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B-298481 Murray-Benjamin Electric Company, LP


Comptroller General





United States Government Accountability Office
Washington, DC 20548

of the United States
Decision


Matter of:
Murray-Benjamin Electric Company, LP

File:
B-298481

Date:

September 7, 2006

Brad Benjamin for the protester.
Gail Booth, Esq., and Edward C. Hintz, Esq., Defense Logistics Agency, and
Michael J. Noble, Esq., General Services Administration, for the agencies.
Paul E. Jordan, Esq., and John M. Melody, Esq., Office of the General Counsel, GAO,
participated in the preparation of the decision.
DIGEST

1. Protest that procurement violates agencys obligation to place orders under
various contracts held by protester concerns matter of contract administration,
which Government Accountability Office will not review.

2. Agency is not required to order supplies under non-mandatory Federal Supply
Schedule (FSS) contract, and where it is in agencys best interests--including need to
establish best value among potential offerors--agency may compete its
requirements among commercial sources of supply instead of under non-mandatory
FSS.
DECISION

Murray-Benjamin Electric Company, LP (MBE) protests the terms of request for
proposals (RFP) No. SP0930-06-R-A401, issued by the Defense Supply Center
Columbus, Defense Logistics Agency (DLA), for an indefinite quantity of fiber optic
cables. MBE asserts that DLA is obligated to procure the items listed in this RFP
under current contracts with MBE.

We deny the protest.

The RFP, issued on an unrestricted basis, sought offers on nine different fiber optic
cables used in support of the Nuclear Power Plants, Weapon System Code 21N. The
solicitation contemplated the award of a fixed-price, indefinite-quantity contract for a 1-year base period, with up to 4 option years.
1
The RFP set a contract maximum of
$3 million and a minimum of $45,000. Offers were to be evaluated for best value on
the basis of price, past performance, proposed delivery, surge and sustainment,
socioeconomic support, DLA mentoring business program, and the Javits-Wagner-
ODay program, with price approximately equal in weight to all other factors. Prior
to the closing time for receipt of proposals, MBE submitted an offer and filed this
protest with our Office.

MBE principally argues that, instead of competing the requirement, the agency
should have purchased certain of the RFPs line items under its Federal Supply
Schedule (FSS) contract, Department of Defense E-Mall contract, or previously
negotiated Indefinite Delivery Purchase Orders (IDPO), and the other items under
other unidentified MBE contract vehicles. MBE notes that five of its IDPO contracts
have been extended into 2007, and asserts that the agency is obligated under these
contracts to procure the items from MBE.
2


Under the Competition in Contracting Act of 1984, our jurisdiction to resolve bid
protests extends to resolving disputes concerning the alleged violation of
procurement laws and regulations in connection with the award of contracts by
federal agencies. 31 U.S.C. § 3551-3552 (2000), amended by the Ronald W. Reagan
National Defense Authorization Act of Fiscal Year 2005, Pub. L. No. 108-375, § 326,
118 Stat. 1811 (2004). In exercising this authority, we do not review matters of
contract administration (with exceptions not relevant here), which are within the
discretion of the contracting agency and are, under the Contract Disputes Act of
1978, for review by a cognizant board of contract appeals or the Court of Federal
Claims. 4 C.F.R. § 21.5(a); Hawker Eternacell, Inc., B-283586, Nov. 23, 1999,
99-2 CPD ¶ 96 at 3. Resolving this aspect of MBEs protest would entail interpreting
MBEs existing contracts and determining whether DLAs actions constituted
breaches of those contracts. This is a matter of contract administration, and
therefore will not be considered.
3


(continued...)
1
These items are referenced by National Stock Number (NSN) as follows: 6015-01-
467-9547 (9547), 6015-01-467-9549 (9549), 6015-01-467-9552 (9552), 6015-01-467-9550
(9550), 6015-01-528-2487 (2487), and 6015-01-528-2481 (2481), 6015-01-442-9423
(9423), 6015-01-442-9420 (9420), and 6015-01-531-4355 (4355).
2
MBE also complains that the agency plans to change the variation in quantity
provision in one of its IDPOs to reduce it from +/- 10 percent to +/- 0 percent, a
change MBE asserts is emblematic of agency actions that have been detrimental to
contractors. Protest at 2. To the extent MBE intends this to be a basis for protest; it
concerns the administration of an unrelated contract and, as such, is not for review
by our Office. Bid Protest Regulations, 4 C.F.R. § 21.5(a) (2006).
3
In any event, DLA explains that use of MBEs various contract vehicles would be
inappropriate for this procurement. In this regard, only four of the NSNs (9547, 9549,
Page 2

B-298481
In a related argument, MBE asserts that the agency should have placed orders under
the protesters FSS contract instead of competing the requirement because, under
the FSS, no further competition is required. In this regard, MBE notes that the
agency has previously relied upon Federal Acquisition Regulation (FAR) § 8.404 in
making FSS purchases, and that FAR § 8.002 makes the General Services
Administration (GSA), which administers the FSS, a required source of supply.
While MBE concedes that use of its FSS contract is not mandatory (Supplemental
Protest at 1), it maintains that the agency nevertheless was required to order against
its FSS contract based on these FAR provisions and Department of Defense (DoD)
policy.

MBEs assertions are without merit. Under a mandatory FSS contract, an agency
generally must order its requirements under that FSS if its minimum needs will be
met by the products or services listed in the schedule. Adams Magnetic Prods., Inc.,
B-256041, May 3, 1994, 94-1 CPD ¶ 293 at 3. However, as conceded by MBE, its FSS
contract is not mandatory; thus, an agencys use of that contract is voluntary.
4
There
is nothing else in the FAR, or elsewhere, that compelled the agency here to meet its
requirements under MBEs FSS contract. FAR § 8.404 simply provides guidance on
the use of the FSS--e.g., restricting competition to the FSS and eliminating the need
for additional determinations of fair and reasonable pricing; it does not require
agencies to use the FSS. Similarly, while the list of required sources found in FAR
§ 8.002 places non-mandatory FSS contracts above commercial sources in priority, it
does not require an agency to order from the FSS. Further, although an agencys
placement of an FSS order indicates that the agency has concluded that the order
represents the best value (FAR § 8.404(d)), the regulation does not establish a
presumption that all FSS contractors represent the best value, such that the agency
would be required to purchase from an FSS contractor.
5


(...continued)
(continued...)
9552, and 9550) are listed on MBEs contracts, and MBEs FSS contract covering
NSNs 9549, 9552, and 9550 is not mandatory. Further, the minimum order obligation
under each active IDPO has been met, and the contract maximum under one IDPO
has been met. With regard to the E-Mall, DLA has fulfilled its only obligation--to
purchase not less than $1 in exchange for the listing.
4
In comments requested by our Office, GSA confirms that, absent a statute or
regulation explicitly providing that use of a particular FSS contract is mandatory, an
agencys use of that contract is voluntary. GSA Comments at 1.
5
As explained by GSA, while agencies are encouraged to use the FSS, where an
agency concludes that it is in its best interests to meet its needs through an
open-market procurement, it is free to do so. GSA Comments at 1. MBE asserts that
DLA did not make a best interests determination, but we are aware of no legal
requirement--and MBE cites none--that an agency do so. In any case, such a
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B-298481
Our conclusion is not changed by MBEs assertion that DLA has previously placed
FSS orders for weapon systems and nuclear application programs and that other
agencys have competed their needs through FSS contracts. Each federal
procurement stands on its own; the fact that DLA and other agencies may have made
FSS contract purchases in the past does not require DLA to do so here. Sabreliner
Corp., B-275163 et al., Dec. 31, 1996, 96-2 CPD ¶ 244 at 2 n.2. MBEs reliance on a
letter from DoDs Director of Defense Procurement and Acquisition Policy on use of
the FSS is similarly