Jackson Kelly PLLC

Government Contracts Monitor

If It's Not Equal or Comparable, It's Not Awardable

April 24, 2018

By: Lindsay Simmons

    When an agency issues a request for quotations (“RFQ”) for a product with certain technical specifications, but then awards a purchase order based on an allegedly equal or comparable product, the Government must ensure the quoted products are, in fact, equal and comparable. Otherwise, the RFQ must be amended to allow all bidders to provide quotes based on the less exacting technical specifications.

    In Savannah Cleaning Systems, Inc., B-415817, the Department of the Navy (“Navy”) issued a RFQ for five pressure washers under the GSA’s Federal Supply Schedule.  The RFQ included one line-item for a particular brand with a specific manufacturer part number.  The RFQ also included certain required technical specifications, but it also allowed the quoting of equivalent items that were “equal to or comparable to the manufacture item listed on the RFQ.”

    The lowest-price bidder was approximately $500 lower than the next lowest bid, but included an alternative pressure washer product, while the second lowest bidder Savannah Cleaning Systems (“Savannah”) offered the name brand pressure washer listed in the RFQ.  After the purchase order was issued to the low-bidder, Savannah protested, claiming the wining quote was: (i) unreasonably evaluated as “equal or comparable” to the RFQ requirements, and (ii) unreasonable because the quoted pressure washer was not included on the low-bidder’s schedule contract. 

    In response to the protest, the Navy acknowledged that the low-bidder’s pressure washer did not conform to the RFQ’s requirements, but nevertheless claimed its purchase order was acceptable as the quote “otherwise satisf[ied] the agency’s needs.”  The GAO rejected this argument, noting the “fundamental requirement [of an] FSS competition [is that it] be conducted fairly and in a manner that affords vendors an opportunity to compete on equal basis.”  The GAO held that to the extent the Navy determined that a less powerful pressure washer with fewer features was capable of meeting its needs, “the agency should have amended the solicitation to reflect” the new acceptable technical specifications.  Its failure to do so “prevented vendors from competing equally.”  The GAO further found the Navy’s actions resulted in prejudice to Savannah because if alternative specifications had been provided Savannah “could have offered an alternate product to meet the agency’s actual needs.”

    The GAO also found the Navy’s issuance of the purchase order to the low-bidder was improper because the item at issue was not on the low-bidder’s schedule contract.  The GAO disagreed with the Navy’s contention that the subject product fell within the “outsource” exception for off-schedule products, as a “related similar item on its schedule contract.”  Instead, after consultation with the GSA regarding the issue, the GAO found that the special item number 105-003 (SIN 105-003) merely allowed contract holders “to offer ancillary services to products ordered,” but not alternative items. Based on these two factors, the GAO sustained the protest.  

    When bidding on a GSA contract, make sure your bid strictly conforms to the terms of the RFQ.  Also, be on the lookout for contract awards made to a competitor providing a quote that is not “equal and comparable.” In the latter circumstance, there is a high likelihood of a successful protest if the agency failed to amend the RFQ to allow for different technical specifications.    

 

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