Complete Packaging and Shipping Supplies, Inc.

Decision

Matter of:  Complete Packaging and Shipping Supplies, Inc.

File:  B-412392, B-412392.2, B-412392.3

Date:  February 1, 2016

DIGEST

1.  Protest challenging agency’s evaluation of sample products is denied where the evaluation was reasonable, adequately-documented, and consistent with the solicitation.

2.  Protest challenging agency’s decision to waive solicitation requirements is denied where the agency’s actions did not reflect unequal treatment and the protester has not demonstrated that it was prejudiced by the waiver.

Complete Packaging and Shipping Supplies, Inc. (CPSS), a small business of Freeport, New York, protests the Department of Veterans Affairs (VA) establishment of a blanket purchase agreement (BPA) with M-Pak, Inc., a small business of Aledo, Texas, pursuant to request for quotations (RFQ) No. VA770-15-Q-0046, issued for operational supplies for the VA’s consolidated mail outpatient pharmacy (CMOP) in Charleston, South Carolina.  CPSS challenges the evaluation of its technical quotation and objects to the VA’s decision to remove two items from its requirements.

We deny the protest.

BACKGROUND

The RFQ, issued on July 2, 2015, as a small business set-aside, sought quotations from General Services Administration (GSA) Federal Supply Schedule (FSS) contract holders pursuant to the simplified procedures of Federal Acquisition Regulation (FAR) subpart 8.4.  RFQ at 1.  The purpose of the RFQ was to establish a single BPA with a 1‑year base period and four 1‑year option periods for “durable, secure, quality products” for the CMOP to prepare and mail prescription medication to veterans.  Id. at 3, 8.  Specifically, the RFQ identified 25 items for inclusion on the BPA, such as different size bubble mailers, poly mailers, boxes, coolers, tape, and bags.[1]  Id. at 9-10.  The RFQ contemplated that the BPA would be established on a best‑value basis, considering technical conformance, past performance, contingency plan, veterans’ involvement, and price.  Id. at 25.

The RFQ provided specifications for each product.  Id. at 9-10.  In addition, with respect to technical conformance, the solicitation identified various characteristics of each product type that the agency would evaluate.  Id. at 26-29.  As an example, for the bubble mailers, the agency would assess whether the mailers were the correct dimensions, had an anti-static strip, had strong glue (such that once sealed, a bag had to be cut or torn to open), and had a “[s]uper tough plastic inner layer,” among other things.  Id. at 27.  For purposes of determining technical conformance, the RFQ required the submission of 10-15 samples of six of the 25 products:  four sizes of bubble mailers and two sizes of poly mailers.[2]  Id. at 8.  The RFQ advised that to be considered for award, a vendor’s quotation must be rated as good under the technical conformance factor.  Id. at 26.

CPSS, M-Pak, and a third vendor submitted quotations prior to the RFQ’s July 28 deadline.  Contracting Officer’s (CO) Statement at 1.  A VA technical evaluation board (TEB) evaluated the vendors’ samples and documented its findings on consensus evaluation rating sheets.  With respect to CPSS’s bubble mailer samples, the TEB rated one of the sizes as excellent, two sizes as good, and one size as fair.[3]  Agency Report (AR), exh. 10, Consensus Technical Evaluation of CPSS, at 2; see also AR, exh. 15, TEB Handbook, at 5-6 (defining technical ratings).  In assigning the fair rating, the TEB highlighted that the “glue (paper strip) was removed/unattached” on the samples and “it tore from each side very easily.”  AR, exh. 10, Consensus Technical Evaluation of CPSS, at 2.  With respect to CPSS’s poly mailer samples, the TEB rated one size as poor and the other as fair.  Id. at 3.  In assigning these ratings, the TEB noted as follows:  “Both samples were stuck together upon removal from it’s [sic] shipping package.  They both tore and punctured very easily.  Both samples were . . . not anti-static.”  Id.  The TEB assigned CPSS’s samples an overall fair rating.  Id. at 1.  Given the fair rating assigned to the samples, the agency no longer considered CPSS eligible for award.[4]  CO Statement at 2; see RFQ at 26.  

With respect to M-Pak’s samples, the TEB rated two of the vendor’s items as good and four of the items as excellent.  AR, exh. 21, Consensus Technical Evaluation of M-Pak, at 1-3.  For the remaining products, M-Pak provided the contracting specialist a list of the FSS item numbers so that the VA could verify that the products met the solicitation’s specifications.  CO Statement at 3.  In addition, M‑Pak advised the VA that three items the vendor quoted--gum tape, utility knife, and replacement blades--were in the process of being added to M-Pak’s FSS contract.  Id.  The third vendor failed to submit all required samples and, consequently, was removed from award consideration.  AR, exh. 23, Consensus Technical Evaluation of Vendor #3, at 1-2; see RFQ at 3, 8 (warning that quotations without product samples would be considered unacceptable). 

The contracting officer prepared a source selection decision document (SSDD) that identified M-Pak’s $13,861,525 quotation--the only one rated good under the technical conformance factor--as the best value to the agency.[5]  AR, exh. 17, SSDD, at 5.  However, the record reflects that the day after the contracting officer signed the SSDD, M-Pak still had not been able to add the utility knife and replacement blades to its FSS contract.[6]  CO Statement at 3; see AR, exh. 12, Email Exchanges with M‑Pak Regarding Knife, at 1.  So that the VA “could move forward with award,” the agency removed the knife and blades from its requirements.[7]  CO Statement at 4.

The VA established the BPA with M-Pak on October 15.[8]  After receiving a brief explanation of award, CPSS protested to our Office.

DISCUSSION

CPSS protests the VA’s evaluation of its quotation under the technical conformance factor.  Specifically, CPSS argues that the evaluation of its samples was unreasonable, contrary to the solicitation, and reflected unequal treatment.  In addition, the protester objects to the agency’s decision to remove the knife and replacement blades from its requirements, and contends that doing so resulted in unequal treatment.  We have fully considered each of CPSS’s allegations and find that none provides a basis to sustain the protest.  We discuss CPSS’s primary complaints below.

Where an agency conducts a formal competition for the establishment of a BPA, we will review the agency’s actions to ensure that the evaluation was reasonable and consistent with the solicitation and applicable procurement statutes and regulations. InTec, LLC, B-408178.4, Feb. 12, 2014, 2014 CPD ¶ 109 at 3.  An agency’s evaluation of technical quotations is primarily the responsibility of the contracting agency, since the agency is responsible for defining its needs and identifying the best method of accommodating them.  SSI Tech., Inc., B-411585, Aug. 26, 2015, 2015 CPD ¶ 275 at 3.  In reviewing an agency’s evaluation, we will not reevaluate vendors’ quotations, and a protester’s disagreement with the agency’s evaluation, without more, is not sufficient to render the evaluation reasonable.  Advanced Tech. Sys., Inc., B-296493.5, Sept. 26, 2006, 2006 CPD ¶ 147 at 5.

Here, we find unobjectionable the VA’s evaluation of CPSS’s quotation under the technical conformance factor.  As discussed above, the RFQ required the submission of 10-15 samples of six different products (four sizes of bubble mailers and two sizes of poly mailers).  RFQ at 8.  In response, CPSS provided the VA with significantly more samples than requested:  four cartons of bubble mailers (1,320 samples) and two cartons of poly mailers (2,000 samples).  Protest at 5.  The VA explains that the TEB did not review the thousands of samples; instead, as it did for all vendors, the evaluators assessed 10-15 samples pulled “right from the top of the box.”[9]  AR, exh. 6, Statement of TEB Member, at 1.  In conducting their evaluation, the TEB members visually examined each sample to verify that it met the RFQ’s specifications, and the members manually tested the items for durability, i.e., “tearing and puncturing, and functionality.”  Supp. CO Statement at 1.  The TEB documented its consensus findings on technical evaluation rating sheets.[10]

As noted above, with respect to CPSS’s 12.5 inch by 19 inch bubble mailers, the evaluators documented two concerns.  First, the TEB highlighted that the glue (paper strip) was not attached to the samples.  AR, exh. 10, Consensus Technical Evaluation of CPSS, at 2.  The evaluators report that they checked several samples to “validate this adhesive discrepancy.”  AR, exh. 19, Supp. Statement of TEB Member, at 1.  The evaluators also noted that the samples tore “very easily” from each side.[11]  AR, exh. 10, Consensus Technical Evaluation of CPSS, at 2; Supp. CO Statement at 1. 

With respect to both size poly mailers, the evaluators expressed concern that the samples “stuck together” when they were removed from the shipping package, “almost as if they became overheated or exposed to excess humidity.”  AR, exh. 10, Consensus Technical Evaluation of CPSS, at 3; exh. 19, Supp. Statement of TEB Member, at 1.  The TEB also documented that the poly mailers “tore and punctured very easily” and were not anti-static, something noted when static from the samples cause the poly mailers to cling to the evaluators’ clothing.  AR, exh. 10, Consensus Technical Evaluation of CPSS, at 3; Supp. CO Statement at 2.  Because problems were identified with three of the six products that CPSS submitted samples of, the quotation was rated as fair overall under the technical conformance factor. 

Given the evaluators’ documented findings, we have no basis to question the rating assigned to CPSS’s quotation.  In this regard, the record does not support the protester’s position that the issues identified were “minor,” see Protest at 12, or that the fair rating was unwarranted because the problems covered only a few of the RFQ’s specifications for each mailer.  See Comments/2nd Supp. Protest at 22.  For instance, with respect to the unattached paper strip for the glue on the bubble mailer, the agency explains that without the protection of the paper strip “the glue would not retain the ability to provide an instant seal or remain strong enough that once sealed a bag must be cut or torn to open,” as required by the specifications.  CO Statement at 2; see RFQ at 27.  For the poly mailers, the fact that the mailers were stuck together raised a concern that the mailers would stick together during post office automated processing, something the RFQ’s specifications specifically warned against.  CO Statement at 2; see RFQ at 27.  The agency maintains that CPSS’s samples “raised concern about their integrity, durability, and ease of use . . . . Issues with durability and usefulness of a mailer bag is not a minor issue for us.”  CO Statement at 5.  While CPSS may disagree with the significance of the agency’s concerns, such disagreement does not provide a basis to sustain the protest.

The protester also takes exception to the TEB’s specific conclusion that the vendor’s samples tore easily, arguing that such a finding does not expressly relate to the RFQ’s specifications and questioning what the evaluators meant by tearing “easily.”  Comments/2nd Supp. Protest at 22, 27.  CPSS’s arguments are wholly unpersuasive.  In this respect, in evaluating quotations an agency properly may take into account specific, albeit not expressly identified, matters that are logically encompassed by, or related to, the stated evaluation criteria.  Open Sys. Science of Virginia, Inc., B-410572, B-410572.2, Jan. 14, 2015, 2015 CPD ¶ 37 at 11.  In our view, how easily a mailer can break open was logically encompassed by the RFQ’s requirements that the bubble mailers have a “[s]uper tough” inner layer and a “thick” polyolefin film and that the poly mailers be “[d]urable” and “thick.”  See RFQ at 27.  Indeed, the RFQ sought the provision of “durable, secure, quality products . . . [that] will need to function properly.”  Id. at 8.  As the agency points out, a mailer that rips or punctures easily may not be able to “withstand rough handling in transit,” i.e., function properly.  See Supp. CO Statement at 1, 2.  We see nothing objectionable about this concern.[12]

We also decline to sustain the protest on the basis that the TEB did not define their conception of what tearing easily meant.  The record reflects that the TEB reviewed and evaluated the vendors’ samples consistently and in accord with the solicitation’s evaluation criteria.  The TEB reached the consensus conclusion that, based on their subjective judgment, the mailers tore easily.  Technical evaluators have considerable latitude in assigning ratings which reflect their subjective judgments of a quotation’s relative merits.  See Digital Sys. Group, Inc., B-286931, B-286931.2, Mar. 7, 2001, 2001 CPD ¶ 50 at 6.  That the protester is uncertain what “easily” means here and would have preferred different, objective testing standards does not establish that the TEB’s findings were unreasonable or inconsistent with the solicitation.

Equally unavailing is the protester’s argument that the evaluation was flawed because the vendor offered the same mailers that the agency currently uses.[13]  See Protest at 15, 16; Comments/2nd Supp. Protest at 23, 28.  We have previously held that each procurement “stands on its own.”  E.g., Camnetics Mfg. Corp., B-299738, June 21, 2007, 2007 CPD ¶ 115 at 3.  Thus, even if the mailers CPSS submitted were the same as those accepted by the CMOP under a different contract, that does not render unreasonable the agency’s well-explained determination that the protester’s samples warranted a fair rating.  See Custom Pak, Inc.; M-Pak, Inc., B‑409308 et al., Mar. 4, 2014, 2014 CPD ¶ 73 at 5-6 (finding reasonable the VA’s determination that protesters’ pharmaceutical mailing bags failed testing even though the bags were identical to bags supplied in previous VA acquisitions).  Indeed, the agency explains that the samples were evaluated after they were subject to the vendors’ storage and handling procedures, which could impact the samples.  AR at 8.  Consequently, we find no merit to this contention. 

Finally, CPSS complains that it was improper for the VA to limit its evaluation to CPSS’s samples and not assess the remainder of the products CPSS quoted.  Supp. Protest at 3-4.  Here, CPSS has not established that it was competitively prejudiced by the VA’s decision not to complete the second part of its technical evaluation, which merely involved verifying that the quoted products’ GSA descriptions were consistent with the RFQ’s specifications.  In this regard, competitive prejudice is an essential element of a viable protest, and where the protester fails to demonstrate prejudice, our Office will not sustain the protest.  Guildline Instruments, Inc., B‑409924.2, Jan. 13, 2015, 2015 CPD ¶ 36 at 5.  Given the significant concerns that the agency had with respect to half of CPSS’s samples, in our view the protester has failed to demonstrate that its quotation would have warranted a higher rating had the agency simply confirmed that the rest of the vendor’s quoted items met the RFQ’s product specifications.[14]  In sum, we find reasonable the agency’s evaluation of CPSS’s quotation under the technical conformance factor.

CPSS’s next ground of protest focuses on the agency’s decision to remove the utility knife and replacement blades from its requirements.  The protester argues that the agency should have deemed M-Pak’s quotation unacceptable because the vendor was unable to provide the two items.  Additionally, CPSS asserts that the VA treated the vendors unequally when it simply removed the two items from the agency’s requirements (after M-Pak was unable to provide them), but stood by its findings with respect to CPSS’s samples.[15]

As noted above, the record reflects that prior to the establishment of the BPA (and after M-Pak’s quotation was deemed the best value), M‑Pak had not been able to add the utility knife and replacement blades to its FSS contract.  AR, exh. 12, Email Exchanges with M‑Pak Regarding Knife, at 1.  The VA reports that the items were “not crucial” to the BPA and it was “not a matter of significant consequence” if the utility knife and replacement blades were not included on the BPA.[16]  CO Statement at 3, 4.  So, the agency decided to remove the items from its requirements to “move forward” with the BPA.  Id. at 4.  We agree with the protester that the agency, in essence, waived the requirement that vendors provide these two items.[17]

Here, however, the agency’s actions do not provide a basis to sustain the protest.  In this respect, even where an agency clearly should have amended a solicitation or otherwise apprised vendors that it had effectively waived a requirement, our Office will not sustain a protest unless the protester demonstrates a reasonable possibility that it was prejudiced by the agency’s actions.  Zodiak of North America, B-409084 at al., Jan. 17, 2014, 2014 CPD ¶ 79 at 6; Labatt Food Serv., Inc., B‑310939.6, Aug. 18, 2008, 2008 CPD ¶ 162 at 3.  Competitive prejudice from such a waiver exists only where the requirement was not similarly waived for the protester, or where the protester would be able to alter its quotation to its competitive advantage if given the opportunity to respond to the relaxed term. See Zodiak of North America, supra; Phoebe Putney Memorial Hospital, B‑311385, June 19, 2008, 2008 CPD ¶ 128 at 4.

In addition, there is no basis for finding, and the protester has not argued, that had CPSS known that the agency ultimately would not require the knife or replacement blades, it would have changed its quotation to improve its competitive position.  In this regard, the record reflects that evaluation of CPSS’s bubble and poly mailers were what resulted in the vendor’s fair technical conformance rating and precluded CPSS from being eligible for award, not the utility knife or replacement blades that it quoted.[18]  Thus, the protester has failed to demonstrate that it suffered prejudice from the agency’s decision to waive the requirement to supply the knife and blades.

Moreover, to the extent that the protester’s disparate treatment argument hinges on the agency’s decision not to similarly waive the requirement that vendors provide conforming bubble or poly mailers--the CPSS items rated unfavorably--such argument is flawed.  In this regard, that the agency waived the requirement for the utility knife and blades imparted no obligation on the agency to waive any other items that other vendors had trouble providing.[19]  Rather, on this record, equal treatment only required the VA to waive the knife and blade requirements for all vendors.  However, given that CPSS’s fair technical conformance rating was based on the evaluation of the vendor’s bubble and poly mailer samples, whether the agency waived the requirements for the utility knife and replacement blade for CPSS had no effect on the protester’s rating and ineligibility for award.  Consequently, the protesters objection to the agency’s decision to waive the requirements for the utility knife and replacement blades fails to provide a basis to sustain the protest.

The protest is denied.

Susan A. Poling
General Counsel