The Protester Said the Agency’s Market Survey Was Tacitly Manipulative. Why Didn’t GAO Buy this Argument?

83
Andrey_Popov | Shutterstock

GAO sustained a protest challenging a solicitation issued by GSA seeking office supplies for military bases. GAO found the solicitation did not accurately reflect the bases’ office supply requirements. Following the protest, GSA sent surveys to the bases to discern their office supply needs. The protester then filed a second protest, alleging the survey was flawed because it was structured in a way that encourages respondents to agree with GSA’s estimates. GAO rejected the protster’s argument, finding the survey was a reasonable way to ascertain the agency’s requirements.

Office Depot, LLC, GAO B-420482.2

Background

The General Services Administration issued an RFQ seeking to establish a blanket purchase agreement (BPA) for the provision of hardware and office supplies at eight military bases. The BPA allowed the ordering of tens of thousands of items. But to evaluate quotations and to compare prices, GSA created a “market basket” of the 200 most frequently purchased items. GSA identified the 200 items based on historical sales data.

Office Depot filed a protest challenging the terms of the RFQ. Office Depot argued that GSA’s market basket did not accurately reflect the ratio of hardware and office supplies that GSA would actually need. GAO sustained the protest, finding hat GSA had failed to establish that it took any steps to apprise itself of its customers’ historical and future office supply needs. GAO recommended that GSA conduct additional market research and suggested various method the agency could use to ascertain customer requirements.

Following the protest decision, GSA elected to follow one of the market research approaches suggested by GAO—namely, making inquiries with customers at the military bases concerning their requirements. GSA sent surveys to the bases that would be served by the proposed BPA. 

After receiving responses, GSA concluded that its market basket estimates accurately reflected the customers’ requirements. GSA reissued the RFQ without any changes. Office Depot filed a second protest challenging the terms of the RFP.

Analysis

Customer Survey

Office Depot alleged GSA’s customer survey was unreasonable because the survey had only been sent to one individual at each location and provided estimates at a high level of abstraction that inhibited the individuals from analyzing GSA’s estimates. Office Depot also complained that the survey was structured in a way that encouraged respondents to agree with the GSA’s estimates instead of challenging them. Specifically, if a respondent agreed with the GSA’s estimates, they could just check a box. On the other hand, if they disagreed, the survey advised that GSA would get in touch and request additional information. Office Depot believed this created an incentive to just agree with GSA’s estimates as the path of least resistance.

GAO didn’t see a problem with the survey. While the survey was sent to a single individual at the various places, there was nothing inherently unreasonable about consulting a single person about their supply requirements. Also, GAO did not believe the survey created an incentive for respondents to agree with GSA. Rather, GAO believed the survey was structured in a way that allowed GSA to obtain accurate information. If a respondent disagreed with GSA’s estimates, it was reasonable for the agency to seek additional supporting information.

Optional Locations

Office Depot contended that even if the survey accurately captured customer requirements, GSA’s market basket method for evaluating quotations was still unreasonable. Office Depot noted that while the RFQ contemplated supplies at several bases, only two bases would have immediate needs. The other locations were, in essence, option locations. Office Depot maintained that because these other locations may never make purchases under the BPA, their requirements should not have been considered as part of the composition of the market basket.

GAO rejected the argument. Office Depot had not identified authority suggesting that agencies should not consider options as part of the evaluation. To the contrary, GAO had often concluded that agencies should evaluate certain aspects of options if they wish to exercise them. GSA was not not required to exclude or deemphasize optional locations from the evaluation.

Office Depot is represented by John G. Horan of Faegre Drinker Biddle & Reath LLP. The agency is represented by Nathan Bangsil of the General Services Administration. GAO attorneys Michael Willems and Evan D. Wesser participated in the preparation of the decision.

–Case summary by Craig LaChance, Senior Editor

GAO- Office Depot