M.Braun, Inc.

Decision

Matter of: M.Braun, Inc.

File: B-298935.2

Date: May 21, 2007

DIGEST

An agency is not permitted to consider a late quotation, where the solicitation contained a late submission provision that limited the agency's consideration of late quotations, and no exception to the provision applied.

M.Braun, Inc. protests the issuance of a purchase order to Premier Technology, Inc. under request for quotations (RFQ) No. RFQ-DC-06-00339, issued by the Environmental Protection Agency (EPA), for a glovebox to be used by the EPA's NationalEnforcementInvestigationsCenter in Denver, Colorado.

We sustain the protest.

The RFQ, issued August 11, 2006 as a small business set-aside and a commercial item acquisition, sought quotations for a glovebox, which is a container that allows for the rapid identification of the exact chemical structure of hazardous substances in an isolated engineering controlled environment. Contracting Officer's Statement (COS) at 1. The RFQ requested fixed'price quotations and included the following evaluation factors in descending order of importance: technical capability, past performance and price. The RFQ incorporated by reference the standard –Instructions to Offerors--Commercial Items— clause of the Federal Acquisition Regulation (FAR) sect. 52.212'1, and required the submission of quotations electronically by 2 p.m., September 11, 2006. Vendors were informed that issuance of the –purchase order [would be] based upon 'best value' methodology.— RFQ at 2; Id. amend. 2, at 1.

Three quotations, including M.Braun's, were received by the closing time for receipt of quotations. Premier attempted to submit its quotation prior to the 2 p.m. closing time, but its quotation, which included –zipped— files, was not accepted by the agency's electronic system.[1] After being informed by the contracting officer that the EPA could not accept zipped files, Premier resubmitted its quotation without zipped files. This submission was received by the agency at approximately 2:15 p.m., after the time set for receipt of quotations. COS at 2-3.

Premier's quotation included the following –Clarifications and Exceptions— language:

1. This proposal reflects raw material pricing as of 9/11/06. Due to the current volatility of the steel markets, raw material pricing will need to be negotiated at time of release for fabrication.

2. Leak testing can be performed at 10 times normal operating pressure as indicated in the RFQ. Premier would like to propose mass spectrometer helium leak testing in accordance with American Glovebox Society Standards as an alternative to the specified method.

Agency Report (AR), Tab 9, Premier Quotation, at 11^th unmarked page.

All four quotations were evaluated by the agency's technical review committee, which found that Premier's quotation complied –with the terms, expectations and overall quality as outlined in the statement of work (SOW).— The other three quotations, including M.Braun's, –while adequate, were judged lower in overall quality.— In this regard, the evaluation committee concluded that the protester's quotation –appeared to be a customization of a COTS [commercial off the shelf] production model and had limited details on the project plan.— AR, Tab 13, Technical Review of Quotations, Sept. 19, 2006, at 2.[2]

After the technical evaluation, Premier transmitted an e-mail to the contracting officer, stating that –[h]ere is the revised document we spoke of. Let me know if there is anything further you need.— AR, Tab 14, E-mail from Premier to Contracting Officer, Sept. 20, 2006, at 1. Attached to this e-mail was a revision to Premier's –Clarifications and Exceptions,— which deleted the section that provided for future price negotiation.

Thereafter, the contracting officer determined that Premier's quotation represented the –best value— to the government. AR, Tab 16, Source Selection Memorandum. On September 22, the EPA issued to Premier a purchase order, which provided for the installation of the glovebox by late May 2007. This purchase order incorporated by reference Premier's September 11 quotation, which included Premier's reservation of future price negotiation. AR, Tab 19, Purchase Order to Premier, at 2.

Following a debriefing, on October 4, M.Braun protested to our Office. On October 12, the EPA informed our Office that it was taking corrective action and would reevaluate the quotations. Thereafter, we dismissed the protest as academic.

On January 4, 2007, after concluding its reevaluation of the quotations, the EPA affirmed the selection of Premier's quotation.[3] In its reevaluation, the agency concluded that only Premier's quotation was technically acceptable. With respect to M.Braun's quotation, the agency concluded that the protester had failed to provide sufficient information and detail to demonstrate the acceptability of the firm's quotation. AR, Tab 24, Technical Reevaluation of Quotations.

After receiving notice of the EPA's confirmation of Premier's selection, the protester promptly filed a Freedom of Information Act (FOIA) request with the EPA, seeking information pertaining to the glovebox procurement. This protest followed within 10 calendar days of receiving the FOIA information from the agency.

M.Braun contends that the EPA improperly accepted Premier's late quotation submission and conducted discussions with Premier while not allowing M.Braun to address evaluated deficiencies in its quotation.

Generally, late quotations may be considered up to the time of issuance of the order, because 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 an offer that the vendor may accept through performance or by a formal acceptance document. DataVault Corp., B'248664, Sept. 10, 1992, 92-2 CPD para. 166 at 2. Moreover, we have found that language in an RFQ requesting quotations by a certain date does not establish a firm closing date for receipt of quotations, absent a late submission 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 para. 16 at 3. Here, however, the RFQ incorporated the standard –Instruction to Offerors -- Commercial Items— FAR clause, which expressly limits the agency's consideration of a late submission. See FAR sect. 52.212-1(f).

The EPA concedes that Premier's quotation was late, but argues that consideration of Premier's late quotation was proper, because Premier's quotation was the only acceptable quotation received by the agency and therefore could be considered under FAR sect. 52.212'1(f)(2)(i)(C).[4]

The agency's argument, however, is not supported by the record, which establishes that, as submitted, Premier's quotation was not acceptable. As noted above, the RFQ required the submission of fixed-price quotations.[5] Premier did not submit a fixed'price quotation, but conditioned its price, stating that –raw material pricing will need to be negotiated— in the future. AR, Tab 9, Premier Quotation, at 11^th unmarked page. Where an agency solicits fixed-price quotations, it is not permitted to accept quotations that are not fixed-price. It is fundamental that an agency may not solicit quotes on one basis and then issue an order on a materially different basis when other vendors would be prejudiced by such an agency action. See The Mangi Envtl. Group, Inc., B-294597, Nov. 29, 2004, 2004 CPD para. 238 at 2.

The protest is sustained.[6]

Ordinarily, we would recommend that the agency terminate the order issued to Premier and consider the protester's and other vendors' quotations for the issuance of an order. However, here, the record shows that Premier has substantially performed the purchase order, such that it is not feasible to recommend termination of the order. See AR, Tab 19, Premier Purchase Order, at 3^rd unmarked page, Tab 33, Premier's Glovebox Delivery Schedule, Mar. 6, 2007. Accordingly, we recommend that the protester be reimbursed its costs of quotation preparation and costs of filing and pursing the protest, including reasonable attorney's fees. Bid Protest Regulations, 4 C.F.R. sect. 21.8(d)(1), (2) (2007). M.Braun should submit its certified claim for costs, detailing the time expended and costs incurred, directly to the contracting agency within 60 days after the receipt of this decision.

Gary L. Kepplinger
General Counsel