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United States Government Accountability Office Washington DC 20548 Comptroller General of the United States Decision Matter of: AeroSage LLC File: B-409627 Date: July 2 2014 David M. Snyder for the protester. William D. Robinson Esq. and Sarah Bloom Esq. Department of Justice Bureau of Prisons for the agency. Frank Maguire Esq. Paul E. Jordan Esq. and David A. Ashen Esq. Office of the General Counsel GAO participated in the preparation of the decision. DIGEST Protest is sustained where an agency requested quotations for fuel with next-day delivery required via the FedBid reverse auction website and the protester the lowest-priced technically acceptable vendor responded timely and affirmatively to a FedBid “Bid Validation” request but did not timely respond to the contracting officer’s concurrent shorter-deadline telephonic request for confirmation leading the contracting officer to make the award to second lowest-priced vendor. DECISION AeroSage LLC of Tampa Florida protests the Department of Justice Bureau of Prison’s BOP placement of an order with W.G. Pitts Company Inc. of Jacksonville Florida under request for quotations RFQ No. DJBP0302NP210047 FedBid Buy No. 594154_02 for next-day delivery of 6000 gallons of unleaded fuel for the FCC Coleman Federal Prison Coleman Florida. The protester asserts that although it was the lowest-priced technically acceptable vendor it was improperly denied award. We sustain the protest. BACKGROUND The RFQ a small business set-aside was posted on the FedBid website as a reverse auction on March 11 2014 with a closing time of 12:00 Noon on March 12 and a delivery time of 9:00 a.m. on March 13. The contracting officer CO states:

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Page 2 B-409627 It was posted on FedBid because the contract with the incumbent had expired and I did not have any sources. The reason the RFQ was open for 1 day is because the Facilities Department informed me that their unleaded fuel status was dangerously low and that they needed to have fuel delivered not later than 3/13/2014. Any later could have jeopardized the prison’s daily operation. During my market research of past acquisitions for fuel I discovered that the delivery of bulk fuel would require at least 24 hours’ notice because of previously scheduled deliveries. Agency Report AR Tab 2 CO’s Statement COS. AeroSage submitted quotations on March 11 and early on March12 both of which were determined by FedBid to be “lag” quotations i.e. not the lowest-submitted quotation or not in the acceptable price range. Protest at 1 see FedBid Terms of Use at 2. A short time prior to the 12:00 Noon closing time on March 12 AeroSage submitted a third lower “auto rebid.” Protest at 1. Shortly after closing AeroSage received the FedBid system’s email “Bid Validation” request with a response deadline of 5:00 p.m. 1 Protest Exh. FedBid Email Mar. 12 2014 12:03 p.m. Pertinent here the Bid Validation request directed AeroSage to confirm by 5:00 p.m. that day that it could deliver the fuel by March 13 at 9:00 a.m. Id. At 4:36 p.m. AeroSage replied affirmatively to the Validation request via email. Protest Exh. AeroSage Email March 12 2014 4:36 p.m. During the time after the FedBid Validation request was sent but before the response was due the CO advises that “due to the short turn-around time” he “determined that it was appropriate to contact AeroSage make an offer and request acceptance prior to delivery.” COS at 1-2. The record indicates that after the Noon closing time on March 12 the CO made two telephone calls to AeroSage’s office at 12:44 p.m. and at approximately 1:45 p.m. Comments at 5. In the second call the CO directed AeroSage to call back by 2:30 p.m. i.e. within 45 minutes to confirm delivery and accept the offer. COS at 1-2 Comments at 5. The CO further states that when AeroSage did not return his call he “considered that to be a rejection of the Government’s offer” and was “concerned that the Government’s needs would not be met.” COS at 2. He therefore decided to award to the next lowest-priced technically acceptable vendor W.G. Pitts at approximately 3:00 p.m. Id. AeroSage advises that during the work day on March 12 its office was unattended due to other commitments but as indicated above AeroSage nonetheless 1 A Bid Validation request is “the effort of FedBid to verify and/or confirm Seller’s compliance with Specifications.” FedBid Terms of Use at 1-2.

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Page 3 B-409627 retrieved and responded to the FedBid email message. Protest at 1. AeroSage asserts that when its personnel “returned to the office on the evening of March 12 2014 there were two unclear phone messages saying to call the CO for award of the contract. The second message said to call by 2:30 PM ET.” Id. AeroSage called back at approximately 6:30 p.m. on March 12 id. at 2 and left a voice message again confirming that it would supply the fuel consistent with all RFQ requirements. COS at 2 Protest at 1-2. The CO notes that AeroSage’s voicemail was left “well after duty hours” but acknowledges ultimately receiving it at approximately 7:45 a.m. on March 13. COS at 2. W.G. Pitts delivered the fuel by 9:00 a.m. on March 13. Id. at 2. This protest followed. DISCUSSION AeroSage argues that the agency acted improperly in awarding to another vendor after AeroSage submitted the lowest-priced quotation and committed to meeting all the RFQ requirements including delivery time. In addition AeroSage notes that it confirmed its quotation including its commitment to the delivery terms within the timeframe established by FedBid in its Bid Validation request. AeroSage argues that the agency acted improperly when it imposed a shorter requirement on AeroSage’s response time after the solicitation closed and contends that the need for a “short notice” response to a voicemail message was the result of “lack of planning” by the agency. Comments at 2. The agency does not dispute that AeroSage submitted the lowest-priced quotation or that the company timely responded to the FedBid Bid Validation request by the 5:00 p.m. deadline established in FedBid’s email to AeroSage. Instead the agency argues that it “attempted to award” to AeroSage but that AeroSage did not accept the agency’s offer. AR at 3. Specifically the agency notes that the FAR provides that “when appropriate the Contracting Officer may ask the supplier to indicate acceptance of an order by notification to the Government preferably in writing as defined in 2.101.” AR at 3 citing FAR § 13.004b. The agency explains: Here due to the extremely small time window during which the BOP required delivery the CO determined it was in the BOP’s best interest to contact the prospective awardee confirm their intent to deliver the next morning and ask that they indicate acceptance by notification of the Government. citation omitted. The CO determined that due to the urgency of the requirement this was a better option than sending

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Page 4 B-409627 a purchase order and hoping the contractor would receive it and mobilize in time to render the fuel. citation omitted. AR at 4. The agency further maintains that when the CO was unable to contact a representative of the company by telephone it reasonably interpreted AeroSage’s non-response as a rejection of the BOP’s offer and issued the order to the next- lowest-priced vendor. Id. at 5. As a preliminary matter AeroSage and the agency disagree about both the type of procurement that is being conducted here and how to characterize the two exchanges that took place on March 12--one between AeroSage and FedBid via an email and the second between AeroSage and the agency via voicemail messages. The agency contends that although it made use of the FedBid website its procurement was a request for quotations and that AeroSage provided a quote not a bid. The agency citing Federal Acquisition Regulation FAR § 13.004a notes in this regard that a quotation is not a submission for acceptance by the government and does not constitute an offer. See Computer Assocs. Int’l Inc. B-292077.3 et al. Jan. 22 2004 2004 CPD ¶163 at 3 aff’d. Computer Assocs. Int’l Inc.--Recon. B-292077.6 May 5 2004 2004 CPD ¶ 110 quotations submitted in response to an RFQ for issuance of order under Federal Supply Schedule are not offers that may be accepted to form a binding contract. Thus in the agency’s view it was appropriately seeking to expedite the vendor’s commitment to deliver and complete the process of offer and acceptance. While the record reflects that the agency was soliciting quotes and not bids RFQ at 3 see Kingdomware Technologies B-405242 Sept. 30 2011 2011 CPD ¶ 199 at 2 n.1 the resolution of this issue is immaterial to our analysis. Instead we simply conclude that the agency unreasonably imposed an additional requirement on this procurement after the solicitation closed. In hosting this reverse auction on its website FedBid was acting as an agent for the BOP and it conducted the auction as described in its Terms of Use. Under the FedBid Terms of Use a request for “Bid Validation” occurs after a solicitation closes and represents an attempt to seek affirmative confirmation from the vendor or seller or “bidder” that it will honor its commitment. 2 Terms of Use at 2-3. Of particular importance here FedBid’s Validation request in this matter expressly sought a confirmation from AeroSage that the fuel delivery required by this solicitation would take place by 9:00 a.m. the next day or March 13. AeroSage provided that commitment and did so within the timeframe established by the FedBid Validation request. 2 In addition the FedBid terms of use provide that a “Buyer is NEVER obligated to complete the transaction regardless of the status of the Buy.” Terms of Use at 8.

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Page 5 B-409627 While the process established by the BOP’s agent FedBid was underway the CO here imposed a second requirement--in our view an overlay to the actions underway by FedBid--in which the CO via voicemail sought to complete the steps of offer and acceptance and confirmation of the delivery requirement during the course of 45 minutes. Thus the agency’s actions here are analogous to a decision to accelerate the closing time for final revised proposals on the date those proposals are due. This additional requirement for telephonic confirmation was not only unstated in the RFQ but was inconsistent with the instructions set forth in FedBid’s previously-issued Bid Validation request. AeroSage responded to the Validation request as asked and confirmed its commitment to deliver the fuel the next day the company had no reason to expect that separate and apart from this inquiry there was a later-sent voicemail message waiting that imposed a different requirement a return telephone call with a shorter response time. These actions violate a fundamental premise of government procurements: that offerors must be advised of the bases upon which their proposals will be evaluated. H.J. Group Ventures Inc. B-246139 Feb. 19 1992 92-1 CPD ¶ 203 at 4. Specifically it was unreasonable for the CO to provide AeroSage approximately 45 minutes to respond to a voicemail message when nothing in the RFQ alerted AeroSage that such a request would be forthcoming and in fact AeroSage received and affirmatively replied to FedBid’s emailed Bid Validation request with a later deadline. Further there is nothing in the record suggesting that AeroSage would fail to deliver the fuel as promised: AeroSage submitted a quotation in which it certified that it would comply with all requirements of the RFQ and the agency points to nothing to cast doubt on AeroSage’s ability or intention to perform. 3 In short the agency here chose the method of and its agent for meeting this requirement and FedBid sought confirmation of the very issue ability to make timely delivery that the CO sought to confirm via voicemail messages. Given that 3 To the extent that the CO’s decision not to award to AeroSage was based on a concern that AeroSage would be unable to timely deliver the fuel see COS at 2 this would appear to be a negative responsibility determination. See FAR § 9.104-1b. In such case the CO’s action would have deprived AeroSage a small business of its statutory right to have a negative responsibility determination reviewed by the Small Business Administration SBA under the Certificate of Competency process. See FAR § 9.104-3d1 see e.g. Fabritech Inc. B-298247 B-298247.2 July 27 2006 2006 CPD ¶ 112 at 3-6 F F Pizano Trucking Co. Inc. B-212769 Nov. 30 1983 83-2 CPD ¶ 629 at 1-2 notwithstanding finding of urgency contacting officer acted improperly in rejecting a small business as nonresponsible without referring the matter to SBA.

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Page 6 B-409627 AeroSage responded as requested by FedBid we think the CO’s actions improperly imposed an additional unstated requirement in this procurement. 4 RECOMMENDATION Given that the purchase order here has been fully performed COS at 2 and other substantive relief is not possible we recommend that the agency reimburse the protester its quotation preparation costs. 4 C.F.R. § 21.8d2 2014. We also recommend that the agency reimburse the protester the costs of filing and pursuing its protest. 4 C.F.R. § 21.8d1. The protester should submit its certified claim for costs detailing the time expended and costs incurred directly to the contracting agency within 60 days after the receipt of this decision. 4 C.F.R. § 21.8f1. The protest is sustained. Susan A. Poling General Counsel 4 The protester also challenges the agency’s use of FedBid generally asserts that the RFQ failed to state an appropriate NAICS category size standard and argues that the awardee would not be eligible under the appropriate size standard. Protest at 1-2. These first two arguments are essentially challenges to the terms of the solicitation filed after closing and thus are untimely. 4 C.F.R. § 21.2a1. The third argument AeroSage’s contention that the awardee is ineligible for award as a small business is a matter within the jurisdiction of the Small Business Administration. 4 C.F.R. § 21.5b. Finally the protester asserts that its protest should be sustained since the agency report was submitted one day later than the 30-day due date set for the report by our Office. Comments at 1. There is no provision in our Regulations however for sustaining a protest based on a late agency report. Thus this protest ground does not set forth a basis on which we may grant relief. 4 C.F.R. § 21.1c4.

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12/20/2014 Leadership 1/2 Clients Opportunities Leadership Advisory Board Affiliations AeroSage Values David M. “Tanker” Snyder President AeroSage LLC. A retired Brigadier General “Tanker” is an accomplished executive in both the public and commercial sectors. Professional Accomplishments Senior managing director of a 6 billion financial firm for defense and aerospace 29 years of domestic and international Air Force and Joint service experience. Success in strategic planning business development operations logistics training and education financial and program management. Director of a Strategic Plans Programs and International Affairs Pacific Air Forces. Director of a 3 billion annual program budget involving strategic planning and resource management with engagements in 43 countries. Deputy Director for Strategic Planning and Policy US Pacific Command. Wing Commander MacDill Air Force Base providing worldwide combat and support missions supported by 15000 base personnel and 53 organizations including US Central Command and US Special Operations Command. Installation commander with a 3.5 billion economic impact on the Tampa Bay community. Executive assistant to senior defense officials. Pentagon planner strategist and programmer. Chief of staff and command director for hardened command centers for the defense of North America and US space assets. Instructor and evaluator pilot with 4500 flying hours and a FAA commercial license. Who We Are / Leadership

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12/20/2014 Leadership 2/2 AEROSAGE™ LLC © 2009 All Rights Reserved Led operations group responsible for operations and maintenance of 200 aircraft and training of 500+ pilots. Air Force Academy assistant professor of management and operations research Honor graduate of the Air Force Academy. Master of Science in Engineering Systems Engineering and a Master of Business Administration with distinction from the University of Pennsylvania’s Wharton School. Shape Opportunities Secure Success Deliver Results.

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