “plain meaning” of the regulatory language. Lengerich v. Dep’t of Interior, 454 F.3d 1367, 1370 (Fed. Cir. 2013) (“We construe a regulation . . . by ascertaining its plain meaning.” (citing Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414–15 (1945))); Lockheed Corp. v. Widnall, 113 F.3d 1225, 1227 (Fed. Cir. 1997) (“To interpret a regulation we must look at its plain language and consider the terms inE. DOL’s Discussions with Plaintiff Were Proper and in Accordance with FAR accordance with their common meaning.”); see also Chase Bank USA, N.A. v. McCoy, 562 U.S. 195, 204 (2011) (analysis of regulation’s meaning begins with its text).

The dictionary definition of the word “manufacture” is “[t]o make or process (a raw material) into a finished product.”10 Am. Heritage Dict. of the English Language 1067 (4th ed. 2000). By contrast, a “dealer” is “[o]ne that is engaged in buying and selling,” id. at 467; and a “reseller” is one who “sell[s] again,” id. at 1483.

Guidance that the VA has provided to prospective offerors on its website is consistent with the dictionary definition of “reseller.” Information for Resellers, U.S. Dep’t of Veterans Affairs, http://www.va.gov/oal/business/fss/resellers.asp (last visited February 11, 2016). It defines a “reseller” as “a company or individual that purchases commercial goods or services with the intention of reselling them rather than consuming or using them.” Id.

In this case, the products that federal agencies purchase through the FSS are pills and other pharmaceuticals. And it is AvKARE’s suppliers, not AvKARE, that assemble the raw materials needed to make the pills and other pharmaceuticals into finished products for the consumption of patients in VA and other government medical facilities. AvKARE’s suppliers, therefore, clearly fall within the plain meaning of the term “manufacturer” as set forth above.

AvKARE, by contrast, purchases the pills and pharmaceuticals from the manufacturers in bulk with the intent to resell them to buyers through the FSS. It thus falls under the dictionary definition of “reseller.” To be sure, AvKARE repackages the pills in order to resell them under its own label. Nonetheless, it is the pills and other pharmaceuticals that the schedule’s users are buying, not their packaging. AvKARE, accordingly is a “dealer/reseller” of the pills and pharmaceuticals. It is not their manufacturer.

The Court notes that this common sense construction of the regulatory terms is also consistent with the way that the term “manufacturer” is used elsewhere in the solicitation. For example, the solicitation’s “Offeror Representations and Certification” section defines “place of manufacture” as “the place where an end product is assembled out of components, or otherwise made or processed from raw materials into the finished product that is to be provided to the Government.” AR Tab 2 at 86. In this context, the act of “process[ing] from raw materials” most readily describes the functions of a pill-maker, rather than a repackager.

Similarly, Clause I-FSS-644 of the solicitation requires any offeror “if other than the manufacturer” to submit assurances from its suppliers confirming the offeror’s ability to meet the government’s purchasing needs. See AR Tab 4 at 181. Offerors who are manufacturers are not required to provide such additional “assurances” because they themselves have control over the production of the pills. On the other hand, an entity like AvKARE, which does not make the pills, but merely repackages them, is most logically characterized as “other than a manufacturer” for purposes of this provision because it must rely on its suppliers to enable it to satisfy the purchasers’ needs for pharmaceutical products.

AvKARE argues, nonetheless, that it should be considered a manufacturer because the products it is offering to provide on the FSS are not simply pills, but pills that are properly packaged and labelled, and assigned a unique National Drug Code (NDC) that belongs exclusively to AvKARE. Pl.’s Mem. at 25–26; Pl.’s Reply at 10; see also Compl. ¶ 28. According to AvKARE, it is the only entity that can claim to be the “manufacturer” of the products sold under its labels.

Contrary to AvKARE’s contentions, however, unique NDCs are assigned to any entity engaged in the “manufacturing or processing” of drugs, including any entity that “repackage[es] or otherwise chang[es] the container, wrapper, or labeling of any drug package to further the distribution of the drug from the original place of manufacture to the person who makes final delivery or sale to the ultimate consumer.” 21 C.F.R. § 207.3(a)(8); see also id. §§ 207.20, 207.35. The assignment of a unique NDC to AvKARE does not, therefore, reveal anything one way or the other about whether it is the “manufacturer” of the products it wishes to offer either for purposes of the GSA regulation or for purposes of the statute and regulations governing the assignment of NDCs.

Accordingly, because pills and other pharmaceuticals are the relevant products, only a pill or pharmaceutical maker fits the plain meaning of “manufacturer” as used in the solicitation. And because AvKARE does not make pills or other pharmaceuticals, but rather buys them in bulk and sells them after repackaging them, it is not a manufacturer under the solicitation, but rather a dealer/reseller.  (AvKARE, Inc. v. U. S. No. 15-1015C, February 25, 2016)  (pdf)


Plaintiff contends that DOL failed to engage in meaningful discussions regarding the weaknesses in its proposals and its past performance evaluations. First, it is not disputed that this solicitation was issued under the GSA FSS for Schedule 70, Information Technology. Accordingly, FAR 8.4 provided the requisite guidelines and procedures for the procurement. FAR 8.403(a) (“Procedures in this subpart apply to—(1) Individual orders for supplies or services placed against [FSS] contracts; and (2) [blanket purchase agreements] established against [FSS] Contracts.”).

Despite the applicability of FAR 8.4, plaintiff contends that DOL failed to conduct meaningful discussions pursuant to FAR 15.306 because, when conducting discussions, “DOL never mentioned any deficiencies in [plaintiff’s] Technical Approach, despite its later evaluation of deficiencies in [plaintiff’s] Sub-factor (a) and Sub-factor (b) submissions.” Pl.’s MJAR 33. Additionally, plaintiff contends DOL failed to comply with FAR 15.306 because it did not provide plaintiff with an opportunity to respond to its past performance evaluations. Id. at 34.

Plaintiff’s contentions lack merit. As an initial matter, FAR 8.404 expressly provides that FAR Part 15 “do[es] not apply to . . . orders placed against [FSS] contracts.” FAR 8.404(a). “FAR Part 15, therefore, is explicitly made inapplicable to FSS contracts.” Sys. Plus Inc. v. United States, 68 Fed. Cl. 206, 210 (2005). Plaintiff contends that because DOL engaged in discussions, it was required to follow FAR Part 15 procedures. This misconstrues case law.

This court “consistently has held that procurements conducted under Subpart 8.4 are different from those conducted under Part 15, even if ‘some procedures also present in Part 15 are utilized.’” Allied Tech. Grp. v. United States, 94 Fed. Cl. 16, 44 (2010) (quoting Sys. Plus Inc., 68 Fed. Cl. at 211), aff’d, 649 F.3d 1320 (Fed. Cir. 2011). Therefore, that DOL conducted discussions did not mean it had to comply with the strict procedures of FAR Part 15. Id. (“Where a solicitation governed by FAR Subpart 8.4 uses procedures found in FAR Part 15, the procurement official need not comply with ‘the more formal and rigorous procedures for negotiated procurements.’” (quoting Holloway & Co. v. United States, 87 Fed. Cl. 381, 393 (2009))); Sys. Plus Inc., 68 Fed. Cl. at 210 (“[W]hile the agency can elect to use procedures from [FAR Part 15], they are not presumptively applicable.”); Labat-Anderson Inc. v. United States, 50 Fed. Cl. 99, 104 (2001) (“[T]his Court has held that FSS acquisitions are not transformed into negotiated procurements simply because an agency chooses to utilize in its evaluation process more formal elements typically used in a negotiated procurement . . . .”).

Despite this, relevant portions of FAR Part 15 may be used in analyzing a procurement when those specific portions of FAR Part 15 were “implicated by the particular procedure that the solicitations stated would be used.” Sys. Plus Inc., 68 Fed. Cl. at 211. Case law suggests that relatively clear intentions that FAR Part 15 procedures will be used is necessary to trigger their application to a procurement. See id.; see, e.g., ACS Gov’t Solutions Grp., Inc., B-282098 et al., 1999 WL 397426, at *10 (Comp. Gen. June 2, 1999) (analyzing discussions conducted in a FAR Part 8 procurement using FAR Part 15 guidance when the solicitation expressly provided that discussions were part of the procurement process). Here, the solicitation specifically provided that the agency “intend[ed] to evaluate quotes and make award without discussions,” although it reserved the agency’s “right to conduct discussions, if necessary.” AR Tab 1, at 72 (emphasis added). Accordingly, the solicitation not only did not contemplate discussions, but also did not condone a FAR Part 15 procedure governing discussions. And, under FAR Part 8, DOL was under no obligation to hold discussions. See Career Training Concepts, Inc., B-311429 et al., 2008 WL 6049972, at *4 (Comp. Gen. June 27, 2008) (“[W]here a procurement is an FSS purchase conducted pursuant to FAR part 8.4, . . . an agency properly may make award without conducting discussions, even if the solicitation does not expressly advise vendors of that possibility.” (citing Avalon Integrated Servs. Corp., B-290185, 2002 WL 1577705, at *3 (Comp. Gen. July 1, 2002)). Accordingly, plaintiff’s contention that DOL violated FAR by failing to provide meaningful discussions fails.  (Distributed Solutions, Inc., v. U. S. and Compusearch Software Systems, Inc., No. 12-274C, August 10, 2012)   (pdf)


V. Erroneous Disqualification of HP’s Proposal

A. Amendment of the Solicitation’s GSA Schedule Requirement

Questions and answers provided bidders do not always serve to modify or amend a solicitation. See, e.g., JSR Servs., LLC, B-401500, 2009 CPD ¶ 168, 2009 WL 2596106, at *2 (Comp. Gen. Aug. 24, 2009) (stating that in that procurement, “[t]here . . . was no reasonable basis for the protester to assume that the questions and answers [provided bidders] were intended to amend the solicitation requirements.”); McNeil Techs., Inc., B-278904, B-278904.2, 98-1 CPD ¶ 96, 1998 WL 150352, at *4 (Comp. Gen. Apr. 2, 1998) (declining to consider an answer provided potential bidders as an amendment to an RFP because, in part, the answer “was never incorporated by amendment into the RFP”). However, in a substantial number of bid protests, a clarifying response to a bidder’s question, or other information provided to all bidders, has been found to amend or modify a particular solicitation provision. See, e.g., Linguistic Sys., Inc., B-296221, 2005 CPD ¶ 104, 2005 WL 1299516, at *1 (Comp. Gen. June 1, 2005) (stating that an answer to a bidder question posted on GSA’s website functioned as an amendment to the solicitation provision at issue in that protest); Scientific Research Corp., B-260478, B-260478.2, 95-2 CPD ¶ 8, 1995 WL 404157, at *5 (Comp. Gen. July 10, 1995) (stating that “information disseminated during the course of a procurement that is in writing, signed by the contracting officer, and sent to all offerors, meets all the essential elements of a solicitation amendment and will therefore bind both the offerors and the agency”) (citation omitted); see also Allied Signal, Inc., Elec. Sys., B-275032, B-275032.2, 97-1 CPD ¶ 136, 1997 WL 173945, at *6 (Comp. Gen. Jan. 17, 1997) (stating that the protestor in that procurement “could reasonably rely on the [questions and answers on the agency’s] electronic bulletin board” to interpret the solicitation’s requirements). This court recently held that answers to bidder questions amended a solicitation. BayFirst Solutions, LLC v. United States, No. 11-516C, 2012 WL 37384, at *10 n.15 (Fed. Cl. Jan. 9, 2012). In the court’s view, bidder questions and the agency’s answers thereto may amend a solicitation, depending on the circumstances of the procurement.

Here, the court notes first that the Agency’s response to bidder Question 8, regarding the eligibility of bidders with expiring GSA Schedules, was posted on GSA eBuy, and was thus formally distributed to all offerors. Second, the Agency’s answer to Question 8 was revised from “No” to “In order to be eligible for award the Contractor’s GSA Schedule contract has to still be in an active period by the time the option to extend the term of the proposed contract Task Order will be exercised.” AR at 311-13. The Agency thus issued a revised, and radically different, response to Question 8, on a separate date, when all of its other responses to the first set of bidder questions remained the same. Bidders could not ignore the change to the Agency’s response to Question 8. The court finds that the revised response to Question 8 was given special prominence in this procurement, and functioned as an amendment to Note 2 of the solicitation.

The court’s determination that Note 2 of the solicitation was amended by the Agency’s revised response to Question 8 is fully supported by the record. The Agency, in every contemporaneous document discussing the requirement that an offeror have a GSA Schedule that would cover the period of performance of the task order, always referenced its revised response to Question 8 or the content thereof. See AR at 459, 493, 495, 500. Similarly, in proceedings before GAO, the contracting officer confirmed that the text of the Agency’s revised response to Question 8 was binding. See id. at 199 (stating that the Agency’s revised response to Question 8 “revised the requirement” set forth in Note 2 of the solicitation). The Agency’s memorandum of law before GAO also relied on the text of the revised response to Question 8 to describe the GSA Schedule eligibility requirement. See id. at 184 (emphasizing that an offeror must show that its “GSA schedule contract would be in effect by the time the Air Force contemplated exercising the option to extend the term of the task order”). Even the GAO decision which denied HP’s protest implicitly acknowledged that the solicitation’s requirement for an “active” GSA Schedule was best understood through the “awkwardly drafted” revised response to Question 8, rather than through the text of Note 2:

Although the agency’s instruction was awkwardly drafted, it essentially required each vendor to demonstrate, by the time of award, that it would have an active GSA schedule contract at the time the 9-month task order option was scheduled to be exercised [on December 15, 2011]. . . . [T]he record shows that the agency concluded that the only way to be certain that the contract would be active at the time it would need to exercise the 9-month option was to examine the question as of the time of the award.

Id. at 1001 (emphasis added). The only possible reading of the record before the court is that Note 2 of the solicitation was amended by the Agency’s revised response to Question 8.

B. Latent Ambiguity and Contra Proferentem

1. Ambiguity in a Solicitation

The precedent of the United States Court of Appeals for the Federal Circuit directs this court as it determines whether or not a contract or solicitation provision is ambiguous. An oft-cited case provides the structure for such an inquiry:

When a contract is susceptible to more than one reasonable interpretation, it contains an ambiguity. To show an ambiguity it is not enough that the parties differ in their respective interpretations of a contract term. Rather, both interpretations must fall within a “zone of reasonableness.” If this court interprets the contract and detects an ambiguity, it next determines whether that ambiguity is patent. The doctrine of patent ambiguity is an exception to the general rule of contra proferentem which construes an ambiguity against the drafter, here, [the government]. An ambiguity is patent if “so glaring as to raise a duty to inquire [.]” If an ambiguity is not patent but latent, this court enforces the general rule.

Metric Constructors, Inc. v. NASA, 169 F.3d 747, 751 (Fed. Cir. 1999) (citations omitted). Even if the court has detected a latent ambiguity according to these principles and would otherwise apply the rule of contra proferentem, however, the protestor will not benefit from this rule unless it can show reliance on its reasonable interpretation of the ambiguous provision. See, e.g., NVT Techs., Inc. v. United States, 370 F.3d 1153, 1162 (Fed. Cir. 2004) (citing Edward R. Marden Corp. v. United States, 803 F.2d 701, 705 (Fed. Cir. 1986)). Whether an ambiguity is patent or latent is decided on a case-by-case basis. Id. at 1159 (citation omitted).

2. Two Reasonable Interpretations of the Solicitation’s Requirement for an “Active” GSA Schedule

The contested GSA Schedule requirement states that “[i]n order to be eligible for award the Contractor’s GSA Schedule contract has to still be in an active period by the time the option to extend the term of the proposed contract Task Order will be exercised.” AR at 313. According to defendant, this provision could reasonably be interpreted as follows:

The common sense interpretation of the revised response [to Question 8] is that HP was required to demonstrate, either in its proposal or, at the latest, by the time the award was made, that its existing FSS contract would still be active on the date of the Air Force’s deadline for exercising the task order option.

Def.’s Mot. at 15 (footnote omitted). The court finds that this interpretation falls within a zone of reasonableness for the solicitation’s GSA Schedule requirement.

Plaintiff, on the other hand, provides two interpretations of the revised response to Question 8. Plaintiff’s first, and more lenient, interpretation of the eligibility requirement is that an offeror was eligible for award “so long as the [offeror’s] Schedule ha[d] not expired at the time of award and there [we]re options available that, if exercised, would cover the task order’s period of performance.” Pl.’s Reply at 20. The court rejects this interpretation as unreasonable, because it relaxes the Agency’s demand that the GSA Schedule “still be in an active period by” December 15, 2011. AR at 313. According to plaintiff’s lenient interpretation of the revised response to Question 8, all that was required was that an offeror’s GSA Schedule include an option period, which, “if exercised” by December 15, 2011, would extend beyond September 14, 2012. That formulation does not fully capture the urgency of the Agency’s stated interest in awarding to an offeror whose GSA Schedule would be active on December 15, 2011.

Plaintiff also suggests, somewhat indirectly, that the revised response to Question 8 created an eligibility requirement that resembled the requirement referenced in a GAO decision issued in 2005. See Pl.’s Mot. at 22. In that decision, GAO agreed with GSA guidance that GSA Schedule contracts support task order awards, including options, so long as the offeror’s GSA Schedule has an option period which would cover the period of performance of the task order and its options, and there is no indication that the GSA Schedule option period would not be exercised:

FSS contracts [are] valid for purposes of award of a contract utilizing a [GSA S]chedule as long as there are option periods that can be exercised that would cover the contract award period, and there is no indication that the FSS contract option will not be exercised.

Knoll, Inc.; Steelcase, Inc., B-294986.3, B-294986.4, 2005 CPD ¶ 63, 2005 WL 696321, at *9 (Comp. Gen. Mar. 18, 2005) (Knoll). Plaintiff repeatedly relies on Knoll to interpret the revised response to Question 8. See Pl.’s Mot. at 21-22, Pl.’s Reply at 16-17, 25. In the court’s view, the standard referenced in Knoll is entirely consistent with the solicitation’s requirement for an active GSA Schedule, and provides a reasonable interpretation of this ambiguous provision.

As plaintiff points out, both Knoll and the “GSA Ordering Guidelines” available on GSA’s website provide a context for the award of task orders, including options, placed against a GSA Schedule. The GSA Ordering Guidelines state in relevant part:

Options may be included on orders placed against GSA
Multiple Award Schedule (MAS) contracts, . . . provided
that:
Funds are available;
The requirement covered by the option fulfills an existing
government need;
Prior to exercising an option, the ordering activity ensures
that it is still in the government’s best interest, i.e., that the
option is the most advantageous method of
fulfilling the government’s need, price, and other factors
considered; and
The options do not extend beyond the period of the
Schedule contract, including [GSA Schedule] option year
periods.

AR at 975 (emphasis added). Given this context, plaintiff’s less lenient interpretation of the revised response to Question 8 is reasonable. Plaintiff’s reasonable interpretation of the solicitation is that the Air Force required, at a minimum, that an offeror’s GSA Schedule have an option period that covered the period of performance of the task order, including December 15, 2011 in particular, and that there be no indication that the option period of the offeror’s GSA Schedule would not be exercised. See Pl.’s Reply at 16-17.

3. The Ambiguity was Latent

Having found that the GSA Schedule requirement was subject to two reasonable interpretations and was thus made ambiguous, the court turns to the question of whether the ambiguity was patent or latent. The parties’ arguments and citations to caselaw are not particularly helpful in this regard, because the question must be decided on a case-by-case basis. NVT, 370 F.3d at 1159. The court notes, first, that this is not a case where there are two or more conflicting solicitation provisions that raise a duty to inquire on the part of the protestor. Cf., e.g., Stratos Mobile Networks USA, LLC v. United States, 213 F.3d 1375, 1381 (Fed. Cir. 2000) (“A patent ambiguity is present when the contract contains facially inconsistent provisions that would place a reasonable contractor on notice and prompt the contractor to rectify the inconsistency by inquiring of the appropriate parties.”). Rather, the Air Force initially framed the issue with the unambiguous Note 2, then stated a similary unambiguous position in its first response to Question 8, before finally defining the requirement with its revised response to Question 8. The ambiguity exists solely within the text of that single, awkwardly drafted sentence:

In order to be eligible for award the Contractor’s GSA Schedule contract has to still be in an active period by the time the option to extend the term of the proposed contract Task Order will be exercised.

AR at 313.

The court has compared this ambiguity to others noted in this court’s caselaw and in GAO decisions and concludes that the ambiguity here is latent. In a recent GAO decision, a protestor asserted that an eligibility requirement in a solicitation could be read to include business entities not yet certified as eligible small businesses. Commandeer Constr. Co., B-405771, 2011 CPD ¶ 287, 2011 WL 6880720, at *4 (Comp. Gen. Dec. 29, 2011), modified, Dep’t of Veterans Affairs-Reconsideration, B-405771.2, 2012 WL 523946 (Comp. Gen. Feb. 15, 2012). The agency had a more stringent view of the eligibility requirement; GAO found that both interpretations were reasonable, and noted that the protestor’s interpretation was “not contradicted by other provisions of the solicitation.” Id. The protest was sustained because of this latent ambiguity in the solicitation.

In another bid protest, this court reviewed a solicitation phrase which included an eligibility requirement: “in order to be considered for award, ‘offerors must submit a proposal for no less than 75% of the services within a region.’” Heritage of Am., LLC v. United States, 77 Fed. Cl. 66, 74 (2007) (quoting solicitation). The plaintiff in that case submitted a bid reflecting its understanding of the requirement, that it should bid on at least seventy-five percent of the estimated labor hours required in a particular region. Id. The government construed the requirement differently, insisting that an offeror bid on at least seventy-five percent of the installations in a region, and rejected the protestor’s bid. Id. This court found that this ambiguity in the solicitation was not a patent ambiguity, and ruled in favor of the protestor on this and other issues. Id. at 72 n.7, 80.

This case is not unlike Commandeer Construction and Heritage of America, because this solicitation, too, contains no glaring or obvious inconsistency which would give rise to a patent ambiguity. The court finds nothing glaring in the revised response to Question 8 that would lead HP to inquire as to whether the Agency had a more stringent eligibility requirement in mind than the eligibility standards expressed in Knoll and the GSA Ordering Guidelines. The Air Force had indicated that it was lessening its overly stringent insistence that an offeror have a GSA Schedule with an expiration date after September 14, 2012. An offeror had no reason to suspect that the Agency required something more definitive than an adequate option period on the offeror’s GSA Schedule and reasonable expectations that its GSA Schedule option period would be exercised. The GSA Schedule eligibility requirement thus contained a latent ambiguity, and the general rule of contra proferentem will be applied here.

The court notes that HP’s reliance on its interpretation of the GSA Schedule is adequately shown by the record. HP noted in its initial and final proposals that it had GSA Schedule option periods that would cover the entire period of performance of the task order. AR at 373, 452. HP also asserted that negotiations for the exercise of its GSA Schedule’s option period were ongoing, and provided contact information so that the Air Force could confirm HP’s representation. Id. at 452. Thus, HP’s proposal shows that HP interpreted the GSA Schedule requirement as capable of being satisfied by an offeror possessing a GSA Schedule option period of adequate length, as long as there was no indication that the option period would not be exercised.

C. HP’s Proposal Conformed to the Solicitation Requirement for an “Active” GSA Schedule

The solicitation required that an offeror’s GSA Schedule have an option period that covered the period of performance of the task order, including December 15, 2011 in particular, and that there be no indication that the option period of the offeror’s GSA Schedule would not be exercised. The court has carefully reviewed the record and must conclude that HP met this requirement. Its GSA Schedule included an option period of adequate length, and there was no indication in the record before the Air Force that GSA would not exercise that option period.

The Air Force communicated with GSA and received no indication that HP’s GSA Schedule would not be extended. Neither Mr. Price nor Ms. Williams gave the Air Force any indication that HP’s GSA Schedule would not be extended. Ms. Greene was never directly asked the question by the Air Force. Based on the record before the Air Force, and now before this court, HP should not have been eliminated from the competition based on the solicitation’s GSA Schedule requirement.

D. Arbitrary and Capricious Procurement Decision

Here, HP met the amended solicitation requirement provided by the revised response to Question 8. The Air Force held HP to a higher standard, which is not clearly stated but which appears to have required that the offeror have, as of the date of proposal submission, a GSA Schedule expiration date after December 15, 2011, or have, as of the contract award date, an executed modification of its GSA Schedule’s expiration date. See AR at 495. It is possible that the Air Force might have accepted a written statement from GSA that HP’s GSA Schedule option period would be exercised by a certain date, as long as that date was before December 15, 2011, but it appears more likely that the Air Force believed it could not award to HP until the option period of HP’s GSA Schedule had been exercised. See AR at 495 (“The Government cannot wait with the award of this bridge task order until GSA and [HP] eventually reach agreement and [HP’s GSA S]chedule is actually extended past the date for exercise of the task order option.”). In any case, it is clear that the Air Force disqualified HP not pursuant to the eligibility standard established by the solicitation but pursuant to a heightened eligibility requirement. Because the requirement imposed on HP differed materially from the requirement in the solicitation, the Air Force’s disqualification decision was arbitrary and contrary to law. See, e.g., Alfa Laval Separation, Inc. v. United States, 175 F.3d 1365, 1368 (Fed. Cir. 1999) (noting that the government must evaluate proposals and base its award decision solely on factors set forth in the solicitation) (citations omitted).

The court now turns to the Agency’s irrational reliance on the GSA Ordering Guidelines. Defendant argues that the GSA Ordering Guidelines should not be used to interpret the solicitation’s “active” GSA Schedule requirement. See Def.’s Mot. at 18. The court agrees with defendant that nothing in the solicitation indicated to offerors that the GSA Ordering Guidelines were incorporated into the solicitation.12 Nonetheless, given the Agency’s stated reliance on the GSA Ordering Guidelines, AR at 493, 499, the rationality of that reliance is a proper subject of inquiry for this court. Indeed, to affirm a procurement decision for reasons other than those provided by the procuring officials is prohibited by caselaw binding on this court. See OMV Med., Inc. v. United States, 219 F.3d 1337, 1344 (Fed. Cir. 2000) (citations omitted).

As to the GSA Ordering Guidelines, the most pertinent provision of these guidelines states that task order “options may be exercised on GSA Schedule contract [task] orders, provided that . . . [t]he options do not extend beyond the period of the Schedule contract, including option year periods.” AR at 975. The guidelines therefore suggest that the Air Force could permissibly award the bridge contract task order to HP, because HP’s GSA Schedule had option periods that extended well beyond the end of the period of performance of the task order.

The GSA Ordering Guidelines cannot however be read to support the following pronouncement in the SSSR, dated August 31, 2011, which was purportedly “in line” with the guidelines:

[T]he GSA Ordering Guidelines . . . allow [a] contractor’s performance of services through the end of a task order option period that is after the end of the Multiple Award Schedule’s (MAS’s) active period, provided the task order option period start date was prior to the MAS’s active period end date.

AR at 493 (emphasis added). The Agency apparently misunderstood the relevant instruction in the GSA Ordering Guidelines regarding GSA Schedule contract option periods, and turned that instruction on its head.

The Agency also cited the GSA Ordering Guidelines in its Notification of Exclusion sent to HP on September 1, 2011, curiously quoting the provision referenced above, a provision which supports HP’s eligibility for contract award, and which provides no support for the Agency’s decision to exclude HP from the competition. Id. at 499. Based on the record before it, the court concludes that the Agency misconstrued the GSA Ordering Guidelines, and that its reference to and reliance on these guidelines was irrational. The procurement decision documented in the SSSR, which the court has already determined to be arbitrary and contrary to law, is further undermined by the agency’s irrational misinterpretation of the GSA Ordering Guidelines. See Alabama Aircraft, 586 F.3d at 1375 (noting that when an agency’s explanation of its decision runs counter to the evidence before the agency, that decision is arbitrary).  (HP Enterprise Services, LLC v. U. S., No. 11-888C, April 5, 2012)  (pdf)


2. Compliance with prohibition on off-schedule items by proposer

Plaintiff argued that it was compliant with the open-market restriction because in its final proposal “show[ed] that [plaintiff] was entering into a teaming agreement with another GSA FSS contractor, [ ], as allowed by the Solicitation.” Pl.’s Br. filed July 31, 2008 at 21. According to plaintiff, “it advised the [MCC] that, in an abundance of caution, it was adding items previously indicated [on its original proposal] as ‘open market’ to its existing GSA FSS schedule.” Id. Plaintiff “expected this to be done before March 31, 2008.”  Id.

(Sections deleted)

Plaintiff argues that the Solicitation, as amended, did not set a deadline by which a proposal had to reflect that no open-market pricing was offered, i.e., that the only items proposed were on the GSA schedule. Because its final proposal promised to eliminate all open-market items by the contract award date, plaintiff insists that the final proposal complied with the Solicitation. See Tr. 60-61. Defendant contends that the Solicitation, as amended, required that all proposed items had to be listed on the GSA schedule as of the date of final proposal, not the contract award date.

Plaintiff does not provide any authority directly on point to support its “promise theory,” but argues that, if the MCC questioned whether plaintiff could provide the items as promised, the MCC should not have eliminated plaintiff, but referred the matter to the SBA for a nonresponsibility determination under FAR §§ 9.104-1 and 9.104-3. Pl.’s Br. filed Aug. 8, 2008, at 4; Tr. 5-6. Plaintiff admitted during argument that its promise theory is counterintuitive, see Tr. at 61-64, given the difficult situation that the MCC would face if plaintiff were awarded the contract and then did not perform as promised. Nonetheless, plaintiff maintained that this is not an issue for the court to address; rather, it is one of contract administration. See Tr. at 61.

It is not the trial court’s province to “devise a procedure that fills in a gap that the FAR does not recognize as a critical interval.” Aeroplate Corp. v. United States, 67 Fed. Cl. 4, 12 (2005). In absence of any regulation supporting plaintiff’s theory that an offeror’s promise to comply by the date of contract award with the terms of an RFP is sufficient to meet a substantive requirement of the RFP, the court must defer to the terms of the Solicitation, which prohibited the open-market items. The court therefore examines whether the MCC acted arbitrarily in disqualifying plaintiff and not accepting plaintiff’s final proposal, including the promised conformance with the prohibition against open-market items.

In resolving the dispute of when plaintiff was required to comply with the open-market-items prohibition, the procurement history plays a role. Defendant admitted during oral argument that the original Solicitation did not make it clear that the prohibition had a deadline of final proposal date. See Tr. at 43. Amendment 02 dated December 4, 2007, stated that “[n]o open market items can be permitted,” AR Tab 10 at 292, but did not indicate when open-market items had to be added to the GSA schedule. However, after plaintiff submitted its initial proposal on December 20, 2007, the MCC issued notice of the no-open-market-items prohibition on three separate occasions: (1) on February 4, 2008, the MCC issued its fourth amendment stating that “[n]o ‘open market’ items may be proposed on this effort per GSA guidelines. Offerors should team with other GSA vendors to provide items not listed on their own schedule.” AR Tab 12 at 424 (emphasis added); (2) on February 7, 2008 the MCC provided plaintiff written notice of the weaknesses and deficiencies in plaintiff’s proposal and specifically addressed the prohibition of open-market items, see AR Tab 31 at 1938; and (3) on February 12, 2008, the contracting officer and the evaluation teams (TEP and PPEP) again discussed this issue with plaintiff. See AR Tab 47 at 2570; Tab 32 at 1949. Therefore, when plaintiff submitted its final proposal stating that it “expected” to add all items to the GSA schedule by March 31, 2008, see AR Tab 34 at 1958, the MCC had a reasonable basis to find plaintiff’s proposal noncompliant with the openmarket restriction. See also AR Tab 47 at 2570 (stating that plaintiff’s “proposal was not accepted nor executed as a GSA schedule modification as of the revised proposal due date”). 

Given this ruling, plaintiff complains that the MCC’s action to exclude plaintiff from the competitive range on this basis is arbitrary, because CSC’s final proposal also failed to comply with another mandatory requirement.  (Dyonyx, L. P., v. United States, No. 08-458C, September 15, 2008) (pdf)


The issue, therefore, is whether DLT’s FSS contract, as modified in 2004, can be “reasonably interpreted” to include the enterprise-wide license to BDNA’s inventory application along with the one year of support in 2007. Tarheel Specialities, Inc., B-298197, at *4.

I. BDNA Inventory Application.

The modification to DLT’s FSS contract, executed on September 10, 2004, assigned a SIN and manufacturing number to the license for BDNA’s inventory application. The SIN and manufacturing number have not changed. BDNA’s inventory application, as a software product, however, has evolved. Thus, the fixed manufacturing number at any point in time may refer to a slightly (or substantially) different product. Plaintiff acknowledges the inevitability of changes in software over time and does not insist that every update requires an effort to qualify a new product for the supply schedule. The real issue, then, is whether plaintiff has shown that the product placed on the GSA schedule in 2004 is so different from what was purchased in 2007 that it constitutes a new product, which in fairness to other potential suppliers, should have been the subject of an amendment to the FSS schedule. Eracent asserts that BDNA’s inventory application had “been the subject of numerous, material revisions” during those three years, (Pl.’s Reply Br. at 24), and that what was ordered differed substantially from the approved items. By purchasing a license to a software product, the Navy acquires both the software product and the license agreement. The license agreement to BDNA’s inventory application includes “[]” to the licensed product. (AR 161.) “Updates,” as defined in the agreement, “[].” (Id.) In 2007 the Navy purchased the BDNA Master Software License and Maintenance Agreement, with the same terms agreed to in 2004. According to the terms of this license agreement, the software product purchased in 2007 includes all updates available in the prior three years. However, the product as it existed in 2004 came with an automatic entitlement to all subsequent updates. With respect to free updates, therefore, the products are not different.

Although Eracent alleges that there were substantial changes to the software and license agreement, other than these free updates, it has no direct proof to support that claim. Instead, it points to a report titled, “Department of the Navy Enterprise IT Asset Management Lessons Learned,” issued by the Navy, dated June 9, 2006, and a press release issued by BDNA, dated June 11, 2007, marketing BDNA’s application. The report describes BDNA’s application as “a relatively immature product” when it was initially implemented.5 (AR PL-146.) The press release states that BDNA Inventory 4.0 “delivers a new user interface” and “provides increased flexibility in how information is visualized and analyzed by enhancing policy-based access control capabilities.”6 (Pl. Br. Att. 8 at 1.) We do not know whether BDNA treated these changes to the software as free updates or as new features or enhancements, [ ].

As for the software license, Eracent argues that the changes made to the license before issuance of the delivery order but after the amendment to the schedule were material. Specifically, changes were made to the following provisions:

• Section 2.g “Audit”
• Section 6.c “Payment”
• Section 10.a “Governing Law”
• Section 10.h “Purchase Orders”
• Section A “Fees”
• Section B “Term”


(AR 368-69.) Some of these changes were necessary for the license to comply with the FAR. None of these changes altered the definitions of “licensed product” and “updates.” Defendant counters plaintiff’s inferences with inferences it advocates. It points out that DLT’s FSS contract includes the same SIN and manufacturing number as the ordered item. It argues that if the software products differed, then they would have had different SINs and manufacturing numbers. Intervenor also noted at oral argument that BDNA [] for the software available through the option. Presumably, BDNA would [ ] the price for a new software product.

In the final analysis, we are left with competing inferences only. The court understands software might evolve over time, but we have no real evidence that the software product purchased in 2007 evolved to such a degree that it constitutes a product materially different from that approved on DLT’s FSS contract in 2004. A permanent injunction is extraordinary relief and requires stronger evidence than that provided by plaintiff.  (Eracent, Inc., v U. S. and DLT Solutuions, Inc., No. 07-724C, Reissued November 26, 2007)


Because Part 8 contemplates agencies ordering off the schedule, no regulations Govern the proper procedure for selecting contractors. See FAR § 8.401. This is consistent with the simplified and flexible approach Part 8 takes toward procurements. To be sure, within the FSS program an agency may choose, for any number of reasons, to engage in a more comprehensive selection process than contemplated by the scheme. When that occurs, a frustrated bidder may still challenge the agency award under the arbitrary and capricious standard articulated in 5 U.S.C. § 706(2)(A). However, the protester will not be able to prevail on the theory that the procurement procedure involved a clear and prejudicial violation of applicable statutes and regulations, because no applicable procedural regulations are contained in Part 8. A protester instead must rely on establishing that the government officials involved in the procurement process were without a rational and reasonable basis for their decision.  (Ellsworth Associates, Inc. v. U.S. and Anteon Corp., No. 99-790C, November 22, 1999)

U. S. Court of Federal Claims - Listing of Decisions
For the Government For the Protester
New Concourse Group, LLC, v. U. S. and RER Solutions, LLC, No. 17-129C, April 27, 2017 AvKARE, Inc. v. U. S. No. 15-1015C, February 25, 2016  (pdf)
Distributed Solutions, Inc., v. U. S. and Compusearch Software Systems, Inc., No. 12-274C, August 10, 2012 (pdf) HP Enterprise Services, LLC v. U. S., No. 11-888C, April 5, 2012 (pdf)
Dyonyx, L. P., v. United States, No. 08-458C, September 15, 2008 (pdf)  
Eracent, Inc., v U. S. and DLT Solutuions, Inc., No. 07-724C, Reissued November 26, 2007.  (pdf)  
Cybertech Group, Inc. v. U.S. and Intellidyne, LLC, No. 00-768C, February 14, 2001  (.pdf)
Ellsworth Associates, Inc. v. U.S. and Anteon Corp., No. 99-790C, November 22, 1999
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