TITLE: B-299092, Encompass Group, LLC, December 22, 2006
BNUMBER: B-299092
DATE: December 22, 2006
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B-299092, Encompass Group, LLC, December 22, 2006
Decision
Matter of: Encompass Group, LLC
File: B-299092
Date: December 22, 2006
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.
We deny the protest.
As part of its efforts to standardize its procurement of medical items, on
September 13, 2006, the VA issued an RFQ to holders of Federal Supply
Schedule (FSS) contracts for the required garments. The RFQ, which
contained a deadline of October 5 for submitting quotations, contemplated
establishment of a single national blanket purchase agreement (BPA) with a
5-year performance period. The RFQ informed interested FSS contract
holders that a BPA would be established with "the offeror whose quotation
provides the best overall price to the VA upon determining all offered
products Technically Acceptable in accordance with the requirements shown
in Attachment A." RFQ at 2. The product requirements for line item 3, the
unisex scrub top, included the following:
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.
Id. at 18-19. The agency notes that scrubs conforming to these
requirements can be pulled on quickly after laundering without the need to
first reverse them.
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." Id. at 41. The RFQ advised offerors that "[i]f
your commercial line of Garments have different common commercial styles
than described above, your quote must include detailed explanations
relating to similarities that will satisfy the above requirements in
writing only. Please provide detailed explanations by line item." Id. at
42.
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, Oct. 4, 2006, at 1.
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, Oct. 27, 2006, at 1. This
protest followed.
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, Dec. 9,
2003, 2003 CPD para. 226 at 3. Here, the protester concedes that its
samples for line item 3 contained the three deficiencies identified by the
contracting officer; as a result, the agency properly rejected the
protester's quotation based on the non-conforming samples. American Gov't
Mktg., Inc., B-294895, Nov. 22, 2004, 2005 CPD para. 109 at 2. In this
regard, while Encompass characterizes the deficiencies in its samples as
minor, the record does not support that position. On the contrary, the
noted deficiencies clearly relate to whether the scrubs can be pulled on
after laundering without the need to first reverse them, a need described
in the first of the listed requirements for line item 3 (stating that the
scrub top must be "reversible").
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, July 27, 2006, 2006 CPD para. 112 at 7.
The protest is denied.
Gary L. Kepplinger
General Counsel