By Government Contracts Editorial Staff
A protest of a reprocurement award for diesel fuel was denied because the award to the third-lowest priced vendor was reasonable under the circumstances. On the day for delivery, the original awardee notified the government it was unable to perform the contract. At 11:39 a.m., the government called the protester—which quoted the second lowest price—to confirm whether it would perform under the terms of its quotation, but the protester did not immediately commit to performing on those terms. At 11:52 a.m., the government emailed the protester seeking confirmation, and at 12:24 p.m., the protester responded “I will get back to you shortly on whether we can delivery [sic] today and pricing for this short notice request.” At 2:08 p.m., the protester still had not responded, so the government contacted the next lowest-priced vendor, who immediately confirmed its originally quoted price but could not deliver the fuel until the following day. The government agreed to the updated delivery schedule, and subsequently sent an email to the protester stating the third vendor had received the award and to disregard the prior inquiries. At 2:42 p.m., the protester forwarded its prior quotation confirming it would be willing to perform for the price it originally quoted. The protester argued it should have received the award as the next lowest-price vendor and the government allowed it inadequate time to respond, particularly since the government accepted devlivery on the following day.
Next-Day Delivery Unobjectionable. The Comptroller General explained that in prior decisions concluding the government acted reasonably in returning to previously received responses, rather than conducting a new competition on a full and open basis, the key fact was the award was for the same quantity at the original price. These decisions take a more flexible view on changes to the delivery schedule, recognizing that a default may render the original delivery schedule impossible, or impractical, while simultaneously creating an urgent need for delivery. Here, only two days had elapsed since the government received the quotations, so the government acted reasonably in attempting to reprocure the requirement from the protester. However, when the protester responded to the government’s first email, it indicated that the government could not rely on the price that was previously quoted. As a result, it was reasonable for the government to seek delivery from the next lowest-priced vendor. Further, because the original awardee notified the government that it could not perform the contract on the day of delivery, and because the protester indicated after noon on the day of delivery that the government could not rely on the previously quoted terms, the government’s acceptance of the revised delivery schedule was reasonable. (AeroSage, LLC,33 CGEN ¶116,028)
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