[t]he fact that ALL existing DTS contracts, whether for small or large businesses, currently acknowledge that workloads can and will vary, and that equitable adjustments would be considered so that offerors would NOT have to include contingency pricing that would increase the costs to the Government and taxpayers, should be prima facie if not conclusive evidence that the current DHRA position that ALL risk of future variations in workload will fall on the shoulders of these small businesses is unwarranted and unnecessary.

Id. at 7 (emphasis in original).

As a general rule, the contracting agency must give offerors sufficient detail in a solicitation to enable them to compete intelligently and on a relatively equal basis. AirTrak Travel et al., B-292101 et al., June 30, 2003, 2003 CPD para. 117 at 13-14. However, the contracting agency has the primary responsibility for determining its needs and the method of accommodating them, including the choice of the appropriate contracting format. Id. We will not question an agency's choice of procurement approach, absent clear evidence that its decision is arbitrary or unreasonable, or in violation of statute or regulation. Id. It is within the administrative discretion of an agency to offer for competition a proposed contract that imposes maximum risks on the contractor and minimum burdens on the agency, and an offeror should account for this in formulating its proposal. JRS Mgmt., B‑402650.2, June 25, 2010, 2010 CPD para. 147 at 5. Risk is inherent in most types of contracts, particularly fixed-price contracts, and firms must use their professional expertise and business judgment in anticipating a variety of influences affecting performance costs. AirTrak Travel et al., supra at 14. A mere difference of opinion between the protester and the agency concerning what will best suit the agency does not establish that the agency's determination as to its requirements placed undue risk on the contractor. Id.

The agency acknowledges that prior procurements for these services have included equitable adjustment provisions based on specified variations in estimated volumes of transactions. It explains, however, that this was done because the agency lacked historical data that would assist offerors in responding to the solicitation and in assessing risk. Agency Report at 2-3. Having now provided that historical data in this procurement, the agency chose the current solicitation method to ensure that it would pay fixed rates for only those travel services that it required and only as they were required. Contracting agencies are not required to conduct present procurements in a certain manner simply because they conducted past procurements in that manner. Chicago City Wide College, B‑218433, B-218434, Aug. 6, 1985, 85-2 CPD para. 133 at 3. Given the agency's inclusion of extensive historical data in the current solicitation, information that was not available under prior solicitations, the protesters' challenge, based on the agency's deviation from former practice, lacks merit.

In addition, the protesters argue, at length, that our decision in BMAR & Assocs., Inc., B-281664, Mar. 18, 1999, 99-1 CPD para. 62, requires a different outcome. See Protest at 2, 7-11, Comments on AR, Sept. 26, 2011, at 4-5. In BMAR, we sustained a protest on the basis that the solicitation at issue subjected contractors to unreasonable risk because it required fixed lump sum pricing for largely undefined civil engineering services. In quite different circumstances here, the agency is procuring specific types of services on a fixed‑price, transaction fee basis; the more transactions a prospective contractor performs, the more fee revenue it will earn. Moreover, the solicitation in BMAR had been issued in connection with a public/private competition under Office of Management and Budget Circular A-76. In the unique context of that competition we found that the lump sum pricing arrangement put private sector offerors at a competitive disadvantage in relation to the public sector competitor because the public sector competitor, unlike the private sector competitor, would not need to account for contingencies in its pricing. The solicitation here was not issued in connection with OMB Circular A-76. Our holding in BMAR is simply not relevant to the protesters' allegations. As noted above, agencies may impose maximum risks on the contractor and minimum burdens on the agency. JRS Mgmt., supra. While the protesters may ultimately prefer a solicitation that imposes less risk on the contractor, given that the contract provides for transactional fee based pricing for specifically defined tasks, and the agency has provided detailed estimates of the transactional volumes based on historical data, we have no basis to conclude that the solicitation imposes a level of pricing risk on contractors that is outside the bounds of the agency's reasonable exercise of its discretion.  (WingGate Travel, Inc.; AirTrak Travel; and Alamo Travel Group, B-405007.9, November 29, 2011)  (pdf)

Data Center Location Requirement

The protesters argue that the solicitation's provision requiring vendors to locate their data services in "designated countries" as defined by FAR sect. 25.003 is unduly restrictive of competition because the requirement has no basis in law or regulation, and there is no otherwise legitimate need for such a restriction.

As a general matter, a contracting agency has the discretion to determine its needs and the best method to accommodate them. Parcel 47C LLC, B-286324, B-286324.2, Dec. 26, 2000, 2001 CPD para. 44 at 7. In preparing a solicitation, a contracting agency is required to specify its needs in a manner designed to achieve full and open competition and may include restrictive requirements only to the extent they are necessary to satisfy the agency's legitimate needs. 10 U.S.C. sect. 2305(a)(1) (2006); Innovative Refrigeration Concepts, B-272370, Sept. 30, 1996, 96-2 CPD para. 127 at 3. To the extent a protester challenges a specification as "unduly restrictive," that is, challenges both the restrictive nature of the requirement as well as the agency's need for the restriction, the procuring agency has the responsibility of establishing that the specification is reasonably necessary to meet its needs. The adequacy of the agency's justification is ascertained through examining whether the agency's explanation is reasonable, that is, whether the explanation can withstand logical scrutiny. Trident World Sys., Inc., B-400901, Feb. 23, 2009, 2009 CPD para. 43 at 3. If the agency establishes support for the challenged solicitation term, the burden shifts to the protester to show that it is clearly unreasonable. Outdoor Venture Corp.; Applied Cos., B-299675, B-299676, July 19, 2007, 2007 CPD para. 138 at 5.

GSA has offered various justifications for the data center location requirements set forth in the RFQ. In its agency report, GSA acknowledged that the specification represented a compromise between the security needs of federal agencies (which desired all data to be stored and processed in the United States) and the United States Trade Representative's (USTR) office (which according to the agency, advised that a U.S. data center limitation impermissibly restricted free trade). Agency Report (AR), Legal Memo, at 7. Nonetheless, GSA has argued that the government has a need to know where its data resides and transits, because when U.S. government data crosses national borders, the governing legal, privacy, and regulatory regimes become ambiguous and raise a variety of concerns including the potential of foreign jurisdictions to assert access rights to U.S. Government data.

Later, in response to specific questions from our Office, GSA argued that the data center location requirements were not unduly restrictive or unreasonable because GSA was attempting to achieve a "balance between security and free trade," and that "[t]o state that data centers can be located anywhere in the world would be irresponsible, given the many factors that must be addressed when considering risk inherent in any IT system." GSA Response at 6.

Finally, our Office also held a hearing in this protest. During the hearing, we again requested that GSA explain the basis for its data center location requirements. In response, GSA repeated that the solicitation had originally limited data center locations to the continental United States, but that the Office of Management and Budget (OMB) and the USTR considered the limitation restrictive of trade, and advised GSA to permit data centers located in foreign countries. Transcript at 13-14. During the hearing, the contracting officer testified that GSA expressed its view that allowing data centers located in foreign countries was unnecessary under applicable trade agreements, specifically the Trade Agreements Act (TAA), 19 U.S.C. sect. 2512, et seq., but that OMB and the USTR nonetheless wanted to expand the requirements to data centers located outside the U.S. Id. at 25-26.

The contracting officer further explained that after GSA determined to expand the requirements to include CLINs for cloud solutions utilizing data centers outside the United States, it found that it had no list of countries that it considered acceptable, or any basis to exclude one country versus another. Id. at 18-19. In the absence of making country-by-country determinations, the contracting officer explained that limiting data centers to "designated countries" under the TAA allowed for the exclusion of countries of particular concern such as Cuba, Iran, North Korea, and China, id. at 21, and would ensure at least some trade framework was in place between the U.S. and the government of any foreign country in which a data center was located, since "designated countries" are covered by trade agreements with the United States. Id. at 22-23. Ultimately, GSA acknowledged that the addition of CLINs for non-U.S. data centers reflected a compromise given the concerns raised by OMB and the USTR, Id. at 31, and acknowledged that it expects the non-U.S. CLINs to see very limited, if any, use. Id. at 23, 27.

As an initial matter, we concur with the agency's stated position to OMB and the USTR, that the requirements at issue are not mandated by the TAA. As a general matter, the TAA requires the acquisition of only U.S.‑made or designated country end products or U.S. or "designated country" services, unless certain exceptions apply. FAR sect. 25.403(c)(1).

According to FAR sect. 25.402(a)(2), when analyzing the origin of services--to determine whether the services are of a "designated country"--the determination is made based on "the country in which the firm providing the services is established." Since compliance with the TAA in this context turns on where a cloud provider's business is established--and not on where the data centers that process and store subscriber data are located--the location of a provider's data centers would not be determinative of TAA compliance.

We do not, however, conclude that GSA's explanations for the non-U.S. data center location requirements are otherwise reasonable, or withstand logical scrutiny. First, with regard to GSA's argument that the government has a need to know where U.S. government data resides and transits, this objective is accomplished by the requirement for vendors to identify the locations of their data centers. Second, while we appreciate the security concerns and legal ambiguities associated with subjecting U.S. government data to the jurisdictions of foreign countries, to the extent the solicitation allows for locating U.S. government data outside the United States, it is apparent that the limits drawn by GSA in this regard have been established in an arbitrary manner.

In this connection, the legal ambiguities and hazards associated with locating data outside the jurisdiction of the United States exist without regard to whether a country is a "designated country" under the TAA. GSA has provided no explanation for why its security concerns would be less acute in relation to data stored or processed in designated countries, which include, for example, Yemen, Somalia, and Afghanistan, versus data stored or processed in non-designated countries, such as Brazil, India or South Africa. Further, GSA has acknowledged that it has no basis to differentiate between countries with acceptable data rights regulations and those with unacceptable data rights regulations. In fact, examples articulated by the agency regarding concerns about foreign governments asserting jurisdiction over U.S. government data involve countries that would be considered designated countries under the solicitation. Accordingly, we conclude that GSA has failed to proffer an adequate explanation for limiting non-U.S. based data centers to those countries listed as designated countries in accordance with the TAA, and we sustain the protest on this basis.  (Technosource Information Systems, LLC; TrueTandem, LLC, B-405296; B-405296.2; B-405296.3, October 17, 2011)  (pdf)

Kitco essentially protests that the quantity of 7,500 O-rings being purchased exceeds the agency's minimum needs, unduly restricts competition and precludes Kitco from competing. Protest at 1.

The agency states that the quantity solicited was based upon its need to fill priority backorders, to prevent the grounding of military aircraft, and to address the increase in demand for the item. AR, Tab 6, Supply Planning Memo. Specifically, the requirement for 7,500 O-rings was based on the agency's calculation of the daily average demand and the quantities necessary to satisfy backorders. Id.

It is well established that the expression of the government's requirements in a solicitation must reflect the actual and legitimate needs of the government. Sentinel Elect., Inc., B-212770, Dec. 20, 1983, 84-1 CPD para. 5 at 2, Kings Point Mfg. Co., Inc., B-220224, Dec. 17, 1985, 85-2 CPD para. 680 at 2. We have held that this principle applies to the quantity of an item which an agency determines to be necessary to perform its mission. Sentinal Elect., Inc., B-212770, supra. In this regard, the determination of a contracting agency's needs and the best method of accommodating them are matters primarily within the agency's discretion and we will not question its determination absent a clear showing that it is unreasonable. Systems Application & Techs., Inc., B-270672, Apr. 8, 1996, 96-1 CPD para. 182 at 3. Further, where a requirement relates to national defense or human safety, an agency has the discretion to define solicitation requirements to achieve not just reasonable results, but highest possible reliability and/or effectiveness. Atlantic Coast Contracting, Inc., B-270491, B-270590, Mar. 13, 1996, 96-1 CPD para. 147 at 3. A mere difference of opinion between the protester and the agency concerning the agency's needs does not show that the agency judgment is unreasonable. Dynamic Access Sys., B-295356, Feb. 8, 2005, 2005 CPD para. 34 at 4.

The protester argues that the agency has purchased significantly fewer than the 7,500 O-rings and questions why the agency needs more now. Protest at 1. As explained above, the record contains the agency's statements regarding its determination of its minimum requirements which was based on its backorders and its increase in demand for the item. On the record presented, we have no basis to question the agency's representations.

The protester further argues that, once the agency knew that the protester was submitting a revised SAR package, the agency should have reduced the quantity to reflect its "urgent" minimum needs. Comments at 5-6. As stated above, the agency has determined that it has a current need for 7,500 O-rings, and we have no basis to conclude that this quantity is not necessary to satisfy the agency's needs.

Moreover, the record shows that the protester submitted a quote for the total quantity along with its revised SAR package which is currently being evaluated by the agency.  (Kitco Defense, Inc., B-405510,October 4, 2011)  (pdf)
 

A contracting agency has the discretion to determine its needs and the best method to accommodate them. Parcel 47C LLC, B-286324, B-286324.2, Dec. 26, 2000, 2001 CPD para. 44 at 7. In preparing a solicitation, a contracting agency is required to specify its needs in a manner designed to achieve full and open competition and may include restrictive requirements only to the extent they are necessary to satisfy the agency's legitimate needs. 10 U.S.C. sect. 2305(a)(1) (2006); Innovative Refrigeration Concepts, B‑272370, Sept. 30, 1996, 96-2 CPD para. 127 at 3. Where, as here, a requirement relates to national defense or human safety, an agency has the discretion to define solicitation requirements to achieve not just reasonable results, but the highest possible reliability and/or effectiveness. Vertol Sys. Co., Inc., B-293644.6 et al., July 29, 2004, 2004 CPD para. 146 at 3. To the extent a protester challenges a specification as "unduly restrictive," that is, challenges both the restrictive nature of the requirement as well as the agency's need for the restriction, the procuring agency has the responsibility of establishing that the specification is reasonably necessary to meet its needs. The adequacy of the agency's justification is ascertained through examining whether the agency's explanation is reasonable, that is, whether the explanation can withstand logical scrutiny. Trident World Sys., Inc., B-400901, Feb. 23, 2009, 2009 CPD para. 43 at 3. Once the agency establishes support for the challenged solicitation term, the burden shifts to the protester to show that it is clearly unreasonable. Outdoor Venture Corp.; Applied Cos., B-299675, B-299676, July 19, 2007, 2007 CPD para. 138 at 5. A protester's mere disagreement with the agency's judgment concerning the agency's needs and how to accommodate them does not show that the agency's judgment is unreasonable. Dynamic Access Sys., B‑295356, Feb. 8, 2005, 2005 CPD para. 34 at 4.

Here, GlobaFone asserts that the agency's requirement to maintain the same phone number unduly restricts competition. While GlobaFone's protest sets forth how the agency's requirement may limit competition, the protest does not explain why the agency's articulated need (maintaining continuity of satellite telephone numbers) is not legitimate. As explained above, when a protester challenges a solicitation provision as "unduly restrictive," the protester must establish both how the requirement restricts competition and why the requirement does not constitute a legitimate agency need. Having failed to address the second prong of this analysis, GlobaFone's protest fails to establish a prima facie case that the challenged requirement is "unduly restrictive" of competition.

In any event, the agency explains that the requirement to maintain telephone numbers is needed to ensure the safety and security of Peace Corps staff. In this regard, the agency explains that the "safety and security of volunteers--wherever they may be serving--is the most important element of the mission of the Peace Corps." Request for Dismissal at 2. As the protester notes, "[s]atellite communications are used when standard terrestrial (land based) communications become inoperable in the event of a disaster and/or in remote areas where terrestrial communications do not operate." Protester's Comments, Aug. 1, 2011 at 1. Because many countries where Peace Corps Volunteers serve do not have reliable communications, the agency determined that the use of cellular and satellite telephones best serves its purpose, especially in the event of an emergency. Request for Dismissal at 2. The Peace Corps maintains that any disruption in satellite telephone service would leave employees and volunteers vulnerable to being isolated during potentially life-threatening emergencies. Request for Dismissal at 4. The requirement that satellite telephone numbers remain unchanged, the agency asserts, is intended to "maximize Peace Corps' ability to communicate with Volunteers during the most vulnerable time intervals," including during natural disasters and political unrest. Id. We have no basis to conclude that the Peace Corps' decision to maximize the safety of its volunteers and employees by requiring the use of existing satellite telephone numbers is unreasonable.

In responding to the agency's asserted safety needs, the protester merely reiterates its position that the requirement is restrictive because any potential bidder must contract Iridium services through the current Iridium service provider, Response to Request for Dismissal, Aug. 1, 2011 at 4, and that this restriction will presumably increase the protester's costs and the cost to the agency. While the protester may be correct that the RFP's terms do not maximize cost-savings, GlobaFone's arguments miss the point. The question for our Office is not whether the agency's requirements maximize cost savings, but rather, as explained above, whether a challenged requirement constitutes a legitimate agency need. As long as an agency reasonably identifies its needs and allows offerors the opportunity to meet those needs, the fact that an offeror may have an advantage based on its ability to more readily meet the government's needs, as compared to the protester, does not mean that the solicitation is unduly restrictive of competition. See HG Props. A, L.P., B-280652, Nov. 2, 1998, 98-2 CPD para. 104. The same is true where the advantage is a one of lower costs. See Exec Plaza, LLC, B‑400107, B‑400107.2, Aug. 1, 2008, 2008 para. 143 at 10.  (GlobaFone Inc., B-405238, September 12, 2011)  (pdf)

Helionix complains that the solicitation's requirements for key personnel are unduly restrictive of competition and violate procurement laws and regulations. Specifically, Helionix challenges the requirement that offerors provide personal references for their human resources managers and contract administrators, that these key personnel have minimum experience levels, and that key personnel changes must be approved by the contracting officer. Helionix argues that these requirements unduly restrict the protester's corporate operations as these positions are internal corporate support staff. Protest at 7.

As an initial matter, GSA argues that Helionix is not an interested party because the company did not submit a proposal in response to the RFP. AR at 5. Helionix responds that it was unable to submit a proposal because the agency's final solicitation amendment did not address all of the protester's concerns and provided less than two weeks to submit proposals. Comments at 2. We find that Helionix is an interested party to challenge the RFP's terms. Whether a protester is an interested party is determined by the nature of the issues raised and the direct or indirect benefit or relief sought. Apex Support Servs., Inc., B‑288936, B-288936.2, Dec. 12, 2001, 2001 CPD para. 202 at 2. Where, as here, the protester challenges the terms of a solicitation that allegedly deterred it from competing, and the remedy sought is the opportunity to compete under a revised solicitation, the protester is an interested party to protest the terms of the solicitation, even if it did not submit an offer under the challenged solicitation. Id.

A contracting agency has the discretion to determine its needs and the best method to accommodate them. JRS Mgmt., B-402650.2, June 25, 2010, 2010 CPD para. 147 at 3. However, those needs must be specified in a manner designed to achieve full and open competition. Exec Plaza, LLC, B-400107, B‑400107.2, Aug. 1, 2008, 2008 CPD para. 143 at 5. Solicitations may include restrictive requirements only to the extent they are necessary to satisfy the agency's legitimate needs. 41 U.S.C. sect. 3306(a)(2) (2011). Where a protester challenges a specification or requirement as unduly restrictive of competition, the procuring agency has the responsibility of establishing that the specification or requirement is reasonably necessary to meet the agency's needs. See Total Health Resources, B-403209, Oct. 4, 2010, 2010 CPD para. 226 at 3. We will examine the adequacy of the agency's justification for a restrictive solicitation provision to ensure that it is rational and can withstand logical scrutiny. SMARTnet, Inc., B-400651.2, Jan. 27, 2009, 2009 CPD para. 34 at 7. A protester's mere disagreement with the agency's judgment concerning the agency's needs and how to accommodate them does not show that the agency's judgment is unreasonable. Exec Plaza, LLC, supra. The fact that a requirement may be burdensome or even impossible for a particular firm to meet does not make it objectionable if the requirement properly reflects the agency's needs. Eisenhower Real Estate Holdings, LLC, B-402807, July 27, 2010, 2010 CPD para. 172 at 3.

Here, GSA states that the key personnel requirements are necessary given the size and complexity of this procurement. AR at 6. In this regard, the agency points out that the contract potentially will provide $30 million in support services over the 5‑year contract period, and will involve an estimated 110 contractor employees. Id. These requirements are intended to ensure that the contractor will be able to recruit, provide, train, and manage staff with appropriate qualifications and experience. Id. In addition, GSA argues that requiring references for key personnel is necessary to allow the agency to verify the experience of the key personnel. Id. Finally, GSA states that the requirement for the contracting officer's approval of key personnel substitutions is necessary to allow the agency to ensure that key personnel are replaced with qualified individuals. Id. at 7.

Helionix responds that these key personnel requirements are inconsistent with the agency's decision to procure these services under a performance-based contract. Comments at 3-6. The protester contends that the agency should not be concerned with "how" the contractor accomplishes the contract requirements, particularly where these key personnel are not directly assigned to the contract but are part of its corporate staff.

We disagree with Helionix that these requirements are unduly restrictive of competition. GSA explained why it needed to ensure that its contractor's management and oversight would be adequate to ensure successful contract performance, and Helionix has not shown that it was unreasonable of the agency to require such assurances. Rather, the crux of its objection to these requirements is Helionix's belief that the agency should simply accept its promise that it would adequately perform. As noted above, contracting agencies are accorded considerable discretion to determine the best method to accommodate its needs, see JRS Mgmt., supra, at 3, and a protester's disagreement with an agency's judgment in this regard does not demonstrate that the agency abused its discretion.

Helionix also complains that the RFP's restriction on billing the costs of the program manager directly to the agency violates the Federal Acquisition Regulation (FAR) and Defense Contract Audit Agency (DCAA) guidelines for cost allocations. Specifically, Helionix argues that the program manager will perform services under the contract that will result in costs "identified specifically with a particular cost objective" and therefore the costs must be billed directly to the contract as a direct cost. Comments at 2-3. Helionix contends that GSA's instruction to offerors to charge the program manager's costs to overhead violates FAR sect. 31.202 and section 6‑501 of the DCAA Contract Audit Manual. Id.

We disagree that the solicitation dictates to offerors how they must conduct their cost accounting for government contracts. Although the solicitation provides that the program manager's costs are not a billable item on the RFP's pricing schedule, it does not instruct offerors as to how they are to account for these costs.[3] That is, the contractor can, where appropriate and consistent with regulations, treat the costs of the program manager as a direct cost in its accounting system, even where the contractor cannot directly bill the agency for these costs.  (Helionix Systems, Inc., B-404905.2, May 26, 2011)  (pdf)

USA Jet argues first that the solicitation restricts competition by requiring offerors to hold ISO 9001, ISO 9100, or AS 9110 certification at the time of proposal submission. USA Jet Protest at 4. Second, USA Jet argues that the DOE should accept FAA Part 121 certification as an alternative to ISO or AS certification. And third, USA Jet argues that the RFP is ambiguous by failing to provide manuals and policies, which the PWS requires the contractor to follow in performing the work, and thus lacks information necessary to prepare a proposal. AAG joins in the arguments that the absence of manuals and policies renders the RFP defective, but AAG does not join the challenges to the requirement for ISO or AS certification.

With respect to the requirement for ISO or AS certification at the time of proposal submission, the determination of a contracting agency's needs and the best method for accommodating them are matters primarily within the agency's discretion. Systems Application & Techs., Inc., B-270672, Apr. 8, 1996, 96-1 CPD para. 182 at 3. However, where a protester challenges a specification as unduly restrictive of competition, we will review the record to determine whether the restrictions imposed are reasonably related to the agency's needs. Id. The adequacy of the agency's justification is ascertained through examining whether the agency's explanation is reasonable, that is, whether the explanation can withstand logical scrutiny. LBM, Inc., B-286274, Dec. 1, 2000, 2000 CPD para. 194 at 3.

USA Jet argues that the RFP requirement for each offeror to have an ISO 9001, ISO 9100, or AS 9110 certification at the time of proposal submission exceeds the DOE's needs, and contends that possessing these certifications by the time the services are performed should be sufficient. USA Jet Protest at 5; USA Jet Comments at 6; USA Jet Response to GAO Questions, Feb. 21, 2011, at 8. In this regard, USA Jet argues that it can obtain a required certification before performance begins (although we note that the parties appear to disagree about when the first aircraft will be ready for use by the DOE). See USA Jet Response to GAO Questions, Mar. 3, 2011, at 2; USA Jet Response to GAO Questions, Feb. 21, 2011, at 8; DOE Response to GAO Questions, Feb. 25, 2011, at 12.

The DOE responds that offerors must possess an ISO or AS certification at the time of proposal submission because the certification process "could take several months to several years to complete depending on the maturity and motivation of the organization," and because the DOE is unwilling to waive the requirement to allow performance to begin without a certification. Contracting Officer's Statement at 12.

Where a timely challenge is raised, we will consider whether an agency has shown that it may require offerors to possess ISO or AS certification when initial proposals are due, rather than when the contract is awarded or services are provided. An agency's otherwise legitimate requirements regarding an offeror's demonstrated ability to meet contract requirements may not generally be applied at a point in time prior to when such qualifications become relevant. LBM, Inc., supra, at 4.

The reasons provided by the DOE do not support requiring ISO or AS certification at the time of proposal submission. The fact that a diligent prospective offeror could face a lengthy process to obtain an ISO or AS certification raises exactly the prospect that USA Jet claims exists here--that the firm can obtain ISO or AS certification in time for performance to be consistent with the certificate, even though it cannot do so by the proposal due date. The fact that the DOE is unwilling to waive the requirement does not mean that the requirement must be met when proposals are due.

Accordingly, we sustain the protest to the extent that USA Jet objects to the requirement that offerors possess an ISO 9001, ISO 9100, or AS 9110 certificate at the time of proposal submission.  (USA Jet Airlines, Inc.; Active Aero Group, Inc., B-404666, April 1, 2011)  (pdf)

RSL contends that the RFP's requirement that the MVSS units must achieve 100‑percent accuracy during the muzzle velocity measurement bid sample test is in excess of the agency's needs. The protester points out here that NATO STANANG 4114, which the protester characterizes as providing "the most reliable procedures to testing MVS systems," requires that the MVSS achieve 95-percent accuracy. Protester's Comments (B‑404117.3) at 5. With regard to the RFP's provisions regarding the applicability of the troubleshooting phase to the bid sample test, RSL complains that the limitation of troubleshooting to what RSL characterizes as an "overly narrow subset of performance issues" is again contrary to NATO STANANG 4114, which according to the protester "allows troubleshooting to determine and correct the cause of measurements exceeding the MVS system performance specification." Protest (B-404117.3) at 18.

We review testing requirements using the same standard applicable to any other challenge of a solicitation's evaluation procedures; the establishment of testing or qualifications procedures or standards is a matter within the technical expertise of the procuring activity, and we will not object to the imposition of certain terms, such as the requirement here for 100-percent accuracy rate during testing or the restriction of the troubleshooting phase to certain circumstances, unless they are shown to be without a reasonable basis. Essex Electro Engineers, Inc.; Alturdyne, B‑259832; B‑259832.2, May 3, 1995, 95‑1 CPD para. 228 at 3. Where, as here, a requirement relates to national defense or human safety, an agency has the discretion to define solicitation requirements to achieve not just reasonable results, but the highest possible reliability and/or effectiveness. COB EventLizenz GmbH, B‑401999.2, Jan. 12, 2010, 2010 CPD para. 24 at 4. A protester's mere disagreement with the agency's judgment concerning its needs and how to accommodate them does not show that the agency's judgment is unreasonable. Id.

The agency explains that the "measurement data taken from MVSS units will be used directly by the guns' fire control systems which the gun crews rely upon to assess the precision, accuracy and effectiveness of their gun system," and that, "[i]n effect, gun crews will use the muzzle velocity measurement readings from their MVSS units to ultimately ensure that they are hitting intended targets or whether they need to adjust their fire to do so." Contracting Officer's Statement (B-404117.3) at 5. The agency adds here that "the MVSS data gets used by the guns' fire control systems to set up the ballistics information for subsequently fired rounds," and that "if there is an inaccurate MVSS measurement, that errant velocity measurement data is carried forward and used by the fire control system in plotting ballistics for the round after it." Id. at 6. This inaccurate data "potentially [has] a cumulative effect of increasing the likelihood of a fired round either falling short of or over-shooting its intended target," which in either case "significantly increas[es] the chances of fratricide and/or striking civilian‑populated areas." Id. As simply put by the agency, "[t]he projectiles fired by these gun systems are extremely lethal, and . . . go where they are aimed and inflict damage no matter who or what happens to be in the way at ground zero once they arrive at their designated target area," and it is "therefore crucial that a gun crew have the most exact and accurate MVSS readings possible." Id.

The agency concludes the 100-percent standard for the muzzle velocity measurement accuracy bid sample test was established "to meet the Government's need to provide the Warfighter with a reliable and highly effective MVSS system that will allow for proper aiming and functioning of the . . . howitzer gun systems during field use." Id. at 15. The agency adds that, as described above, this is particularly important "in active combat situations where being able to quickly ascertain and verify a gun's firing performance and accuracy is critical to both human survival and mission readiness/success." Id.

The agency similarly explains that the RFP's applicability of the troubleshooting phase to "neutral, hardware-based causes that result in a bid samples inability to be tested" is consistent with its desire to obtain MVSS units with 100-percent accuracy.  Id. at 13. The agency explains here that to allow an offeror, whose MVSS inaccurately measured the muzzle velocity of the projectile fired, the opportunity during the troubleshooting phase to "modify its MVSS bid sample unit's ability to perform the very task it is being tested for runs completely contrary to the requirements under this solicitation." Id.

In our view, the agency report reasonably explains the need for MVSS units that can achieve the highest level of accuracy possible and the potential dangers should the solicitation allow for the supply of less accurate units. The report also explains the relationship of these needs and concerns to the RFP's requirement that the offered MVSS pass 100 percent of the muzzle velocity measurement accuracy bid sample test. Further, the agency explains the relationship between the 100-percent success rate on the muzzle velocity measurement accuracy bid sample test and the restrictions as to when troubleshooting would be permitted. That is, troubleshooting was limited to instances where the MVSS failed to power up or stay powered up during testing, failed to record a velocity measurement reading due to a power failure, or failed to remain secured to the weapon system. Given the agency's explanations, we find reasonable both the RFP's requirement that the MVSS units accurately measure the muzzle velocity of the projectiles fired 100 percent of the time, and the applicability of the troubleshooting phase to only those circumstances set forth in the solicitation.

We also find reasonable the agency's conduct of the MVSS bid sample test, and determination that RSL's MVSS, which as set forth above failed to accurately record projectiles' velocity on two occasions, was technically unacceptable.

The evaluation of proposals is primarily a matter within the contracting agency's discretion, since the agency is responsible for defining its needs and the best method of accommodating them. In reviewing an agency's evaluation, we will not reevaluate proposals, but will examine the record of the evaluation to ensure that it was reasonable and consistent with the stated evaluation criteria as well as with procurement law and regulation. Federal Envtl. Servs., Inc., B‑260289, B-260490, May 24, 1995, 95‑1 CPD para. 261 at 3.

As set forth above, the record establishes, and RSL concedes, that its MVSS failed to accurately record the projectiles' velocity on two occasions during the second day of the muzzle velocity measurement accuracy bid sample test. With regard to the applicability of the troubleshooting phase to the test of RSL's MVSS, the record also establishes, and RSL concedes, that its MVSS did in fact record muzzle velocity measurements for the two occasions at issue. Protest (B‑4041174.) at 3; Protest (B‑404117.5) at 21; Agency Supp. Report at 5. Although RSL asserts that its MVSS's failure to accurately record the projectiles' velocity was due to a "power failure and data interruption," the fact remains that as evidenced above, RSL's MVSS did not fail to "obtain a velocity measurement reading," but rather, provided inaccurate muzzle velocity measurements on two occasions. As such, and despite RSL's concerns to the contrary, we agree with the agency that it was inconsistent with the terms of the RFP to allow RSL to troubleshoot its system, and that it would have been inconsistent with the terms of the solicitation to exclude the two inaccurate muzzle velocity measurements from the test results. In sum, the record reflects that the agency's conclusions that the inaccurate readings provided by RSL's MVSS on two occasions during the muzzle velocity bid sample test were required by the terms of the solicitation to be considered by the agency, and ultimately rendered RSL's proposal technically unacceptable, were consistent with the terms of the RFP.  (RSL Electronics Ltd., B-404117.3; B-404117.4; B-404117.5; B-404117.6, March 28, 2011)  (pdf)

Airforce Turbine Service, Ltd. (ATS), of Mathis, Texas, protests the terms of request for proposals (RFP) No. AG-84M8-S-10-0003, issued by the Department of Agriculture, Forest Service (FS) for aircraft engine maintenance and overhaul services. ATS asserts that the RFP requirement that offerors be a designated overhaul facility (DOF) to qualify to compete is unduly restrictive of competition.

(sections deleted)

The agency explains that its needs are for its aircraft and engines to be ready to perform mission critical tasks, such as fighting forest fires. Agency Hearing Comments at 1[2]; Legal Memorandum at 3. The agency reports that it is necessary to restrict this procurement to only DOFs because only DOFs provide the "unique combination" of a streamlined warranty process and minimized downtime necessary to get fire fighting planes back into the air. Agency Hearing Comments at 4. The agency explains that a DOF provides "crucial support" to overhaul and repair the engines that is not offered elsewhere. For example, according to the agency, Pratt & Whitney provides full engineering support, test engines, and commercial support program notification to DOFs. Id.; Legal Memorandum at 4. The agency contends that since the aircraft "operate in a flight environment that leaves very little margin for error," ensuring aircraft reliability includes taking measures to ensure the highest quality of maintenance. Agency Report (AR), Tab 5, Technical Rationale for DOF Requirement, at 2.

ATS generally disagrees with the agency and maintains that non-DOF repair facilities can satisfy the agency's needs with respect to all of the agency's concerns, and that ATS is being denied the opportunity to demonstrate its ability to meet the agency's standards.[3] For example, ATS argues that it routinely handles warranty claims and that when it is faced with a customer whose aircraft is mission critical, ATS generally will purchase and install a replacement part at ATS' expense to minimize downtime. Comments at 7. In its hearing comments, the protester points out that the agency appears to be more concerned with cost issues, not downtime. Protester's Hearing Comments at 2.

The agency points out that it is not just cost but time constraints that are important. The agency explains that the DOF's more efficient warranty process ensures that any issues with the aircraft can be handled at less cost and with less downtime than non‑DOFs, which gives the agency greater confidence that aircraft will be ready to fly when needed. Agency Hearing Comments, Tab 1, Differences Between DOF and Non-DOF, at 1; Agency's Hearing Comments at 2-3. The agency states that minimized downtime is a "basic necessity" to ensure that its aircraft can fly and stay in the air as long as possible during crucial fire fighting missions. Agency Hearing Comments at 2.

The protester disagrees with the agency's determination that DOFs can provide a more efficient streamlined overhaul process that minimizes downtime. However, the agency reports that it has experience with contracts with both DOFs and non-DOFs and, in its experience, a DOF provides for a streamlined engine repair/overhaul process that provides less downtime and greater safety of the aircraft than non-DOFs.[4] Agency's Hearing Comments, Tab 2, Statement of Aviation Maintenance Officer, at 2. The agency states that, in the past, the performance of non-DOFs has had a negative impact on the readiness of the aircraft. Id.

In addition, the agency explains that the technical support provided by DOFs is superior to that provided by non-DOFs. For example, DOFs provide test engines that make it easier for the agency to trouble shoot problems during crucial times of the fire-fighting season. Agency Hearing Comments at 2. Although the protester asserts that the DOF test engines are "nothing special," it has not shown that the agency's concern is unreasonable.

In sum, we see no reason why the agency should not be permitted to adopt a requirement aimed at ensuring the highest level of reliability and availability of its aircraft, particular in light of the need to fulfill its fire fighting mission.  (Airforce Turbine Service, Ltd., B-404478, February 16, 2011)  (pdf)

Northwest principally challenges the following seven specific SFO requirements, set forth in attachment 1, as being unduly restrictive of competition: [2] (1) the offered facility must be a single building hangar capable of simultaneously housing three Cessna C210 aircraft; two American Euro-copter AS350 A-Star helicopters; and two Cessna C550 aircraft, id. para. 1; (2) the airport must be equipped with an instrument landing system (ILS) certified by the Federal Aviation Administration (FAA), id. para. 2; (3) the airport, runway, and ramp must meet all FAA construction standards, specifications, and design, id. para. 7; (4) the hangar is required to have motorized doors that mechanically operate, id. para. 13; (5) the offered facility must have floor drains throughout the hangar with water/oil separators, id. para. 15; (6) the lessor must include an air compressor and run a compressed air line into and throughout hangar space, with spigots/nozzles/valves, every 40 feet, with a "quick" valve exiting through all walls, id. at p. 2 para. 1; and (7) the facility provided by the lessor must be setback a distance of 50 feet from the face of the building's exterior to the protected/defended perimeter (i.e., any potential point of explosion), id. at p. 2 para. 2. Northwest takes the position that since CBP continues to use its facility under the terms of the prior lease, this demonstrates that the challenged requirements are not reasonably necessary to meet the agency's present and future minimum needs.

The determination of a contracting agency's needs and the best method of accommodating them are matters primarily within the agency's discretion. Systems Application & Techs., Inc., B-270672, Apr. 8, 1996, 96-1 CPD para. 182 at 3. However, where a protester challenges a specification as unduly restrictive of competition, we will review the record to determine whether the restrictions imposed are reasonably related to the agency's needs. Id.; LBM Inc., B-286271, Dec. 1, 2000, 2000 CPD para. 194 at 3. Where a requirement relates to national defense or human safety, an agency has the discretion to define solicitation requirements to achieve not just reasonable results, but the highest possible reliability and/or effectiveness. COB EventLizenz GmbH, supra, at 4; Atlantic Coast Contracting, Inc., B-270491, B‑270590, Mar. 13, 1996, 96-1 CPD para. 147 at 3. Ultimately, a protester's mere disagreement with the agency's judgment concerning its needs and how to accommodate them does not show that the agency's judgment is unreasonable. Dynamic Access Sys., B‑295356, Feb. 8, 2005, 2005 CPD para. 34 at 4. Based on our review of the record, we find that the agency has adequately demonstrated that the restrictions it has imposed are reasonably related to its legitimate needs.

Northwest first objects to the SFO requirement that the offered facility must be a single building hangar. The protester complains that this requirement represents a different standard than current CBP operations under the existing lease. Protest at 9. In its view, the use of multiple hangars in reasonably close proximity, such as Northwest's present facility, should "certainly suffice." Supplemental Protest at 11.

In support of the requirement, CBP explains that locating its employees and assets in a single hangar rather than multiple hangars will provide the agency with various operational advantages. These include--the ability to quickly launch aircraft, better security against potential threats to agency employees and assets, and energy cost savings associated with powering, heating and/or cooling a single hangar. AR, exh. K, Decl. by Director of Air Operations, at 2. The agency also states that the minimum requirements established in the SFO are consistent with its Design Standard. AR, exh. G, Design Standard, at 1-3 (Sept. 2009), Contracting Officer Statement at 2.

We believe the agency has reasonably explained the bases for requiring that the offered facility be a single building hangar. Although the protester acknowledges that "there may potentially be marginal benefits" in occupying one hangar, it contends that the agency's "legitimate minimum need is simply the leasing of hangar space." Protester's Comments at 3-4. While Northwest may disagree with the agency's assessment of its needs, its mere disagreement with the agency's solicitation approach does not render the agency's determination unreasonable, particularly where the agency has identified the single hangar requirement as, in part, a matter of safety something which Northwest has not refuted. USA Fabrics, Inc., B-295737, B-295737.2, Apr. 19, 2005, 2005 CPD para. 82 at 5; Dynamic Access Sys., supra, at 4.

With regard to the requirement that the airport must be equipped with an FAA certified ILS and precision approach minimums of 200 foot ceiling and ½ mile visibility, Northwest again asserts that this "represents a higher and different standard" than the requirements of the current lease. Protest at 9. As the agency notes, the use of a precision ILS approach provides greater operational flexibility and safety for each type of aircraft currently in CBP's fleet. According to the agency, operations presently based at the protester's facility are limited because its C550 aircraft cannot take off or land whenever there is a cloud ceiling of less than 500 feet and one mile visibility, or both. Using certified ILS, the agency states it could operate the C550 aircraft under the less restrictive approach minimums of 200 foot ceiling and ½ mile visibility. AR, exh. K, Decl. by Director of Air Operations, at 3.

Again, Northwest has not presented any evidence, and we see none in the record, to support its assertion that the requirements at issue are not reasonably necessary to meet the agency's needs. While it may be true that the agency's current lease with Northwest may not include the requirement at issue, this fact by itself, does not negate the reasonably articulated advantages associated with the stated requirements and does not undermine the agency's legitimate need to adhere to superior standards. 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 para. 147 at 4.

Next, the protester complains that the requirement of the SFO that the airport, runway, and ramp meet all Federal Aviation Administration (FAA) construction standards is unduly restrictive and in excess of the agency's minimum needs. Supplemental Protest at 12. In this regard, the amended requirements in paragraph 7 require, that

[t]he airport, runway, and ramp must meet all FAA construction standards, specifications, and design. Furthermore, the runway, taxi‑way, and ramp areas must be constructed and maintained to withstand the weight of each type of aircraft currently in CBP's fleet, including the Lockheed P-3 Orion which is presently the largest aircraft and weighs in excess of 90,000 lbs [pounds].

SFO amend. 2, at 1.

Although Northwest does not identify which of the FAA construction standards it considers unduly restrictive, CBP explains that "compliance with FAA standards could directly reduce the risk of runway incursions or other safety-related incidents." Agency Legal Memorandum at 9. Moreover, the agency states that its reliance on FAA airport standards will ensure adequate construction of the airport, runway, and ramp to support the temporary, semi-permanent, or permanent assignment of certain aircraft in the agency's fleet, such as the P-3 Orion, which was not part of CBP's fleet at the time it entered into the initial lease with Northwest. Id.

Given the critical need to ensure the safety of government personnel, including both those on board the aircraft and those who will be in close proximity to the aircraft while in operation, there is no basis to object to the agency's determination that the airport, runway, and ramp should meet all FAA construction standards. As noted above, an agency may define solicitation requirements to achieve not just reasonable results, but the highest level of reliability and effectiveness where the requirement relates to human safety. Atlantic Contracting, Inc., supra, at 3. Northwest has provided nothing in its protest to suggest that the agency's needs are unreasonable.

In a similar vein, Northwest initially argued that the SFO requirement for "motorized doors that mechanically operate" with "a minimum opening height of 28 feet and a minimum opening width of 180 feet" also "represents a higher and different standard" than the current lease. Protest at 10. The agency responded to the protester's assertion, specifically noting the problems associated with manually-operated hangar doors at the Northwest facility

over the past ten years several doors have become dislodged from their tracks causing a disruption to operations, an inability to properly secure the facility, and a potential hazard to property and personnel. It has also been the experience of [agency personnel] that manually opening and closing aircraft hangar doors can lead to incidences of back strain . . . [and] once the door is moving, strenuous effort is required to stop if someone or a piece of equipment becomes an obstruction. Mechanical doors reduce the potential for personnel to become injured during hangar door operations

AR, exh. K, Decl. by Director of Air Operations, at 4. The agency also points out that these SFO requirements are similar to the standard hangar door requirements in the Design Standard. AR, exh. G, Design Standard, sect. 2.2.2.

In its comments responding to the agency's report, Northwest neither mentions nor rebuts the agency's explanation of the need for mechanical hangar doors because of the potential safety and security concerns encountered in the use of manual hangar doors at the protester's facility. Instead, the protester again focuses on the agency's continuing use of its facility as evidence that the mechanical hangar doors and minimum height and width required are not reasonable minimum needs of the agency. Protester's Comments at 4-5. In addition, the protester questions the agency's reliance on the Design Standard to establish the reasonableness of the challenged requirements. Id. at 6. Northwest's focus is misplaced. As we stated previously, since these requirements relate to human safety, the agency has discretion to define the lease requirements to achieve not just reasonable results but the highest level of reliability and effectiveness. Moreover, there is nothing improper in CBP's use of the Design Standard to establish the reasonableness of any of the challenged requirements where, as here, the applicable Design Standard requirements were formulated for procurements such as this one. JLT Group, Inc., supra, at 3.

Similarly, Northwest asserts that the requirement for the hangar to have floor drains throughout with water/oil separators "represents gold-plating," Supp. Protest, at 13, and that there is no need for compressed air lines with a quick valve exiting through all walls--according to Northwest, all that is necessary is the ability to provide compressed air in the maintenance hangar. In addition, the protester challenges the 50 foot setback requirement as simply not appropriate given that the solicited facility is not commercial office space.[5] CBP has responded to each of these issues, explaining that the requirement for floor drains with water/oil separators stems from the need to comply with applicable environmental standards; the requirement for compressed air lines and a quick valve exiting through all walls directly impacts the continuity of CBP operations, specifically its ability to provide needed maintenance; and the 50 foot setback requirement is necessary to ensure safety of personnel and equipment. Again, Northwest has not meaningfully rebutted any of the agency's explanations regarding the legitimacy of its stated needs, thus its challenges of these additional requirements are without merit. In sum, the agency has amply demonstrated that the challenged requirements are necessary to ensure that its current and future operational minimum needs and Northwest has failed to establish that the agency's judgment or conclusions in this regard are unreasonable.

Finally, Northwest argues that the SFO is ambiguous with regard to the role of the Design Standard document itself. According to Northwest it is not clear whether the Design Standard reflects actual minimum requirements that must be met, or whether they simply serve as a "guide." Protester's Comments at 6. The basis for Northwest's confusion in this regard stems from an August 23, 2010 e-mail in which the agency's program manager apparently responded to questions posed by Northwest concerning the nature of the Design Standards and noted that no existing facility can meet all of the requirements of the Design Standard completely, notwithstanding the fact that the SFO indicated that the standards must be met.

The agency, however, explains that it subsequently clarified this very point on September 16, through issuance of amendment 1 to the SFO. Among other things, amendment 1 included the following provision specifying that "[t]he Design Standards should be utilized as a 'guide' to how a facility should be designed." SFO amend. 1. The agency maintains that amendment 1 has clearly established that the Design Standard simply serves as guidance and does not establish additional specific minimum mandatory requirements beyond the unique and special requirements set forth in attachment 1 to the SFO. In our view, given the agency's clarification of the matter through its issuance of amendment 1, Northwest's contention that the solicitation is ambiguous is without merit.

The protest is denied.  (Northwest Airport Management, L.P., B-404098; B-404098.2, January 5, 2011)  (pdf)

NCS objects to the requirement that all the computers and monitors (apart from the ruggedized laptops) be from the same manufacturer and that the computers use an Intel-based microprocessor. NCS contends that these requirements do not reflect legitimate agency needs and are unduly restrictive. NCS also objects to the requirement that vendors provide third party reviews establishing the reliability of the vendors' quoted products.

Although a contracting agency has the discretion to determine its needs and the best method to accommodate them, the agency may include restrictive requirements only to the extent they are necessary to satisfy its legitimate needs. See FAR sect. 11.002(a)(ii); CHE Consulting, Inc., B-297534.4, May 17, 2006, 2006 CPD para. 84 at 2. We review challenges to allegedly restrictive requirements to determine whether the restrictions are reasonably necessary to meet the agency's needs. The adequacy of the agency's justification is ascertained through examining whether the agency's explanation is reasonable, that is, whether the explanation can withstand logical scrutiny. Chadwick-Helmuth Co., Inc., B-279621.2, Aug. 17, 1998, 98-2 CPD para. 44 at 3.

With respect to the requirement for a single manufacturer for the computers and monitors, the agency states that it has a legitimate need to standardize its information technology requirements. Legal Memorandum at 5. Specifically, the agency states that standardization will lower the agency's operational costs and will provide a common environment, generally seen as a best practice. Id. In addition to lower costs, the agency lists a number of other benefits, including: streamlining maintenance and parts support for the computers, simplifying field support, reducing deployment time and costs, providing a single point of contact for repair and support services, and obtaining predictable warranty response times. See Id. at 6; see also Contracting Officer's Statement at 3-4.

NCS disputes the agency's assertion that standardizing computers and monitors to one manufacturer results in lower costs or other tangible benefits to the agency. NCS points out, for example, that the solicited monitors are standard LCD monitors, which are built by numerous manufacturers to industry standards and which are interoperable with all computer brands. NCS asserts that this requirement achieves nothing more than administrative convenience for the agency. Protester's Comments at 2.

Here, we find that the record does not contain analyses or documentation supporting the agency's justification for its standardization requirement. That is, in support of this requirement, the agency has provided a statement from an information technology project manager, who generally asserts that standardizing the computers and monitors to a single manufacturer reduces costs and provides other benefits, such that a single manufacturer for all the computers and monitors is a legitimate need of the agency. See AR, Tab 6, Decl. of Information Technology Project Manager, at 1-2. The project manager does not, however, identify any analyses or studies that were performed to determine that this standardization requirement was necessary to obtain the asserted benefits; nor does the project manager provide any explanation or analyses that would show the extent to which these claimed benefits would be achieved by this restriction. In sum, the agency has provided nothing more than unsupported conclusions for its claim that the single manufacturer restriction is necessary. Without some documentation or explanation in the record to show that the restriction on competition will achieve the alleged benefits, we are unable to find that the agency's asserted justification for this restriction is reasonable. See e‑LYNXX Corp., B‑292761, Dec. 3, 2003, 2003 CPD para. 219 at 8 (it is a fundamental principle of government accountability that an agency be able to produce a sufficient record to allow for a meaningful review where its procurement actions are challenged); Navajo Nation Oil & Gas Co., B‑261329, Sept. 14, 1995, 95-2 CPD para. 133 at 6-7 (agency's justification for restriction is not adequate where the justification consists of unsubstantiated factual assertions and conclusory statements).

NCS also challenges the requirement that all of the computers use Intel-based microprocessors. See RFQ, appendix B, client device specification. NCS contends that other microprocessors, such as Advanced Micro Devices (AMD) microprocessors, are of equal functionality and are "interoperable" with the same information technology systems for which the Intel processors are specified. Protest at 5.

ICE responds that the DHS has "not approved" the use of AMD equivalent microprocessors, and that AMD products are "not on the First Source Approved Hardware List." ICE states that it does "not have authority to change [information technology] systems/components that have been approved by DHS." Supp. AR at 5. The agency also contends that "AMD chipsets introduce increased security risks to ICE," and that DHS/ICE security departments have found the risk unacceptable. Id.

As with the requirement for a single manufacturer, the agency has provided no analyses or studies, either from ICE or DHS, supporting its claimed need for Intel-based microprocessors. In this regard, the agency also does not explain the significance of a processor being included on the "First Source Approved Hardware List," or how a vendor can have its microprocessor or other hardware device included on this list. Given our recommendation to consider whether the requirement for a single manufacture reflects the agency's legitimate needs, we think the agency should also review its requirement for an Intel-based microprocessor.  (NCS Technologies, Inc., B-403435, November 8, 2010)  (pdf)

SML asserts that the $2 million annual minimum value for past performance reference contracts will exclude from competition the majority of small business firms with Army ERP experience and the requisite technical and management capabilities. SML contends that the RFP renders most small businesses ineligible for positive past performance ratings and thus discounts the past performance of firms that may not have individual contracts valued at $2 million per year, but have performed $2 million or more of ERP work under multiple contracts. SML argues that small businesses, such as itself, that perform $2 million of ERP work annually under multiple contracts demonstrate strong management capabilities, coordination, and management resources, and should be considered for positive past performance ratings.

The fact that an aspect of the RFP's evaluation criteria may prevent a number of small firms from obtaining positive past performance ratings is not dispositive of whether the provision is unduly restrictive. Rather, agencies enjoy broad discretion in the selection of evaluation criteria, and we will not object to the use of particular evaluation criteria so long as they reasonably relate to the agency's needs in choosing a contractor that will best serve the government's interests. Leon D. DeMatteis Constr. Corp., B-276877, July 30, 1997, 97-2 CPD para. 36 at 4. The determination of a contracting agency's needs and the best method for accommodating them are matters primarily within the agency's discretion. Tucson Mobilephone, Inc., B-250389, Jan. 29, 1993, 93-1 CPD para. 79 at 2. Where a protester alleges that a solicitation provision is unduly restrictive, we will review the record to determine whether the provision is reasonably related to the agency's needs. See Systems Application & Techs., Inc., B-270672, Apr. 8, 1996, 96-1 CPD para. 182 at 3.

Here, we think the record supports the agency's position that the $2 million annual minimum for relevant past performance references is reasonably related to its needs. The total amount of all orders placed against all contracts awarded under the RFP may exceed $240 million, RFP at 3, with each individual order likely to exceed $2 million. Contracting Officer's Statement of Facts, at 6. In fact, based on historical records of ERP-EAS requirements, the average task order under the awarded contracts is expected to be $2.8 million. Id. Further, any awardee may be issued multiple concurrent task orders to perform at any given time. Id.

Given the total amount to be expended under contracts resulting from the RFP, the average estimated amount of individual task orders, and the fact that each awardee will likely be required to perform multiple concurrent task orders, we find the Army's selection of a $2 million minimum per contract for past performance references to be unobjectionable. In this context, in which awardees may be required to manage multiple concurrent task orders in excess of $2 million annually, it is reasonable for the Army to limit the examination of past performance to other contracts valued at $2 million annually.  (SML Innovations, B-402667.2, October 28, 2010)  (pdf)

In preparing a solicitation, a contracting agency is required to specify its needs in a manner designed to achieve full and open competition, and may include restrictive requirements only to the extent necessary to satisfy the agency's legitimate needs. 10 U.S.C. sect. 2305(a)(1) (2006); Innovative Refrigeration Concepts, B-272370, Sept. 30, 1996, 96-2 CPD para. 127 at 3. As a general matter, the experience of a technically qualified subcontractor may be used to satisfy experience requirements for a prospective prime contractor. However, consistent with its solicitation, an agency may consider only the offeror's experience, and not that of its proposed subcontractors, if the agency has legitimate reasons for concluding that the successful offeror itself must possess the relevant experience in order to ensure successful performance of the contract. See, e.g., Technology & Mgmt. Servs., Inc., B-240351, B-240351.2, Nov. 7, 1990, 90-2 CPD para. 375 at 3 (agency had legitimate need for contractor with extensive corporate experience in nuclear energy research and nuclear and hazardous waste to assure adequate performance of contract where lack of experience would impair ability to perform, oversee, and manage complex tasks if subcontractor were unavailable).

Where a protester challenges a specification as unduly restrictive, the procuring agency has the responsibility of establishing that the specification is reasonably necessary to meet its needs. We will examine the adequacy of the agency's justification for a restrictive solicitation provision to ensure that it is rational and can withstand logical scrutiny. See SMARTnet, Inc., B‑400651.2, Jan. 27, 2009, 2009 CPD para. 34 at 7.

Here, despite specific inquiry from our Office, the agency does not address why the 2-year, FAP experience requirement cannot be satisfied by proposing a subcontractor or other teaming member. Instead, the agency's arguments and explanation address only the importance of the FAP program and the need for an experience requirement. Thus, for example, the agency does not address why, in the context of this commercial item acquisition, a prime contractor, which like the protester has experience providing commercial family health services, could not satisfy the agency's needs by proposing a subcontractor with experience providing military FAP services. Furthermore, the Air Force's statement that it is aware of at least [Deleted] 8(a) small business concerns that can satisfy the RFP's experience requirement does not demonstrate that this requirement is not unduly restrictive, given that this does not show that all eligible 8(a) firms will have an opportunity to submit offers in response to a competitive 8(a) solicitation. See 13 C.F.R. sect. 124.507(c)(3) (2010); see also Harris Enters., Inc., B-311143, Mar. 27, 2008, 2008 CPD para. 60 at 1.

In sum, given the agency's failure to explain why its experience requirements cannot be satisfied by a subcontractor or other teaming partner, we find that the RFP's requirement that the prime contractor have 2 years of FAP experience is unduly restrictive of competition. Navajo Nation Oil & Gas Co., B-261329, Sept. 14, 1995, 95‑2 CPD para. 133 at 6-8 (solicitation clause requiring specific experience applicable only to fuel dealers, and not refiners or manufacturers, unduly restricts competition, where agency makes no showing and record provides no reasonable basis for agency's determination that the restriction reflects agency's minimum needs); Keeson, Inc.; Ingram Demolition, Inc., B‑245625; B‑245655, Jan. 24, 1992, 92-1 CPD para. 108 at 5-6 (solicitation provision requiring offeror to have completed five asbestos abatement projects within last 3 years but also have 5 years experience as an established asbestos abatement business was unduly restrictive where the agency did not explain or address its need for the provision).  (Total Health Resources, B-403209, October 4, 2010)  (pdf)
 

JLT asserts that the 9 foot minimum ceiling height cannot be justified as a minimum agency requirement, and points to six examples of federal buildings in the Minneapolis-St. Paul area that have ceiling heights of less than 9 feet. Protest at 4.

The agency justifies the 9 foot minimum ceiling height on several bases, including, in particular, the basis that it is a standard requirement contained in the Facilities Standards for the Public Buildings Service, PBS-P100, Rev. Mar. 2005, AR at 4; see CO's Statement at 4; AR exh. 14, Mar. 2005, sect. 3.2.

The requirement is unobjectionable. The Standards are intended to establish "design standards and criteria for new buildings, major and minor alterations, and work in historic structures." Standards at 1.1. Although the protester asserts that the Standards are "mere guidelines and do not have the force of law," Comments at 6-7, we think it is plainly reasonable for the agency to attempt to comply with standards that were formulated for application to procurements such as this one. 120 Church Street Assocs., B‑232139, Nov. 21, 1988, 88-2 CPD para. 496 at 6-7.

The fact that there are other buildings in the area with ceiling heights of less than 9 feet carries little weight. As a general matter, each procurement stands on its own. HG Properties A, L.P., B‑280652, Nov. 2, 1998, 98-2 CPD para. 104. Thus, the fact that other GSA-leased properties may not meet the 9 foot ceiling requirement does not demonstrate that the 9 foot requirement is not a reasonable minimum need of the agency here. Marine Transport Lines, Inc., B-224480.5, July 27, 1987, 87‑2 CPD para. 91 at 4 (fact that agency did not previously require crew members operating cable ships to have specified experience does not undermine justification for including such requirements in current solicitation).

JLT asserts that only approximately three percent of the space in its building--primarily interior corridor areas--has ceilings at a height of less than 9 feet, and that this should be acceptable. Comments at 6, n. 4. However, the agency explains that any ceilings at less than the 9 foot minimum would be problematic because the current office layout may change and a non-uniform ceiling height would make it difficult to modify floor plans during the term of the lease. AR at 4-5. The agency's position is persuasive; we find no basis for requiring the agency to accept the limitations on desired design flexibility that would result from permitting varying ceiling heights.

The protester asserts that the challenged restrictions "are likely to reduce the available pool of buildings that can compete to fill the Agency's requirement." Protest at 5. Where a requirement reflects an agency's minimum needs, however, the fact that a potential competitor will be unable to meet the requirement does not establish an impropriety. John F. Kenefick Photogrammetric Consultant, Inc., B‑238384, May 4, 1990, 90-1 CPD para. 452.

The protest is denied.  (JLT Group, Inc., B-402603.2, June 30, 2010)  (pdf)

Where a protester challenges a requirement as unduly restrictive, the agency has the responsibility to establish that the requirement is reasonably necessary to meet its needs. The adequacy of the agency's justification is ascertained through examining whether the agency's explanation is reasonable, that is, whether the explanation can withstand logical scrutiny. Chadwick-Helmuth Co., Inc., B-279621.2, Aug. 17, 1998, 98-2 CPD para. 44 at 3. This Office has considered geographic restrictions reasonably necessary for an agency to meet its needs when, for example, the agency demonstrates that convenience and efficiency of operations require that a facility be located within a particular boundary. NFI Mgmt. Co., supra at 3. A protester's mere disagreement with the agency's judgment concerning the agency's needs and how to accommodate them does not show that the agency's judgment is unreasonable. Dynamic Access Sys., B-295356, Feb. 8, 2005, 2005 CPD para. 34 at 4. The fact that a requirement may be burdensome or even impossible for a particular firm to meet does not make it objectionable if the requirement properly reflects the agency's needs. Computer Maint. Operations Servs., B-255530, Feb. 23, 1994, 94-1 CPD para. 170 at 2. As explained below, we think that the geographic restriction at issue here is unobjectionable.

The record shows that, early in the procurement planning process, DHS documented its rationale for the chosen geographic area. See AR, Tab 3, Justification at 3. Specifically, DHS concluded that, because the three components to be housed in the leased space are critical to DHS headquarters operations, they must be located in proximity to the St. Elizabeths campus and other downtown Washington, DC locations. According to DHS, that proximity, coupled with easy access to Metro, will facilitate the extensive daily interactions between DHS components, enabling DHS to share services among components, improve organizational efficiency, and enhance component working relationships. In our view, the agency has reasonably explained the nexus between its mission needs and proximity of the DHS components to the St. Elizabeths campus; accordingly, we think the agency has established that the geographic restriction in the SFO is reasonably necessary to meet its needs.

In challenging the geographic restriction, the protester initially asserted that the prospectus, dated October 2009, contained a "broad description" of the permitted site locations, including "all three [National Capitol Region (NCR)] jurisdictions – Washington, DC; Suburban Maryland; and Northern Virginia," Protest at 5; only subsequently (and, in the protester's view, without justification) did the agency narrow the area in Northern Virginia to the area included in the SFO. In fact, the prospectus defined the geographic area as "includ[ing] portions of all three NCR jurisdictions," Protest, Attch. C., Prospectus at 2 (emphasis added), and, as relevant here, described the delineated area as "Crystal City/Pentagon City, Virginia (Metro-Proximate)." Id. at 3. As noted above, that requirement remained constant throughout the procurement development. The protester's claim that the agency unreasonably narrowed the geographic area for Northern Virginia, when initially it had been broadly defined, thus is unsupported by the record.

The protester argues that various documents in the agency report do not place a premium on proximity to St. Elizabeths, and this alleged lack of emphasis on proximity to the main DHS campus establishes the unreasonableness of the requirement. For example, Eisenhower highlights DHS' response to the following question posed by GSA during the planning phase of the procurement: "What is most important to you in this project: schedule, # of locations, geographic location, cost, etc.?" AR, Tab 6, Responses to Questions at 3. DHS replied that the number of locations was most important, and that schedule, cost, and geographic location were of equal importance. Id. Contrary to the protester's contention, the project requirements documents (at Tab 6 of the agency report), read together, clearly reflect the agency's consistent, unwavering interest in procuring leased space in close proximity to the St. Elizabeths campus. Thus, for example, minutes of a meeting with DHS prepared by GSA shortly after DHS provided its responses to GSA's questions contained a section titled, "Minimum Requirements & Tradeoff Factors." The first of 11 factors listed is "[l]ocation proximity to [St. Elizabeths] as defined in Prospectus delineated area." Id., DHS Omnibus Project at 2. Accordingly, in our view the record does not support the protester's argument. (Eisenhower Real Estate Holdings, LLC, B-402807, July 27, 2010)  (pdf)

JRS protests that that the requirements for experience in a correctional setting are unduly restrictive.

The determination of a contracting agency's needs and the best method of accommodating them are matters primarily within the agency's discretion. Systems Application & Techs., Inc., B-270672, Apr. 8, 1996, 96-1 CPD para. 182 at 3. However, where a protester challenges a specification as unduly restrictive of competition, we will review the record to determine whether the restrictions imposed are reasonably related to the agency's needs. Id.; LBM Inc., B-286271, Dec. 1, 2000, 2000 CPD para. 194 at 3. Where a requirement relates to national defense or human safety, an agency has the discretion to define solicitation requirements to achieve not just reasonable results, but the highest possible reliability and/or effectiveness. COB EventLizenz GmbH, B-401999.2, Jan. 12, 2010, 2010 CPD para. 24 at 4. Further, when a contractor will be operating in a unique work setting, an agency may require that the contractor's personnel possess prior experience in operating in the same type of work setting. Marine Transport Lines Inc., B-224480.5, July 27, 1987, 87-2 CPD para. 91 at 4.

Here, the Navy explains that the RFQ, as originally issued, did not adequately address the experience and skills necessary to perform in a correctional setting, which the amendment corrected. Supplemental Agency Report (AR) at 2. Specifically, the Navy states that the incumbent instructor required training in the supervision of prisoners and extensive training in the control and use of keys, tools, and toxic, caustic and flammable materials, in a correctional setting. Id. The Navy explains that the amended experience requirements were added to avoid the need for the agency to provide this additional training, and states that requiring experience in a correctional setting increases the safety and security at the Brig. Tne Navy also explains that correctional experience is important because the prisoners working at the sail loft may be violent offenders such as murderers, rapists, and drug dealers with potential access to dangerous tools and materials. AR at 2; Supp. AR, exh. 1, Declaration of Executive Officer, Charleston Navy Consolidated Brig, at 2. Finally, the Navy states that a failure to comply with mandatory standards related to the management, oversight, issuance, control and inventory of tools, sharps, keys, and toxic, caustic and flammable materials could jeopardize the facility's ACA accreditation, which could result in closure of the Brig. AR at 2-3.

JRS makes numerous arguments contesting the agency's determination that the RFQ's experience requirements are necessary to satisfy the agency's needs. In this regard, JRS argues that the Navy has not identified any event that resulted in heightened safety concerns requiring the experience requirements and that the ACA accreditation standards do not require contractor personnel to have prior correctional experience. JRS also challenges the Navy's contention that the experience requirements were necessary to avoid the necessity to train a new instructor, arguing that ACA standards already require contractor training in such areas as key control, tool/equipment control, and inmate movement. In the protester's view, it is the Navy's responsibility to expend resources to train instructors, regardless of the instructor's prior correctional experience. See Supplemental Comments at 3-4.

We find that the Navy has established a reasonable need for the experience requirements for the sail loft instructor. The record shows that the Brig houses violent offenders, and that the training that occurs in the sail loft potentially places violent offenders in contact with materials that could be used to harm others. Given these circumstances, in our view, it is reasonable for the Navy to increase safety above some minimum standard by requiring the contractor to provide personnel experienced with the challenges that can arise within a correctional facility. Although JRS disagrees with the Navy's judgment in this regard, this disagreement does not show that the agency's judgment is unreasonable. See COB EventLizenz GmbH, supra, at 4 (mere disagreement does not show that the agency's judgment is unreasonable). In this regard, an agency is not required to show an instance of actual damage or injury under a prior contract before imposing a requirement that reduces potential, reasonably perceived risks to life or property. LIPS Propellers, Inc., B‑256713, July 15, 1994, 94-2 CPD para. 26 at 4.  (JRS Management, B-402650.2, June 25, 2010)  (pdf)

A contracting agency has the discretion to determine its needs and the best method to accommodate them. Parcel 47C LLC, B-286324, B-286324.2, Dec. 26, 2000, 2001 CPD para. 44 at 7. In preparing a solicitation, a contracting agency is required to specify its needs in a manner designed to achieve full and open competition, and may include restrictive requirements only to the extent they are necessary to satisfy the agency's legitimate needs. 10 U.S.C. sect. 2305(a)(1) (2006); Innovative Refrigeration Concepts, B-272370, Sept. 30, 1996, 96-2 CPD para. 127 at 3. Where a protester challenges a specification as unduly restrictive, the procuring agency has the responsibility of establishing that the specification is reasonably necessary to meet its needs. The adequacy of the agency's justification is ascertained through examining whether the agency's explanation is reasonable, that is, whether the explanation can withstand logical scrutiny. Chadwick-Helmuth Co., Inc., B-279621.2, Aug. 17, 1998, 98-2 CPD para. 44 at 3. A protester's mere disagreement with the agency's judgment concerning the agency's needs and how to accommodate them does not show that the agency's judgment is unreasonable. Dynamic Access Sys., B‑295356, Feb. 8, 2005, 2005 CPD para. 34 at 4. Where, as here, a requirement relates to national defense or human safety, an agency has the discretion to define solicitation requirements to achieve not just reasonable results, but the highest possible reliability and/or effectiveness. Vertol Sys. Co., Inc., B-293644.6 et al., July 29, 2004, 2004 CPD para. 146 at 3.

According to the agency, "fully vetted" COBs are necessary under the terms of the solicitation and the resultant contract because "COB role players are considered to have special security issues and risks due to their access and involvement in military operations and training." Agency Legal Memorandum at 9; see also Contracting Officer's Statement at 5. The COB role players are non-government personnel who will have special access to military installations and to sensitive information concerning United States armed forces' "tactics, techniques, and procedures in the current combat operating environment." Agency Legal Memorandum at 9; Contracting Officer's Statement at 5. It is therefore "essential to ensure the safety of the service members" to require that COBs undergo background checks and be properly screened prior to their participation in training exercises. Agency Legal Memorandum at 6, 9. In addition, the vetting requirement existed in "all previous solicitations/contracts." Contracting Officer's Statement at 4.

The protester does not dispute the Army's determination that fully vetted COBs are necessary to meet the agency's needs. Rather, the protester focuses on the compressed time period that was available to offerors in which to prepare their proposals, and it contends that there was too little time for any company other than the incumbent to obtain fully vetted COBs prior to the start of contract performance. The protester contends that Optronics inability to perform is evidence of the unduly restrictive nature of the vetting requirement.

We think that the agency has reasonably established a legitimate need for the COBs to be fully vetted by the start of the contract. Given the special security issues presented by COBs due to their access to the military installation and to sensitive information concerning the tactics, techniques and procedures of United States armed forces, and given the agency's discretion to define its requirements in contracts involving national defense, we see no basis to object to a requirement that COBs be fully vetted by the start of the contract. Although the protester objects to the short time to acquire fully vetted COBs, the agency has explained that the short response time was because the agency needed COBs to train its service members scheduled for "imminent deployment" and the existing contract was about to expire, coupled with unanticipated problems with the prior procurement. See Agency Legal Memorandum at 2-4. Given the imminent need for these services and the fact that the agency received a responsive offer from at least one other offeror in addition to Optronics and the awardee, we do not find the response time unreasonable. See Crowley Am. Transport, Inc., B-259599.2, June 19, 1995, 95-1 CPD para. 277 at 6.  (COB EventLizenz GmbH, B-401999.2, January 12, 2010) (pdf)

MB asserts that the requirement for a lock-ring, demountable flange wheel design‑‑which precludes MB from proposing a tie-bolt, split-rim wheel design‑‑unduly restricts competition. According to the protester, an improved version of the tie-bolt design, using corrosion-resistant bolts, and thereby requiring less inspection, also will meet the agency’s needs.

Contracting agencies have the discretion to determine their needs and the best method of accommodating them. Parcel 47C, LLC, B-286324, B-286324.2, Dec. 26, 2000, 2001 CPD para. 44 at 7. However, agencies are required to specify their needs in a manner designed to achieve full and open competition, and may include restrictive requirements only to the extent they are necessary to satisfy their legitimate needs. 10 U.S.C. sect. 2305(a)(1)(B) (2006); Innovative Refrigeration Concepts, B‑272370, Sept. 30, 1996, 96-2 CPD para. 127 at 3. Where a protester challenges a specification as unduly restrictive, the procuring agency must establish that the specification is reasonably necessary to meet its needs. Chadwick-Helmuth Co., Inc., B-279621.2, Aug. 17, 1998, 98‑2 CPD para.44 at 3. A protester’s mere disagreement with the agency’s judgment concerning its needs and how to accommodate them is not sufficient to establish that the agency’s judgment is unreasonable. See Dynamic Access Sys., B‑295356, Feb. 8, 2005, 2005 CPD para. 34 at 4. Further, where, as here, a requirement relates to national defense or human safety, an agency has the discretion to define solicitation requirements to achieve not just reasonable results, but the highest possible reliability and/or effectiveness. Vertol Sys. Co., Inc., B‑293644.6 et al., July 29, 2004, 2004 CPD para. 146 at 3. We find the solicitation requirement for a lock‑ring, demountable flange wheel design to be reasonable.

In explaining the basis for the lock-ring specification requirement, DLA reports that Air Force experience with both designs indicates that lock-ring wheels have lower life-cycle costs; are logistically simpler to support; and offer improved maintainability over tie-bolt designs. Agency Report at 13. In particular, according to DLA, the primary and most desired benefit of the lock-ring wheel design relative to the tie-bolt design is the more efficient maintenance possible with lock-ring wheels. Id. In this regard, the agency reports that experience with F-15 and F-16 fighter aircraft, the earlier models of which are equipped with tie-bolt wheels and the later models with lock-ring wheels, indicates that tie-bolt wheels, on average, require 100% more time to maintain for F-15 aircraft and 50% more time for F-16 aircraft than lock-ring wheels. Id. at 15. Further, the agency has furnished a video showing maintenance technicians breaking down (disassembling) and building up (reassembling) F-15 lock-ring and tie-bolt wheels. While the video shows the technicians requiring only 34 minutes 22 seconds to complete the process for the F‑15 lock-ring wheels, it shows a time of 1 hour 15 minutes 3 seconds for technicians to partially complete the process for the F-15 tie-bolt wheels, with a further, approximately 30-minute required additional inspection not performed. In addition, the agency has furnished a video showing maintenance technicians disassembling and reassembling a tie-bolt wheel for the larger KC-135 aircraft; that process required 1 hour 29 minutes 28 seconds to partially complete, again not including the approximately 30-minute required additional inspection. The agency reports that the more efficient maintenance possible with the lock-ring design is particularly important due to the fact that C-130 aircraft are often deployed at austere forward operating locations under wartime conditions, requiring maintenance to be performed in the shortest possible timeframe. Id. at 11, 15.

MB asserts that the agency’s concerns do not justify the restriction because it will propose a tie-bolt design that will meet the specification requirement for a mean time to repair of no more than 1 hour. In support of its assertion, the protester has furnished a video showing its maintenance technician disassembling and reassembling a C-130 tie-bolt wheel in [REDACTED]. The agency notes, however, that the protester’s claimed time of [REDACTED] does not include the full extent of inspection and cleaning currently required under agency maintenance procedures. Agency Report at 26; Agency Supp. Report at 4, 7, 9. MB concedes that its video omits some steps that the agency reports are currently required, MB Comments, Mar. 16, 2009, at 15, but maintains that the omitted steps are not necessary with its improved design. However, the solicitation requires a mean time to repair of no more than 1 hour “includ[ing] time to visually inspect and/or accomplish all required [non‑destructive inspection] procedures per applicable maintenance manual.” Performance Specification sect. 3.5.1.11.1. While the protester would have the agency forego some of the currently required inspections due to its claimed improved design, there is no basis for us to preclude the agency from taking these inspections into account; again, where, as here, a requirement relates to national defense or human safety, an agency has the discretion to define solicitation requirements to achieve not just reasonable results, but the highest possible reliability and/or effectiveness. Vertol Sys. Co., Inc., supra, at 3. Further, the agency reports that the video submitted by MB reflects the use of labor-saving special tooling that is not typically available at Air Force bases, including forward operating locations the C‑130s will use. As noted by DLA, the use of such special tooling appears to be inconsistent with the specification requirement that the proposed “configuration shall be compatible with the total aircraft performance, maintenance, and operational environment.” Performance Specification sect. 3.5.1.

In any case, even if we agreed that MB has shown that its proposed tie-bolt design will meet the 1 hour mean time to repair requirement, it is evident from the record that a tie-bolt wheel will require significantly more time to maintain than a lock-ring wheel. It is just as clear from the record that the agency has determined that it needs a wheel design permitting more efficient maintenance than is possible with a tie-bolt design. Under these circumstances, requiring the agency to revise the specification to reflect a shorter permissible mean time to repair based on the lock-ring wheel would be a useless act. See Arrow Eng’g, Inc., B-215585, Dec. 26, 1984, 84-2 CPD para. 702 at 3.

MB asserts that the lock-ring wheel design has not yet been shown to be reliable for use on larger aircraft. However, whether the lock-ring design is sufficiently developed to permit its use on the C-130 aircraft is not a matter we will question under our bid protest function since it involves how an agency will perform its military function. See Glock, Inc., B-236614, Dec. 26, 1989, 89-2 CPD para. 593 at 6 (GAO will not question agency’s management of its law enforcement function); Travenol Laboratories, Inc., B-215739; B-216961, Jan. 29, 1985, 85-1 CPD para. 114 at 3 (GAO will not question agency’s management of its medical activities).  (Messier-Bugatti, Safran Group, B-401064, May 5, 2009)  (pdf)

Agencies enjoy broad discretion in the selection of evaluation criteria, and we will not object to the use of particular evaluation criteria so long as they reasonably relate to the agency's needs in choosing a contractor that will best serve the government's interests. Leon D. Matteis Constr. Corp., B-276877, July 30, 1997, 97-2 CPD para. 36 at 4. The determination of a contracting agency's needs and the best method for accommodating them are matters primarily within the agency's discretion. Tucson Mobilephone, Inc., B-250389, Jan. 29, 1993, 93-1 CPD para. 79 at 2. Where a protester alleges that a solicitation provision is unduly restrictive, we will review the record to determine whether the provision is reasonably related to the agency's needs. See Systems Application & Techs., Inc., B-270672, Apr. 8, 1996, 96-1 CPD para. 182 at 3.

Here, the agency has determined to include in the evaluation criteria a requirement that each prospective offeror "have performed at least 49,500 Moderate Complexity tests per month, and 500 High Complexity tests per month." AR, Tab 18, RFP amend. 16, at 6. The agency argues that this provision is reasonably related to its needs. We agree.

The agency requires HIV screening and confirmatory testing services from a contractor with the capability to perform up to 88,708 tests per month, on specimens shipped from approximately 1,300 submitting activities, with over 94 percent of the tests being completed and the results provided to the government within an 8-hour turn-around time. The agency has stated that it is critical that the contractor be able to successfully perform the high quantity HIV screening requirements of the resultant contract, as failure to do so would severely impact health force protection and Naval operational and deployment readiness. AR, Tab 32, Supplemental Market Research Memorandum, at 8. With regard to successful performance, an expert in Navy Clinical Laboratory Medicine consulted by the agency in the course of market research advised the agency that relevant experience is a key indicator of the readiness of a laboratory to successfully assume testing responsibilities, particularly for high volume testing, and that "[t]he more closely a laboratory's experience mirrors the services to be provided under the resultant contract, the more confidence we can have that the laboratory in question can handle the required testing and test volumes."[3] AR, Tab 38, Declaration of Navy Expert, at 2.

Based on the very high volume of testing required by the RFP, the importance of the requirement, and the value of experience in very high volume testing as an indicator of successful performance, we conclude that the agency's decision to incorporate a corporate experience magnitude requirement into the RFP is reasonable, and the current magnitude requirement is reasonably related to the agency's needs.

With regard to the protester's argument that the magnitude requirement improperly favors the incumbent, there is no requirement that an agency equalize or discount an advantage gained through incumbency, provided that it did not result from preferential treatment or other unfair action by the government. Navarro Research and Eng'g, Inc., B-299981, B-299981.3, Sept. 28, 2007, 2007 CPD para. 195 at 4; see also LaQue Ctr. for Corrosion Tech., Inc., B-245296, Dec. 23, 1991, 91-2 CPD para. 577 at 6-7. Neither preferential treatment nor other unfair action is alleged or evident here.  (North Shore Medical Labs, Inc., B-310747, February 6, 2008) (pdf)

The RFP also contained a requirement for scoring hardware and services for the RPVT the purpose of which is to provide accurate bullet counting and miss distance data for bullets/missile engagements on targets. RFP at 17. The RFP specifically listed three qualified scoring systems vendors but also stated that other scoring sources may exist and would be considered. RFP App. E.

(sections deleted)

Where a protester challenges a specification as unduly restrictive, the procuring agency has the burden of showing that the specification is reasonably necessary to meet its needs; we will review the agency’s explanation to determine if its is reasonable, that is, whether it can withstand logical scrutiny. Chadwick-Helmuth Co., Inc., B-279621.2, Aug. 17, 1998, 98-2 CPD para. 44 at 3.

As an initial matter, we think TWS has failed to show that the decision to include the scoring system requirement in this procurement does not represent the agency’s needs. In any event, the agency here acknowledges that in the past it procured the scoring system under a separate contract, but explains that since the requirement for scoring services has been vastly reduced, the previous method of issuing two contracts to support the training mission was excessively expensive and cumbersome to the government. Agency Report (AR), Tab E, Technical Response at 2. The agency also explains that incorporating the scoring system requirement into the larger RPVT contract will permit a more efficient use of government resources, enable the target services provider to select the most appropriate scoring system, and provide the government a single point of contract for targetry missions. Id. The agency notes that while three qualified scoring system vendors were identified in the RFP, any other scoring systems proposed would be considered by the government if they meet the RFP requirements. Given these facts, and the arguments raised, we conclude the agency has reasonably supported its determination to procure all its target mission requirements under one solicitation.

To the extent the protester argues that only the incumbent knows which “qualified” scoring systems will meet the RFP specifications, there is no requirement that an agency equalize or discount an advantage gained through incumbency, provided that it did not result from preferential treatment or other unfair action by the government. Navarro Research and Eng’g, Inc., B-299981, B-299981.3, Sept. 28, 2007, 2007 CPD para. 195 at 4. Neither preferential treatment nor other unfair action is evident here, especially since the agency identified three potential sources for the scoring system.

TWS has also challenged several other specifications. We have reviewed them and find that the agency has reasonably supported its determination of its minimum needs. For example, TWS objects to the deletion of the sector location requirement from the scoring hardware specification. The agency reports that the removal of this requirement enables more scoring vendors to provide solutions to the requirement and may increase the number of scoring system options that would meet the requirement. TWS also objects to the agency’s position that it expects the awardee to be “mission capable” on the date of contract award, which according to TWS contradicts other portions of the RFP which indicate that there would be a phase-in period.

The record shows that the agency in response to questions, has repeatedly advised offerors that for planning purposes the operational ready date should be considered the date of contract award and that there will be a phase-in period only in the event the contract is awarded while an incumbent is still performing target missions under a previous contract. While the protester objects to this requirement and desires a phase-in period, the agency has specifically stated that training missions are required to be performed by the incoming contractor on the first day of a new contract. We have no basis to conclude that this requirement is unreasonable or does not meet the agency’s need for continuity in its target training mission.

Finally, we note that the agency, in several instances, amended the RFP to clarify or change certain specifications. The agency also extended the original closing date on several occasions from September 19 to the final date of December 2. From this record, we believe the protester had ample opportunity to submit a responsive proposal. While the protester expresses disagreement with the agency’s determination of its needs, the protester has not established that the agency’s requirements were unreasonably stated.  (Trident World Systems, Inc., B-400901, February 23, 2009)

With respect to the merits of SMARTnet’s challenge that requiring JITC certification at the time of quotation submission is unduly restrictive of competition, procuring agencies are required to specify their needs in a manner designed to permit full and open competition, and may include restrictive requirements only to the extent they are necessary to satisfy the agencies’ legitimate needs (or as otherwise authorized by law). 10 U.S.C. sect. 2305(a)(1)(A)(i), (B)(ii) (2006); CHE Consulting, Inc., B‑297534.4, May 17, 2006, 2006 CPD para. 84 at 2. Where a protester challenges a specification as unduly restrictive, the agency must establish that the requirement is reasonably necessary to meet its needs; we will examine the adequacy of the agency’s position to ensure that it is rational and can withstand logical scrutiny. Container Prods. Corp., B-280603.2, Nov. 4, 1998, 98-2 CPD para. 106 at 3.

Here, SMARTnet contends that the agency does not need to have proof of certification before the time of installation, and that requiring JITC certification at the time of quotation submission essentially restricts the procurement to those firms that had this certification at the time the solicitation was issued. This is so, SMARTnet argues, because the JITC-certification process is only performed at two sites in the United States and is time-consuming. Protest at 4. In this regard, SMARTnet states that its equipment “is currently in the process of achieving final JITC certification which is being sponsored by the Department of the Army and is scheduled to be achieved later this Spring in time for the apparent equipment installation.” Comments at 2.

In response, the agency variously argues that its requirement is for “an immediate networking solution,” that the tenants of DMLC should not be made to wait for vendors to obtain the necessary certification, and that the agency should not bear the risk that it would have to conduct another procurement if SMARTnet’s equipment failed to become certified in time to satisfy the project’s needs. Legal Memorandum at 10.

We do not find that the Army’s concerns here, which all relate to the agency’s need to have JITC-certified equipment at the time of equipment installation, support the solicitation’s requirement for JITC certification at the time of quotation submission. An agency’s otherwise legitimate requirements regarding an offeror’s demonstrated ability to meet contract requirements may not be required prior to when such qualifications become relevant. See LBM Inc., B-286271, Dec. 1, 2000, 2000 CPD para. 194 at 4. The Army has simply not explained why the apparent purpose behind the certification requirement--to ensure that a system be certified prior to the time it must be fielded--requires that evidence of certification be provided as early in the process as the time at which quotations are submitted. In short, the Army has not shown its requirement that vendors’ proposed equipment be JITC certified at the time of submission of quotations is reasonable.  (SMARTnet, Inc., B-400651.2, January 27, 2009) (pdf)

Nordic generally argues that the award to Air Rover was improper because that firm failed to propose ECUs with the exact NSNs referenced in the RFP. In this regard, Nordic contends that the detailed specifications associated with the NSNs (exceeding product specifications provided in the RFP) were necessarily incorporated into the solicitation through the RFP’s listing of the NSNs.

The agency contends that Nordic’s interpretation of the RFP is unreasonable. The agency explains that the RFP merely referenced the NSNs available from Nordic as descriptive information to illustrate the type of product required under each CLIN. The agency’s requirements for the ECUs were described by a listing of 14 salient product characteristics to be met by the offerors’ products; according to the agency, there would have been no need for the list of salient characteristics under Nordic’s restrictive interpretation that only the exact NSNs referenced in the product description were sought by the agency. The agency also reports that the RFP encouraged the proposal of commercial items other than those referenced in the solicitation to satisfy the agency’s requirements, and that a technical evaluation of proposed products was not required for award.

In negotiated procurements, a proposal that fails to comply with material terms of the solicitation should be considered unacceptable and may not form the basis for award. See Champion-Alliance, Inc., B-249504, Dec. 1, 1992, 92-2 CPD para. 386 at 3. We will not disturb an agency’s determination of the acceptability of a proposal absent a showing that the determination was unreasonable, inconsistent with the terms of the solicitation, or in violation of procurement statutes or regulations. Id. When a dispute exists as to the actual meaning of a solicitation requirement, our Office will resolve the matter by reading the solicitation as a whole and in a manner that gives effect to all provisions of the solicitation. See Media Funding, Inc. d/b/a Media Visions, Inc., B‑265642; B-265642.2, Oct. 20, 1995, 95-2 CPD para. 185 at 3. Further, we will read a provision restrictively only where it is clear from the solicitation that such a restrictive interpretation was intended by the agency. Ampex Data Sys. Corp., B‑248112, July 30, 1992, 92-2 CPD para. 71 at 4-5.

We find no support for Nordic’s restrictive interpretation that the RFP’s references to certain NSNs in effect required firms to offer only those products, or that the references served to incorporate additional detailed specifications or testing requirements associated with those NSNs into the solicitation’s requirements. As the agency points out, the RFP sought commercial item and modified commercial item ECUs with at least 14 listed salient characteristics. We find reasonable the agency’s position that the references to the NSNs, when the solicitation is read as a whole, merely provide further description of the type of products sought by the agency rather than constituting a mandatory requirement for each of the NSNs noted. As the agency points out, while the identified NSNs are the same as those assigned to the protester’s ECUs, the agency did not issue the solicitation on a brand name or equal basis for Nordic’s ECUs. Rather, salient characteristics for the units were listed and offerors were invited to propose items meeting the characteristics, or to propose alternative terms and commercial items to otherwise meet the agency’s needs.

In conclusion, since we see no basis to conclude that the RFP’s NSN references limited offerors to proposing ECUs with those NSNs only, or that Air Rover’s failure to propose ECUs with those exact NSNs rendered its proposal unacceptable in any way under the RFP, the protester’s challenges provide no basis to question the propriety of the award.  (Nordic Air, Inc., B-400540, November 26, 2008) (pdf)
 

Bowers complains that the agency lacks a reasonable basis for the floor plate requirement. The protester asserts that the requirement will exclude from the competition its proposed office space, which is located in a building with a 14,000 square foot floor plate.

While a contracting agency has the discretion to determine its needs and the best method to accommodate them, those needs must be specified in a manner designed to achieve full and open competition. Paramount Group, Inc. B-298082, June 15, 2006, 2006 CPD para. 98 at 3. Solicitations may include restrictive requirements only to the extent they are necessary to satisfy the agency’s legitimate needs. 41 U.S.C. sections 253a(a)(1)(A), (2)(B) (2000). Where a protester challenges a requirement as unduly restrictive of competition, the procuring agency has the responsibility of establishing that the requirement is reasonably necessary to meet the agency’s needs. A protester’s mere disagreement with the agency’s judgment concerning the agency’s needs and how to accommodate them does not show that the agency’s judgment is unreasonable. Paramount Group, Inc., supra.

GSA explains that NRC requires a building with a minimum floor plate of 18,000 square feet to ensure that NRC will be able to house its entire administrative division (which requires 17,487 square feet of space), and its combined construction divisions (which together require 15,718 square feet), on single floors. GSA contends that locating these divisions on single floors will help NRC “minimize communication barriers, enhance communication and collaboration, promote connectivity, and promote a transparent work environment and coworker visibility.” AR at 5. The agency further argues that minimizing the number of floors on which employees are housed will promote knowledge sharing, mentoring, and cross-fertilization among NRC staffers. Id. GSA maintains that housing employees on separate floors will undermine NRC’s goal of promoting interaction and teamwork by reducing the number of instances in which “colleagues pass in the hallway [and] engage in spontaneous conversations concerning contemporaneous experiences or thoughts, [such as] ‘I just met with someone concerning something you might be interested in’ or “I meant to tell you last week, the report on . . .’” Id. at 6. According to the agency, these are the sort of exchanges that “create connectivity, promote morale, build team work, encourage cross fertilization,” and, in sum, “enable agency personnel to operate at maximum efficiency.” Id. The agency further argues that locating employees on separate floors will increase the amount of time that employees spend traveling back and forth to one another’s offices.

The protester does not dispute that promoting coworker collaboration is a legitimate agency objective, but argues that the agency has failed to offer any proof that increasing the number of floors on which employees are located will result in decreased employee collaboration. The protester asserts in this connection that employees are just as likely to pass and collaborate in elevator lobbies and stairwells as they are walking through corridors. Bowers also takes issue with the agency’s assertion that locating employees on more than one floor will increase the amount of time that employees spend traveling among offices within their divisions, contending that the agency has not demonstrated that an employee traveling between two offices in a department by means of a stairwell or an elevator will travel a greater distance and/or require more time to make the trip than an employee walking from an office at one end of an 18,000 square foot floor to an office at the other end of the floor.

While not directly at issue in this case because the protester has not argued that promoting employee collaboration is not a legitimate agency goal, we have found a minimum floor plate requirement justified in a case in which the agency advanced a similar rationale. See Ellman Cos., B-251288, Mar. 18, 1993, 93-1 CPD para. 244 at 5. In our view, it was reasonable for the agency here to assume that employees with offices on the same floor are more likely to encounter one another than employees with offices on different floors given that, for example, the former share more common areas (such as break rooms) than the latter. While the protester disagrees with the agency’s position in this regard, it has not shown that the agency’s judgment is unreasonable. See Paramount Group, Inc., supra; Allied-Signal Inc., B-247272, May 21, 1992, 92-1 CPD para. 461 at 10. Regarding the protester’s argument that an employee traveling between two offices on different floors will not necessarily travel farther than an employee traveling between two offices on the same floor, the fact that some trips between offices on different floors might be shorter than some trips between offices on the same floor is of little significance; the relevant issue is average trip length, and we think that it is reasonable to assume that the average trip between two offices on the same floor will take less time and cover less total distance than the average trip between offices on different floors given that travel to a different floor always necessitates travel both to and from a stairwell or elevator.

In sum, we conclude that the agency has demonstrated a reasonable basis for requiring a minimum building floor plate of 18,000 square feet, given that such a floor plate will enable NRC to house its entire administrative division and its combined construction divisions on single floors, which will in turn foster interaction among employees of the divisions. Accordingly, we deny Bowers’s protest that the requirement unduly restricts competition.  (Richard Bowers & Company, B-400276, September 12, 2008) (pdf)

Mr. Koprowski challenges the solicitation requirement that the work be performed on-site in San Diego. Mr. Koprowski asserts that the RFQ violates the SARA provisions which prohibit agencies from discouraging contractors from allowing their employees to telecommute in the performance of government contracts. In relevant part, SARA provides as follows:

. . . [S]olicitations for the acquisition of property or services may not set forth any requirement or evaluation criteria that would—
(1) render an offeror ineligible to enter into a contract on the basis of the inclusion of a plan of the offeror to permit the offeror’s employees to telecommute, unless the contracting officer first determines that the requirements of the agency, including security requirements, cannot be met if the telecommuting is permitted and documents in writing the basis for that determination; or

(2) reduce the scoring of an offer on the basis of the inclusion in the offer of a plan to permit the offeror’s employees to telecommute, unless the contracting officer first determines that the requirements of the agency, including security requirements, would be adversely impacted if telecommuting is permitted and documents in writing the basis for that determination.

Pub. L. No. 108-136, sect. 1428(b), 117 Stat. at 1670. See also Federal Acquisition Regulation sect. 7.108 (incorporating statutory provision). Thus, under the plain statutory language, an agency can exclude or unfavorably rate offerors with a plan to telecommute if the agency’s requirements would not be met as a result. Here, the agency asserts that on-site services are integral to the R&D associate’s role, and thus it reasonably determined that its requirements could not be met by an offeror with a plan to telecommute. We agree.

A contracting agency has the discretion to determine its needs and the best method to accommodate them. Mark Dunning Indus., Inc. , B-289378, Feb. 27, 2002, 2002 CPD para.46 at 3-4. An agency’s justification is considered reasonable if it can withstand logical scrutiny. Chadwick-Helmuth Co., Inc., B-279621.2, Aug. 17, 1998, 98-2 CPD para. 44 at 3. A protester’s mere disagreement with the agency's judgment concerning the agency’s needs and how to accommodate them does not show that the agency’s judgment is unreasonable. See AT&T Corp., B-270841 et al., May 1, 1996, 96-1 CPD para. 237 at 7-8.

Here, the agency has set forth a number of reasonable explanations for its determination that its requirements would not be met if the contractor worked from a remote location. First, the agency explains that data security will be implicated if the contractor does not work on-site. Specifically, the contractor will need to collect data on-site at NRSC using highly specialized and unique equipment. Additionally, the contractor will need to personally interact with active duty research subjects and government personnel. Further, the agency notes that the research equipment cannot be relocated without compromising data safety and disrupting other critical research. The agency also explains that the solicitation requires the contractor to be on-site for several other reasons, including the need for the contractor to participate in on-site clinical research trials, present research at government facilities, and manage entire research protocols in San Diego. While the protester disagrees generally with the agency’s position, he does not respond to or attempt to rebut any of the specific factors the agency relies on to support its position that the work cannot be performed at a remote location.

In sum, while the agency agrees that some work could be performed remotely, we conclude that the agency reasonably determined that the majority of the work called for under the solicitation needs to be performed on-site. As a result, we see no basis to conclude that the RFQ violates the statutory provisions regarding telecommuting which, as noted above, specifically recognize that the provisions do not apply where the agency determines that its requirements cannot be met if telecommuting is permitted. (G. Koprowski, B-400215, August 12, 2008) (pdf)

The protester argues that the SFO is unduly restrictive of competition because it contains numerous requirements which unreasonably place Exec at a competitive disadvantage.[4] As discussed in detail below, we address the protester’s arguments that the terms of the SFO unreasonably: (1) require Exec to demolish its existing tenant improvements, (2) apply materially different and unequal security requirements to Exec, (3) require Exec to provide swing space during the renovation of Executive Plaza, and (4) require offerors to have single ownership of the proposed properties. We find no merit to any of the protester’s arguments.

While a contracting agency has the discretion to determine its needs and the best method to accommodate them, those needs must be specified in a manner designed to achieve full and open competition. Mark Dunning Indus., Inc., B-289378, Feb. 27, 2002, 2002 CPD para. 46 at 3. Solicitations may include restrictive requirements only to the extent they are necessary to satisfy the agency’s legitimate needs. 41 U.S.C. sections 253a(a)(1)(A), (2)(B) (2000). Where a protester challenges a specification as unduly restrictive of competition, the procuring agency has the responsibility of establishing that the specification is reasonably necessary to meet the agency’s needs. Chadwick-Helmuth Co., B-279621.2, Aug. 17, 1998, 98-2 CPD para. 44 at 3. A protester’s mere disagreement with the agency’s judgment concerning the agency’s needs and how to accommodate them does not show that the agency’s judgment is unreasonable. USA Fabrics, Inc., B-295737, B-295737.2, Apr. 19, 2005, 2005 CPD para. 82 at 5.

As a general matter, we have previously addressed arguments by incumbent lessors that requirements in a solicitation that apply only to the lessor are unduly restrictive of competition. While we recognize that, in certain instances, incumbent lessors may face unique and unequal burdens as compared to non-incumbent offerors when solicitations require demolition and renovations, such disadvantages are not necessarily unreasonable or unduly restrictive of competition. See Paramount Group, Inc., B-298082, June 15, 2006, 2006 CPD para. 98 at 5.

The government is also not required to perpetuate a competitive advantage that an offeror may enjoy as the result of its performance of the current, or a prior, government contract. Inventory Accounting Serv., B-286814, Feb. 7, 2001, 2001 CPD para. 37 at 4. Conversely, an agency is not required to neutralize a competitive advantage that a potential offeror may have by virtue of its own particular circumstances where the advantage does not result from unfair action on the part of the government. Military Waste Mgmt., Inc., B-294645.2, Jan. 13, 2005, 2005 CPD para. 13 at 4. As long as an agency reasonably identifies its needs and allows offerors the opportunity to meet those needs, the fact that an offeror may have an advantage based on its ability to more readily meet the government’s needs, as compared to another offeror, does not mean that the solicitation is unduly restrictive of competition. See HG Props. A, L.P., B-280652, Nov. 2, 1998, 98-2 CPD para. 104 at 4-5.  (Exec Plaza, LLC, B-400107; B-400107.2, August 1, 2008) (pdf)

In preparing a solicitation for suppliesor services, a contracting agency must specify its needs and solicit offers in a manner designed to obtain full and open competition and may include restrictive provisions or conditions only to the extent that they are necessary to satisfy the agency's needs. 10 U.S.C. sect. 2305(a)(1) (2000). A contracting agency has the discretion to determine its needs and the best method to accommodate them. Parcel 47C, LLC, B-286324, B-286324.2, Dec. 26, 2000, 2001 CPD para. 44 at 7. Where a protester challenges a specification as unduly restrictive, the procuring agency has the responsibility of establishing that the specification is reasonably necessary to meet its needs. The adequacy of the agency’s justification is ascertained through examining whether the agency’s explanation is reasonable, that is, whether the explanation can withstand logical scrutiny. Chadwick-Helmuth Co., Inc., B-279621.2, Aug. 17, 1998, 98-2 CPD para. 44 at 3. Where a requirement relates to national defense or human safety, an agency has the discretion to define solicitation requirements to achieve not just reasonable results, but the highest possible reliability and/or effectiveness. Vertol Sys. Co., Inc., B-293644.6 et al., July 29, 2004, 2004 CPD para. 146 at 3. Here, we find that the amended requirements are not unduly restrictive. 

(Sections deleted)

In its challenge to the terms of the amended solicitation as unduly restrictive, AdaRose focuses on specific requirements that offerors have knowledge and experience with certain internal agency policies, procedures, and software design processes. The challenged requirements appear in only 3 of the 10 functional areas--Mortars and Common Fire Control, Artillery and Tank Weapon Systems, and DOD and Army Initiatives. The agency argues that the software support services in these functional areas must be provided by a contractor with knowledge and experience with ASEC processes because the support relates to Army weapons systems and must be performed effectively and at the highest possible reliability level. According to the agency, offerors lacking such knowledge and experience will require more government oversight during performance of the contract, and the risk of schedule disruption and cost overruns will increase.  In its comments on the agency report, AdaRose generally questions whether an agency can require knowledge and experience with an agency’s internal policies and procedures as a pre-condition for award, but fails to present any argument as to why such requirements are unnecessary for the agency’s particular purposes here, or respond to the agency’s explanation of the relationship between the knowledge and experience requirements and the software support services to be provided. See Protester’s Comments at 5-6. Given the breadth of the discretion granted to the agency in selecting solicitation criteria where the requirements relate to national defense or human safety, and the protester’s failure to rebut the agency’s rationale with any specificity, we see no basis to conclude that the challenged requirements are unduly restrictive. See Vertol Sys. Co., Inc., supra.  Moreover, even assuming, as AdaRose argues, that the challenged requirements favor incumbents who, by virtue of their contract performance, possess the required knowledge and experience, any such advantage is not improper where, as here, the requirements are reasonably related to the agency’s needs. Further, there is no requirement that an agency equalize or discount an advantage gained through incumbency, provided that it did not result from preferential treatment or other unfair action by the government. Navarro Research and Eng’g, Inc., B-299981, B-299981.3, Sept. 28, 2007, 2007 CPD para. 195 at 4; see also LaQue Ctr. for Corrosion Tech., Inc., B-245296, Dec. 23, 1991, 91-2 CPD para. 577 at 6-7. Neither preferential treatment nor other unfair action is alleged or evident here.  AdaRose also contends that the technical rating forwarded to it by the agency is not an evaluation based on the original solicitation, but must be a new evaluation based on the amended solicitation. Protester’s Comments at 4. The agency responds that the technical rating provided to AdaRose was based on the original solicitation and was merely provided as an aid in preparing a new proposal under the amended solicitation. AR, Part1, at 1. The agency therefore argues that the technical rating is not a document related to any evaluation under the current procurement and does not provide a basis for protest. We agree. In our view, there simply is no support in the record for AdaRose’s belief that, because the conclusions contained in the technical rating go beyond the evaluation language in the original solicitation, the technical rating must be a current evaluation document. As noted above, the agency has stated that it made the decision to take corrective action after reviewing AdaRose’s original protest because it recognized that the solicitation did not clearly reflect the evaluation criteria that the agency actually used in evaluating the proposals. Specifically, the agency has acknowledged that it evaluated the original proposals in the mistaken belief that its intended knowledge and experience requirements were clearly stated in the solicitation. In light of that, we see no inconsistency whatsoever in the fact that the agency’s technical rating of AdaRose’s proposal under the original solicitation went beyond the stated evaluation criteria in assigning weaknesses and deficiencies. Likewise, it is reasonable that the clarified language of the amended solicitation would hew closely to the evaluation criteria actually followed in the evaluation of the original proposals, as it was the agency’s intent to clarify the criteria that the agency had thought were present from the inception of the procurement. In sum, because the protested technical rating is not a evaluation document under a current procurement, any protest based on that document is of solely academic interest and not for further consideration here. See Dyna-Air Eng’g Corp., B-278037, Nov. 7, 1997, 97-2 CPD para. 132. (AdaRose, Inc., B-299091.3, March 28, 2008) (pdf)

The determination of a contracting agency’s needs and the best method of accommodating them are matters primarily within the agency’s discretion. Systems Application & Techs., Inc., B‑270672, Apr. 8, 1996, 96-1 CPD para. 182 at 3. However, where a protester challenges a specification as unduly restrictive of competition, we will review the record to determine whether the restrictions imposed are reasonably related to the agency’s needs. Id.; LBM Inc., B‑286271, Dec. 1, 2000, 2000 CPD para. 194 at 3. The ISO 9001 requirement here is unobjectionable.  The agency explains that the warehouses here handle materials containing security related information, including personally identifiable information (PII) such as names, addresses, and social security numbers. In this regard, the warehouses receive all of SSA’s excess computers, which contain PII, and ships out SSA’s new laptop computers, which are loaded with SSA’s encryption software. The warehouses also store and ship other security sensitive items, such as the equipment used to create personnel credentials that allow SSA employees to enter secure buildings and to log on to secure computers. Finally, the warehouses store precious metals and handle hazardous materials that require adherence to a strict set of procedures. The agency explains that protecting these materials and maintaining a high standard for their handling has become one of SSA’s primary concerns, and that the business process improvements offered by an ISO 9001 certified contractor would provide the “best possible assurance that the contractor is protecting the integrity of SSA’s PII, PII-related equipment, precious metals, and hazardous materials.” Legal Memorandum at 6. We see no reason why the agency should not be permitted to adopt a requirement aimed at ensuring the highest level of quality assurance, particularly in light of the sensitive nature of the materials involved here. Since ISO 9001 is intended to ensure quality management systems--by requiring, among other things, that firms monitor processes to ensure that they are effective, keep adequate records, check for defects, and regularly review the quality system itself--we think the agency could reasonably conclude that a requirement for ISO 9001 certification will help ensure that the contractor will provide the highest level of quality control in providing the required warehousing services. AR, Tab7.  Harris asserts that the need to protect PII and other security sensitive items, and the need for quality control in handling hazardous materials were already contained in Harris’s previous contract, and that the agency’s claim that ISO 9001 is necessary here therefore is unfounded. However, the fact that a requirement may not have been included in a prior solicitation or contract does not provide a basis for finding the requirement unduly restrictive when included in a subsequent solicitation for similar items. See USA Fabrics, Inc., B-295737, B‑295737.2, Apr. 19, 2005, 2005 CPD para. 82 at 5. In this regard, each procurement action is a separate transaction and an action taken under one procurement is not relevant to the propriety of the action taken under another for the purposes of a bid protest. Komatsu Dresser Co., B‑251944, May 5, 1993, 93-1 CPD para. 369 at 4.  (Harris Enterprises, Inc., B-311143, March 27, 2008) (pdf)

While recognizing that the contracting agency has considerable discretion with regard to the scheduling of site visits, the agency’s discretion in this regard is not unfettered, and we will review the agency’s determinations to ensure that they are reasonably based. See Caltech Serv, Corp., supra; see also Intellectual Properties, Inc., B-280803.2, May 10, 1999, 99-1 CPD para. 83 at 5-6 (although our Office has recognized that in numerous areas contracting agencies have broad discretion, the exercise of that discretion is nevertheless subject to the test of reasonableness). We find based upon this record, including the explanations and argument provided by the agency in response to the protest, that the agency did not act reasonably with regard to the scheduling of Dellew’s site visit, and that under the circumstances here, this deprived Dellew of an opportunity to compete intelligently and on relatively equal terms. As indicated below, our conclusion is not based on any one event or factual bit of information, but rather, on the totality of the circumstances surrounding Dellew’s request for a site visit and the agency’s response. As an initial matter, we disagree with the agency’s position that its e-mail of January 11 provided Dellew with notice of the dates for the site visit. First, although the agency points out that its January 11 e-mail response to the protester’s January 10 e-mail provided that “[c]urrently, Jan. 17, 18 or 19th (Wednesday-Friday) are being made available” for site visits, the phrasing of this response does not restrict the conduct of a site visit to January 17, 18, or 19, but only provides through the use of the adverb “currently” that as of January 11 those dates were “being made available.” In any event, the protester claims that it did not receive this e-mail from the agency until it was resent on January 19, and while the agency argues in its supplemental report that “it is not credible that the protester did not receive that . . . e-mail,” the agency concedes that it cannot verify that the e-mail was received by Dellew. Agency Supp. Report at 1-2; Contracting Officer’s Statement at 4. Additionally, even if Dellew had received the January 11 e-mail, the record reflects that Dellew would not have been able to contact the contract specialist to schedule the site visit any earlier than it was able to here, given that the contract specialist was out of the office from January 12 through January 16. We further disagree with the agency’s apparent assertion that it made a reasonable attempt to provide Dellew with a site visit when it returned Dellew’s telephone calls 5 days after Dellew placed its first telephone call. That is, although on January 17 the contract specialist did return Dellew’s telephone calls, the contract specialist required a written request for a site visit before one could be scheduled, even though this was not required by the RFP. Additionally, while the facilities operations manager advised Dellew by telephone message in the morning of January 18 that the site visit was scheduled for the next day (January 19), she did not return Dellew’s telephone calls on this subject until 4 p.m. on January 18, and then only to advise Dellew that the site visit would not be scheduled for a different day, even though the closing date for receipt of proposals was not until January 30, and that the Dellew representative should be able to attend the site visit as scheduled because, based on her calculations, the Dellew representative was 6 hours driving time away. The record does not establish a reasonable basis for the agency’s unwillingness to accommodate what appears to have been a reasonable request on Dellew’s part that its site visit be scheduled during the week of January 22. With regard to Dellew’s actions, the record reflects, as referenced above, that Dellew made six attempts to contact the agency to schedule a site visit, beginning with its e‑mail of January 10, and continuing with four telephone calls and an additional e‑mail. These requests were not untimely made, as suggested by the agency, because they commenced on January 10 (almost 3 weeks before proposals were due and by the deadline established by the RFP for submitting questions), and Dellew’s telephone calls to the contract specialist--the method established by the RFP for scheduling site visits, see RFP at 71--started on January 12 (but were not returned until January 17 because the contract specialist--the only individual designated for arranging site visits--was out of the office). (Dellew Corporation, B-299408, May 1, 2007) (pdf)

The FedBizOpps notice identified a number of minimum requirements, including that the facility for driving training must be within 80 miles of the United States Capitol Building, and stated that BSR was the only known source that could satisfy the agency’s requirements. AR, Tab 3, FedBizOpps Notice, May 30, 2006.

Armor, whose driving facility is approximately 145 miles from the United States Capitol, argues that the 80-mile geographic limitation exceeds the agency’s needs and therefore does not provide a basis for negotiating a sole-source contract with BSR. In response the agency states that the geographic limitation was established to allow for the safe and efficient conduct of training. Specifically, the agency notes that the geographic restriction

limits the drive time to approximately 1.5 hours each way allowing for students and instructors to reasonably commute for a one-day course without requiring an overnight stay. In 2005, the DSTC conducted 125 courses, training 2,200 students, 1,300 of the 2,200 students attended one-day training courses.

We find reasonable the agency’s explanation supporting the 80-mile geographic limitation for these driver training services, even if this results in a sole-source procurement. As the agency notes, more than half of the students taking this training attended courses lasting only a single day. For these students and associated DSTC staff, there must obviously be some limitation upon the distance that must be commuted to allow them to participate in a single-day course. In the agency’s judgment, that reasonable limitation would be a distance that a student could drive in an hour and half each way; on its face, this judgment appears to be reasonable. Although Armor disagrees with the agency’s judgment with respect to its minimum need, it has not shown it to be unreasonable.  (Armor Group International Training, Inc., B-298401, August 31, 2006) (pdf)

We believe that the agency has reasonably explained the basis for requiring offerors to provide a warm lit shell. Although the protester contends that it may be able to provide a more efficient or less costly alternative to the warm lit shell requirement, the agency need only provide a reasonable basis for its procurement approach, and the protester’s mere disagreement with the agency’s solicitation approach does not render the agency’s judgment unreasonable.[2] USA Fabrics, supra, at 5. In any event, the government is not required to perpetuate a competitive advantage that an offeror may enjoy as the result of its performance of the current, or a prior, government contract. Inventory Accounting Serv., B-286814, Feb. 7, 2001, 2001 CPD para. 37 at 4. Conversely, an agency is not required to neutralize a competitive advantage that a potential offeror may have by virtue of its own particular circumstances where the advantage does not result from unfair action on the part of the government. Military Waste Mgmt., Inc., B-294645.2, Jan. 13, 2005, 2005 CPD para. 13 at 4. As long as an agency reasonably identifies its needs and allows offerors the opportunity to meet those needs, the fact that an offeror may have an advantage based on its ability to more readily meet the government’s needs, as compared to the protester, does not mean that the solicitation is unduly restrictive of competition. See HG Props. A, L.P., B-280652, Nov. 2, 1998, 98-2 CPD para. 104. (Paramount Group, Inc., B-298082, June 15, 2006) (pdf)

The Competition in Contracting Act of 1984 requires that agencies specify their needs and solicit offers in a manner designed to achieve full and open competition, so that all responsible sources are permitted to compete. 10 U.S.C. sect. 2305(a)(1)(A)(i) (2000). The determination of a contracting agency’s needs and the best method for accommodating them is a matter primarily within the agency’s discretion. Tucson Mobilephone, Inc., B- 250389, Jan. 29, 1993, 93-1 CPD para. 79 at 2, recon. denied, B-250389.2, June 21, 1993, 93-1 CPD para. 472. Where a requirement relates to national defense or human safety, as here, an agency has the discretion to define solicitation requirements to achieve not just reasonable results, but the highest level of reliability and effectiveness. Caswell Int’l Corp., B-278103, Dec. 29, 1997, 98-1 CPD para. 6 at 2; Industrial Maint. Servs., Inc., B-261671 et al., Oct. 3, 1995, 95-2 CPD para. 157 at 2. Generally, the fact that a requirement may be burdensome or even impossible for a particular firm to meet does not make it objectionable if the requirement properly reflects the agency’s needs. Computer Maint. Operations Servs., B-255530, Feb. 23, 1994, 94-1 CPD para. 170 at 2. In support of the RFP provision at issue here, the agency states that the lengthy process involved in obtaining a facility clearance, and the possibility of a negative outcome that would render a potential awardee unable to perform the contract, could make the agency vulnerable to delays in contract performance. Given the agency’s need to implement increased security for the Pentagon and other facilities as soon as possible, which requires minimizing delays in awarding the contract and expeditiously completing the transition to the heightened security standards, we think that the record establishes that the facility clearance requirement and the agency’s refusal to sponsor potential awardees for the facility clearance are reasonably related to the agency’s needs. Id. Even assuming that the agency’s plan to award multiple contracts mitigates some of the risk inherent in sponsoring awardees, as the protester asserts, the agency, in furtherance of its national security interest, has made a reasonable decision to optimize efficiency by ensuring that each of the multiple awardees is able to begin contract performance immediately upon contract award. The protester also asserts that the agency should have issued the RFP sooner, so that there would have been more time for firms to obtain the facility clearance in time for performance to begin as scheduled. We find this argument unpersuasive. There is no evidence that the agency unduly delayed issuing the RFP, nor is the agency required to assume the risk that firms without the security clearance that might be selected for award will in fact be unable to obtain the clearance in time for performance to begin as required. (Allied Protection Services, Inc., B-297825, March 23, 2006) (pdf)

Our Office has recognized that where solicitation requirements relate to health and safety concerns, an agency has the discretion to set its minimum needs so as to achieve not just reasonable results but the highest possible reliability and effectiveness. See Atlantic Coast Contracting, Inc., B-270491, B-270590, Mar. 13, 1996, 96-1 CPD para. 147 at 3. Here, the record shows that the RFQ’s personnel experience requirements are reasonably related to the agency’s needs. The agency explains that the information technology services sought under the RFQ are critical to the operation of the medical center’s complex network of health care facilities, services, and programs, and thus are vital to the protection of the health and safety of the many patients served by medical personnel and programs relying on the vendor’s development, operation and maintenance support of the network system. Moreover, the agency explains that it needs the RFQ’s additional experience requirements to ensure a higher level of technical expertise than is currently available from agency personnel associated with the network’s information technology systems and services. The agency reports that the medical center already has a staff of junior level programmers with 3-5 years experience. The agency explains that it needs the more experienced information technology personnel solicited (some with as much as 8-10 years of specialized information technology experience) because of their understanding and knowledge of the wide scope of software, systems and technical support to be provided under the RFQ, as well as their maturity and ability to work independently and think strategically, while also dealing effectively with the non-technical medical personnel to be serviced under the task order. The agency further reports that in surveying the market for appropriate experience levels for the technical expertise and services it requires, it found that industry employment data showed that advertised job descriptions and responsibilities typically included experience requirements of 8-10 years of relevant experience for software engineering manager, project manager-engineer, and database analyst positions similar to the requirements included in the RFQ.  (Computers Universal, Inc., B-296501, August 18, 2005) (pdf)

The record provides no basis to find the agency’s requirement unreasonable or improper. The FAR requires the agency to use performance-based standards only to the maximum extent practicable. The agency reports that contact between agency and contractor personnel is not always possible by means other than telephone. Although the protester generally disagrees, it has not shown that the agency has not accurately represented the situation. Additionally, the agency appears reasonable in stating that, if the contractor has only two employees on duty and both are performing a refueling task, as is required by the two-person policy, neither can perform critical RCC functions that arise during refueling. While the protester seeks a performance-based standard that would allow it to occasionally leave the RCC office unstaffed during refueling tasks, the agency has demonstrated a reasonable basis for its position that an unstaffed RCC office is unacceptable. Under the circumstances, we conclude that the agency had a reasonable basis for finding that it is not practicable to leave this staff to the discretion of the contractor using a purely performance-based standard. (United Paradyne Corporation, B-296609, August 19, 2005) (pdf)

The Competition in Contracting Act of 1984 requires that agencies specify their needs and solicit offers in a manner designed to achieve full and open competition, so that all responsible sources are permitted to compete. 10 U.S.C. 2305(a)(1)(A)(i) (2000). However, the determination of a contracting agency's minimum needs and the best method for accommodating them are matters primarily within the agency's discretion. Tucson Mobilephone, Inc. , B-250389, Jan. 29, 1993, 93-1 CPD 79 at 2, recon. denied , B-250389.2, June 21, 1993, 93-1 CPD 472. Where a requirement relates to national defense or human safety, as here, an agency has the discretion to define solicitation requirements to achieve not just reasonable results, but the highest level of reliability and effectiveness. Caswell Int'l Corp. , B-278103, Dec. 29, 1997, 98-1 CPD 6 at 2; Industrial Maint. Servs., Inc. , B-261671 et al. , Oct. 3, 1995, 95-2 CPD 157 at 2. We find no basis for objecting to the Air Force's refusal to accept Vertol's "experimental" certificate. We note that our Office previously rejected a similar challenge by Vertol to the Air Force's (and the Army's) refusal to accept an "experimental" certificate for purposes of using Vertol's helicopter in military training exercises. See Vertol Sys. Co., Inc. , B-293644.6 et al. , July 29, 2004, 2004 CPD 173 at 3-5. We held there that the agencies had reasonably established a legitimate need for aircraft to be certified before award. Given the critical need to ensure the safety of government personnel, including both those on board the aircraft and those who will be in close proximity to the aircraft while in operation during the military exercises, we saw no basis to object to a requirement that the airworthiness of a foreign, contractor-owned aircraft be demonstrated by means of an appropriate certification by competent aviation authorities. Vertol has provided nothing in its arguments here to change our view. (Vertol Systems Company, Inc., B-295936, April 18, 2005) (pdf)

While a contracting agency has the discretion to determine its needs and the best method to accommodate them, Mark Dunning Indus., Inc. , B-289378, Feb. 27, 2002, 2002 CPD 46 at 3-4; Parcel 47C LLC , B-286324; B-286324.2, Dec. 26, 2000, 2001 CPD 44 at7, those needs must be specified in a manner designed to achieve full and open competition; solicitations may include restrictive requirements only to the extent they are necessary to satisfy the agency's legitimate needs. 41 U.S.C. 253a(a)(1)(A), (2)(B) (2000). Where a protester challenges a specification as unduly restrictive, the procuring agency has the responsibility of establishing that the specification is reasonably necessary to meet its needs. The adequacy of the agency's justification is ascertained through examining whether the agency's explanation is reasonable, that is, whether the explanation can withstand logical scrutiny. Chadwick-Helmuth Co., Inc. , B-279621.2, Aug. 17, 1998, 98-2 CPD 44 at 3. A protester's mere disagreement with the agency's judgment concerning the agency's needs and how to accommodate them does not show that the agency's judgment is unreasonable. See AT&T Corp. , B-270841 et al. , May 1, 1996, 96-1 CPD 237 at 7-8. Specifically here, while we will review the reasonableness of the agency's determination of its needs, we defer to the judgment of agency medical officials on matters of medicine. See GlaxoSmithKline , B-291822, Apr. 7, 2003, 2003 CPD 77 at 5. We note first that there is no dispute in the record about BI's claim that ARBs are already being prescribed for hypertension. In fact, the VA itself acknowledges that ARBs are appropriate for the treatment of hypertension, after other antihypertensive medications have been used. Medical Needs Determination at 3-4. In addition, there seems to be little doubt that the incidence of simple hypertension in the VA patient population is probably greater than the incidence of the two conditions used to limit the competition here; for the sake of argument, we will assume that this is true. That said, neither of these matters renders the VA's medical judgment about its preferred prescribing practices, or its decision not to list an ARB on the formulary for the treatment of simple hypertension, unreasonable. As we indicated in our decision in Bristol-Myers Squibb , supra , at 6, the VA prefers that its doctors first prescribe diuretics and beta blockers, then ACE inhibitors, [4] and then ARBs for the treatment of simple hypertension. Given these guidelines--which are clearly matters of medical judgment entitled to deference here--the VA concludes that there will not be any significant use of ARBs to treat simple hypertension. Based on our review, and with little evidence from BI to support a different conclusion, we find reasonable the VA's estimate about the extent to which ARBs will be used to treat VA patients with hypertension. See Lederle-Praxis Biologicals Div., Am. Cyanamid Corp., B-257104 et al. , Aug. 22, 1994, 94-2 CPD 205 at 5. (Boehringer Ingelheim Pharmaceuticals, Inc., B-294944.3; B-295430, February 2, 2005) (pdf)

The agency has reasonably established both that (1) it has a need for the participants in the CTSB to have quick access to other participants, patients, and the research laboratory--indeed, this appears to be a driving force behind the agency's decision to establish a CTSB, and (2) that the small geographic area in which the hospital may be located--essentially, within walking and 5-minute driving proximity to the agency's existing facilities--is reasonably related to that need; the benefits inherent in such an arrangement would be diminished if the hospital were at a greater distance from the agency's facilities. While the protester may be correct that it holds certain advantages over Suburban Hospital with regard to cardiac surgery, the decision whether to pursue those advantages in lieu of proximity of the partnering hospital to its facilities involves the agency's judgment as to its minimum needs. Simply put, the agency has determined that proximity is a greater need, and there is no basis for us to conclude that this determination was unreasonable. See Vicksburg Fed. Bldg. Ltd. P'ship , B230660, May 26, 1988, 88-1 CPD 515 (geographical restriction is reasonable where necessary to minimize travel time between buildings where occupants of the buildings work closely together). WAH asserts that the purported need for proximity is a matter of mere administrative convenience. We disagree. The need is based on the nature of the work the agency hopes to accomplish under the program, not the convenience of agency personnel. We conclude that the geographical restriction is unobjectionable. (Washington Adventist Hospital, B-294371.3; B-294371.4, January 21, 2005) (pdf)

MWM challenges the RFQ's weight-based payment terms, which differ from the payment terms under the protester's prior contract. That contract provided for a fixed payment each month for refuse collection performed in accordance with an agency-imposed collection schedule without consideration of the amount or weight of refuse actually collected. The current RFQ, on the other hand, allows the contractor to set its own schedule for refuse collection, as long as each refuse container is emptied before it becomes 75 percent full, and provides for payment based on the weight of refuse collected. MWM contends that, as a small business, it is disadvantaged by the change in payment terms because it will be difficult for the firm to cover its expenses during any month of low weight refuse collections and a resulting low payment. MWM explains that because many of its business expenses remain constant each month ( e.g. , payroll, overhead, and utilities), varying monthly payments will make it more difficult for the firm to budget for its operations. Conversely, MWM believes large businesses and local contractors with other contracts will have a competitive advantage over a small firm like MWM, since they will be able to spread their business expenses over other contracts to more easily budget for the firms' performance costs. Our review of the record here shows that MWM has not persuasively refuted the support provided by the agency for the challenged weight-based payment terms. The record shows that the agency has a reasonable basis to expect that the efficiency of refuse container use should increase under the RFQ, and that the weight-based payment terms will also provide an economic incentive for the agency to reduce its solid waste, while promoting required recycling efforts, and, by so doing, will directly reduce its solid waste management costs during the 5year performance period contemplated by the RFQ. In short, MWM's disagreement with the agency's determination of its needs here fails to show that those needs--for a more accurate record of its installation's solid waste tonnage, to increase utilization of refuse containers, and to promote cost savings by payment for actual refuse tonnage, while indirectly encouraging agency recycling efforts--lack a reasonable basis or that the agency's intended method of accommodating those needs is otherwise improper. Moreover, to the extent MWM contends that large or local businesses will have a competitive advantage under the weight-based payment terms of the RFQ, the contention provides no basis to question the propriety of the RFQ. An agency is not required to neutralize a competitive advantage that a potential vendor may have by virtue of its own particular business structure and circumstances where the advantage does not result from unfair action on the part of the government. National Gen. Supply, Inc. , B-292696, Nov. 3, 2003, 2004 CPD 47 at 2. Here, the advantage cited by MWM, other firms' business revenue from other customers which might be used to meet those firms' business expenses during performance of this contract, results not from unfair agency action, but from the particular business structure and circumstances of those firms. In sum, since the protester has not supported its contention that the RFQ's payment terms are either unduly restrictive or that they convey an unfair competitive advantage, we have no reason to question the propriety of the challenged solicitation terms. (Military Waste Management, Inc., B-294645.2, January 13, 2005) (pdf)

We find no evidence that Kenwood has been competitively harmed or otherwise prejudiced by the challenged specifications. In this regard, apart from those specifications set by Iraqi government agencies and the need for interoperability, the remaining specifications were based on a survey of radios including a Kenwood model. According to the agencys technical representative, and undisputed by the protester, Kenwood is capable of meeting or exceeding all specifications, with the sole exception of the frequency range. Supp. TR Statement, II. Even as to this specification, Kenwood itself included it, unchanged, in a proposed list of specifications that Kenwood recommended to enhance competition. Letter from Kenwood to Army, Oct. 19, 2004. Moreover, despite our specific request that it do so, Kenwood has not furnished us with an explanation as to how any of the challenged specifications prevent firms other than Motorola from competing effectively. [3] In this regard, according to the agency, and undisputed by Kenwood, at least one vendor, Tait, submitted a proposal that met the specified requirements with other than a Motorola product. Supp. TR Statement II. We conclude that there is no evidence that Kenwood was competitively harmed by the allegedly restrictive specifications, and that there thus is no basis to sustain the protest. See McDonald-Bradley , B270126, Feb. 8, 1996, 96-1 CPD 54 at 3; Statistica, Inc. v. Christopher , 102 F.3d 1577, 1581 (Fed. Cir. 1996). (Kenwood USA Corporation, B-294638; B-294638.2; B-294638.3, November 29, 2004) (pdf)

Where a proposal deviates from a specification by a negligible amount, the agency may waive the requirement, so long as it did not prejudice other vendors. Gulf Copper Ship Repair, Inc., B-292431, Aug. 27, 2003, 2003 CPD ¶ 155 at 4 (deviation of 1 inch water depth specification properly waived by agency); Magnaflux Corp., B-211914, Dec. 20, 1983, 84-1 CPD ¶ 4 at 3-4 (agency permitted to waive deviation from specification which was minor and did not result in prejudice); Champion Road Mach. Int’l Corp., B-200678, July 13, 1981, 81-2 CPD ¶ 27 at 4 (deviation of two horsepower is minor and should have been waived by agency where price, quantity, quality, and delivery were not affected). In our view, since the approximately one-half mile deviation from the 25-mile requirement appears minor on its face and, according to SSA, did not diminish the purpose of the restriction, it could reasonably be viewed by SSA as negligible. The deviation therefore was waivable, so long as First Federal, the only other vendor in the competition, was not prejudiced. There is no evidence of competitive prejudice. (First Federal Corporation--Costs, B-293373.2, April 21, 2004) (pdf)

Here, in its report on the protest, the agency concedes that aircraft other than the Boeing 737 models meet its needs, specifically the MD-83 through -90 series identified in its market studies. Agency Report at 4. Moreover, during the original competition, proposals offering the MD series aircraft were specifically found to be acceptable, and the agency does not claim that its needs have changed. Thus, the solicitation restriction is more limiting than is necessary to meet the agency's needs and therefore unduly restricts full and open competition. (Prisoner Transportation Services, LLC; V1 Aviation, LLC; AAR Aircraft Services, B-292179; B-292179.2; B-292179.3, June 27, 2003)

A contracting agency must specify its needs and solicit offers in a manner designed to achieve full and open competition and may include restrictive provisions to the extent necessary to satisfy the agency's needs. Quality Lawn Maint., B‑270690.3, June 27, 1996, 96-1 CPD ¶ 289 at 2. Generally, we will not question the agency's determination of its needs unless they are shown to be unreasonable, and with regard to solicitation provisions relating to human health and safety, we have recognized that an agency may properly set its performance requirements so as to achieve not just a reasonable result, but the highest possible reliability and effectiveness. Id. at 3; Atlantic Coast Contracting, Inc., B-270491, B-270590, Mar. 13, 1996, 96-1 CPD ¶ 147 at 3. Specifically, we have recognized that a zero deviation standard for sanitation requirements may be justified to protect human health. Crown Mgmt. Servs., Inc., B-233365.3, Sept. 20, 1989, 89-2 CPD ¶ 249 at 3. The mere fact that a solicitation may impose performance risk on a contractor does not render the solicitation defective, since risk is inherent in most types of contracts; offerors are instead expected to allow for such risk in formulating their proposals. Id.  Our review of the record reveals no persuasive basis, and the protester has not provided one, to conclude that the zero deviation standard for clean, available dinnerware and utensils is improper here.  (Atlantic Coast Contracting, Inc., B-291893, April 24, 2003)  (pdf)

Where a protester challenges a specification as unduly restrictive, the procuring agency has the responsibility of establishing that the specification is reasonably necessary to meet its needs. The adequacy of the agency's justification is ascertained through examining whether the agency's explanation is reasonable, that is, whether the explanation can withstand logical scrutiny. Chadwick-Helmuth Co., Inc., B-279621.2, Aug. 17, 1998, 98-2 CPD ¶ 44 at 3. Where a requirement relates to national defense or human safety, as here, an agency has the discretion to define solicitation requirements to achieve not just reasonable results, but the highest possible reliability and/or effectiveness. Columbia Imaging, Inc., B-286772.2; B-287363, Apr. 13, 2001, 2001 CPD P: 78 at 3; United Terex, Inc., B-245606, Jan. 16, 1992, 92-1 CPD ¶ 84 at 4.  (MCI WorldCom Deutschland GmbH, B-291418; B-291418.2; B-291418.4; B-291418.5; B-291418.6, January 2, 2003)  

In any event, the determination of the agency's needs and the best method of fulfilling those needs is primarily the responsibility of the contracting agency, and we will not question the agency's determination unless it is shown to be unreasonable. T-L-C Sys., B-233136, Sept. 15, 1986, 86-2 CPD P: 298 at 2. Here, the agency determined that either an upgraded version of its existing system or a new system would meet its needs, and the protester has not demonstrated that this determination was unreasonable. Moreover, the fact that Helitune, which manufactured the existing systems, may be uniquely capable of offering to upgrade them does not mean that it should be precluded from competing on that basis. The government has no obligation to equalize a competitive advantage that a potential offeror may enjoy as a result of a prior government contract unless the advantage resulted from unfair motives or actions by the contracting agency. Bironas, Inc., B-249428, Nov. 23, 1992, 92-2 CPD P: 365 at 3; T-L-C Sys., supra, at 3.  (Dynamic Instruments, Inc., B-291071, October 10, 2002) (pdf)

A particular offeror may possess unique advantages and capabilities due to its prior experience under a government contract or otherwise and the government is not required to attempt to equalize competition to compensate for it, unless there is evidence of preferential treatment or other improper action. Crux Computer Corp., B-234143, May 3, 1989, 89-1 CPD para. 422 at 5. The existence of this advantage, by itself does not constitute preferential treatment by the agency, nor does it otherwise represent an unfair competitive advantage. Government Bus. Servs. Group, B-287052 et al., Mar. 27, 2001, 2001 CPD para. 58 at 10.  (Crofton Diving Corporation, B-289271, January 30, 2002)

Moreover, we conclude that in challenging clause H-3 as unduly burdensome on competition, KSB does no more than express disagreement with MSC's decision on how to allocate post-award risks between the government and the contractor under a contract for the performance of critical mission requirements. KSB has failed to demonstrate that MSC abused its discretion or otherwise acted in an unreasonable manner in determining to shift risks to the contractor from the agency. Tracor Jitco, Inc., supra, at 5. In this respect, the mere presence of risk in a solicitation does not make the solicitation inappropriate or improper. Id. at 4-5. We further point out that during the pendency of this protest, MSC received initial proposals from five to ten offerors, including KSB, Tr. at 11-13, [4] which evidences that clause H-3 was not so burdensome as to preclude competition. Tracor Jitco, Inc., supra, at 5.  (Keystone Ship Berthing, Inc., B-289233, January 10, 2002)

Despite Daniel's contentions otherwise, there is no basis to conclude that the RFQ required a brand name Daniel item. As an initial matter, the name "Daniel" simply is not mentioned in the RFQ at all. Daniel argues that the product numbers referenced in the RFQ's product description are substantially similar or identical to product numbers used by Daniel, and that these numbers established a brand name procurement. We do not find the protester's interpretation of the RFQ's use of these product numbers reasonable.  (Daniel Technology, Inc., B-288853, December 13, 2001)

Other than disagreeing with the contracting officer's rationale, STC has offered no meaningful basis to question the reasonableness of the contracting officer's determination. In this respect, while STC, which concedes that it does not have a proven cost accounting background, argues that prior preservation requirements have been procured on a fixed-price basis and therefore risks can be predicted and costs can be estimated, we are unpersuaded by this argument since each procurement must stand alone. United Food Servs., Inc., supra, at 6. On this record, we have no basis to question the reasonableness of the contracting officer's acquisition strategy.  (Surface Technologies Corporation, B-288317, August 22, 2001)

We think the agency acted reasonably here. The record shows that the agency received specific complaints that provided sufficient notice of dissatisfaction with the protester's product to justify an examination of its RTE cereal program and ultimately to justify the revisions to the solicitation. As the protester concedes, there were a number of written complaints about ACH's cereal. Further, the record shows that the agency received a compilation of complaints from local program officials covering the past three years. The complaints were consistent with the individual written complaints the agency received.  (ACH Food Companies, Inc., B-286794, February 12, 2001)

Where a protester challenges a specification as unduly restrictive, it is the agency's responsibility to establish that the specification is reasonably necessary to meet its needs. CardioMetrix, B-259736, Apr. 28, 1995, 95-1 CPD para. 223 at 3. The adequacy of the agency's justification is ascertained through examining whether the agency's explanation is reasonable, that is, whether it can withstand logical scrutiny. Keeson, Inc.; Ingram Demolition, Inc., B-245625, B-245655, Jan. 24, 1992, 92-1 CPD para. 108 at 4. Here, we find that the Army has demonstrated a reasonable basis for the age limitation and replacement requirements.  (Inventory Accounting Service, B-286814, February 7, 2001)

An agency's otherwise legitimate requirements regarding an offeror's demonstrated ability to meet contract requirements may not generally be applied at a point in time prior to when such qualifications become relevant--in this case, prior to actual contract performance. See Container Prods. Corp., B-280603.2, Nov. 4, 1998, 98-2 CPD para. 106 at 3-4. Here, the agency's conclusive determination that an offeror would not be capable of meeting the contract requirements, based solely on the fact that it had not obtained the necessary certification prior to submitting a proposal, would unreasonably exclude potential offerors. Id. This is particularly true in the context of an A-76 cost comparison, where the time between submission of private-sector proposals and actual commencement of the contract activities may be substantial.  (LBM Inc., B-286271, December 1, 2000)

In seeking full and open competition, an agency is not required to construct its procurements in a manner that neutralizes the competitive advantages some potential offerors may have over others by virtue of their own particular circumstances where the advantages do not result from government action. Mortara Instrument, Inc., B-272461, Oct. 18, 1996, 96-2 CPD para. 212 at 6.  (Northrop Grumman Corporation, B-285386, August 1, 2000)

Protest challenging geographical restriction in solicitation for printing services limiting bids to firms whose production facilities are within a 75-mile radius of the agency, is denied where--because government representatives must conduct press inspections at the contractor's facility and be prepared to respond promptly in the event of problems--agency reasonably determined restriction was necessary to ensure print quality of final publications.  (Thorner Press, Inc., B-283545, November 4, 1999 )

Due to the problems previous contractors have experienced obtaining certification of their QUADCONs after award, we conclude that the Marine Corps reasonably decided that CSC certification at the time of delivery would not meet its needs. The RFP delivery schedule calls for delivery to start no later than 180 days after the first order is issued under the contract and the record shows that the agencies need a reliable source of supply for certified containers. It would not be reasonable to require the Marine Corps to once again take the chance that a firm that has been awarded a contract could not obtain certification of its containers in time for required delivery. Nonetheless, the record does not support the Marine Corps's decision to require CSC certification prior to proposal submission. None of the concerns expressed by the Marine Corps provide support for that requirement and, in fact, all of the agency's concerns would be satisfied by simply requiring certification by the time of award. Because the agency's legitimate need for timely delivery of CSC-certified QUADCONs would be satisfied by requiring certification by time of award, the requirement for certification by the closing date for receipt of proposals exceeds the agency's needs.  (Container Products Corporation, B-280603.2, November 4, 1998)

Solicitation requirement that commercial off-the-shelf computer indicator power supply (CIPS) operate all the agency's existing test program specific software is unduly restrictive, where the requirement does not accurately reflect the agency's actual needs that the CIPS need only operate software that has the same capabilities as the existing software.  (Chadwick-Helmuth Company, Inc., B-279621.2, August 17, 1998)

Protest that fixed-price solicitation for civil engineering services subjects bidders to unreasonable risk due to requirement for lump sum price with no limitation on amount of work that can be ordered under various tasks is sustained where pricing scheme imposes unreasonable risk on the contractors, and thus unduly restricts competition.  (BMAR & Associates, Inc., B-281664, March 18, 1999)