Encompass Group, LLC
Highlights
Encompass Group, LLC protests the rejection of its quotation under request for quotations (RFQ) No. VA-797-06-RQ-0104, issued by the Department of Veterans Affairs (VA) for reusable operating room scrubs. Encompass contends that any nonconformity of their samples to the solicitation requirements was minor and that it properly indicated in a letter and product literature accompanying the samples its intent to deliver scrubs that conformed to the terms of the RFQ.
B-299092, Encompass Group, LLC, December 22, 2006
Decision
Matter of: Encompass Group, LLC
H. K. Tyler, Jr. for the protester.
Melbourne A. Noel, Jr., Esq., and Phillipa L. Anderson, Esq., Department of Veterans Affairs, for the agency.
Kenneth Kilgour, Esq., and Christine S. Melody, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Agency reasonably determined that protester's quotation was unacceptable where the record supports the agency's conclusion that the protester's sample garments failed to comply with multiple solicitation requirements.
DECISION
Encompass Group, LLC protests the rejection of its quotation under request for quotations (RFQ) No. VA-797-06-RQ-0104, issued by the Department of Veterans Affairs (VA) for reusable operating room scrubs. Encompass contends that any nonconformity of their samples to the solicitation requirements was minor and that it properly indicated in a letter and product literature accompanying the samples its intent to deliver scrubs that conformed to the terms of the RFQ.
As part of its efforts to standardize its procurement of medical items, on
1. Scrub top must be a pullover, reversible, with expandable neck.
2. Scrub top must have one left chest pocket on both sides and one right bottom pocket on both sides.
14. Size label must be looped over center back neck and secured with bartack.
15. Size must be visible on both sides of label.
The RFQ required offerors to submit samples for all line items requiring sample garments, which included line item 3, and noted that the [f]ailure of these samples to conform to the required requirements will require rejection of the offer.
Five offerors, including Encompass, submitted quotations and samples; Encompass submitted a quote that included product literature, samples of garments, and a cover letter. In the letter, the protester took issue with several of the RFQ specifications, but noted that we have yet to protest this situation. Agency Report (AR), exh. 4, Letter from the Protester to the Agency,
The agency found the samples submitted by Encompass for line item 3, the unisex scrub top, to be unacceptable and advised the protester that its quotation had been rejected as a result. The contracting officer identified the following deficiencies in the sample, corresponding to the requirements in the RFQ quoted above:
2. NO -- One chest pocket on one side only and two bottom pockets on the other side
14. NO -- Label sewn on one side and not looped over
15. NO -- [Size] not on both sides of label
AR, exh. 6, Letter from Agency to Protester,
Encompass asserts that its quotation was unreasonably rejected based on minor deficiencies in one of nine product categories, and that, in any event, a provision in the RFQ (set out above) allowed offerors to quote different common commercial styles than those described in the RFQ if detailed explanations are provided, which Encompass claims it did. Protest at 1.
It is the agency's role to define both its underlying needs and the best method of accommodating those needs, and it is within the agency's discretion to reject as unacceptable products not meeting the requirements that it defines. Dwight Teller Church Organs, Inc., B-292825,
The protester argues that its cover letter contained detailed descriptions of how the protester's similar, common commercial garments would satisfy the agency's requirements, in accordance with the provision in the RFQ allowing such explanations. See RFQ at 42. We disagree. Nothing in the quotation (or, for that matter, in the protest filings) attempts to explain in detail how the protester's non-conforming samples would nevertheless satisfy the agency's needs; rather, the protester's cover letter simply states that the products it would deliver--unlike its samples--would conform to the RFQ's specifications. Indeed, given that the agency's intent was to procure scrubs that could be used quickly without first being reversed, the deficiencies in the protester's samples--the lack of pockets on both sides and the lack of a size tag visible from both sides--appear to make them unsusceptible to being made conforming through any explanation.
Encompass raised several other issues in its protest. To the extent that the protester alleged solicitation improprieties--for example, that the requirements for one garment make it technically impossible to produce--such allegations are untimely. See Bid Protest Regulations, 4 C.F.R. sect. 21.2(a)(1) (2006) (a protest based upon alleged improprieties in a solicitation that are apparent prior to the quotation closing time must be filed before that time). To the extent that the protester alleges other protest grounds--that the awardee's garments are from a non-approved country and that some of the awardee's garments are not on its FSS schedule-- these arguments, raised for the first time in comments on the agency report, are untimely. See 4 C.F.R. sect. 21.2(a)(2). In any event, the protester is not an interested party to raise these issues because it was properly found to have offered a non-conforming product and because there are other offerors that furnished conforming products; thus, the protester would not be in line for award even if its protest were sustained on these grounds. American Gov't Mktg., Inc., supra. Finally, the protester speculates that the agency must have held discussions with other offerors, but not the protester, and engaged in technical leveling. Because these allegations have no support in the record and are based on mere speculation, we will not consider them. See Fabritech, Inc., B-298247,
The protest is denied.
Gary L. Kepplinger
General Counsel