DENIED: December 3, 1992 GSBCA 12112-P INTEGRATED SYSTEMS GROUP, INC., Protester, v. U.S. MARINE CORPS, Respondent. Shelton H. Skolnick, Derwood, MD, counsel for Protester. Jill A. Eggleston and Charles M. Stinger, Defense Finance and Accounting Service, Kansas City, MO, and George Brezna, Office of Counsel for the Commandant, U.S. Marine Corps, Arlington, VA, counsel for Respondent. Before Board Judges NEILL, HYATT, and WILLIAMS. NEILL, Board Judge. This protest was filed by Integrated Systems Group, Inc. (ISG). ISG alleges that the Marine Corps has violated regulation in placing orders with two vendors who responded to a notice published by respondent of intent to purchase certain automatic data processing (ADP) requirements off a nonmandatory schedule contract of the General Services Administration (GSA). The parties have elected to have this case decided on the record without a hearing. Rules 9, 11. For the reasons set out below, we deny the protest. Findings of Fact 1. In August 1992, the Marine Corps Support Activity (MCSA) in Kansas City, Missouri, received a number of requisition orders calling for various central processing units (CPUs) and assorted peripheral equipment. The suggested source for these items was the nonmandatory schedule contract which Government Technology Services, Inc. (GTSI), has with the General Services Administration (GSA). Protest File, Exhibits 1, 7. 2. The total estimated value for these requirements was in excess of $100,000. Accordingly, on September 15, 1992, MCSA published a notice of intent to purchase from the GSA schedule contract with GTSI. The notice encouraged interested firms able to meet the stated requirements at prices, terms, and conditions more favorable than those of GTSI to submit written responses via mail or facsimile. The notice also provided: "No contract award will be made on the basis of this notice." Protest File, Exhibit 2. 3. A total of thirty-five responses to the CBD notice were received. Twelve of the responses contained actual quotes for the required items. The other replies did not provide specific quotes, but requested a copy of any solicitation issued as a result of the responses to the synopsis. ISG was one of the companies which did not provide an actual quote, but asked instead for a copy of any solicitation which might be issued. Protest File, Exhibits 3, 4, 7. 4. The quotes received from the twelve vendors actually offering prices were analyzed by the contracting officer. The conclusion reached was that the publication of a solicitation would not serve any purpose. Protest File, Exhibit 7. 5. The contracting officer's analysis disclosed that the schedule contract price was the most favorable for the purchase of the major portion of the requirement in question. A delivery order in the amount of $92,783 was, therefore, issued under the schedule contract. 6. The quotes received for the remaining items were deemed to be more favorable than the GTSI schedule contract prices for the same items. Given the dollar value of these remaining requirements, the contracting officer elected to satisfy them by following the small purchase procedures of the Federal Acquisition Regulation (FAR) Section 13.106 (b). 48 CFR 13.106(b) (1991). Protest File, Exhibit 7. A purchase order in the amount of $1,222 was, therefore, issued to one nonschedule, small business vendor for the items on which it had submitted the most favorable quote and a purchase order in the amount of $4,171 was issued to a second nonschedule, small business vendor for the remaining items on which it had submitted the most favorable quote. Id., Exhibit 5. 7. Protester does not contest the award of $92,783 under the GTSI schedule contract, but only the purchase orders issued to the two nonschedule contractors. ISG contends that pursuant to a provision of the Federal Information Resources Management Regulation (FIRMR), namely, 41 CFR 201-39.803-3(b) (FIRMR 201- 39.803-3(b)), once MCSA determined that it was not in the Government's best interest to buy the remaining items off the GTSI schedule contract, the contracting officer should have solicited a quote from all vendors which, like ISG, had not submitted a quote in response to the CBD notice but had indicated an interest in any solicitation which the contracting officer might issue. Protest File, Exhibit 6. Discussion The FIRMR provision on which protester bases a principal portion of its case deals with procurements which are of sufficient magnitude (in excess of $50,000) to require publication of intent to place an order for federal information processing (FIP) resources against a GSA nonmandatory contract. The provision reads, in part, as follows: (b) The contracting officer shall consider all responses received as a result of the CBD notice and then determine whether to order from a GSA nonmandatory schedule contract or issue a solicitation. Accordingly, the contracting officer shall take one of the following actions. (1) When no responses are received, document the contract file . . . that an order placed against the synopsized nonmandatory schedule contract provides the lowest overall cost alternative to meet the Government's needs. (2) When a response to the CBD notice is received from either a responsible vendor that does not have a GSA nonmandatory schedule contract or a GSA nonmandatory schedule contractor . . . the contracting officer shall take one of the following actions: (i) Document the contract file . . . that the respondent's items would not meet the requirement or that the . . . schedule contract . . . provides the lowest overall cost alternative . . . . (ii) Document the contract file . . . that a responding contractor's GSA nonmandatory schedule contract offering provides the lowest overall cost alternative . . . and place an order against that GSA nonmandatory schedule contract; or (iii) Document the contract file . . . that ordering from a GSA nonmandatory schedule contract may not result in the lowest overall cost alternative . . . . In this case, the contracting officer may elect to issue a solicitation. In such cases, the contracting officer shall take the following actions: (A) Ensure that the solicitation contains terms and conditions substantially the same as those of the GSA solicitation for nonmandatory schedule contracts that resulted in the synopsized schedule contract; and (B) Provide the solicitation to those potential offerors responding to the CBD synopsis of intent; the vendor whose GSA nonmandatory schedule contract was the subject of the synopsis; and any other potential offerors that specifically express an interest. FIRMR 201-39.803-3(b). Motion to Dismiss Earlier in this protest, counsel for respondent filed a motion to dismiss. In bringing the motion, counsel noted that pursuant to FIRMR 201-39.803-3(b), the contracting officer had considered all responses received and made a determination as to what course of action would best serve the Government's needs at the lowest overall cost. Counsel for respondent contended that nothing more was required by law and that the protest should, therefore, be dismissed. Respondent's Motion to Dismiss at 2. In reply to respondent's motion to dismiss, protester argued that the contracting officer's use of quotes received in response to the CBD notice in order to fill the remaining requirements through small purchase procedures was prohibited by FIRMR 201- 39.803-3(b). Protester pointed out that this regulation states: The contracting officer shall consider all responses received as a result of the CBD notice and then determine whether to order from a GSA nonmandatory schedule contract or issue a solicitation. Id. (emphasis added). It is protester's contention that the FIRMR provision in question provides for no alternative other than the issuance of a solicitation when a determination is made not to purchase off a GSA nonmandatory schedule contract. We are unconvinced by the arguments of both parties. We deny the motion, however, because, as will become evident in the body of this decision, we do not consider that FIRMR 201-39.803- 3(b) is even applicable to the situation which confronted the contracting officer in this case when faced with the need to satisfy the remaining requirements. Did Respondent's Small Purchases Violate Law or Regulation? Protester's objection to the purchase orders issued for respondent's remaining requirement is twofold. Its first and principal argument is based on the language of FIRMR 201-39.803- 3(b) already cited by protester in opposing respondent's motion to dismiss. According to protester, that language requires the contracting officer to "consider all responses received as a result of the CBD notice" and leaves the contracting officer with only two options, namely, to order off the GSA schedule or issue a solicitation. In the mind of protester, the contracting officer failed to "consider all responses" when it issued the purchase orders based on the twelve quotes and failed to solicit pricing information from ISG as well. In addition, protester contends this same provision of the FIRMR precluded the contracting officer from using quotes received in response to the CBD notice and instead imposed the duty of soliciting pricing information from all interested parties. Protester's second line of argument is that the issuance of the two purchase orders was in direct conflict with the provision of the CBD notice which assured vendors that award would not be made on the basis of the notice. We find protester's reliance on FIRMR 201-39.803-3(b) to be misplaced. We simply cannot conclude that this provision is applicable to a unique situation such as this where the major portion of the Government's requirement has been satisfied properly by a purchase off a GSA nonmandatory schedule contract and only a very small remnant of the original requirement remains uncovered. In such situations, we consider it only reasonable that the Government, in satisfying the remaining requirement, be free to use whatever method of procurement is appropriate given the nature and size of the requirement. Taken by themselves, the requirements in this case which remained after placement of a delivery order in the amount of $92,783 under the GTSI contract would never have required the publication of a CBD notice and could readily be satisfied by use of small purchase procedures. It makes no sense to insist in such cases on continued compliance with provisions of a regulatory scheme designed to cover procurements estimated to be in excess of $50,000 just because originally the combined requirements were part of a procurement which exceeded that threshold. FIRMR 201-39.803-3(b) applies to procurements which have been synopsized in the CBD. When circumstances lead to the reduction of a multiple item requirement below the estimated dollar threshold requiring that synopsis, then this provision of the FIRMR should likewise be considered no longer applicable. Accordingly, we conclude that FIRMR 201-39.803-3(b), on which protester relies, does not establish a standard applicable to the contracting officer's decision in this case to satisfy the remaining requirements by issuing the two contested purchase orders. This protest, to the extent that it is based on an alleged violation of this FIRMR provision must, therefore, fail. Was award to the two nonschedule, small business vendors improper, nonetheless, since the CBD notice expressly advised that no award would be made based on the notice? We think not. As already noted, we deem it unreasonable to shackle respondent with the conditions and restrictions associated with meeting the requirement as a whole through purchase off the GSA nonmandatory schedule when, in reality, the only task remaining is coverage of a small remnant of that original requirement. The assurance that no award would be made applied to the requirement as a whole and not to the residual requirement which is the subject of this protest. Furthermore, technically speaking, quotes are not offers. See FAR 2.101; see also, Integrated Systems Group, Inc. v. Office of Personnel Management, GSBCA 12002-P, slip op. at 4 (Nov. 17, 1992). The issuance of purchase orders based on such quotes does not, therefore, constitute contract awards, but rather the tender of offers on the part of the Government. See FAR 13.108. Decision This protest is DENIED. The Board's order of October 16 suspending respondent's delegation of procurement authority expires in accordance with its terms. ____________________ EDWIN B. NEILL Board Judge We concur: __________________________ CATHERINE B. HYATT Board Judge __________________________ MARY ELLEN COSTER WILLIAMS Board Judge