Protest alleging the agency improperly issued a Federal Supply Schedule purchase order to a firm is sustained, where the vendor quoted an item that did not meet the specifications of the RFQ and was not equivalent to the brand name specified, and where the item was not listed on the vendor’s Federal Supply Schedule contract.
Savannah Cleaning Systems Inc. protested the Navy’s award of a purchase order for five pressure washers to Border Construction Specialists LLC, arguing that BCS offered an item that was not included on its General Services Administration Federal Supply Schedule contract and did not meet the solicitation’s specifications.
Specifically, Savannah argued that the Navy unreasonably concluded that BCS offered pressure washers that were equal or comparable to the brand name item listed in the solicitation. The protester alleged the items were not equal or comparable to the items sought by the Navy, because they are less powerful and do not contain the same features.
In its agency report, the Navy did not argue that the pressure washers quoted by BCS were equal or comparable to the brand name pressure washers; rather, the Navy argued that because quotations are not offers the agency can accept, the agency may select a quotation that does not comply with the RFQ’s identified requirements, where the agency finds that the quotation will otherwise satisfy the agency’s needs.
GAO disagreed, explaining that the legal nature of a quotation vis-à-vis “offer” and “acceptance” in the context of an RFQ issued to FSS vendors does not alter the fundamental requirement that the FSS competition be conducted fairly and in a manner that affords vendors an opportunity to compete on an equal basis. According to GAO, when an agency determines that an item other than the one specified in an RFQ will meet its needs, it should amend the RFQ and reopen the competition.
In this case, the agency determined that its needs could be met by a less powerful pressure washer with fewer features. Under these circumstances, GAO found the agency should have amended the solicitation to reflect that it did not require these features. Although the agency requested quotations from 91 vendors, the quotations received were in response to the agency’s purported need for a brand name or equivalent pressure washer, and therefore the offerors were not competing on an equal basis to BCS, which offered a lesser item.
GAO also concluded that Savannah was prejudiced as a result of the agency’s failure to amend the solicitation. Savannah explained that it sells a pressure washer similar to the one accepted by the agency and could have offered a lower price, had it known the agency would accept it.
Savannah also argued that the pressure washers BCS quoted were not listed on its schedule contract. In response, the Navy argued that BCS could quote the pressure washer even though it was not listed on its schedule contract. According to the agency, as a Schedule 51V contract holder with special item number (SIN) 105-003, Hardware Store, Home Improvement Center, or maintenance, repair, and operations supplies (MRO)-Services, BCS can “outsource” (i.e., offer) off-schedule products, so long as it has a related similar item on its schedule contract.
In support of its position, the agency cited informal GSA guidance stating that a Schedule 51V contract holder with SIN 105-003 containing an “outsourcing” provision may offer any item typically offered in a home improvement center for which it has another item of the same category on its schedule contract.
However, in response to GAO’s request for clarification, GAO advised that a 51V contract holder may not offer products that are not on its FSS contract, even if its contract includes SIN 105-003. GSA explained that SIN 105-003 allows contract holders to offer ancillary services to products ordered under SINs 105-001, Hardware Store, Home Improvement Center, or MRO-Store Front, and 105-002, Hardware Store, Home Improvement Center, or MRO-Catalog, but does not allow a contractor to offer an item that is not otherwise available. For example, an offeror would be able to perform commercially available services typically performed in a hardware store, but those services must be incidental to the products offered under its SIN.
Because the agency had already accepted delivery of the products, GAO could not recommend that the agency take corrective action by terminating the order and amending the RFQ. However, it did recommend that the protester recover the cost of filing and pursuing its protest, as well as its quotation preparation costs.
Savannah Cleaning Systems Inc. is represented by Mitzi A. Moore. The government is represented by Jennifer Misciagna, Department of the Navy, and by Stephen T. O’Neal, General Services Administration. GAO attorneys Todd C. Culliton and Tania Calhoun participated in the preparation of the decision.
