United States Government Accountability Office

Washington, DC 20548

Comptroller General

of the United States

 

Decision

Matter of: Midwest Tube Fabricators, Inc.

File: B-407166; B-407167

Date: November 20, 2012

Cindy Rhodes Victor, Esq., The Victor Firm, PLLC, for the protester.

Elliott Wolf, E.W. Packaging Corporation, Inc., for the intervenor.

Marc A. Shepler, Esq., Defense Logistics Agency, for the agency.

Matthew T. Crosby, Esq., and Sharon L. Larkin, Esq., Office of the General 

Counsel, GAO, participated in the preparation of the decision.

DIGEST

Protest that item offered by awardee cannot have met solicitation specifications 

merely because awardee offered item at lower price than protester fails to state 

valid basis of protest.

DECISION

Midwest Tube Fabricators, Inc., of Sterling Heights, Michigan, protests the 

issuance of a purchase order to E.W. Packaging Corporation, Inc. (EWPC), 

of Deerfield Beach, Florida, under request for quotations (RFQ) Nos.

SPM7M4-12-T-9441 and SPM7M4-12-T-9460, issued by the Defense Logistics 

Agency, for a quantity of bent, seamless, stainless steel tube.

1 Midwest asserts 

that based on EWPC’s comparatively lower price, the item offered by EWPC could 

not have met the solicitation specifications, and, therefore, issuance of the purchase 

order to EWPC was improper.

We dismiss the protest.

 1 Other than the quantities solicited, the RFQs essentially are identical. This 

decision provides single, rather than dual, citations to the RFQs because the 

relevant information appears on the same page of each RFQ.

DOCUMENT FOR PUBLIC RELEASE

The decision issued on the date below was subject to a 

GAO Protective Order. This redacted version has been 

approved for public release.
Page 2 B-407166, B-407167 

On June 12, 2012, the agency issued two RFQs for an item designated as national 

stock No. 4710-01-186-0665.2

 RFQ at 1. The first RFQ sought a quantity of 2770. 

Id. The second RFQ sought a quantity of 3000. Id. Both RFQs contemplated the 

issuance of a fixed-price purchase order to the vendor submitting the lowest-price 

quotation for items conforming to the solicitation specifications.

3

 See id. at 1.

Both Midwest and EWPC submitted quotations in response both RFQs. On July 30, 

the contracting officer notified Midwest and EWPC via e-mail that the agency was 

combining the two RFQs. AR, Tab 5, Agency E-Mail to Vendors (July 30, 2012). 

The contracting officer’s e-mail requested that the firms provide quotations for a 

quantity of 5770 of the solicited item; i.e., the agency sought a single quotation from 

each vendor for the sum of the previously solicited quantities. Id. In response to 

the contracting officer’s e-mail, both Midwest and EWPC submitted quotations. 

Midwest’s unit price for the quantity of 5770 was [DELETED]. AR, Tab 8, Midwest 

Quotation on Combined RFQs, at 1. EWPC’s unit price for the quantity of 5770 was 

[DELETED]. AR, Tab 11, EWPC Quotation on Combined RFQs, at 1.

The contracting officer evaluated the quotations and determined that EWPC had 

quoted the lowest price.4

 2 The RFQs described the item as bent, seamless, stainless steel tube with certain

dimensions and conforming to United States Army Tank Automotive Command 

drawing No. 12338581. RFP at 2; Agency Report (AR), Tab 16, Drawing

No. 12338581. The item apparently serves as a fuel line on the high mobility 

multipurpose wheeled vehicle. See RFQ at 2.

 See AR, Tab 17, Simplified Acquisition Pricing 

Memorandum, at 1. The contracting officer also found that EWPC’s quotation 

stated both that the firm had “bid without exception” to the solicitation and that the 

quoted item was “in accordance with” the solicitation specifications. Contracting 

Officer’s Report at 2. Based on this finding, the contracting officer determined that 

the item quoted by EWPC conformed to the solicitation requirements. Id. The 

contracting officer then issued a purchase order to EWPC for a quantity of 5770. 

AR, Tab 1, EWPC Purchase Order, at 1. This protest followed.

3 The RFQs incorporated by reference the terms and conditions of the agency’s 

master solicitation for automated simplified acquisitions (MSASA). RFQ at 1. 

MSASA provides that in general, quotations will be evaluated on the basis of price 

alone where an RFQ provides that the acquisition is a candidate for automated 

award. AR, Tab 4, MSASA (May 2012), at 4. Both RFQs here stated that the 

acquisitions were candidates for automated award. RFQ at 1.

4 The contracting officer noted that EWPC’s price was 66 cents lower than the price

paid by the agency in its most recent purchase of the item. AR, Tab 17, Simplified 

Acquisition Pricing Memorandum, at 1. The contracting officer attributed the price 

decrease to an increased purchase quantity. Id. (“The drop in price is due to the 

much more economical quantity we are currently procuring.”).
Page 3 B-407166, B-407167 

Midwest asserts that issuance of the purchase order to EWPC was improper 

because, according to Midwest, EWPC’s lower price reflects that the item offered by 

EWPC “could not” meet the solicitation specifications. Protest at 2. In this regard, 

Midwest alleges that EWPC “could not have provided pricing based on the 

specifications” and that EWPC’s pricing “could only have been based on the part 

being manufactured of an inferior low carbon steel.” Id. Midwest also alleges that 

while it is a manufacturer of the item, EWPC “would have to hire sub-contractors to 

produce the [item] and perform the packaging requirements.” Id. at 5.

Our Bid Protest Regulations require that a protest include a detailed statement of 

the legal and factual grounds for the protest, and that the grounds stated be legally 

sufficient. 4 C.F.R. § 21.1(c)(4), (f) (2012). These requirements contemplate that 

protesters will provide, at a minimum, either allegations or evidence sufficient, if 

uncontradicted, to establish the likelihood that the protester will prevail in its claim of 

improper agency action. Pacific Photocopy and Research Servs., B-278698, 

B-278698.3, Mar. 4, 1998, 98-1 CPD ¶ 69 at 4.

In this case, Midwest’s challenge amounts to a claim that the item offered by its 

competitor fails to meet the solicitation specifications merely because its competitor 

offered the item at a lower price than Midwest. Without more, such a claim fails to 

state a valid basis for protest. See Wright Tool Co., B-276416, June 10, 1997, 

97-1 CPD ¶ 210 at 3 (under solicitation for fixed-priced contract, there is no 

prohibition against procuring agency’s acceptance of low or below-cost offer); SAIC 

Computer Sys., B-258431.2, Mar. 13, 1995, 95-1 CPD ¶ 156 at 2, 11-13 (where 

solicitation contemplates award of fixed-price contract without evaluation of price 

realism or offeror’s understanding of requirements, protester’s claim that another 

offeror submitted unreasonably low price is not valid basis for protest). Accordingly, 

we dismiss Midwest’s protest. 4 C.F.R. § 21.5(f).

In its comments on the agency report, Midwest argues that the item offered by 

EWPC cannot meet the solicitation specifications because in five prior 

procurements, the agency acquired this item at a unit price that was higher than the 

unit price quoted by EWPC in this procurement. Comments at 2, 4-5. The 

solicitations in this procurement, however, expressly listed the unit pricing cited in 

Midwest’s comments. Accordingly, Midwest’s argument, not raised until the time of 

its comments and more than 10 days after Midwest learned of the issuance of the 

purchase order to EWPC, is untimely. 4 C.F.R. § 21.2(a)(2). In any event,

Midwest’s argument is wholly unpersuasive. As we repeatedly have observed,

each procurement stands alone, and an action taken under a prior procurement is 

not necessarily relevant to the reasonableness of the action taken under the present 

procurement. JRS Mgmt., B-402650.2, June 25, 2010, 2010 CPD ¶ 147 at 4; Harris 

Enters., Inc., B-311143, Mar. 27, 2008, 2008 CPD ¶ 60 at 3. Additionally, each of 

the prior procurements cited by Midwest in its comments materially differ from the 

procurement here because in the prior procurements, the agency was purchasing 

significantly lower quantities of the item; it is reasonable to expect, as the 
Page 4 B-407166, B-407167 

contracting officer here recognized, that vendor unit pricing for an item will decrease 

as a result of an increase in the purchase quantity for the item.

5

In its comments on the agency report Midwest also argues that the item offered by 

EWPC cannot meet the solicitation specifications because the unit prices that 

EWPC quoted in response to the initial, separate RFQs were “significantly higher” 

than the unit price that EWPC quoted in response to the combined RFQ.

6

 

Comments at 5. Midwest’s argument has no merit. We see nothing in the record--

and Midwest offers nothing--to indicate that the item offered by EWPC will not 

conform to the solicitation specifications. Additionally, and as previously noted, it is 

reasonable to expect that a vendor’s price for an item will decrease as the purchase 

quantity for that item increases.

The protest is dismissed.

Lynn H. Gibson

General Counsel

 5 None of the prior procurements involved even half the quantity being purchased in 

this procurement. RFQ at 1, 5.

6 In response to the agency’s e-mail request for a combined quotation, EWPC 

lowered its unit pricing from [DELETED] to [DELETED]. AR, Tab 9, EWPC 

Quotation for RFQ SPM7M4-12-T-9441, at 1; AR, Tab 10, EWPC Quotation for 

RFQ SPM7M4-12-T-9460, at 1; AR, Tab 11, EWPC Quotation for Combined RFQs, 

at 1.