Bid Pr o test; P re-Award; C o r r e c t i v e A c t i o n ; Federal Supply Schedule; B l a n k e t P u r c h a s e Agreem ent, FAR 8 .405- 3; Ability One Program 

# In th eUnited States Court of Federal Cl aims

No. 15-1409C (Originally

Filed: May

3, 2016) ( Re-Filed: May

6, 2016) 1

* * * * * * * * * * * * * * * * * * * * MSC INDUSTRIAL DIRECT CO., INC.

Plaintiff
,

v.

THE UNITED STATES,

Defendant
, and W

. W . GRAINGER, INC.

Defendant-Intervenor

.

* * * * * * * * * * * * * * * * * * * * Joseph P. H

o r n y a k
, McLean, VA, f

or p laintif

f
, with whom were Gregory R. Hallmark
, McLean, VA, and Denisse S. Velarde-Cubek
, M cLean, VA, of counsel.

Jeffrey D. Klingman
, Trial Attorney
, Departm ent of Justice, Civil Division, C omm ercial L i t i g at i o n B r a n c h
, W a s h i n gton, DC, f

or def e ndant, with whom were B enjamin C. Mizer
, Principal Deputy A ssistant Attorney G eneral, Robert E. Kirschman, Jr.
, Director, Douglas K

. Mickle
, Assistant Di r e c tor, and Alissa Schrider
, Assistant G eneral Coun s e l
, P e r s o n a l P r o p e r t y D i v i s i o n, Of

f ice of General Counsel, General Services Adm inistration, of counsel.

1 This opinion was orig i n a l l y f i led under seal. The parties were directed to conf er and p ropose redactions. The court adopted the parties’ suggested redactions, rem oved the inf orm a tion, and inserted b rackets to replace the redacted content. The opinion is now prepared f or release.Anne B. Perry
, W a s h i ngton, DC, f or intervenor, with whom were Jonathan S. Aronie
, W ashington, DC, David S. Gallacher
, W ashington, DC, and Matthew W

. Turetzky , W ashington, DC, of c o unsel.

_______________
OPINION

_______________ BRUGGINK, Judge

.

This is a post-award protest of a corrective action d ecision taken by the General S ervices Adm inistration (“GSA” or “the agency ”) in response to a Governm ent A ccountability Of f ice (“GAO”) protest by W .W . Grainger, Inc. (“Grainger”) f

ollowing the award of two blanket purchase agreem ent (“BPA”)

m odif ications to MSC Industrial Direct Co., Inc. (“MSC”). S pecif i cally
, MSC protests G SA’s decision to (1) term inate the awards of the BPA m odif i cations
to MSC under Request f

or Quotations ( “ RFQ”) No. QS0A-4PL-150014; (2)

am end the RFQ to correct an asserted m isstatem ent o f a requirem ent; (3) invite

com petitors to subm it revised quotations; and (4) m ake a new award d ecision. Pending a r e the parties’ cross-m otions f or judgm e nt on the adm inistrative record p ursuant to Rule 52.1 of the Rules of the C o u r t o f Federal Claim s (“RCFC”) and intervenor’s m otion to dism i ss pursuant to RCFC 1 2(b)(1) and 12(b)(6). The m o t ions are f ully brief ed, and o ral argum ent was held on April 29, 2016. As announced a t the conclusion of oral argum ent, and f or the reasons set o ut herein, we deny plaintif f’s m otion and g rant def endant’s and intervenor’s m otions f

or judgm ent on the adm inistrative record. Intervenor’s

m otion to dism i ss is denied as m oot.

BACKGROUND

The GSA Of

f ice of General Supplies and S e r v ices (“GSS”) is

r e s p o nsible f

or acquisition services and com prehensive s upply chai n

m anagem ent. O ne of its d ivisions, Retail Operations, m anages GSS’s fourthparty logistics (“4PL”) solutions program

. This program is designed to provide supply solutions to client organizations.

The F ederal S upply Schedule (“FSS”), also k nown as t h e G S A Schedules Program or th e M u l t iple Award Schedule Program (“MAS”), provides f

ederal agencies with a s im plif ied process f

or o btaining comm only used comm ercia l s u pplies and services. GSA schedule contracts r equire all

2contractors t o publish an “Authorized Federal S upply Schedule Pricelis t ,”

which contains all supplies and services of f ered by a contractor. BPAs m ay be established under FSS contracts “to f ill r epetitive n eeds f

or s upplies or services.” FAR 8.405-3(a)(1).

Som etim e prior t o Decem ber 2013, a num

b e r of Comm and Fleet Readiness Centers (“COMFRC”) and D LA Aviation Fleet Readiness Centers (“FRC”) requested the 4 PL program

. In order t o provide supply services to the FRCs, G SA Retail Operations issued an R FQ on Decem ber 9
, 2013, f

or the
purpose o f establishing m ultiple BPAs with existing MAS vendors to provide and m anage inventory

within the FRCs.

On June 16, 2014, GSA established BPAs w i t h f our vendors: MSC, Grainger, [ ], and [ ]. All f o u r v e n d o r s h ave contracts pursuant to FSS Schedule 5 1V, which covers ha r d w a r e s upply n eeds. The BPAs did not authorize vendors to begin supply i ng products ; instead, they p rovided that GSA would issue a c om

petitive R FQ and would award two B P A m odif i cations
to the vendor(s) whose quotations represented the best value to the
governm e nt.

The BPAs c o ntem

p lated that the awardee vendors would establish phy sical storef

r onts f or the purpose of sto cking and m anaging industrial product inventory f

or m ilitary F RCs. Vendors w ould also be r equired to f ill i nstore “ref erral” orde r s o f i tem s f

rom the vendor’s catalog which w ere not currently stocked in the store and allow f or on-line “ref

e r ral” ordering. The BPAs p rovided that “[ d ]elivery is required no later than 3 calendar day s af ter receipt of order.” Adm i nistrative Record (“AR”) 3 1. Further, the vendor was to m aintain a f

ill rate f or in-store/online r ef

erral and web ordering of 95%. AR 43. T h i s rate is “based u pon the m axim

um tim e interval (in b usiness day s) f rom the issuance of

the order to the date that the order is delivered.” Id.

The m odif

i c a t i ons required vendors to “ ensure that no item which is essentially the sam e as an Ability One item be sold to a Governm ent custom er,” and to d elete “all item s, term s and conditions not accepted by the Governm ent, including i tem s Essentially -the-Sam e (“ETS”) as Ability One products” f rom print and electronic catalogs. AR 123-24. 2

2 The Ability One program is authorized b y the Javits-W agner-O’Day A ct “to (continued...)

3RFQ QS0A-4PL-150014 was issued in February 2015. 3 Its purpose was

to “acquire support for GSA [] end-to-end supply chain management requirements (Issue Points) for the Distribution Centers and Supply Storage Centers” for FRCs in Jacksonville, Florida (“FRCSE”), Oceana and Norfolk, Virginia (“FRCMA”), Cherry Point, North Carolina (“FRCE”), and San Diego, California (“FRCSW”). AR 284. The RFQ contemplated that two BPA modifications would be awarded one for FRCSE, FRCMA, and FRCE, and a second for FRCSW. The statement of work provided that the BPA holder would supply the line of tools and industrial products for the FRCs’ Distribution Centers, Supply Storage locations, Master Tool Room Warehouses, Safety Crib Warehouses, and Facilities Maintenance Warehouses. Id. Unlike the BPA, the RFQ did not mention a three-calendar-day delivery requirement for referral orders.

The evaluation was based on price and non-price factors. The non-price factors, in order of importance, were: Specific Technical Expertise-Supply Chain System Capability, Past Performance, and Local and Small Business Utilization Plan. AR 297-98. These factors, when combined, were significantly more important than price. Id. For the price evaluation, the RFQ instructed BPA holders to quote prices for 548 commonly purchased items, called the “market basket.” AR 296. The evaluation would involve a comparison of each vendor’s proposed unit pricing for the market basket items. However, the bidders were not expected to submit price quotations for all 548 items; thus, only the common items submitted would be evaluated. The evaluation would

2 (...continued) increase employment and training opportunities for persons who are blind or have other severe disabilities through Government purchasing of commodities and services from nonprofit agencies employing these persons.” 41 C.F.R. § 51-1.3 (2016). This program is administered by the Committee for Purchase from People Who Are Blind or Severely Disabled. The Committee maintains and publishes in the Federal Register a procurement list that includes items which must be procured from “a qualified nonprofit agency for the blind or . . . a qualified nonprofit agency for other severely disabled.” 41 U.S.C. § 8503(a)(1) (2012). Federal agencies intending to procure an item on the list must purchase it from a qualified nonprofit agency, if available. § 8504(a).

3 The RFQ was amended several times during March 2015 prior to the initial submission of proposals.

4be “based o n of f e r e d discount f

rom BPA p rices, including the weighted average of

the discounts proposed f or the three sales volum e tiers.” AR 111.

Both MSC and Grainger subm itted quotations in response to the RFQ

on March 11, 2 015. MSC’s quotation provided that it is able to deliver o rders
any where in the contiguous 48 United States within three business day s af ter receipt of order. Grainger’s quotation stated that it can “pr o v i d e 2 4-48 hour shipm ent tim es on m ost r ef erral orders” and that “item s requested f or pick-up that are not imm ediately available at the On-Site location will be shipped f or next day pick-up f rom the supporting [ distribution center].” AR 459, 468.

The quotations w ere evaluated during March and April 2015. Grainger and MSC were given the sam e r atings f o r all of the non-price f

a ctors. AR 950- 6 0

. D u r i ng the price e valuation, it was determ ined that MSC’s price was approxim ately 23% l ower than G rainger’s price. AR 961-66. The c ontracting of f icer theref

ore determ ined that MSC’s quotation represented the best value
to the governm ent. AR 966. On May 4
, 2015, GSA awarded t h e BPA

m odif ications to MSC. The contracting of f i cer subsequently notif

ied Grainger of t h e award d e cision and inf orm ed Grainger that MSC’s price was approxim ately

23% lower than Grainger’s. AR 972.

On M ay 1 3, 2015, Grainger f iled a protest at GAO, c h allenging G SA’s award of the BPA m odif

i cations t o MSC on grounds not relevant t o the current protest. On June 16, 2015, Graing e r ’ s c o u n sel contacted GSA to point out a discrepancy between the BPA’s three-calendar-day delivery requirem e nt and MSC’s quotation providing that it could deliver orders w ithin three business day s af ter receipt of order. Subsequently
, the contracting of f icer reviewed the BPA and the Mem orandum of Agreem ents with the FRCs and discovered that the FRC s d o n o t r eceive deliveries on weekends or f ederal holiday s. AR 11. She theref

ore determ i ned that the BPAs incorrectly stated the Governm ent’s delivery requirem ent in t erm s of calendar day s. Id. The agency f urther f ound that “ the distinction b etwe e n t h r e e ‘calendar’ day s and three ‘business’ d ay s could signif

icantly im

p act shipping costs, [ which] likely im pacted the BPA Holders’ price quotations,[ ] includ[ ing] shipping price

. ” A R 5 69. GSA thus decided that it was necessa ry to take corrective action to m odif y the BPA to include the Governm ent’s actual delivery requirem ent. Id. ; AR 11.

GSA cancelled MSC ’ s BPA m odif ications on June 18, 2015 and announced that it would be taking correctiv e a c t i on d ue to a “ f

law in the
procurem ent.” AR 554. GAO the r e f o re dism issed Grainger’s protest as

5aca d e mi c

. AR 986. O n July 2, 2015, M SC protested at GAO the decision to

take correctiv e a ction, a lleging that GSA’s decision was im proper because Grainger was n ot prejudiced by the m isstated delivery

requirem ent. AR 575.

On July 16, 2 0 15, while M SC’s G A O p r o t est was s till pending, GSA issued an am ended RFQ that r e f l e cted a three-business-day delivery requirem ent f

or ref erral orders. AR 326

. T h e i nstructions accom pany ing the

am ended RFQ provided that

[ n]o c hanges to y our price quotation are anticipated. However, should y our [ Final Quotation Revisions (“FRQ”)] include price changes, those changes will be e valuated only to the extent that they are supported b y a clear dem onstration that the c h a n ge in of f ered price f

r om y our previous price quotation i s directly related to the BPA am e ndm ent regarding shipping and delivery requirem ents o r t h i s RFQ am endm ent regarding the i nventory and inspection requirem e nts.

AR 3 29. The agency , in ef f ect, was t ry i ng t o m inim ize the potential f or prejudice which m ight result f rom reopening the RFQ by lim iting c hanges to those triggered by

the error.

O n July 3 0, 2015, Grainger protested the corrective action, arguing that, due to the passage of tim e, vendors should be a l l o w e d to u pdate proposed products to ref

l ect current availabili t y a n d pricing. A R 620-21. Grainger subm itted its revised quotation the next day
, indicating that its l ist of Schedule 51V products had c h a n g e d signif icantly since its initial quotation in March 2015, but that given the lim itation im posed by the ame n d e d RFQ, those changes were not ref

lected in its revised quotation.

The contracting o ffi c e r subsequently discovered that between April and July 2015, Grainger had, indeed, m ade num erous decreases to i t s Schedule 5 1V contract prices as well and had deleted a num ber of item s f

r o m i t s Schedule 51V item list

. A R 725; 1201-08. Accordingly
, s he determ ined that f urther corrective action was necessary to allow BPA holders to update their revised quotations based on changes to their Schedule 51V p r i c e s

. A R 725

. W i thout this corrective action, she determ ined, the r evisions as they c urrently stood would “ inadvertently result i n an i nvalid price evaluation and w ould produce m i sleading results.” Id. GSA theref ore issued another a m ended RFQ, allowing BPA holders to update their revised quotations “to ref lect any price

6changes based o n the am ended BPA and RFQ shipping and delivery

requirem ents, as well as any revisions n ecessitated by changes m a k e to the BPA holders’ underly ing GSA Schedule Contract.” AR 648. GAO thereupon dism i ssed Grainger’s protest as academ ic. AR 988.

MSC subsequently f

iled a supplem ent to its then-pending protest with GAO, challenging GSA’ s s e c ond corrective a ction. MSC argued that the second corrective action w as without r easonable basi s a n d w ould result in

com petitive p rejudice to MSC. AR 715-20. M SC and Grainger subm i tted their revised quotations on August 19, 2015, prior to resolution o f the protest. In its revised quotation, MSC opted not to revise its prices. AR 1150.

On October 9, 2015, GAO denied MSC’s protest. Regarding the f irst corrective action, GAO n oted that
, “ w h e r e an agency discovers that a solicitation o verstates its needs, the proper rem edy generally is the revision of the solicitation to r e f

lect the agency ’s actual needs,” and f ound that it was “within the agency ’s discretion to decide there was a reasonable possibility that the f law in the solicitation r esulted in p r e j u d i c e to Grainger.” AR 983. W i th respect t o the second corrective action, GAO als o f o u n d that it was within the agency ’ s discretion. AR 984.

MSC f iled this protest on Novem ber 20, 2015. On D ecem

ber 3, 2015,

we stay ed the c ase pending an award decision by GSA regarding the revised quotations subm itted o n A ugust 19, 2015. In February 2016, G SA determ i ned that Grainger’s q u o t a t i on of f ered the best value to the governm ent and awarded the BPA m odif

ications to Grainger. W e lif ted the stay , and the parties f iled their cross-m otions f or judgm ent on the adm inistrative record.

DISCUSSION

Pursuant t o the Tucker Act, this court has jurisdiction t o “ r e n der judgm ent on an action by an interested party objecting to a solici t a t ion by a Federal Agency f

or bids or proposals f

o r a proposed c ontract o r to a proposed award

. . . or any

alleged violation o f statute o r regulation in connection with

a p rocurem ent o r a proposed procurem ent.” 28 U.S.C. § 1491(b)(1) (2012). MSC is an “interested party ” because it is a prospective b idder “ w hose direct

econom ic i nterest would be af f ected” b y the award of the BPA m odif i cations
to Grainger. Am. Fed’n of Gov’t Emps., ALF-CIO v. United States , 258 F.3d 1294, 1302 (Fed. Cir. 2001).

7Our review is lim ited to the existing adm inistrative record generated in

connection wi th the procurem ent at issue. See RCFC 52.1. W e review the adm inistrative record pursuant to the standards set f orth in section 706 of the Adm inistrative P r ocedure Act (“APA”), 5 U.S.C. § 706(2)(A) (2012). 28 U.S.C. § 1491(b)(4). Thus, we m ay set a s ide an agency ’ s decision only i f it is “arbitrary , capricious, an abuse of discretion, or otherwise not in accordance with the law.” Banknote C orp. of America, Inc. v. United States
, 365 F

. 3 d 1345, 1350 (Fed. Ci r. 2004). W e note that, in the case at bar, m uch of the adm inistrative record consists, in large m easure, of explanations f or corrective actions undertaken in r esponse to and during the pendency of the parties’

m ultiple GAO protests. Because the explanations of the c orrective actions are thus i nextricably l inked to the GAO protests, w e h a v e no reservations about treating them a s contem

por a n e o us docum e nts rather than as part of an afterthe-f act narrative.

The protestor b ears the burden of establishing that th e a g e n c y ’ s d e c i sion lacked a rational basis or was otherwise in v iolation of appl i c a b le law or

r e g ulation. See Impresa Construzioni Geom. D omenico Garufi v. U nited S tates , 238 F.3d 1324, 1332 (Fed. Cir. 2001). Additionally
, plaintif f m ust sh o w prejudice, m eaning that, had it not been f or the error i n t h e procurem ent process, there is a reasonable likelihood that the challenger would have been awarded the contract. Data Gen. Corp. v Johnson
, 78 F.3d 1556, 1562 (Fed. Cir. 1996).

Plaintif f ask s t his c ourt to determ i ne that both o f GSA’s corrective actions were arbitrary and ca p r i c i ous and requests that this court issue a perm anent injunction requiring G SA to term i nate the BPA m odif icat i on awards to Grainger.

First, p laintif

f argues that G S A’s initial corrective action was unreasonable because there was no r eal p ossibility that Grainger or any other

com petitor was prejudiced by the B PA’s misstatem ent of the delivery requirem ent. A ccording to plaintif f
, corrective action is unreasonable where the agency has no t identif ied a c lear def

ect in the procurem ent, w hen it is in
response to a non-prejudicial error, or where it does not specif ically target the identif ied def ect in the procurem ent.

Plaintif f contends that the supposed e r ror, MSC’s noncom

pliance with the solicitation’s three-calendar-day d elivery r equirem ent f or ref erral orders,

was not actually an e r r o r because there was not i n f act a three-calendar-day

8delivery requirem ent. Wh ile the B P A u sed language stating the requirem ent

in those term s , the RFQ d id not. Instead, t h e RFQ expressly stated that the vendor’s “f

ill rate” f or ref erral orders w o uld be i ts percentage of on-tim e deliveries c alculated in term s of business day s

. Moreover, the FRCs do not accept deliveries o n weekends o r holiday s and theref ore there was no basis f

or

com petitors to believe that the solicitation required delivery in three calendar day s.
According to p laintif f
, the record shows that GSA did not even attem pt to investigate w hether the dif fe r ence between a three-business-day and a threecalendar-day delivery requirem ent had a n im pact on pricing. Plaintif

f contends that it could not have had a m e aningf u l im p act because the requirem ent only applies to ref

e rral o rders, which are a sm all portion of the o v e r a l l c ost of supply ing item s. Further, plaintif f argues that the record shows that Grainger

was not prejudiced by the m isstated requirem ent because it did n ot change its pricing a t a l l in response to the am endm ent to the RFQ, and any subsequent changes were s o lely the result of changes to i ts underly ing S chedule 5 1V pricing.

Plaintif f also c hallenges GSA’s decision to take c orr ective action a second tim e by allowing Grainger and other v endors to m ake pricing changes. This was unreasonable, plaintif f argues, b ecause it was not targeted at the

concern that justif

ied the initial c orrective a c tion. Plaintif f argues that any changes in the vendo rs’ Schedule 51V p ricing would autom atically be incorporated during perf

orm ance and thus it was unnecessary to allow pricing changes to the quotations. I n addition, Grainger was given the opportunity f or

an unf air advantage by being told that its initial price was 23% higher than that of MSC.

Plaintif f also has an alternative argum ent directed at the award decision itself

. It contends that the award was arbitrary and c a pricious f or three reasons: (1) the agency should have realized that Grainger’s m anipulation o f the m arket basket rendered the price evaluation m ethodology f l a wed; (2) G rainger’s quotation is n o n c o m

pliant with the delivery requirem ent; and (3) G rainger’s quotation is noncom

pliant with the Ability One requirem ents.

As to the f irst reason, that Grainger’s m anipulation of the m arket basket rendered the price evaluation m ethodology f lawed, plaintif

f contends that the evaluated price f

igures based on the RFQ’s m ar ket basket are intended to be representative prices

. M o st products a vailable f or sale through the vendors’

9Schedule 51V catalog are not included in the market basket; the idea is that the

market basket items will reasonably reflect the ultimate cost to the government. According to plaintiff, it should have been clear to GSA that Grainger manipulated the market basket pricing scheme by selectively reducing the prices of the highest costing items in its revised quotation, thus rendering the evaluation methodology flawed because it did not reasonably reflect the costs to the government.

In support of the second reason, that Grainger’s quotation is noncompliant with the delivery requirement, plaintiff argues that Grainger’s quotation is ambiguous as to whether it will meet the delivery requirement because Grainger’s quotation refers to an erroneous requirement of five to seven day delivery. Because GSA clearly views the delivery requirement as material, plaintiff argues, the agency acted arbitrarily and capriciously in awarding the BPA modifications to Grainger on the basis of a noncompliant quotation.

For the third reason, plaintiff argues that Grainger’s quotation is noncompliant with the AbilityOne requirements because it quoted at least nine items that are essentially the same products as those on the AbilityOne procurement list.

Lastly, plaintiff argues that it satisfies the other requirements for a permanent injunction it would suffer irreparable harm in the form of loss of sales if a permanent injunction were not entered, the public interest favors issuing a permanent injunction, and the balance of hardships tips in its favor.

In response, defendant argues that the agency did not act unreasonably in initiating the first corrective action because MSC’s quotation did not conform to the delivery requirement. Even if it did conform, defendant argues, the agency was within its rights in initiating the corrective action because it is undisputed that the original RFQ did not reflect its actual needs. Moreover, defendant contends, MSC offers no support for its argument that the delivery requirement was immaterial; rather, at the time, the agency had reason to believe that the changed requirement could have had a significant impact on vendors’ proposed pricing.

As to the second corrective action, defendant argues that the agency’s decision was rational given that the vendors’ underlying Schedule 51V pricing had changed extensively. Moreover, defendant disagrees that this corrective

10action resulted in any competitive advantage to Grainger because both parties

were given the opportunity to change their pricing.

Defendant also disputes plaintiff’s arguments for why the agency acted unreasonably in awarding the BPA modifications to Grainger. First, defendant argues that the contention that Grainger manipulated the pricing scheme is completely speculative. Next, defendant contends that Grainger’s quote actually did comply with the delivery requirement it stated that Grainger can provide 24-48 hour shipment times on referral orders, and next day pickup for on-site pickup referral orders. Lastly, defendant points out that MSC has failed to show that it was prejudiced by the inclusion of any essentially-the-same items as AbilityOne items in Grainger’s market basket.

Intervenor’s cross-motion makes much the same argument as defendant, but Grainger further seeks dismissal of plaintiff’s challenge to the agency’s price evaluation as untimely, arguing that it should have been challenged prior to the due date for receipt of proposals. 4

GSA’s Decision to Take Corrective Action

We find that the agency was well within its rights in taking both corrective actions. As to the first, MSC is in a weak position to argue that it was prejudiced by the agency’s decision to re-solicit. Its quotation could have been rejected as materially non-compliant with the delivery term. Instead, the agency determined that the use of three “business” days was sufficient. The problem, of course, was that Grainger and at least one other bidder offered to comply with the “calendar” day requirement. A discrepancy as significant as the delivery date is more than sufficient to warrant an amendment to the solicitation. See FAR 15.206(a) (2015); see also EP Prods., Inc. v. United States , 63 Fed. Cl. 220, 224-25 (2004) (“Amendments under this provision may also be appropriate ‘to avoid award decisions not based on the agency’s most current view of its needs.’”).

We disagree with MSC’s contention that the agency should have undertaken a careful forensic inquiry into whether the mistake it made in stating the delivery requirement could have had enough impact on Grainger’s

4 Grainger’s motion to dismiss additionally contends that plaintiff’s protest of Grainger’s AbilityOne compliance is an unprotestable matter of contract administration.

11pricing to m ake up the d i f f erenc e i n the two bidders’ pricing. T he agency considered the problem and, n ot unreasonably
, f o und that “the distinction between three ‘calend a r’ day s and three ‘business’ day s could signif icantly im p act shipping c o s t s, [ which] likely im pacted the BPA Holders’ price quotations,[ ] includ[ ing] shipping price.” 5 A R 5 69. It was not required to g o f urt her and speculate f

rom its own knowledge base how the vendors w ould have reacted to a dif

f erent RFQ. It is im

portant t o note, in any event, that the
agency initially lim ited the vendors to subm itting new p rices only t o the extent they could dem onstrate prejudice, i.e., that the original bid f a ctored in tighter delivery tim es. The way the corrective action was cra f t e d initially thus
accounts f

or the very concern which plaintif f now asserts. In f

act, G rainger’s
response to the f

irst corrective a ction, w hile m ade under protest, did not result in altered pricing.

Validity of the second corrective action is closely l inked to the f irst. If the delay triggered by the f irst corrective a ction w as understandable, as we f ind that it was, t h e f

actual groundwork was laid f or Grainger’s request f

or the decision to reopen pricing m ore broadly
, due to the hundreds of thousands of changes t o its Schedule 5 1V pricing. The a g ency , in doing p rice com p arisons, had to cope with f

our m oving targets: both Grainger’s and MSC’s FSS price list, the item s of overlap within the “m arket basket,” and the list o f Ability One products. The f

irst two and the last item it had n o control over, and the agency knew that all three routinely changed over tim e

. The third variable, the m arket basket item s, it had only lim ited control over. It did not know which i tem s both bidders would p rovide price quotations f or. The net result is that com parison of quoted p rices inevitably ran the risk o f s o me d egree of im p recision. But what was k n o w n f

o r c ertain w as that the longer the lapse of tim e af ter the quotes were initially received (March 2 015), the m ore likelihood that p r i ce

com parisons would not accurately ref lect actual costs in the f

uture. The agency

was c onf ronted in A ug u s t 2015 with Grainger’s evidence of its changes to hun d r e d s o f thousands of prices and the d eletion of 53,000 item s. Concern

5 The considerations brought to bear when it is the agency ’s own procurem ent needs tha t p r om

pt c orrective action are f undam entally dif

f e rent f rom a situation in which a com

petitor alleges that corrective action is warranted by potential prejudice to it. Thus the cases plaintif f cites are not apt. S

e e , e.g., Amazon W

eb Servs., Inc. v. United States
, 1 13 Fed. Cl. 1 02, 1 11 ( 2013). Nor is this a circum stance in which there is a com plete f ailure to of

f er a rationale f or taking corrective action. See W HR Group, Inc. v. United States , 115 Fed. Cl. 386, 398 (2014).

12about whether the prices were so stale that they would not afford a proper price

comparison and thus the best value to the government was not irrational.

The fact that the delay associated with the first corrective action turned out to be unnecessary, while ironic under the circumstances, is irrelevant. The contracting officer cannot be faulted for not consulting a crystal ball. Once the first corrective action had become part of the procurement history, it was not irrational to permit comprehensive price re-submissions in order to protect the government’s interests. Accordingly, we deny plaintiff’s challenge to the validity of either corrective action.

GSA’s Decision to Award the BPA Modifications to Grainger

We come now to MSC’s separate contention that the agency’s decision to award the BPA modifications to Grainger was arbitrary and capricious. As to the first element in this line of argument that the agency should have deduced that Grainger was manipulating the procurement by targeting price changes on its FSS price schedule to market basket items counsel conceded at oral argument that there is little daylight between this argument and its challenges to the corrective actions. In effect, the argument is that, even if the second corrective action was warranted in principle, as applied, it should have been obvious that the agency was being duped. As Grainger argues in its motion to dismiss, however, the opportunity for such manipulation, if it existed, should have been apparent before MSC submitted its final revised quotation, and, in any event, was an opportunity that MSC could have taken advantage of. The evaluation methodology has remained unchanged since the initial RFQ. The “as applied” challenge comes too late. A contractor who has the opportunity to object to the terms of a solicitation but fails to do so prior to the close of the bidding process waives its right to later object in this court. Blue & Gold Fleet, L.P. v. United States , 492 F.3d 1308, 1313 (Fed. Cir. 2007).

In any event, we do not find support for the argument that Grainger manipulated the market basket by selectively reducing the prices of its highest priced items. While some of the market basket items were repriced, under the circumstances, that is not surprising. During April and July 2015, Grainger deleted approximately 53,000 products from its catalog, and reduced prices for approximately 700,000 items. While the 548 items in the common market basket were known to the bidders, they could not be certain which ones would be common to all bidders and thus made the point of price comparison.

13Next, we disagree that Grainger’s quotation was noncom pliant with the delivery r equirem ent. A lthough Grainger’s proposal m entions i ts “ability to

m eet the 5 to 7 day delivery requirem e nt,” id

. a t 4 6 9
, this is plainly an irrelevant m i stake. Elsewhere it clearly indicated its intent to m e et the RFQ’s actual requirem ent that orders be acknowledged within 24 hours of receipt and shipped within one business day of acknowledgm ent using three-business-day delivery

. Id

. a t 12; 159-162. Grainger’s proposal contained num erous indications that it intended to deliver ref erral orders within three business day s. See AR 451 ( ref

e rencing one d ay delivery ability f o r FRCSE); 4 52 (ref erencing sam e and next day de l i v e r y ability f or FRCE);453 (ref

erencing
two d ay d elivery ability f or FRCMA); 454 (ref

erencing sam e and n e x t d a y delivery ability f

or FRCSW ); 459 (i n d i c a t i n g next day p ickup f or ref erral orders).

Finally
, we b e l i e v e that Grainger’s proposal com plied w ith the solicitation’s Ability One requirem ents. The B PAs sim ply stated t h a t the vendors were to “ ensure that n o item when is esse n t i a l l y t he sam e as an Ability O ne item be s old to a Governm ent custom e r .” AR 1053 (em p hasis added). T hus the requirem ent ref ers to the it e m s s o l d
, not the item s quoted. N o w h e r e d oes the solicitation prohibit a vendor f rom quoting item s that are essentially the sam e as Ability One item s. This is particularly understandable in l ight of the f

act that the v e n d o r s ’ quotations were sim ply m eant to b e a representative sam

ple of the cost to the governm e n t rather than an exact list of item s t o be sold. Acco r d i ngly
, there w as nothing unreasonable about the
agency ’ s deci s i o n t o award the BPA m odif ications to a vendor, e ven if it quoted it e m s essentially the sam e as Ability One item s. The Ability One list changes o ver tim e, and whether an item of f ered by the vendors here was truly the sam e as one on the Ability One list would be nuanced. Requiring that purge prior to actual purchases would be a waste of tim e.

CONCLUSION

Because w e f

ind that the agency ’s d ecisions to take corrective action and to award the BPA m od i f i c a t i ons to Grainger were reasonable, we deny plaintif f’s m otion f

or judgm e nt on the adm inistrati v e r e c o r d, and we grant def endant’s a n d i n t e r v e n o r ’ s m o t i o n f

o r j udgm ent o n the a dm inistrative record.

14Grainger’s m otion to dism iss is denied as m oot. 6 The clerk is directed to enter

judgm ent accordingly . No costs.

s/Eric G. Bruggink ERIC G. BRUGGINK Senior Judge

6 W hile the mo t i on arguably im plicates jurisdictional considerations, even if the m otion to d ism iss were granted, not all of plaintif f’s argum e nts would be dism i ssed. Moreover, as we explain i n the text, it is not c lear that the ar gum ent concerning the agency ’ s f ailure to police Grainger’s alleged m anipulation of it opportunity t o re-price its FSS list is really distinct f rom its other argum ents, which were tim ely preserv e d

. Even if MSC’s argum e nts are m ore properly deem ed to f

ail a jurisdictional test, in the context o f a bid protest, we assum e Grainger has no objection to MSC being hung f or a s heep as opposed t o a lam b.

15