B-221192, B-221192.2, APR 7, 1986, 86-1 CPD 337

B-221192,B-221192.2: Apr 7, 1986

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(FPASA) AND THE FEDERAL ACQUISITION REGULATION (FAR) OF PROCUREMENT OF SUPPLIES FOR EMBASSY PRECLUDES GAO'S CONSIDERATION OF PROTEST IS WITHOUT MERIT. GAO'S BID PROTEST JURISDICTION IS NOT AFFECTED BY THE EXTENT TO WHICH AN AGENCY MAY BE COVERED BY THE FPASA AND THE FAR. AGENCY PROCUREMENT OF CASE GOOD AND UPHOLSTERED FURNITURE AS A TOTAL PACKAGE RATHER THAN ON THE BASIS OF SEPARATE AWARDS FOR EACH TYPE OF FURNITURE WAS REASONABLE WHERE THE AGENCY REASONABLY CONCLUDED THAT IT HAD AN URGENT NEED FOR BOTH TYPES OF FURNITURE AND THAT A SINGLE AWARD WOULD FACILITATE THE EXPEDITIOUS DELIVERY OF THE FURNITURE. HAVE PROTESTED SOLICITATION NO. 86-RF. ON THE BASIS THAT SOME OF THE SOLICITATION'S SPECIFICATIONS ARE AMBIGUOUS AND THAT OTHERS ARE UNDULY RESTRICTIVE.

B-221192, B-221192.2, APR 7, 1986, 86-1 CPD 337

GENERAL ACCOUNTING OFFICE - JURISDICTION - ADMINISTRATIVE AGENCY V. GENERAL ACCOUNTING OFFICE - DISPUTE AS TO JURISDICTION DIGEST: 1. DEPARTMENT OF STATE'S CONTENTION THAT ASSERTED EXEMPTION FROM THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949, AS AMENDED, (FPASA) AND THE FEDERAL ACQUISITION REGULATION (FAR) OF PROCUREMENT OF SUPPLIES FOR EMBASSY PRECLUDES GAO'S CONSIDERATION OF PROTEST IS WITHOUT MERIT. GAO'S AUTHORITY TO CONSIDER BID PROTESTS ARISES OUT OF ITS AUTHORITY UNDER THE COMPETITION IN CONTRACTING ACT OF 1984 TO CONSIDER PROTESTS OF PROCUREMENTS BY "FEDERAL AGENCY." GAO'S BID PROTEST JURISDICTION IS NOT AFFECTED BY THE EXTENT TO WHICH AN AGENCY MAY BE COVERED BY THE FPASA AND THE FAR. CONTRACTS - NEGOTIATION - AWARDS - AGGREGATE BASIS - PROPRIETY 2. AGENCY PROCUREMENT OF CASE GOOD AND UPHOLSTERED FURNITURE AS A TOTAL PACKAGE RATHER THAN ON THE BASIS OF SEPARATE AWARDS FOR EACH TYPE OF FURNITURE WAS REASONABLE WHERE THE AGENCY REASONABLY CONCLUDED THAT IT HAD AN URGENT NEED FOR BOTH TYPES OF FURNITURE AND THAT A SINGLE AWARD WOULD FACILITATE THE EXPEDITIOUS DELIVERY OF THE FURNITURE.

FLEXSTEEL INDUSTRIES, INC.; LEA INDUSTRIES, INC.:

FLEXSTEEL INDUSTRIES, INC. (FLEXSTEEL), AND LEA INDUSTRIES, INC. (LEA), HAVE PROTESTED SOLICITATION NO. 86-RF, ISSUED BY THE OFFICE OF FOREIGN BUILDINGS, DEPARTMENT OF STATE (DEPARTMENT), ON THE BASIS THAT SOME OF THE SOLICITATION'S SPECIFICATIONS ARE AMBIGUOUS AND THAT OTHERS ARE UNDULY RESTRICTIVE. IN ADDITION, THE PROTESTERS OBJECT TO THE SOLICITATION'S PROVISION THAT TWO TYPES OF FURNITURE-- CASE GOOD AND UPHOLSTERED-- ARE TO BE PROCURED ON THE BASIS OF A SINGLE AWARD. THE DEPARTMENT PROCEEDED WITH AWARD OF A CONTRACT UNDER THE SOLICITATION NOTWITHSTANDING THE PROTEST PURSUANT TO A DETERMINATION BY THE HEAD OF THE PROCURING ACTIVITY PURSUANT TO 31 U.S.C.A. SEC. 3553(C)(2) (WEST SUPP. 1985) THAT URGENT AND COMPELLING CIRCUMSTANCES WHICH SIGNIFICANTLY AFFECT THE INTERESTS OF THE UNITED STATES WILL NOT PERMIT DELAY OF THE AWARD PENDING THE ISSUANCE OF OUR DECISION.

SUBSEQUENT TO THE AGENCY'S AWARD OF A CONTRACT ON JANUARY 31, FLEXSTEEL AND LEA FILED A SECOND PROTEST ON FEBRUARY 13, 1986, WHICH, IN PART, SUPPLEMENTS THE PROTESTERS' PRIOR OBJECTIONS TO THE AGENCY'S DETERMINATION TO USE A TOTAL PACKAGE APPROACH FOR THE PROCUREMENT OF THE CASE GOOD AND UPHOLSTERED FURNITURE. IN ADDITION, THE PROTESTERS ASSERT THAT THE CONTRACT AS AWARDED CONTAINS "SUBSTANTIALLY RELAXED" DELIVERY REQUIREMENTS AS COMPARED WITH THOSE UPON WHICH THE COMPETITION WAS HELD.

THE FIRST PROTEST IS DENIED IN PART AND DISMISSED IN PART. THE SECOND PROTEST IS DISMISSED.

ON OCTOBER 18, 1985, THE OFFICE OF FOREIGN BUILDINGS ISSUED REQUEST FOR PROPOSALS NO. 86-RF AS A NEGOTIATED PROCUREMENT OF RESIDENTIAL FURNITURE FOR UNITED STATES EMBASSY STAFF HOUSING IN MOSCOW, U.S.S.R. THE SOLICITATION'S STATEMENT OF WORK PROVIDES IN PERTINENT PART THAT THE NEW EMBASSY RESIDENTIAL COMPOUND IS NEARLY COMPLETED AND WILL REQUIRE COMPLETE FURNISHING. THE BID SCHEDULE CONTAINS A LARGE VARIETY OF RESIDENTIAL FURNITURE ITEMS-- BOTH "CASE GOODS," SUCH AS TABLES AND DRESSERS, AND UPHOLSTERED FURNITURE. AS SET FORTH ABOVE, THE PROTESTERS HAVE OBJECTED TO THE SOLICITATION ON THE BASIS THAT SOME SPECIFICATIONS ARE UNDULY VAGUE WHILE OTHERS ARE IMPROPERLY RESTRICTIVE. THEY ALSO PROTEST THE PROCUREMENT OF THE TWO TYPES OF FURNITURE-- CASE GOOD AND UPHOLSTERED-- ON A TOTAL PACKAGE BASIS. /1/

THE DEPARTMENT HAS QUESTIONED OUR AUTHORITY TO RECOMMEND CORRECTIVE ACTION IN THIS MATTER SINCE, IT ASSERTS, THIS PROCUREMENT IS CARRIED OUT PURSUANT TO THE BROAD PROCUREMENT AUTHORITY SET FORTH IN SECTION 3 OF THE FOREIGN SERVICE BUILDINGS ACT OF 1926, AS AMENDED (ACT), 22 U.S.C.A. SEC. 294 (WEST SUPP. 1985). THE DEPARTMENT FURTHER NOTES THAT PROCUREMENTS UNDER THE ACT HAVE BEEN EXEMPTED FROM THE POLICIES AND PROCEDURES OF THE GENERAL PROCUREMENT STATUTE, THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949, AS AMENDED (FPASA), BY THE PROVISION SET FORTH AT 40 U.S.C. SEC. 474(7) (1982).

THE DEPARTMENT APPEARS TO BE ARGUING THAT THE ASSERTED EXEMPTION OF THIS PROCUREMENT FROM THE COVERAGE OF THE FPASA AND THE FEDERAL ACQUISITION REGULATION (FAR) PRECLUDES OUR OFFICE FROM CONSIDERING THIS PROTEST UNDER OUR BID PROTEST JURISDICTION. HOWEVER, THE DEPARTMENT DOES NOT DISPUTE THAT IT IS A "FEDERAL AGENCY" AS SET FORTH IN THE COMPETITION IN CONTRACTING ACT OF 1984 (CICA), SEE 31 U.S.C.A. SEC. 2551(3), AND THAT OUR JURISDICTION EXTENDS TO PROTESTS OF THE PROCUREMENT OF PROPERTY BY A FEDERAL AGENCY. UNDER CICA OUR BID PROTEST AUTHORITY ENCOMPASSES PROCUREMENTS BY A "FEDERAL AGENCY" AS DEFINED BY THAT STATUTE AND SUCH AUTHORITY IS NOT AFFECTED BY THE EXTENT TO WHICH AN AGENCY MAY BE COVERED BY THE FPASA AND THE FAR. SEE MONARCH WATER SYSTEMS, INC., B-218441, AUG. 8, 1985, 64 COMP.GEN. ***, 85-2 CPD PARA. 146, AND COMONT, INC., B-219730, NOV. 14, 1985, 65 COMP.GEN. ***, 85-2 CPD PARA. 555. THUS, WE REJECT THE DEPARTMENT'S ARGUENT THAT THIS PROTEST IS NOT PROPERLY FOR OUR CONSIDERATION.

FLEXSTEEL AND LEA HAVE OBJECTED TO THE SOLICITATION'S REQUIREMENTS IN SECTION C-7-- "SCOPE OF OFFER"-- THAT THE OFFEROR MUST OFFER EVERY PIECE AND IN SECTION "M"-- "EVALUATION FACTORS FOR AWARD," PARAGRAPH M 3-- WHICH PROVIDES THAT OFFERORS MUST QUOTE ON ALL LINE ITEMS TO RECEIVE CONSIDERATION FOR AWARD. THESE PROVISIONS HAVE THE PRACTICAL EFFECT OF INCLUDING BOTH CASE GOOD AND UPHOLSTERED FURNITURE IN A SINGLE AWARD. SINCE FLEXSTEEL AND LEA ARE EXCLUSIVELY MANUFACTURERS OF UPHOLSTERED AND CASE GOOD FURNITURE, RESPECTIVELY, THEY ASSERT THAT THIS AGGREGATE QUOTE REQUIREMENT HAS EFFECTIVELY PRECLUDED THEM FROM SUBMITTING OFFERS SINCE THE COST OF THEIR COMBINING TO "BID" ON ALL ITEMS IS SUBSTANTIALLY GREATER THAN ANY PROFIT TO BE MADE FROM AN AWARD FOR THIS PROCUREMENT. THEY MAINTAIN THAT SINCE OVER 90 PERCENT OF FURNITURE MANUFACTURERS IN THE UNITED STATES MANUFACTURE EITHER CASE GOOD FURNITURE OR UPHOLSTERED FURNITURE EXCLUSIVELY, THE SOLICITATION REQUIRES OFFERORS TO ASSEMBLE A PACKAGE OF FURNITURE THAT IS NOT WITHIN THEIR SCOPE OF MANUFACTURING, A SITUATION WHICH WILL PREVENT THE GOVERNMENT FROM OBTAINING THE GREATEST POSSIBLE SAVINGS. THE PROTESTERS ALSO POINT OUT THAT ADDITIONAL ITEMS SUCH AS MATTRESSES AND BOXSPRINGS, BEDDING, LAMPS AND CARPETING WILL STILL HAVE TO BE PROCURED FOR THE EMBASSY HOUSING SINCE THEY ARE NOT INCLUDED IN THE FURNITURE SOLICITATION. THE PROTESTERS STATE THAT GIVEN THE RESTRICTIVE NATURE OF THIS SINGLE-AWARD PROCUREMENT AND THE FACT THAT THE AGENCY WILL NEED TO MAKE AN ADDITIONAL PROCUREMENT TO COMPLETE THE FURNISHING OF THE RESIDENCE UNITS, IT BELIEVES THAT THE FAILURE TO BREAK OUT THE PROCUREMENT FOR TWO AWARDS-- ONE FOR CASE GOODS AND THE OTHER FOR UPHOLSTERED FURNITURE-- IS UNNECESSARILY RESTRICTIVE.

THE AGENCY ADVISES THAT AT THE PRESENT TIME, 133 APARTMENT UNITS IN THE EMBASSY COMPLEX ARE NEARLY COMPLETED AND THAT IT NEEDS TO FURNISH ABOUT HALF OF THESE UNITS FOR OCCUPANCY BY JUNE 1986 IN ORDER TO PROVIDE HOUSING FOR 70 AMERICAN CONSTRUCTION WORKERS WHO WILL BE PERFORMING WORK IN THE INTERIOR OF THE CHANCERY BUILDING. THE AGENCY STATES THAT THERE IS A CHRONIC HOUSING SHORTAGE IN MOSCOW AND ALTERNATIVE HOUSING WILL NOT BE AVAILABLE. THE AGENCY ADVISES THAT THE ADDITIONAL RESIDENTIAL UNITS NEED TO BE FURNISHED BY SEPTEMBER 1986 TO ACCOMMODATE ADDITIONAL CONSTRUCTION WORKERS AND TO ALLEVIATE OVERCROWDING OF EMBASSY PERSONNEL. THE AGENCY STATES THAT IT COULD NOT MEET ITS OPERATIONAL NEEDS BY MAKING PARTIAL AWARDS FOR THE REQUIRED FURNITURE. THE AGENCY ADVISES US THAT DUE TO TIME CONSTRAINTS AND THE LIMITED EMBASSY WORK FORCE, THE SOLICITATION AT SECTION "F," "DELIVERIES OR PERFORMANCE," REQUIRED THE CONTRACTOR TO FULLY ASSEMBLE THE FURNITURE BEFORE SHIPMENT AND TO HAVE ALL FURNITURE PACKED, LABELED BY HOUSING UNIT AND READY FOR SHIPMENT BY MARCH 1, 1986. THE DEPARTMENT ASSERTS THAT PERMITTING TWO OR MORE POSSIBLE CONTRACTORS UNDER THE SOLICITATION WOULD COMPLICATE NOT ONLY SETTING UP THE FURNITURE AT THE DESTINATION, BUT ALSO IMPEDE THE COORDINATION OF THE OCEAN AND LAND TRANSPORTATION TO INSURE TIMELY DELIVERY OF THE FURNITURE.

THE AGENCY ASSERTS THAT EVEN IN THE ABSENCE OF THE URGENT TIME FRAME IN THE CURRENT INSTANCE, CONSIDERATIONS OF COMPATIBILITY OF FURNITURE AND OF EFFICIENT OCEAN TRANSPORTATION REQUIRE THAT FURNITURE FOR DIPLOMATIC RESIDENCES ABROAD BE PROCURED ON A "PACKAGED HOME" BASIS RATHER THAN IN SEPARATE LOTS. AS FOR THE PROTESTERS' ASSERTION THAT THE AGENCY WILL NEED TO MAKE AN ADDITIONAL PROCUREMENT FOR SUCH ITEMS AS BEDDING, CARPETING, AND LAMPS, THE AGENCY STATES THAT THE ITEMS OF FURNITURE TO BE PROCURED UNDER THE SOLICITATION ARE THE MAJOR ITEMS NEEDED TO FURNISH THE RESIDENCE APARTMENTS AND THAT MOST OF THE OTHER ITEMS CAN BE FOREGONE FOR A PERIOD OR "MAKESHIFTS" CAN BE DEVISED. MOREOVER, THE AGENCY STATES THAT THE PROBLEMS OF COORDINATING THESE ADDITIONAL ITEMS ARE LESS COMPLEX AND THAT "OFF-THE-SHELF" PURCHASE OF THE ACCESSORIAL ITEMS IN THE QUANTITIES REQUIRED IS MORE READILY AVAILABLE.

AS STATED ABOVE, THE PROTESTERS FILED ANOTHER PROTEST OF THIS PROCUREMENT ON FEBRUARY 13 FOLLOWING THE DEPARTMENT'S AWARD OF A CONTRACT ON JANUARY 31 PURSUANT TO A DETERMINATION TO MAKE AN AWARD UNDER 31 U.S.C.A. SEC. 3553(C)(2) (WEST SUPP. 1985). IN THEIR SECOND PROTEST, FLEXSTEEL AND LEA POINT OUT THAT SECTION F-2, "PERIOD OF PERFORMANCE," OF THE AWARDED CONTRACT PROVIDES A "SUBSTANTIAL RELAXATION" OF THE SOLICITATION'S REQUIREMENT THAT THE FURNITURE BE READY FOR CONTAINERIZATION BY MARCH 1. THE CONTRACT PROVIDES THAT THE FURNITURE FOR THE ONE- AND THREE-BEDROOM APARTMENTS MUST BE PACKED AND READY FOR CONTAINERIZATION "WITHIN 120 DAYS" FROM THE DATE OF CONTRACT (I.E., BY JUNE 1) AND THAT THE REMAINING FURNITURE MUST BE READY FOR CONTAINERIZATION ON SEPTEMBER 1, 1986. FLEXSTEEL AND LEA NOW CONTEND THAT THIS "SUBSTANTIAL RELAXATION" OF THE SOLICITATION'S REQUIREMENTS FOR DELIVERY "REBUTS" THE AGENCY'S ARGUMENT THAT THE PROCUREMENT OF THE CASE GOOD AND UPHOLSTERED FURNITURE ON A TOTAL PACKAGE BASIS WAS JUSTIFIED BY THE MOSCOW EMBASSY'S URGENT NEED FOR THE FURNITURE. THE PROTESTERS ALSO ASSERT THAT THE CONTRACT'S STIPULATION OF TWO DELIVERY DATES FOR THE FURNITURE REFUTES THE SOLICITATION'S REQUIREMENT FOR AN AGGREGATE OFFER ON ALL FURNITURE ITEMS-- CASE GOOD AND UPHOLSTERED.

THE AGENCY ADVISES THAT NOTWITHSTANDING THE RELAXATION OF THE DELIVERY DATES, THE NEED FOR THE FURNITURE AT THE EMBASSY COMPLEX IN MOSCOW REMAINS "CRITICAL" FOR THE ONE- AND THREE-BEDROOM APARTMENT UNITS. THE DEPARTMENT CITES IN SUPPORT OF ITS ASSERTION OF THE CONTINUING URGENCY FOR THE FURNITURE PROCUREMENT AN INTRADEPARTMENTAL MEMORANDUM DATED DECEMBER 26, 1985, WHEREIN THE DEPARTMENT'S OFFICE OF THE EXECUTIVE DIRECTOR, BUREAU OF EUROPEAN AFFAIRS, ADVISED THE CHIEF OF THE CONTRACTS BRANCH OF THE OFFICE OF FOREIGN BUILDINGS THAT THE EMBASSY IS IN "DESPERATE NEED" OF THE NEW APARTMENT UNITS, THAT THE FIRST NEW HOUSING UNIT WILL BE AVAILABLE FOR OCCUPANCY "NEXT SUMMER"AND THAT IT IS THE FURNITURE WHICH PRESENTS "THE STUMBLING BLOCK." THE DEPARTMENT ALSO PRESENTS A COPY OF A FEBRUARY 5 CABLE FROM THE EMBASSY IN MOSCOW TO THE OFFICE OF FOREIGN BUILDINGS WHEREIN IT IS STATED THAT, DEPENDENT UPON THE TIMELY RECEIPT OF FURNITURE AND FURNISHINGS, PLANS ARE UNDER WAY TO PERMIT THE PREPARATION OF THE HOUSING UNITS FOR OCCUPANCY BY JUNE 1 AND THAT IT IS "ABSOLUTELY ESSENTIAL" THAT THE TIMETABLE BE FOLLOWED. THE DEPARTMENT ASSERTS THAT THE MOSCOW EMBASSY'S SEVERE HOUSING SHORTAGE ADVERSELY AFFECTS BOTH ITS EFFICIENCY AND SECURITY.

THE DEPARTMENT ASSERTS THAT THE DELAY IN THE DELIVERY SCHEDULE WAS NOT CAUSED BY A CHANGE IN WHAT IT REGARDS AS THE EMBASSY'S CRITICAL NEEDS FOR HOUSING, BUT RESULTED FROM A DELAY IN MAKING THE AWARD WHICH MADE THE ORIGINAL DELIVERY DATE IMPRACTICABLE. WE ARE ADVISED THAT THE OFFICE OF FOREIGN BUILDINGS ORIGINALLY HOPED TO BE ABLE TO EVALUATE AND MAKE AN AWARD BY MID-DECEMBER ON THE BASIS OF INITIAL OFFERS OR, AT MOST, BY VERY LIMITED DISCUSSIONS. WHEN THIS PROVED "IMPOSSIBLE," THE OFFICE IN ITS JANUARY 10 REQUEST FOR BEST AND FINAL OFFERS ASKED THE TWO OFFERORS IN THE COMPETITIVE RANGE (SIX TIMELY OFFERS WERE RECEIVED) WHETHER THEY COULD STILL MEET THE DELIVERY SCHEDULE SET FORTH IN THE SOLICITATION. THE DEPARTMENT ADVISES THAT SINCE NEITHER OFFEROR COULD MEET THE DELIVERY SCHEDULE, AN EXTENSION OF THE SCHEDULE WAS REQUIRED. THE AGENCY ASSERTS THAT THE RELAXATION OF THE DELIVERY SCHEDULE FOR THIS PROCUREMENT DOES NOT REFLECT A LESSENING OF ITS "CRITICAL NEEDS" FOR FURNITURE FOR THE ONE-AND THREE-BEDROOM APARTMENT UNITS UPON THE COMPLETION OF THE FIRST HOUSING UNIT BUILDING IN JUNE. THE AGENCY CONCLUDES, AS IT INDICATED IN ITS REPORT ON THE EARLIER PROTEST, THAT IT DOES NOT NEED THE FURNITURE FOR ABOUT ONE-HALF OF THE APARTMENT UNITS-- THE TWO- AND FOUR-BEDROOM UNITS-- UNTIL THE BEGINNING OF SEPTEMBER SINCE THE HOUSING UNITS CONTAINING THESE APARTMENTS WOULD NOT BE COMPLETED UNTIL THAT TIME. HOWEVER, THE DEPARTMENT URGES THAT THIS "LESS URGENT PORTION" OF THE PROCUREMENT NOT BE BROKEN OUT FROM THE REMAINDER OF THE PROCUREMENT FOR REASONS OF ECONOMIES OF SCALE IN THE PRICES OF OFFERS AS WELL AS FOR CONSIDERATIONS OF SUCH FACTORS AS FURNITURE COMPATIBILITY AND THE DESIRABILITY OF USING THE SAME TYPES OF FURNITURE IN ALL THE EMBASSY HOUSING UNITS FOR "MORALE FACTORS."

WE RECOGNIZE THAT PROCUREMENTS BY AN AGENCY ON A TOTAL PACKAGE BASIS CAN RESTRICT COMPETITION. SEE THE CAPTION CENTER, B-220659, FEB. 19, 1986, 86-1 CPD PARA. ***. HOWEVER, WE HAVE UPHELD AN AGENCY'S PROCUREMENT ON THE BASIS OF A TOTAL PACKAGE APPROACH WHERE THE AGENCY HAS REASONABLY CONCLUDED THAT SUCH AN APPROACH WAS NECESSARY TO MEET THE AGENCY'S MINIMUM NEEDS. SEE MASSTOR SYSTEMS CORP., B-211240, DEC. 27, 1983, 84-1 CPD PARA. 23, AND J&J MAINTENANCE INC., B-214209, NOV. 2, 1984, 84-2 CPD PARA. 488. AN AGENCY'S URGENT NEED FOR ITEMS MAY CONSTITUTE A REASONABLE BASIS FOR AN AGENCY'S DETERMINATION TO PROCURE ITEMS ON A TOTAL PACKAGE APPROACH. SEE AUL INSTRUMENTS, INC., B-216543, SEPT. 24, 1985, 64 COMP.GEN. ***, 85-2 CPD PARA. 324. IN THIS INSTANCE, THE AGENCY HAS STATED THAT AT THE TIME THE SOLICITATION WAS ISSUED, IT HAS AN URGENT NEED TO FURNISH THE ONE- AND THREE-BEDROOM APARTMENTS AT THE EMBASSY COMPLEX UPON THEIR COMPLETION IN JUNE AND ADVISES THAT THIS URGENT NEED CONTINUES. WE DO NOT BELIEVE THAT THE PROTESTERS HAVE SHOWN THAT THE AGENCY UNREASONABLY DETERMINED THAT THE FURNITURE FOR SOME OF THE APARTMENT UNITS IS NEEDED ON AN URGENT BASIS. AS STATED ABOVE, THE AGENCY ASSERTS THAT IN ORDER TO MEET THIS URGENT NEED AND TAKING INTO CONSIDERATION THE NEED FOR THE CONTRACTOR TO FULLY ASSEMBLE THE FURNITURE BEFORE SHIPMENT AND TO COORDINATE THE OCEAN AND LAND TRANSPORTATION, IT DETERMINED THAT IT SHOULD MEET ITS URGENT NEEDS BY MEANS OF PROCURING THE FURNITURE ON A TOTAL PACKAGE APPROACH. WHILE QUESTIONING THE URGENCY OF THE PROCUREMENT NEEDS AND THE DECISION TO PROCURE THE CASE GOOD AND UPHOLSTERED FURNITURE ON A TOTAL PACKAGE BASIS, THE PROTESTERS HAVE NOT SPECIFICALLY CHALLENGED THE AGENCY'S ASSERTION THAT A SINGLE CONTRACTOR CAN BEST MEET ITS NEED THAT THE FURNITURE BE EXPEDITIOUSLY PROVIDED, ASSEMBLED, AND TRANSPORTED. UNDER THE CIRCUMSTANCES, GIVEN THE URGENT NEED FOR A PORTION OF THE CASE GOOD AND UPHOLSTERED FURNITURE, WE CANNOT CONCLUDE THAT THE AGENCY'S DECISION TO MAKE A SINGLE AWARD FOR BOTH TYPES OF FURNITURE LACKS A REASONABLE BASIS. ACCORDINGLY, WE WILL NOT QUESTION THE AGENCY'S TOTAL PACKAGE APPROACH. WE NOTE ALSO THAT OBTAINING ECONOMIES OF SCALE OR AVOIDING THE UNNECESSARY DUPLICATION OF COSTS WILL ALSO JUSTIFY A TOTAL PACKAGE APPROACH. SEE THE CAPTION CENTER, B-220659, SUPRA, 86-1 CPD PARA. *** AT 5, 6.

IN VIEW OF OUR DETERMINATION THAT THE AGENCY'S PROCUREMENT OF THE CASE GOOD AND UPHOLSTERED FURNITURE ON A TOTAL PACKAGE BASIS WAS NOT IMPROPER, WE NEED NOT CONSIDER THE PROTESTERS' ALLEGATIONS THAT THEY WERE ADVERSELY AFFECTED BY SOME OF THE SOLICITATION'S SPECIFICATIONS SINCE, BY THEIR OWN ADMISSION, THEY ARE OTHERWISE PRECLUDED FROM SUBMITTING OFFERS UNDER THE SOLICITATION DUE TO THE REQUIREMENT FOR QUOTES ON ALL ITEMS. SEE ID. AT 7. FOR THE SAME REASON WE NEED NOT ADDRESS THE PROTESTERS' CONTENTION IN THEIR SECOND PROTEST THAT THE SOLICITATION SHOULD HAVE BEEN CANCELED AND REISSUED DUE TO THE CHANGE IN THE PROCUREMENT'S DELIVERY REQUIREMENTS. NOTE THAT IN THEIR ORIGINAL PROTEST OF THE SOLICITATION'S REQUIREMENTS, THE PROTESTERS DID NOT ALLEGE THAT THEY WERE PREJUDICED IN ANY WAY BY THE SOLICITATION'S REQUIREMENT THAT THE FURNITURE BE READY FOR CONTAINERIZATION BY MARCH 1.

THE FIRST PROTEST IS DISMISSED IN PART AND DENIED IN PART, AND THE SECOND PROTEST IS DISMISSED.

/1/ THE TWO FIRMS HAVE SUBMITTED A COMBINED PROTEST THROUGH A MANUFACTURER'S REPRESENTATIVE. ACCORDING TO HIM, FLEXSTEEL MANUFACTURES UPHOLSTERED FURNITURE EXCLUSIVELY AND LEA MANUFACTURES CASE GOOD FURNITURE EXCLUSIVELY.