Phoenix Environmental Design, Inc.

Decision

Matter of: Phoenix Environmental Design, Inc.

File: B-422949

Date: December 9, 2024

DIGEST

Protest challenging agency’s decision not to orally solicit a quotation from the protester is denied where the record does not demonstrate the agency intentionally excluded the protester from the competition.

Phoenix Environmental Design, Inc. (PED), a service-disabled, veteran-owned small business (SDVOSB) of West Richland, Washington, protests the award of a contract to Walking Points Farms, LLC (WPF), an SDVOSB of Bremerton, Washington, under request for quotations (RFQ) No. 36C78624Q50406, issued by the Department of Veterans Affairs (VA), for grass seed at the Santa Fe National Cemetery. The protester contends the agency’s failure to provide the protester with an opportunity to submit a quotation was contrary to law and regulation.

We deny the protest.

BACKGROUND

On August 29, 2024, the contracting officer (CO) received a procurement request (which the VA calls a “notice of assignment”) for grass seed to be used at the Santa Fe National Cemetery in New Mexico. Contracting Officer’s Statement (COS) at 1.[1] This request included a statement of need, an independent government cost estimate (IGCE), and market research concerning potential vendors that could supply the required product. Id. at 2. After determining that the IGCE was below $25,000, the CO, on August 30, orally solicited four SDVOSBs that were provided by the contracting officer’s representative (COR). Id.; see also Agency Report (AR), Tab 1‑6, VA Email Regarding Potential Sources.[2] The protester was not included by the COR as a potential source of supply, and thus did not receive the RFQ. Of the four potential vendors, three expressed interest in submitting a quotation for the VA’s requirement. COS at 2. On September 4, the CO provided the solicitation to these three vendors. Id. The agency received one timely response, from WPF, and having determined the quotation to be technically acceptable, the VA awarded the contract to WPF on September 17. Id.

On September 18, PED inquired with the CO concerning the award to WPF, asking why PED was not given an opportunity to compete for the agency’s requirement. AR, Tab 1‑14, PED and VA Email Exchanges, at 1. That same day, the CO explained he used an oral solicitation to fulfill the VA’s requirement, and that “[a]ny requirement thought to be under $25,000 dollar threshold we typically orally solicit at least 3 verified SDVOSBs directly to allow for competition amongst verified SDVOSBs.” Id. at 3. The CO provided he would keep PED “in mind for these types of requirements in the future.” Id. at 4. PED filed the instant protest that same day.

DISCUSSION

The protester challenges the reasonableness of the agency’s decision not to include PED among the vendors orally solicited for the VA’s requirement. Specifically, the protester contends the agency’s decision cannot stand as reasonable where the VA was aware of PED’s interest in competing for this type of requirement. PED explains it did not specifically express interest, prior to award, in the solicitation at issue in this protest, as the RFQ was not made publicly available, and the VA did not contact PED regarding submission of a quotation. However, the protester explains that on August 30 (the same day the agency orally solicited quotations for the Santa Fe requirement), the same CO advised PED about an active solicitation concerning a similar seed requirement at the Riverside National Cemetery in Riverside, California. See AR, Tab 1-16, CO Email Regarding Riverside Requirement at 1 (the CO explaining to PED that “[t]he following contract opportunity is accepting bids” and PED has “showed interest in bidding on similar requirements.”). Thus, the protester argues, the agency’s decision to exclude PED from the instant competition is unreasonable where the CO was aware of PED’s interest in competing for requirements like the VA’s need for seed at the Santa Fe National Cemetery. See Protest at 1-5; Comments at 1-9; Supp. Comments at 1-18.

In response, the agency contends it was not obligated to solicit PED for this requirement, and its actions were consistent with law and regulation. Memorandum of Law (MOL) at 4-8; Supp. MOL at 1-4. The agency explains it conducted this procurement using the simplified acquisition procedures of Federal Acquisition Regulation (FAR) part 13. The FAR explains that when soliciting competition under FAR part 13, a CO “shall solicit quotations orally to the maximum extent practicable” if: (a) the acquisition does not exceed the simplified acquisition threshold; (b) an oral solicitation is “more efficient than soliciting through available electronic commerce alternatives”; and (c) notice is not required pursuant to FAR 5.101.[3] FAR 13.106‑1(c)(1). Here, the VA argues the CO reasonably utilized an oral solicitation for this requirement, and its provision of the solicitation to three interested vendors satisfies the FAR’s requirements concerning competition. MOL at 1-4. Moreover, the CO explains he did not deliberately exclude PED from the competition. Supp. COS at 2. Instead, as the Santa Fe and Riverside projects were two different requirements in two different states, and PED was not included as a potential vendor based on the CO’s market research, the CO did not think to “include or exclude [the] Protester from the Santa Fe requirement.” Id.

Under simplified acquisition procedures, and agency it is not required to use full and open competition to conduct a procurement (41 U.S.C. §§ 3301(a), 3305), but instead, is required to promote competition to the maximum extent practicable. FAR 13.104. This standard generally may be met through the solicitation of at least three sources. FAR 13.104(b); Omni Elevator Co., B-246393, Mar. 6, 1992, 92-1 CPD ¶ 264 at 2. That said, an agency does not satisfy its obligation to obtain competition to the maximum extent practicable where it unreasonably fails to solicit other responsible sources that request the opportunity to compete. Bosco Contracting, Inc., B-270366, Mar. 4, 1996, 96-1 CPD ¶ 140 at 3. When an agency deliberately excludes a source that requested the opportunity to compete, our Office will evaluate whether the agency acted reasonably. Id. The determinative issue in such cases is whether the agency made a deliberative or conscious attempt to preclude the protester from competing, knowing the firm’s interest in competing, and, if it did so, whether that action was reasonable. Solutions Lucid Group, LLC, B-400967, Apr. 2, 2009, 2009 CPD ¶ 64 at 3; Omni Elevator Co., supra, at 2.

In essence, PED’s position is that, by virtue of the CO advising the protester of the Riverside solicitation, the agency must have been aware that the firm would also be interested in the VA’s other grass seed requirements at other locations, and thus, the agency was required to solicit a quotation from PED for the Santa Fe project. See Comments at 2 (“The agency has NOT demonstrated that the contracting officer had a reasonable basis for failing to solicit PED, a vendor that the contracting officer asked to bid the Riverside Grass Seed Requirements, a vendor he clearly knew to be interested in competing for orders for the item.”) (emphasis in original). But PED applies a standard not found in our prior decisions. Indeed, the VA need not demonstrate whether it had a reasonable basis for failing to solicit PED, but instead, the operative question is whether the VA made a “deliberative or conscious attempt to preclude the protester from competing, knowing the firm’s interest in competing.” Bluehorse Corp., B-415641 et al., Feb. 6, 2018, 2018 CPD ¶ 93 at 4; Solutions Lucid Group, LLC, B‑400967, supra at 3; Omni Elevator Co., supra, at 2. Under the appropriate standard, we find no basis to the sustain the protest absent reasonable evidence of a deliberate or conscious exclusion of PED from the competition.

First, as noted above, PED did not request the opportunity to compete in this procurement (at least prior to award), nor does the record reflect PED expressing interest to the VA (prior to this award) about the firm’s potential interest in future procurements involving grass seed. As such, there is no direct evidence that the VA knew of PED’s interest in competing for the Santa Fe requirement.

PED argues knowledge of its interest in competing should be imputed to the VA, by virtue of the CO’s August 30 email to PED concerning the agency’s Riverside cemetery requirement. See AR, Tab 1-16, CO Email Regarding Riverside Requirement at 1 (the CO explaining to PED that “[t]he following contract opportunity is accepting bids” and PED has “showed interest in bidding on similar requirements”). However, the CO, in a declaration provided in response to this protest, disclaims any such knowledge, and clarifies that his decision to solicit the protester for the Riverside requirements was the result of the COR’s recommendation. The CO explains that, in attempting to issue the solicitation toward the end of the fiscal year, he “had no knowledge of [PED’s] interest or ability to provide” the VA’s required product. Supp. COS at 2. The CO explains that the Riverside and Santa Fe requirements were different, in terms of location (California vs. New Mexico), dollar amount (over vs. under $25,000) and in terms of product required (single vs. blended seed). Given these differences, the CO states “it did not occur to me to include or exclude [PED] from the Santa Fe requirement.” Id. Moreover, the CO asserts that in conducting his market research, PED was not identified as a potential vendor for this product. Id. As such, the CO provides he relied on the recommended sources of supply provided by the COR to solicit for the VA’s requirement. Id.

The parties differ on the reasonableness of the CO’s explanation.[4] However, we find no basis to sustain the protest, as there is nothing in the record to suggest the VA made a “deliberative or conscious attempt to preclude the protester from competing[.]” Bluehorse Corp., supra at 4; Omni Elevator Co., supra, at 2. In this regard, the protester advances no argument to suggest the agency specifically and intentionally excluded the protester from competing for the requirement, nor has PED advanced any rationale as to why the VA would deliberately do so. Indeed, the record points to the contrary, where the CO explained he would keep PED “in mind for these types of requirements in the future.” AR, Tab 1‑14, PED and VA Email Exchanges, at 4.

Reading the facts in a light most favorable to the protester, the record points to a situation where the CO, at worst, neglected to connect the dots, during a busy procurement window, where he failed to recognize that a firm potentially interested in a procurement for one type of grass seed requirement might also be interested in a different seed requirement. These circumstances are a far cry from fact patterns where our Office has sustained a protest of an agency’s failure to solicit the protester. Compare Solutions Lucid Group, LLC, B‑400967, supra at 3 (sustaining a protest where the agency affirmatively knew the protester was interested in competing, but excluded the firm based on an unreasonable rationale) with Omni Elevator Co., supra, at 2 (denying a protest based on an “unintentional oversight” by the contracting officer in failing to provide the incumbent contractor with the solicitation, where there was no evidence the protester was deliberately excluded).[5] In the absence of any record evidence to suggest the VA intentionally and deliberately excluded PED from the competition, we have no basis to sustain the protest.

The protest is denied.

Edda Emmanuelli Perez
General Counsel