Date: September 11, 1991
P.S. Protest No. 91-45
DOMINO AMJET, INC.
Solicitation No. 437140-91-A-0083
DECISION
Domino Amjet, Inc., ("Domino") protests the award of a purchase order for three ink jet sprayers to Chesire, a VideoJet Company ("Chesire"). The protester contends that its offer was incorrectly evaluated.
Solicitation No. 437140-91-A-0083 was issued by the Providence, RI, Division Support Services Office on May 10, 1991, with an offer due date of May 31. The solicitation, issued using simplified purchasing procedures, requested quotations, on a brand name or equal basis, 1 for three ink jet sprayers and spare parts kits. 2 The sprayers are used to overcancel metered mail on optical character readers and flat sorter machines.
Section 3.1, entitled "Contract Award," stated that the "Postal Service intends to award a contract to the responsible offeror whose proposal will be most advantageous to the Postal Service, considering cost or price and other factors specified elsewhere in the solicitation." Section 1.1, entitled "Items and Prices," advised:
Please note that in addition to price . . . delivery time, warranty, availability of repair parts, installation, training and life cycle costs will be considered in determining the contractor that offers the best value to the Postal Service. [Ellipsis in original.]
The solicitation provided spaces for the entry of unit prices and extended prices for the ink jet sprayers and spare parts kits, and a space for insertion of delivery time, expressed as "ARO," presumably for "after receipt of order." The solicitation contained no guidance with respect to the relative weight of the price, the price-related factor (life cycle costs) and the five remaining evaluation factors. It also did not give guidance on how to submit the information concerning these evaluation criteria: warranty, availability of repair parts, installation, training and life cycle costs.
Three proposals were received. Domino offered Domino Amjet sprayers at a total price of $35,325 and delivery 4-8 weeks ARO. Chesire offered VideoJet sprayers at a price $38,580 with a 30 day delivery time. The third offeror offered another machine at a price of $33,030 with a 60 day delivery date.
Following receipt of the offers, the procuring officer sought information on the costs of consumables for the Domino and VideoJet units. Domino and the contracting officer differ on the details of those communications. 3 According to the cost breakdown attached to the contracting officer's report, Domino's proposed machine would incur $5,055 in ink costs per year for three machines. Chesire's costs were $1,891 annually for three machines. Based on these figures, a five-year useful life forthe equipment, and an assumption of a 5% increase in the cost of consumables each year, the total cost of the Domino proposal was calculated at $61,982; the cost of the Chesire proposal was calculated at $45,633. 4 A purchase order was issued to Chesire on June 24.
Domino's protest, dated July 8, was received by this office July 15. Domino states that it was told on June 20 that Chesire would receive the award because Domino's operating costs were higher than Chesire's. Domino alleges that the prices used in the calculation of Domino's operating costs were incorrect. The protester states that the procurement office never contacted it concerning the award criteria and refused to supply it with a copy of an engineering department report concerning the award. Domino asserts that its delivery time is much better than Chesire's, it provides training and installation with each unit purchased, its repair parts are available within 24 hours, and it gives a six-month warranty on all parts.
In his statement, the contracting officer recites Domino's failure to provide it with the prices of its consumables, notes that the prices it used in its comparison were confirmed by Domino's organization, contends that it furnished Domino the substance of the requested engineering report by telephone, and notes that the Chesire sprayers were delivered on July 12, eighteen days after the purchase order was issued.
Responding to the contracting officer's statement, Domino points out the difference between its standard consumables prices and its Postal Service prices and disputes receiving the engineering report from the contracting officer over the phone. The protester requests an explanation of the weight given to the warranty, availability of spare parts, installation and training evaluation factors in the evaluation.
Discussion
"Since the requirement that a protest must be timely filed is jurisdictional, . . . we must first determine whether [a] protest before this office is timely." (Citation omitted.) Federal Systems Group, Inc., P.S. Protest No. 88-12, April 26, 1988. PM 4.5.4 d. states that "protests must be received not later than ten working days after the information on which they are based is known or should have been known, whichever is earlier; providedthat no protest will be considered if received more than 15 working days after award of the contract in question."
Since this was a simplified purchase, the procurement office was not required, under our regulations, to notify unsuccessful offerors of award. See PM 4.2.8. 5 However, Domino's comments establish that it learned of the pending award to Chesire when its representative spoke to the contracting officer on June 20.
A protester is "charged with knowledge of a basis for protest" when the contracting officer conveys to the protester a position adverse to the protester's interest. . . . Moreover, written notification of the adverse action or the grounds of the protest is not required; oral notification of the basis of a protest is sufficient to start the time period running.
(Citations omitted.)
Federal Systems Group, Inc., supra. Domino was notified on June 20 that is would not get award - a position adverse to Domino's interest. We received Domino's protest on July 15, 6 more than ten working days after Domino knew of the basis of its protest. Accordingly, the protest is untimely and we are without authority to consider it.
Although we are unable, due to the untimeliness of the protest, to reach its merits and consider possible relief, we note our concern about the manner in which the procurement was conducted. It is useful to identify these deficiencies for the information of the purchasing office and of prospective quoters for future procurements.
As the recital of the facts above indicates, the solicitation was deficient in failing to identify the salient characteristics of the brand-name item specified and the quantities and composition of the requested spare part kits. Further, since the award criteria in Section 1.1 included factors other than price and price-related factors, it was subject to the requirements of PM 4.2.1 e.4.
PM 4.2.1 e.4.(b) requires that when evaluation factors other than price and price-related factors are used, the contracting officer must approve an evaluation strategy which identifies "(1) theneed to use other evaluation factors, (2) the evaluation factors to be used and their order of importance, [and] (3) the relative overall importance of the other evaluation factors to price (i.e., greater than, equal to, less than). . . ." Since six evaluation factors in addition to price were listed in the solicitation, but the solicitation made no provision for the submission of information on factors other than price and delivery time, and since only three factors (price, delivery time and life cycle cost) were evaluated in making award, it seems apparent that no coherent evaluation strategy existed and that offerors were not afforded the opportunity to submit offers consistent with the evaluation criteria as contemplated by the Procurement Manual.
The protest is dismissed as untimely.
[Signed]
William J. Jones
Associate General Counsel
Office of Contracts & Property Law
[Compared to original 5/17/95 WJJ]
1/ The brand name item requested was Video-Jet Excell 100 or its equal. However, the solicitation failed to list a description of the item's essential characteristics, in violation of Procurement Manual (PM) 2.3.3 c.1. That section reads: "if fewer than three acceptable brand-name products are specified, . . . [t]he product description must include a description of the item's essential characteristics, such as kind of material, size or capacity, equipment with which the item is to be used, and restrictive operating environmental conditions."
2/ The solicitation did not describe the composition of the spare parts kits nor the number of kits desired.
3/ The contracting officer reports that Domino called the procurement office after the closing date, was informed that a price evaluation of the machine's consumable costs was being performed, and was asked to provide information about the costs of the inks necessary to run its sprayer. When no information on these costs was timely received from Domino, the Providence office contacted the Albany procurement office, which already had such a sprayer and obtained the prices they were paying for ink. The contracting officer asserts that the prices obtained from the Albany office were then confirmed with a Domino customer service representative.
Domino agrees that when it called on June 17 to inquire about the status of the award, it was asked to send its ink prices. Its sales representative called back on June 20 to provide those prices, but was then told that award was being made to Chesire. Domino contends that the prices used in the evaluation were its standard commercial prices, rather than the lower prices available to the Postal Service.
4/ The record submitted by the contracting officer does not explain why the third, lowest, offer was not evaluated for the cost of its consumables as were Domino's and Chesire's offers.
5/ PM 4.2.8 provides, as to simplified purchases, "[t]here is no requirement to notify unsuccessful offerors or quoters."
6/ The delay between the protest's July 8th date and its receipt by this office on the 15th is unexplained. However, the protest would still have been untimely as of its date, which was eleven working days after Domino was advised of the proposed award.