__________________________ DENIED: August 17, 1992 ___________________________ GSBCA 11880-P COASTAL COMPUTER CONSULTANTS CORPORATION, Protester, v. DEPARTMENT OF JUSTICE, Respondent. Patrick E. Collins, Coastal Computer Consultants Corporation, appearing for Protester. Jack Cordes, Department of Justice, Washington, DC, counsel for Respondent. Before Board Judges DEVINE, HENDLEY, and BORWICK. DEVINE, Board Judge. This protest deals with a procurement of automated data processing equipment (ADPE) conducted by the Federal Bureau of Investigation (FBI). Protest File, Exhibit l. It was filed on June l2, l992. The FBI's Information Management Division is seeking to acquire the hardware (and the required maintenance services) necessary to increase the networking capacity of its current equipment and to allow it to better handle multi-media tasks. The new equipment consists of l6 Multiplexors, 24 Expansion Memory Cards, and 24 Token Ring Boards. Protest File, Exhibits l, 2. These units were priced on the GSA schedule contract at $475, $750, and $l,l95 each, respectively. This equipment is required to be compatible with the FBI's existing ADP equipment, especially its controllers, all of which were manufactured by Memorex Telex Corporation (Memorex). All of the required equipment could be obtained directly from Memorex under a nonmandatory schedule contract negotiated and administered by the General Services Administration (GSA) and available for use by any government agency. Protest File, Exhibits 2, 3. In accordance with applicable regulations the Government's contracting officer caused a notice of the proposed contract action to be published in the Commerce Business Daily (CBD) which synopsized the essential terms of the proposed procurement. Protest File, Exhibits 4, 5; 41 CFR 20l-39.50l. The notice appeared on April 7, l992. Id. Protester responded to it by letter dated April l3, postmarked April l4, and received by the FBI on April 25, l992. Protest File, Exhibit 12. The notice required a response "within l5 calendar days of this notice" which the FBI calculated to be April 2l. Protest File, Exhibit 5. Coastal offered to supply sixteen reconditioned ll99-002 Memorex Telex Multiplexors at a unit price of $449. Protest File, Exhibit 6. The Government considered this response to be late since it was received on April 25 and the Government considered the closing date to be April 21. Id. at 5, 6. No explanation was given as to the whereabouts of Coastal's response during the eleven day period between its postmarking and its receipt by the FBI. However, the procurement was still in process and Coastal's offer was considered anyway. Id. at ll. Although Coastal had guaranteed in its offer that its used equipment was eligible for the manufacturer's warranty, the contracting officer checked with Memorex as to whether or not any costs were involved. He was advised that an estimated minimum of two hours of mechanic's time and possibly three or four would be required plus an hour's travel time all charged at $l35 per hour to determine if the company's warranty would continue. He did not discuss such costs with Coastal. The contracting officer added an "administrative cost" of $300 to Memorex's estimated labor cost to come up with a total of $840 to be added to protester's base bid of $7,l84 (16 x $449) for a total of $8,024 as opposed to Memorex's schedule price of $7,600 (l6 x $475). Protest File, Exhibit 9. In analyzing Memorex's schedule price for comparison to protester's, the contracting officer did not add a shipping charge of $50 which protester took to apply to each unit but which the contracting officer asserts to be a flat charge for the entire shipment. The justification for the contracting officer's addition of the administrative charge was the statement that since protester offered only the multiplexors (and not the other equipment), two procurement actions would be required. Id. Based on this cost analysis the FBI concluded that it would not contract with protester, would not issue a solicitation, but would order from the GSA schedule, which it proceeded to do. Id. at ll. Earlier Coastal had, on May 5, l992, filed a protest with the agency. After making the above analysis, the contracting officer denied it on June 5, l992, and this protest followed. Discussion Coastal's principal objection to the FBI's actions with respect to the procurement in question is that its offer was not fairly treated. Coastal is correct when it says that the procurement concepts associated with the phrases "brand name or equal," "specific make and model," and "sole source" were somewhat cavalierly used in connection with this procurement. Coastal correctly points out that they apply, in descending order, to less and less competitive situations and come under different rules. However, the parties now agree that this was, in fact, a "brand name or equal" procurement which simplifies matters because Coastal was offering the brand name that the FBI required, thus eliminating a large area of dispute. It is also apparent from the record that the contracting officer conducted the mechanics of the procurement according to regulations, even though, on occasion he did so for the wrong reasons. One of the FBI's principal defenses is that Coastal's offer was received late, that is, beyond the l5-day period following publication in the CBD within which the Government may not make an award. The notice appeared on May 7, l992. Coastal says (and the FBI confirms) that its response was postmarked April l4, but the FBI says it didn't receive it until April 25. It was thus 4 days late, according to the FBI. The Government offers no explanation as to why it took ll days for the offer to reach the attention of the contracting officer. There is also the problem that the l5 day notice period appears to merely limit the Government's power to make an award, but is not a limit, as such, on prospective offerors, although an offeror whose offer is received after the l5 days runs the risk that the award will already have been made to another. In the case before us, Coastal's offer arrived before the FBI had awarded a contract, and was the only one received in response to the publication. The FBI advised Coastal that it would not consider its offer but in fact it did. In doing so it waived any objection to timeliness, even if it had one. The only remaining question on this point is: did the FBI fairly consider Coastal's offer? On May l, l992, Coastal filed an agency protest. On the same day the FBI drafted an order for the equipment to Memorex but did not send it out. On May ll, l992, it performed a cost analysis of Coastal's offer, as it was required to do by the regulations. Memorex's GSA schedule price for new Multiplexor units was $475 each, while Coastal was offering reconditioned units for $449 each. The Memorex price did not include shipping and Coastal's did. The contracting officer, concerned about warranty charges on reconditioned equipment, contacted the manufacturer, Memorex, and received estimated figures. It was, of course, in Memorex's interest to estimate these generously. The contracting officer did not seek Coastal's views on the matter. If he had he would have discovered that Coastal was willing to absorb the costs involved. In completing his cost analysis he added to the Government's expected costs, presuming Coastal was to be the contractor, a $300 figure that is stated to be the cost of a second procurement action to obtain the balance of the equipment that Coastal did not offer. This figure is otherwise unsupported in the record. Its effect is to penalize those who offer less than the entire package sought and thus tends to discourage competition. It may be that Coastal's offer of reconditioned rather than new equipment affected this analysis. In discovery Coastal asked: "Was the fact that Coastal offered used equipment a factor in determining award?" To which the contracting officer answered (in part): "Coastal's response, providing for used equipment, did not render it technically unacceptable since the CBD announcement did not specify new equipment only. The fact that the equipment was used figured into the FBI's cost analysis." The balance of the contracting officer's answer to this question was not responsive. A perusal of the contracting officer's cost analysis sheet, which is in evidence, does not show any mention of any cost effects attributed to the fact that Coastal's equipment was not new. This procurement was not a work of art but in the end Coastal was given its chance to compete. The contracting officer was required to make his judgment after weighing similar prices against new or used equipment, and considering further administrative costs in determining where the best interests of the Government lay. We cannot say that he acted unfairly or contrary to regulations, or that he came to a bad decision. Decision The protest is DENIED. __________________ DONALD W. DEVINE Board Judge I concur: __________________ JAMES W. HENDLEY Board Judge Concurring Opinion By Board Judge Borwick I concur in the result reached by the majority, but arrive at that result by a slightly different path. Unlike the majority I would not treat this as a "brand-name-or-equal" procurement, no matter what the agreement of the parties to the litigation. In this instance, the CBD synopsis called for a response to respondent's notice of intent to order from Memorex Telex Corporation's non-mandatory ADP schedule sixteen Model 1199-002 multiplexors, plus associated cards and boards. One of the requirements was that the multiplexors carry a five year warranty. Protest File, Exhibit 5. In its response, protester offered the brand-name specified but said nothing about the warranty. Protester's response merely stated that "this equipment is guaranteed to be eligible for the Manufacturer's Maintenance Agreement." Protest File, Exhibit 6. That statement is not a commitment to warrant the multiplexors for five years, as required. The contracting officer was obliged to perform an analysis to determine whether the synopsized nonmandatory GSA schedule contract provided the lowest overall cost alternative to meet the Government's needs. 41 CFR 201- 39.803-3(b)(2)(i) (1990). The contracting officer thus acted reasonably in adding the $540 figure to protester's cost. That was the cost of recertification of the used equipment to make the multiplexors eligible for Memorex's warranty. Protest File, Exhibit 13. Of course, Memorex's schedule price included the warranty. The addition of the recertification costs would bring the real cost of protester's offering to $7,724--$124 higher than the ADP Schedule contract price, not even taking into consideration the Government's procurement cost for the maintenance. Protester's employee's did orally tell the contracting officer after the denial of its agency protest that it would pay recertification costs, but I consider that statement a self- serving afterthought. Protester did not make that commitment in writing in a timely manner in its response to the CBD synopsis. For these reasons I concur in the denial of the protest. _________________________ ANTHONY S. BORWICK Board Judge