Not being included, or being purposely excluded, may remind some of adolescence, and may remind others of the Federal Acquisition Regulation (FAR) simplified acquisition procedures. The recent Government Accountability Office (GAO) decision in Phoenix Environmental Design, Inc. (Phoenix), B-418304 (March 2, 2020) deals with facing the latter form of disappointment.
The underlying purchase order in this matter was issued by the Department of the Interior, United States Fish and Wildlife Service to address the Southeast Idaho National Wildlife Refuge Complex’s (NWRC’s) urgent need for herbicide. The Southeast Idaho NWRC’s need was compounded by an unplanned wildfire, which provided soil conditions that would facilitate the elimination of “cheatgrass,” an invasive species in the area. The Southeast Idaho NWRC expressed its need for fifteen gallons of herbicide to the agency on October 10, 2019, stating that it needed the herbicide by October 25 because of concerns that a freezing event would occur and eliminate the efficacy of the herbicide.
To respond to the pressing request, the agency solicited quotations as a small business set-aside pursuant to FAR §§ 13.003 and 13.104, which provide for simplified acquisition procedures in lieu of full and open competition. The agency solicited quotations from three vendors – one was a local vendor and the other two vendors were businesses that had submitted the lowest prices in response to a prior solicitation for herbicides. Phoenix had also submitted a bid for this prior solicitation, though it had quoted the second highest price. While Phoenix had, throughout the years, repeatedly notified the agency that it was interested in all of the agency’s herbicide requirements, the agency did not solicit a quotation from Phoenix.
The formal purchase order was issued to Wilbur-Ellis Co. on October 17 and on October 18 the Southeast Idaho NWRC picked up the herbicide from the vendor’s facilities. On October 22, Phoenix requested that the contracting officer cancel the award, and after being informed that such would not occur, on October 25, Phoenix filed a protest at the agency level. Following the denial of that protest, Phoenix filed the instant protest with the GAO.
Phoenix protested on two grounds: that it was unreasonably excluded from the solicitation, particularly as it had expressed interest numerous times in competing for the agency’s herbicide requirements, and that the agency improperly awarded the purchase order to a large business.
The GAO was unconvinced on both grounds, noting that simplified acquisition procedures permit an agency to forego full and open competition and generally allow an agency’s soliciting quotations from three sources. However, an agency cannot unreasonably exclude an offeror that has expressed an interest in competing. Here, according to the GAO, the agency was not unreasonable in excluding Phoenix since, despite Phoenix’s request to compete, the agency was on a tight deadline and Phoenix had previously submitted a high-priced offer.
Further, the GAO clarified that its review of an agency’s size determination, which is typically in the purview of the Small Business Administration, is limited to situations where the awardee’s quotation, on its face, demonstrates that the awardee is not eligible for award as a small business. Such was not the case here where, at least facially, the awardee represented and certified that it was a small business.
The important takeaway: simplified acquisition procedures are, indeed, simple and allow the agency a lot of leeway, including the ability to exclude an offeror based on one prior high offer (at least in an urgent situation). Though unsuccessful here, Phoenix’s tactic of putting itself out there and reminding the agency that it wants to compete may be the best way to convince the agency to invite it to participate in future procurements.
