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FAR 11.002 (a) (1):  Requirements - Restrictive provisions

Comptroller General - Key Excerpts

New The U.S. Department of Agriculture, Forest Service (USFS), is responsible for protecting national forest lands from wildfires and, by agreement with other agencies, assists in protecting other jurisdictions as well. Contracting Officer's Statement (COS) at 2. In this capacity, the USFS uses air tankers to drop and build retardant lines to aid ground firefighters in controlling wildfires. Id. The National Defense Authorization Act (NDAA) for Fiscal Year 2014 directed the transfer of seven demilitarized United States Coast Guard HC-130H aircraft to the Air Force. Pub. L. No. 113-66, div. A, title X, subtitle I, § 1098, 127 Stat. 672, 881-882. (Dec. 26, 2013). The NDAA directed the Air Force to perform center and outer wing-box replacement modifications, programmed depot-level maintenance, and modifications necessary to procure and integrate a gravity-drop aerial fire retardant dispersal system in each aircraft. Id. Following completion of the assigned tasks, the NDAA directed the Air Force to transfer the aircraft to the USFS for its use. Id.

(sections deleted)

The protester's primary contention is that the agency relied heavily on the features of a system designed by Coulson Aviation (USA), Inc., which previously held a contract for the requirements at issue here. Simplex contends that the agency simply parroted certain design features of Coulson's product in the subject RFP. Protest at 5. The protester's assertions that the agency favored Coulson's design, however, do not, on their own, give rise to a basis to sustain the protest.

As we have explained, in seeking full and open competition, an agency is not required to construct procurements in a manner that neutralizes the competitive advantages of some potential offerors. Staveley Instruments, Inc., B-259548.3, May 24, 1995, 95-1 CPD ¶ 256 at 3-4. A protest that a specification was "written around" design features of a competitor's product fails to provide a valid basis for protest where the record establishes that the specification is reasonably related to the agency's needs. Fisons Instruments, Inc., B-261371, July 18, 1995, 95-2 CPD ¶ 31 at 2. Here, the agency has provided a detailed rationale for the requirements challenged by the protester, and, as illustrated by the examples below, the record provides no basis to conclude that the specifications do not reflect the needs of the agency.

For example, Simplex challenges the solicitation requirement for a belly door solution with a door aspect ratio of at least 10:1. SOW at ¶ 6.3 (c). Simplex argues that a door with a 10:1 aspect ratio will not be sufficient to meet other requirements set forth in the solicitation, including grid pattern test requirements. Comments at 6. According to the agency, however, the requirements enhance the likelihood that the RDS solution will meet the grid testing requirements. COS at 15. The agency also contends that past experience has shown that "belly doors are the best option to ensure higher coverage while also maintaining control of the amount of retardant used," and notes that the 10:1 aspect ratio "maximizes the use of the cargo area without making [an] unnecessarily large modification to the aircraft structure." MOL at 13-14.

A contracting agency has the discretion to determine its needs and the best methods to accommodate them. Remote Diagnostic Techs., LLC, B-413375.4, B-413375.5, Feb. 28, 2017, 2017 CPD ¶ 80 at 3-4. When a specification or requirement is challenged 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. Nexagen Networks, Inc., B-411209.7, June 20, 2016, 2016 CPD ¶ 164 at 4. Our Office will examine the adequacy of the agency's justification for the allegedly restrictive provision to ensure that it is rational and can withstand logical scrutiny. Id. Here, the agency has provided its rationale for the requirement, and we have no basis to conclude that the requirement is unreasonable. While Simplex disagrees with the judgments made by the agency, such disagreement does not establish that the requirement is unreasonable, and the record provides no basis for us to conclude otherwise. Cryo Techs., B-406003, Jan. 18, 2012, 2012 CPD ¶ 29 at 4.

By way of a second example, Simplex argues that the agency has an unreasonable requirement for the accuracy of gauges measuring the volume of retardant in the tanks. Comments at 6. The solicitation requires that the volume measurements be accurate to +/- 10 gallons, whether on the ground or in flight. SOW at ¶ 6.9. The protester contends that the required standard is "over specified for operational requirements and considerably more precise than current operational systems of a similar nature." Protest at 5. According to Simplex, a requirement for measurements to be accurate to +/- 3 percent is "more operationally reasonable and will result in a better cost to value for the government." Id.

In response, the agency explains that its requirement is necessary for accurate management and tracking of retardant release. COS at 16. Additionally, the agency provides explanations that highlight the need for accurate measurement of the volume of retardant in the tanks due to the fact that weight will vary based on the volume of retardant in the system. Id. In this regard, the agency asserts that weight variations are significant in the aviation context. Id.

Specifically, the agency explains that a gallon of retardant typically weighs 9.1 pounds. Id. Thus, the +/- 10 gallon standard required by the solicitation would allow for deviations of +/- 91 pounds. The +/- 3 percent standard proposed by the protester, however, would allow for deviations of 105 gallons, which would result in vastly larger weight deviations of +/-approximately 956 pounds. Id. This is another instance in which Simplex simply disagrees with the agency as to what its requirements should be. As noted above, an agency, not a potential contractor, is responsible for determining the agency's needs. Here, in light of the rationale provided by the agency, we have no basis to conclude that the agency's requirement is unreasonable.  (Simplex Aerospace B-414566.2: Aug 8, 2017)


Further, to the extent the protester argues that it was improper for the agency to cancel and resolicit when it could have amended the existing solicitation and made a new award under it, an agency may properly cancel an RLP when it has a reasonable basis for doing so. See e.g., AeroSage LLC, B-410648.2, B-410648.3, Mar. 20, 2015, 2015 CPD ¶ 111 at 3. A reasonable basis exists where the agency finds that the solicitation does not accurately reflect its needs, as happened here. Logistics Solutions Group, Inc., B-294604.7, B-294604.8, July 28, 2005, 2005 CPD ¶ 141 at 3 (agency took corrective action, promising re-evaluation of existing proposals, but ultimately cancelled the solicitation and issued a new solicitation when it reasonably determined that the existing solicitation did not meet its needs).

As noted above, the protester also objects to several provisions of the new solicitation on the basis that they impair its ability to compete. In particular, RCR objects to the RLP's best-value selection methodology, as well as language in RLP §§ 21.0 F and G pertaining to build-out space and phased modification of the incumbent's building.[3]

RCR further complains that the agency improperly changed the award methodology from lowest-priced technically-acceptable (LPTA) in the first RLP to a best-value tradeoff in the second RLP. According to the protester, this change was "not necessary in meeting the agency's needs in this procurement," and therefore was "overly restrictive." Protest at 6.

It is within an agency's discretion to decide what type of award methodology will best meet its needs. Olympus Bldg. Servs., B-411474 et al., July 30, 2015, 2015 CPD ¶ 227 at 3. Here, the LCO reasonably determined that a best-value tradeoff evaluation scheme would better meet the agency's needs than an LPTA scheme. In fact, the LCO explains that, based on his experience, the tradeoff process will provide a better opportunity to obtain the best value for the leased property. LCOS at 2.

The protester also challenges RLP §§ 2.01 F & G, arguing that the language of these sections unfairly disadvantaged it and prevented it, as the incumbent lessor, "from effectively participating in the competition." Protest at 7-8; Protester's Comments at 11-12. The sections in question provide as follows:

F. The Offeror must be able to deliver the built-out space within three (3) months of the notice to proceed (issued in the form of a lease amendment) and state such in the proposal

G. If the incumbent submits a proposal to lease the existing space, the following shall apply:

  • If increasing the ABOA square footage as outlined in paragraph 2.01.B, the incumbent's proposal must address the methodology for increasing the offered space. The method undertaken must address how doing so will not interfere with clinic operations, i.e. will not: reduce available parking; reduce clinic entrance or egress; increase noise and dust in the clinic environment; reduce existing clinic space.
     
  • As part of the proposal, the offeror must provide alternate clinic space with a minimum square footage equivalent to the existing clinic so that operations are not affected by the offer of the clinic space. The alternate space must provide at least the same number of rooms as the existing space and must be large enough for clinical operations
     
    • The offeror must provide the space within ten days of the notice to proceed with build out. The notice to proceed will be issued after approval of construction grade drawings by the VA.
       
    • Costs for movement to the alternate space shall be borne by the offeror. The move must take place over a weekend time period approved by the VA. The government shall bear the responsibility and cost of moving from the alternate space to the offered space.
       
    • Alternate space must be within the delineated area outlined in this RFP.
       
    • A secure, wireless network must be provided by the offeror in the alternate space.
       
  • Because conversion of the current space into one that can accommodate a PACT model would require extensive renovations and because the VA clinic needs to remain fully operational at all times, the government will not entertain an offer which outlines a phased modification to the existing clinic.

RLP, Tab 33, at 9.

A contracting agency has the discretion to determine its needs and the best method to accommodate them. General Electrodynamics Corp., B-298698, B-298698.2, November 27, 2006, 2006 CPD ¶ 180 at 3. A protester's disagreement with the agency's judgment concerning the agency's needs and how to best accommodate them, without more, does not show that the agency's judgment is unreasonable or not rationally supported. USA Fabrics, Inc., B-295737, B-295737.2, Apr. 19, 2005, 2005 CPD ¶ 82 at 5. Where a protester challenges a specification or requirement as unduly restrictive of competition, however, the procuring agency has the responsibility of establishing that the specification or requirement is reasonably necessary to meet the agency's needs. See, e.g., Northrop Grumman Technical Servs., Inc., B-406523, June 22, 2012, 2012 CPD ¶ 197 at 8. Our Office 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. Id. Furthermore, 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. Y&K Maint., Inc., B-405310.2, Oct. 17, 2011, 2011 CPD ¶ 239 at 5.

RCR argues that because phased modifications are prohibited under the second RLP, it is "only permitted to offer alternate space." Protest at 7; see Comments at 12-13. The protester maintains that the alternative space requirements "are so unduly restrictive that they render the incumbent a nonviable candidate." Id. The protester asserts that this means that, as the incumbent, it would be required to build out an equivalent alternate space in its entirety, move all VA operations there while the original space is renovated, and then move the VA back to the renovated original space upon completion. Id. The protester asserts that this is "clearly engineered to force the incumbent out of competition." Id.

The agency responds that it "had specific discussions on whether phasing was permitted for this lease and determined that it would disrupt patient care and was not a viable option." MOL at 11; see Tab 7 at 2; Second RLP at 6. A memorandum dated Mar. 31, 2017, from the VA Acting Chief of Primary Care Services, advised:

  • Simply put, clinical operations [at the current location] cannot be done while this work is on-going. Clinical operations will need to be conducted at an off-site location during the project.

AR, Tab 26, Continuity of Operations Memorandum, Mar. 31, 2017, at 1.

The VA points out that "incumbent lessors may face unique and unequal burdens as compared to non-incumbent offerors when solicitations require demolition and renovations," but that "such disadvantages are not necessarily unreasonable or unduly restrictive of competition." MOL at 11-12, citing Exec Plaza, LLC, B-400107, B-400107.2, Aug. 1, 2008, 2008 CPD ¶ 143 at 10. In Exec Plaza, as here, the solicitation included terms that applied only to the incumbent lessor, including demolition requirements and the requirement of "swing space." The protester in Exec Plaza challenged these terms as restrictive of competition since they were "burdensome" and applied only to it. Id. at 2. We explained that while "we recognize that potential non-incumbent lessors may receive a competitive advantage by not having to address the need for swing space in their offers, we think an agency is not required to remove the advantage unless it results from preferential treatment or other improper actions by the government." Id. at 10.

We find the agency's explanations to be reasonable here. The LCO received an unambiguous memorandum from the Chief of Primary Care Services, advising that clinic operations would need to function at existing capacity during necessary renovation work, but "could not be maintained alongside any construction/renovation." AR Tab 26. We acknowledge that these restrictions could have a significant impact on the protester, which must "construct the identical space twice" to comply with the government's requirements. Protest at 7. As indicated above, however, 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. See Y&K Maint., Inc., supra.  (RCR Properties, G.P. B-414590: Jul 21, 2017)


Vanguard protests the terms of the solicitation, arguing that the column spacing and ceiling height requirements are unduly restrictive and exceed the Peace Corps’ minimum needs. Protest at 7‑8. In general, Vanguard asserts that the “Peace Corps can continue to perform [its] mission at the Vanguard Building without the need to secure new or newer space at great, and unnecessary expense, simply to have 30’ x 30’ column spacing and ceilings that are merely 4” higher than the Vanguard Building ceilings.” Id. at 8.

GSA responds that the requirements are reasonable, aimed at fulfilling the Peace Corps’ mission needs, and reflect a procurement strategy focused on the Peace Corps’ long term housing needs. MOL at 2. Moreover, GSA argues that, although the protester’s building met the Peace Corps’ requirements 20 years ago, it does not meet the agency’s requirements now. Id. at 15. Instead, GSA argues that the “Government expects the most efficient layout for its new requirement,” which includes wider column spacing and higher ceilings to maximize efficiency and flexibility. Id. at 15‑16.

Although our decision does not specifically discuss each of the protester’s arguments, we have fully considered them and find that none provides a basis to sustain the protest.

A contracting agency has the discretion to determine its needs and the best method to accommodate them. Parcel 49C Ltd. P’ship, B‑412552 et al., Mar. 23, 2016, 2016 CPD ¶ 95 at 11. 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 its legitimate needs. 41 U.S.C. §§ 3306(a)(1)(A), (a)(2); 1120 Vermont Ave. Assocs., LLP; 1125 15th St., LLC, B‑413019, Aug. 1, 2016, 2016 CPD ¶ 191 at 5. 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. Parcel 49C Ltd. P’ship, supra. 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. Id. Moreover, the fact that a requirement may be burdensome or even impossible for a particular lessor to meet does not make it objectionable if the requirement properly reflects the agency’s needs. 1120 Vermont Ave. Assocs. LLP, supra, at 7.

Column Spacing Requirement

GSA contends that the column spacing requirement is not unduly restrictive of competition. In support of its contention, GSA argues that the requirement is directly related to the Peace Corps’ need for greater efficiency due to the anticipated increase in staff and constant fluctuations in staffing needs. MOL at 8; COS at 4. Based on our review of the record and GSA’s justifications, we find the solicitation’s column spacing requirement reasonably necessary to meet the needs of the Peace Corps.

The record shows that the Peace Corps anticipates additional staff and a higher than average rate of turnover due to the five-year limitation on Peace Corps assignments. AR, Exh. 32, Requirements Justification, at 1‑2; Exh. 4, Email from Peace Corps; Exh. 10, Email from Peace Corps; Exh. 12, House Approved Prospectus, at 6; AR, Exh. 3, Gensler Report, 10. The record also shows that, as a result, the agency relies on a large amount of modular furniture and requires a flexible, efficient workspace to permit repeated reconfiguration of the workspace. AR, Exh. 32, Requirements Justification, at 1‑2; Exh. 23, Market Survey Report, at 2 (“A sustainable work environment that . . . allows for maximum flexibility in space planning is integral to the success of the agency[.]”); COS at 4.

Both the Peace Corps and GSA explain that column spacing impacts workspace layout and design and the ability to reconfigure furniture. AR, Exh. 32, Requirements Justification, at 2; COS at 4; MOL at 9. The wider the column spacing, the easier it is to reconfigure the workspace to address changes in staffing and mission needs. COS at 4; MOL at 9. As the contracting officer explains, “[w]ider distances between columns not only increase[] the number of ways modular furniture can be laid out, it also increases the number of possible closed office, open space, and meeting space configurations on a given floorplate.” COS at 4.

Here, the Peace Corps justifies the 30‑foot column spacing on several bases, including, in particular, the basis that it is a standard recommendation contained in GSA’s Facilities Standards for the Public Buildings Service, PBS-P100. AR, Exh. 32, Requirements Justification, at 2. The November 2010 version of this document provides that the minimum recommended column spacing is 30 feet. Facilities Standards for the Public Buildings Service, PBS-P100, Rev. Nov. 2010, at 53 (hereinafter P-100). We have previously explained that, in developing requirements, it is reasonable for an agency to rely upon the design criteria set forth in the P-100, which were formulated for application to procurements such as this one. JLT Group, Inc., B‑402603.2, June 30, 2010, 2010 CPD ¶ 181 at 3 (no basis to object to GSA’s reliance upon the P-100 as establishing a reasonable standard for 9-foot ceiling height). Thus, we find the Peace Corps’ reliance upon this publication to be unobjectionable.

Moreover, the contracting officer represents that the wider structural design is not a novel design feature. COS at 4. Although older buildings in the Washington, D.C. market were built on “tighter grids,” the contracting officer explains that newer buildings have “wider grids” due to advances in construction techniques and design. Id. She explains that, as early as 2011, the Urban Land Institute published information on the changing nature of building design and noted that 30-foot structural bays are now considered a “pillar of design” and a “universal guideline” to “organize the building infrastructure and [to] reinforce the perception of rational planning and flexibility.” COS at 4 (quoting Attach. A, Powell, Donald, Pillars of Design, available at http://urbanland.uli.org/development-business/pillars-of-design/ (last visited March 21, 2017). The article also indicates that lenders discount buildings that deviate from 30-foot column spacing because they are harder to sell. Id. We find nothing unreasonable in the Peace Corps’ desire to be headquartered in a building with more modern column spacing in order to maximize efficiency and meet its changing workforce needs.

Additionally, the market survey report and the initial offers demonstrate that 30-foot column spacing is available in the Washington, D.C. market. AR, Exh. 23, Market Survey Report, at 4, 7, 8; COS at 5. Accordingly, we do not find this requirement unduly restrictive of competition.

Furthermore, we note that our Office recently considered and denied a protest of the same 30-foot column spacing requirement where GSA demonstrated that: (a) the requirement was “directly related to the tenant agency’s need for greater efficiency, because of a planned increase in staff with simultaneous mandated reduction in [usable square feet]”; and (b) the requirement would meet “the tenant agency’s need for maximum flexibility in laying out furniture to reduce wasted space[.]” 1120 Vermont Ave. Assocs., LLP, supra, at 6. In that decision, we found such justifications “reasonable and persuasive.” Id. Based on the record before us, which is factually similar to the record in 1120 Vermont Ave. Assocs., LLP, we see no reason to depart from our prior decision.

Finally, the protester attacks the agency’s rationale for its 30-foot column spacing requirement on the basis that the record does not contain any of the following findings: (a) “that the 20’ column spacing in the Vanguard Building precludes an adequate degree of flexibility in accommodating the Peace Corps[;]” (b) “that the Peace Corps’ mission . . . is detrimentally impacted by the 20’ column spacing in the Vanguard Building[;]” (c) “that the existing 20’ column spacing is a material flaw[;]” (d) “that the 20’ column spacing seriously hinders the Peace Corps’ ability to reconfigure furniture[;]” or (e) “that a 30’ column width will . . . exponentially result in far greater flexibility in the configuration of modular furniture.” Comments at 3, 4, 6; Supp. Comments at 7. In this regard, the protester misunderstands the government’s broad discretion to determine how best to meet its needs.

GSA is not required to settle for “adequate” flexibility, or for a solution that avoids “seriously hindering” the tenant’s ability to achieve its mission. Rather, GSA is tasked to exercise sound business judgment to provide the “best value product or service” to meet its customer’s needs. See Federal Acquisition Regulation (FAR) §§ 1.102(d), 1.102-1(b). Here, the Peace Corps requires a building that provides maximum flexibility to reconfigure its workspace. There is no dispute that 20-foot column spacing does not provide the same degree of flexibility as 30-foot spacing. As the protester itself concedes, furniture can be “acceptably reconfigured in spaces with 25’ or 20’ column spacing, although perhaps not as efficiently.” Comments at 11. As in 1120 Vermont Ave. Assocs., LLP, we conclude that the agency has a legitimate need for “maximum flexibility” in its workspace, which is reasonably met by the 30-foot column spacing requirement.

Ceiling Height Requirement

GSA also contends that the ceiling height requirement is not unduly restrictive of competition. In support of this contention, GSA argues that the ceiling requirement is directly related to the Peace Corps’ need for increased natural light and the need to alleviate the perception of a crowded workspace. COS at 5; MOL at 12. Based on our review of the record and GSA’s justifications, we find the solicitation’s ceiling height requirement reasonably necessary to meet the needs of the Peace Corps.

The record shows that the Peace Corps, in developing this requirement, considered several studies demonstrating the positive effects of natural light on employees’ well-being and productivity. AR, Exh. 32, Requirements Justification, at 2. The workplace diagnostic report completed by Gensler also revealed that natural light is important to Peace Corps employees and that the current building does not adequately meet employees’ needs in this regard. See e.g., AR, Exh. 3, Gensler Diagnostic Report, at 23, 49. GSA notes that modular furniture tends to block natural light. COS at 5. Thus, as both the Peace Corps and GSA explain, the proposed solution was to increase the minimum ceiling height to allow more natural light to penetrate the workspace. AR, Exh. 32, Requirements Justification, at 2; COS at 5; MOL at 12.

Additionally, the record shows that the Peace Corps was concerned about the feeling of “crowding” in the workspace due to the agency’s attempt to stay below utilization rates of 150 square feet per person. AR, Exh. 32, Requirements Justification, at 2. The Peace Corps and GSA both concurred that “lighter, brighter spaces with natural light as well as rooms with high ceilings . . . are perceived as less crowded.” Id.; COS at 5. Accordingly, as a result of the desire to maximize natural light and reduce the sensation of crowding, the Peace Corps and GSA sought higher ceiling heights.

Although GSA’s standard, nationwide template RLP establishes 9-foot ceilings as the suggested minimum height, the contracting officer explained that, based on her knowledge of the Washington, D.C. market and based on information received from the Savills-Studley brokers, a 9-foot ceiling height requirement may have been too restrictive for this procurement. COS at 5. The market survey tour confirmed the contracting officer’s suspicions. Id. Only two of the buildings toured had 9-foot ceilings. Id. Accordingly, after discussions between GSA, the Peace Corps, and Savills-Studley, the parties decided to amend this requirement to 8-foot 4-inch ceilings--the greatest height possible to encourage sufficient competition while still providing sufficient ceiling height to allow more natural light and to alleviate some of the Peace Corps’ concerns regarding the feeling of crowding. Id.; MOL at 12.

Vanguard argues that, although the record establishes both the Peace Corps’ desire for natural light and certain limitations in that regard with respect to the incumbent building, “nothing attributes any lack of natural light to the Vanguard Building’s ceiling height.” Comments at 14. Rather, Vanguard suggests that the lack of natural light may be due, in part, to how the Peace Corps has configured the space. Id. at 13-14. The protester’s argument, however, misses the mark.

Even assuming that the Peace Corps could reconfigure the space in a manner that would meet it mission requirements and its need for natural light--a fact that the protester has not alleged nor demonstrated--this option has no bearing on the reasonableness of the agency’s requirement for higher ceilings. The operative question is whether the agency’s requirement is reasonably necessary to meet the agency’s needs, Parcel 49C Ltd. P’ship, supra, at 2, not whether there are alternative options available to the agency. In this respect, the protester’s disagreement with the agency’s judgment regarding the best way to accommodate its needs is not sufficient to establish that the agency’s judgement is unreasonable. Id.  (Vanguard Building LP B-414207, B-414207.2: Mar 21, 2017)


Throughout its protest, RDT complains that the agency revised the specifications both to “ensure Zoll’s compliance,” and to effectively preclude RDT from competing. See, e.g., Protest at 14-15. The protester alleges that the revised requirements are unreasonable and that the documentation provided with the RFP fails to demonstrate that these requirements reflect the agency’s actual minimum needs. Comments at 14. RDT alleges that the revised printer requirement is unduly restrictive of competition because the requirement to use thermal paper is not necessary and excludes some printers that could otherwise satisfy the agency’s requirements. Protest at 16; Supp. Protest at 6-7. RDT states that its own product, in fact, is not currently capable of meeting this requirement while still also meeting the size, weight, and power requirements defined in the RFP. Supp. Protest at 6. For the reasons that follow, we find no basis to sustain the protest on any of the grounds raised by RDT.

A contracting agency has the discretion to determine its needs and the best methods to accommodate them. JLT Group, Inc., B-402603.2, June 30, 2010, 2010 CPD ¶ 181 at 2. In preparing a solicitation, a contracting agency must solicit offers in a manner designed to achieve full and open competition, and include restrictive provisions only to the extent necessary to satisfy the agency’s minimum needs. 10 U.S.C. § 2305(a)(1)(A)(i)(B)(ii). Where requirements relate to issues of human safety or national security, however, an agency has the discretion to define solicitation requirements to achieve not just reasonable results, but the highest possible reliability and/or effectiveness. Nova Constructors, LLC, B-410761, Jan. 21, 2015, 2015 CPD ¶ 51 at 4. In seeking full and open competition, an agency is not required to construct procurements in a manner that neutralizes the competitive advantages of some potential offerors. Staveley Instruments, Inc., B‑259548.3, May 24, 1995, 95-1 CPD ¶ 256 at 3-4. Moreover, a specification is not improper merely because a potential offeror cannot meet its requirements. Id. at 4. When a specification or requirement is challenged 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. Nexagen Networks, Inc., B-411209.7, June 20, 2016, 2016 CPD ¶ 164 at 4. Our office will examine the adequacy of the agency’s justification for the allegedly restrictive provision to ensure that it is rational and can withstand logical scrutiny. Id., citing SMARTnet, Inc., B-400651.2, Jan. 27, 2009, 2009 CPD ¶ 34 at 7.

Here, with regard to RDT’s insistence that the agency has modified the solicitation to ensure Zoll’s compliance, we find the protest without merit. A protest that a specification was “written around” design features of a competitor’s product fails to provide a valid basis for protest where the record establishes that the specification is reasonably related to the agency’s minimum needs. Fisons Instruments, Inc., B‑261371, July 18, 1995, 95-2 CPD ¶ 31 at 2. The relevant inquiry, therefore, is whether the amended specifications reasonably reflect the agency’s needs, which we discuss below.

The agency defends the reasonableness of the requirements through the sworn statement of an Air Force deputy director who served as the lead technical panel member representing that service for both the review of the solicitation and the evaluation of proposals. Supp. MOL at 6-7; AR, Tab 4, Decl. of Deputy Director at 1. This official explains that the accessory printer is medically necessary in order to evaluate a patient’s clinical status and to document events during evacuations that may include multiple modes of transportation and transfers of patient care among personnel. Id. at 1-2. The declaration observes that aircraft do not have printers and that the use of ground facility printers often is barred by Department of Defense cybersecurity rules. It explains, further, that immediate printing is “critical to ensure all records are included in each transfer of care.” Id. at 1. In a second declaration, the deputy director notes that the use of thermal paper for the printers is the predominant technology for emergency responders, largely because it requires the use and replacement of only one “consumable,” i.e., the paper itself, as opposed to ribbons, ink, toner, and paper. Supp. MOL at 6-7; AR, Tab 15, 2nd Decl. of Deputy Director at 2.

In response, RDT does not meaningfully rebut the agency’s arguments or otherwise demonstrate that the agency’s explanation is unreasonable. Instead, RDT asserts that the Air Force official’s declaration “is based on broad statements that go well beyond” the contemporaneous justification for the thermal paper requirement, and contends that the declaration is an “attempt to justify this restriction after the fact” that must be rejected. Protester’s Supp. Comments, at 14.

We disagree. The RFP explicitly stated that the monitors would be used in military field hospitals and medical evacuations. RFP, Amend. 0008, at 4. The Air Force deputy director’s declaration provides a detailed rationale for the specification that is credible and consistent with the contemporaneous record. Contrary to the protester’s suggestion, the declaration is a post-protest explanation that our Office will consider. See Erickson Aero Tanker, B-411306.2, B-411306.5, July 29, 2015, 2015 CPD ¶ 226 at 9 n.6. Here, we find the submitted declaration credible, particularly since the protester has failed to present any argument that would call into question the substance and credibility of the declaration.

RDT, in its objections to the thermal paper requirement, also states that its own product cannot currently meet the specification. Protester’s Comments at 14. Under our Bid Protest Regulations, a protester must be an actual or prospective offeror whose direct economic interest would be affected by the award of a contract. 4 C.F.R. § 21.0(a). Because we have concluded, above, that the specifications are reasonably necessary to meet the agency’s minimum needs, and because RDT acknowledges that it cannot provide a monitor that meets all of the specifications as they are currently written, RDT is not an interested party to maintain the various additional protest grounds it has raised. RDT lacks the requisite legal interest in this regard because, even were we to sustain its protest on another basis, RDT would not be able to offer a compliant product and would therefore be ineligible for award. See DAI, Inc., B-408625, B-408625.2, Nov. 6, 2013, 2013 CPD ¶ 259 at 5. Accordingly, RDT’s additional protest grounds are dismissed.  (Remote Diagnostic Technologies, LLC B-413375.4, B-413375.5: Feb 28, 2017)
 


Pitney challenges specifications in the SOW requiring high capacity sheet feeders that are capable of being loaded on the fly, folders/inserters that have a feeder swap capability for up to 10 sheet feeders per machine, and folders/inserters that have an envelope feeder capable of handling all types of envelopes from letters to flats. According to the protester, the requirements are unduly restrictive of competition and amount to a de facto sole source requirement. Based on the record, we are unable to conclude that the specifications included in the RFQ are necessary to meet the agency’s needs.

The determination of the government’s needs and the best method of accommodating them is primarily the responsibility of the procuring agency, since its contracting officials are most familiar with the conditions under which supplies, equipment, and services have been employed in the past and will be utilized in the future. Columbia Imaging, Inc., B-286772.2, B-287363, Apr. 13, 2001, 2001 CPD ¶ 78 at 2. 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. Smith and Nephew, Inc., B-410453, Jan. 2, 2015, 2015 CPD ¶ 90 at 5. 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. Id.

Here, the protester challenges three specifications included in the SOW. First, the protester challenges the requirement for a high capacity sheet feeder with a 1,000 sheet capacity, capable of being loaded on the fly. According to the agency, load‑on‑the‑fly capability, which would allow the insertion of additional sheets while the system is in operation, is necessary to “minimize production time by allowing the equipment to be loaded while in operation.” AR at 7. According to the protester, this requirement is overly restrictive because, while the protester’s high capacity sheet feeders do not have load-on-the-fly capability, the same continuous operation can be achieved by using two high capacity sheet feeders, each holding 1,000 sheets. Protest at 5. The protester’s approach would provide for items to be pulled from one feeder while the other feeder is filled. The machine would alternate between the feeders to provide continuous operation and avoid system interruption. Protest at 5. While the agency appears to concede that Pitney’s solution will provide for continuous operation, it argues that the use of the protester’s approach would require additional employee time, possibly resulting in more paper jams, and require additional storage space. AR at 7. The agency’s arguments, in this regard, fail to establish that the load‑on‑the‑fly capability is necessary.

Regarding the use of employee time, the parties disagree as to whether it would be more efficient for employees to monitor and refill one tray on a machine with load‑on‑the‑fly capability or to monitor two trays on a machine like the protester’s, that alternates between trays to achieve continuous use. While there are likely pros and cons to both continuous operation solutions, we fail to see, and the agency has not adequately shown, why the protester’s solution would be more time consuming for employees. IRS Information Technology Specialist’s Declaration, January 18, 2017, at 2. With either approach, employees would be monitoring a tray and inserting more sheets into a feeder as needed.

With regard to the agency’s bare assertion that the use of two feeders increases the possibility of paper jams, the agency has not provided anything to substantiate its claim. CO Statement at 3. Casting some doubt on the agency’s assertion, the protester argues that there is actually a benefit to the two feeder system in that, unlike a system that relies on a single feeder with load-on-the-fly capability, the use of two feeders would allow an operator to turn off the jammed feeder for repair, while allowing the other feeder to continue operating. Comments at 3. Given the agency’s goal of maintaining continuous operation, the protester’s argument is compelling. Id.

Additionally, the agency argues that the use of two sheet feeders to achieve continuous operation would result in the need for additional storage space. AR at 7. In response, Pitney argues--without rebuttal from the agency--that its equipment is designed to store the feeders, such that no additional space would be required. Comments at 4.

In sum, the agency has failed to provide a reasonable justification as to why a requirement for load-on-the-fly capability is necessary, when a different approach may be able to achieve the same results.

In its November 7 protest, Pitney also challenges the requirement for the equipment to have a feeder swap capability for up to ten sheet feeders per machine. Protest at 6. According to the protester, this requirement, which differed from the requirement in the original RFQ for machines capable of accommodating up to ten additional module feeders each, could only be met by one source. Protest at 6. In its report, the agency clarified that “module feeder” was synonymous with “sheet feeder.” CO Statement at 5. The protester responded that, based on that clarification, its equipment will be able to meet the requirement. Comments at 5. Accordingly, because the protester has conceded that its equipment could satisfy the requirement for feeder swap capability for up to ten sheet feeders per machine, we do not address further the argument that the requirement is restrictive of competition.

Finally, the protester challenges the requirement that the folder/inserter have one envelope feeder to handle all types of envelopes from letters to flats. Protest at 5. According to the protester, the standard envelope feeder for its proposed solution feeds a wide range of the most common types of envelope sizes and flats. Federal Government Strategic Manager for Pitney Affidavit, December 19, 2016, at 2. For more unusual sizes, the protester asserts that the process of removing a feed and inserting a new one would take less than 30 seconds. Id. While the agency simply maintains that it needs a feeder that will handle all types of envelopes, it provides no explanation as to why it needs a feeder that would handle envelope sizes and types that deviate from standard sized envelopes.

Additionally, while the agency complains about the time and effort that would be required to insert a new feeder, it has provided no information regarding whether and how often the insertion of a different feeder might actually be necessary. IRS Information Technology Specialist’s Statement at 3. Absent further support from the agency, it is not clear why the agency would need an envelope feeder that could handle all types of envelopes, given that there is no discussion of a need for types of envelopes that would fall outside of the range of standard types. Here, the agency has not provided a reasonable justification for its requirement that the folder/inserters come equipped with one envelope feeder that can handle all types of envelopes from letters to flats.  (Pitney Bowes, Inc. B-413876.2: Feb 13, 2017)


Sumaria next argues that the LIT position’s qualifications are unduly restrictive of competition as they are defined so narrowly as to permit only the incumbent to compete for the order and can be met through less restrictive means. The protester asserts that, while it was able to propose a highly qualified instrument technician, it could not locate, within the time permitted by the amendment, an individual who meets two of the experience requirements for the LIT position: that the individual have experience in the installation and buildup of high temperature fiber optic strain gages, and that the individual have experience in flame spraying techniques for free filament strain gauges. Protester’s Supp. Brief at 4. Sumaria asserts that while the work contemplated is not complicated or complex in terms of the basic skillset required, some of the instrumentation used by the lab is used by very few organizations other than the Air Force’s research laboratory. Id. at 3. Sumaria contends that this fact, coupled with a requirement for a security clearance and that the individual reside in Dayton, Ohio, means that the requirements are unduly restrictive of competition because the pool of candidates is limited to the incumbent’s personnel. Id.

The protester concludes that there are less restrictive ways for the agency to meet its requirements. Sumaria asserts that the agency could remove these experience requirements as the firm’s proposed instrument technician has the necessary skills to perform the services, and there is no evidence that an experienced instrumentation technician could not learn the two instruments and techniques quickly following basic orientation. Id. at 4. Alternatively, Sumaria argues that since it has received verbal assurances from the incumbent LIT that he will accept employment with Sumaria should the firm receive the order, the agency should delete the requirements to provide a resume and letter of commitment for this position. Id.

Where a protester challenges a specification as unduly restrictive, that is, challenges both the restrictive nature of the specification and the agency’s need for the restriction, the agency has the responsibility of establishing that the restrictive specification is reasonably necessary to meet its legitimate needs. GlobaFone, Inc., B-405238, Sept. 12, 2011, 2011 CPD ¶ 178 at 2. 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. Id. Once the agency establishes support for the challenged solicitation term, the burden shifts to the protester to show that it is clearly unreasonable. Id.

The agency contends that the LIT requirement is essential to the successful operation of its experimental test activities, and submits three declarations in support of its decision to designate the position key and to add the relevant experience requirements. Supp. Memorandum of Law at 1, exhs. 1-3. According to the agency, the need to execute ongoing experimental tests requires high temperature strain sensors, and all of these tests are dependent upon expertise for the selection and installation of high temperature strain gages. Id. at 3, Declaration of Chief, Structural Validation Branch. The agency also argues that it is critical that the laboratory not experience a gap in its high temperature instrumentation capabilities, and that the failure to provide a LIT with full capability on “Day 1” will result in delay of several multimillion dollar programs. Id. Finally, with respect to availability of qualified personnel, the agency asserts that it conducted market research and located at least six individuals working in the United States who could meet the requirements of the position. Id.

Our review of the record provides no basis to question the agency’s need for a LIT with the qualifications stated in the solicitation. In our view, the agency has articulated a reasonable basis for why the solicitation’s experience requirements are necessary to meet its needs. Moreover, we are provided no basis to question the agency’s need to evaluate and have assurances that a qualified individual will be available to perform the LIT scope of work, assurances that are provided by the key personnel designation and requirement to submit a resume and letter of commitment.

The market research performed by both Sumaria and the agency shows that the skillset required for the LIT position is specialized; as reflected in the protester apparently not being able to locate qualified personnel other than the incumbent’s LIT and the agency’s recognition that it could locate only six individuals nationwide who could satisfy the requirements. Given the limited labor-pool of qualified applicants to satisfy this requirement, we conclude that it was reasonable for the agency to structure its procurement to allow it to evaluate and obtain assurances of availability with respect to the LIT position. While Sumaria argues that the verbal assurances received from the incumbent LIT should be sufficient to meet the agency’s needs, the agency responds that verbal assurances do not provide it with the same level of certainty as a letter of commitment. In addition, without a resume the agency explains that it will not be able to evaluate the proposed LIT’s qualifications. We agree.  (Sumaria Systems, Inc. B-413508.2: Dec 29, 2016)


Evolver and AFSC challenge the agency’s basis for assigning certain points. Specifically, both Evolver and AFSC challenge the RFP provision that, in order to be awarded 5,500 points for an “audited/adequate cost accounting system,” an offeror’s proposal must include proof of a federally audited and approved accounting system. The firms maintain that this requirement is overly restrictive of competition, as there are independent public accounting firms that can verify the adequacy of an offeror’s accounting system for federal contracts. The firms further argue that proof of an acceptable system should not be required with proposal submission; rather, proof should be provided only at the time the government actually requires the service for which the certification is necessary.

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 Streit USA Armoring, LLC, B-408584, Nov. 5, 2013, 2013 CPD ¶ 257 at 4. We examine the adequacy of the agency’s justification for a restrictive solicitation provision to ensure that it is rational and can withstand logical scrutiny. Nexagen Networks, Inc., B‑411209.7, June 10, 2016, 2016 CPD ¶ 164 at 4. The determination of a contracting agency’s needs, including the selection of evaluation criteria, is primarily within the agency’s discretion 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. SML Innovations, B‑402667.2, Oct. 28, 2010, 2010 CPD ¶ 254 at 2.

Here, the record supports the agency’s position that assigning points to firms that have a federally audited and approved accounting system is reasonably related to the agency’s needs. In this regard, the agency points out that it anticipates (based on the first Alliant GWAC) that a significant number of DOD task orders will be competed under Alliant 2. Evolver AR at 15. Indeed, the agency states that approximately two‑thirds of all task orders issued under Alliant 1 were DOD client task orders. Id. DOD requires, for cost-reimbursement type contracts, that the contractor have a cost accounting system that is certified by DCAA, DCMA, or some other cognizant federal agency, and does not recognize third party certifications. Evolver AR, CO Statement, at 7. The record further provides that approximately 25 percent of the task orders issued under Alliant 1 were cost-reimbursement contracts (representing $5.7 billion dollars), and that the agency expects the same ratio to continue under Alliant 2. Id.; AFSC AR, CO Statement at 7. Under these circumstances, where the agency can reasonably anticipate that DOD will be the prime user of the Alliant 2 GWAC, and where DOD does not accept third party certification of a contractor’s cost accounting system, we find nothing improper about the solicitation’s provision that gives an evaluation preference to firms that have a federally audited and approved accounting system.

With regard to the protester’s contention that it is unduly restrictive of competition to require firms to present proof of a federally audited and approved accounting system at the time of proposal submission in order to be awarded these points, we disagree. Here, the agency explains that possessing this certification and approval from DCAA, DCMA, or other CFA, at the time of contract award relates to the agency’s need to provide a contract vehicle (a GWAC) where DOD and other agencies can find companies qualified to perform cost-reimbursement type contracts. Evolver AR at 17-18; AFSC AR at 19-20. In this regard, the agency explains that allowing firms to accrue points in this manner helps to provide a GWAC where successful offerors have experience in government contracting. In addition, successful offerors will be able to perform cost-reimbursement task orders for DOD from the first day the GWAC is awarded, and procuring agencies issuing task orders under the GWAC will not have to waste time and resources while vendors subsequently obtain an audited and approved system. Id. Given this explanation by the agency, we find nothing improper about the solicitation’s approach of awarding points to offerors that have proof of an audited system at the time of contract award.

AFSC also challenges the RFP’s requirement that, in order to be awarded certain points for projects the offeror performed at multiple federal agencies, and points for projects that involve cost-reimbursement contracts at multiple federal agencies, offerors must submit a federal procurement data system (FPDS) report for each project. AFSC argues that, because many types of federal contracts are not reported in the FPDS, offerors who cannot provide such reports improperly lose points in the agency’s scoring system.[5] AFSC further notes that the RFP provides for a process whereby an offeror without a FPDS report (if, for example, the report is unavailable) may nevertheless still receive credit for the project. AFSC maintains that such a process should also apply to projects performed at agencies that do not provide FPDS reports.

Here, the record supports the agency’s position that assigning points to firms that can provide a FPDS report is reasonably related to the agency’s needs. The agency explains that contracts that do not have a FPDS report are contracts that are not subject to the Federal Acquisition Regulation (FAR). AFSC AR at 10. That is, all contracts that are governed by the FAR must be reported in FPDS. Id. Given that the acquisitions that will take place under the Alliant 2 GWAC are acquisitions that will be competed, awarded and performed under the FAR, we find nothing objectionable with an RFP provision that provides an evaluation preference to contracts that were performed under the FAR. Furthermore, we note that firms that have federal contracts with agencies that are not subject to the FAR, are not precluded from receiving points for these contracts under the RFP, but instead may receive points for these contracts under other elements of the agency’s scoring system. AFSC AR at 12-13; RFP at 207-228. In this context, where awardees will be expected to compete and perform under the FAR, it is reasonable for the agency to provide an evaluation preference or additional credit for those projects that were performed under the FAR.  (Evolver Inc.; Armed Forces Services Corporation B-413559.2, B-413559.8: Dec 21, 2016)
 


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 Streit USA Armoring, LLC, B-408584, Nov. 5, 2013, 2013 CPD ¶ 257 at 4. We 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 ¶ 34 at 7. A protester’s 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, B-400107, B-400107.2, Aug. 1, 2008, 2008 CPD ¶ 143 at 5.

We find that the agency has established that the requirement for OEID or OEID-equivalent experience is reasonable. First, Nexagen has not refuted the agency’s assertion that the EMDS system requires OEID support. COSF/MOL at 3. Further, the solicitation allowed for offerors to demonstrate an understanding of, and ability to utilize, not only OEID but also any equivalent products; permitted an offeror to rely on the experience of a teaming partner or subcontractor to meet this requirement; and permitted such experience to have been gained in a commercial or government market—all provisions that potentially enhance competition. TOR at 6.

While in its comments on the agency report, Nexagen challenges the government’s statements regarding equivalency, arguing that they “cannot be reasonably taken at face value,” we find no meaningful support in the record for the protester’s contention. See Comments at 3. Moreover, to the extent Nexagen’s premise is that there is no equivalent software available, that alone would not demonstrate that the TOR’s requirement is unduly restrictive. Again, the issue is not whether the specification restricts competition, but whether the specification is reasonably necessary to meet the agency’s actual needs. Even where specifications are based on a particular product--or, as Nexagen alleges here, a particular firm’s capabilities or experience--we have found that this type of requirement is not improper in and of itself; nor will an assertion that a specification was “written around” features offered by a particular firm provide a sustainable basis for protest if the record establishes that the specification is reasonably related to the agency’s minimum needs. See Persistent and Determinant Technologies LLC, B-408342, Aug. 22, 2013, 2013 CPD ¶ 198 at 2.

We also do not find that Nexagen has made the requisite showing to establish bias. In its comments, Nexagen claims that agency officials made statements during the transition of a previous task order that because NuWave implemented EMDS using OEID in a customized fashion, the agency purportedly had concerns about transitioning to another contractor at the time and suggested adding NuWave as a subcontractor on that task order. See Comments at 2-3. In this regard, a protester’s contention that contracting officials are motivated by bias or bad faith must be supported by convincing proof; we will not attribute unfair or prejudicial motives to procurement officials on the basis of inference or supposition. Veterans Healthcare Supply Solutions, Inc., B‑411904, Nov. 12, 2015, 2015 CPD ¶ 354 at 8. This is because government officials are presumed to act in good faith. Id. Where as here, Nexagen provides no evidence supporting its allegations beyond statements purportedly made by government officials, we will not sustain the protest on the basis of these allegations.

The protest is denied.  (Nexagen Networks, Inc. B-411209.7: Jun 20, 2016)  (pdf)


Parcel 49C’s allegations that certain of the specifications here are unduly restrictive. The protester challenges the agency’s requirement that the first floor of the building have a minimum ceiling height of 11½ feet, and the requirement for dual-power sources for the building. Protest at 17-55, citing RLP, exh. B, Agency Special Requirements, at 1.

A contracting agency has the discretion to determine its needs and the best method to accommodate them. JLT Group, Inc., B-402603.2, June 30, 2010, 2010 CPD ¶ 181 at 2. 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 its legitimate needs. 41 U.S.C. § 253a(a)(1); Total Health Res., B-403209, Oct. 4, 2010, 2010 CPD ¶ 226 at 2. We will review a challenge 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. NCS Technologies, Inc., B-403435, Nov. 8, 2010, 2010 CPD ¶ 281 at 3. A protester’s 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. Dynamic Access Sys., B-295356, Feb. 8, 2005, 2005 CPD ¶ 34 at 4. Moreover, 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. Contract Servs., Inc., B-411153, May 22, 2015, 2015 CPD ¶ 161 at 3.

The contracting officer states that when the FCC, as the tenant agency, presented its requirements, including the first-floor ceiling height and dual power sources, GSA did not view them as being likely to restrict competition. CO’s Statement at 4. In this regard, the agency notes that all [deleted] of the other offerors appear to be able to meet the RLP’s minimum technical requirements. Id. at 6; CO’s Statement at 6.

After Parcel 49C filed its initial agency-level protest, GSA again consulted FCC concerning the requirements that were challenged in the protest. CO’s Statement at 4. An FCC senior procurement executive confirmed the tenant agency’s requirement for a uniform minimum ceiling height throughout the first floor, explaining that it reflected a need to address all current and reasonably anticipated growth needs in an efficient manner. Id. Further, the official explained FCC’s actual needs, stating that these related, in part, to press and public meetings, which occur on the first floor and call for higher ceilings to accommodate the agency’s particular requirements, citing the following examples:

. . . press cameras on podiums to provide viewing angles of a speaker’s face over the heads of other participants during live coverage; 100” diagonal monitors mounted on the walls of the room to provide visibility over the heads of participants; microphones and speakers located throughout the room to allow participants to hear remarks, thereby requiring sufficient ceiling height to prevent feedback; diffuse lighting to uniformly illuminate participants, whether standing or seated, for video quality; high acoustics for the usage of the dynamic environment; a removable stage and podium with a ramp and steps up to the stage level which requires increased headroom, and the code requirements to meet the above.

AR, Tab 12, FCC Senior Procurement Executive Statement, at 3.

We find GSA’s response, in conjunction with FCC’s explanation of its actual needs, reasonable, and find no basis to conclude that the ceiling height requirement unduly restricts competition. Given this conclusion, the fact that the requirement may be burdensome, or even impossible for Parcel 49C to meet, does not make it objectionable. See Contract Servs., Inc., B-411153, supra. This basis for protest is denied.

With respect to the dual-power requirement, the protester argues that GSA has not shown that dual power feeds are necessary to protect any mission-critical operations of the FCC, and that FCC has not had any issue in the present location with a standard, single-power feed and a backup generator since 1997. In other words, Parcel 49 suggests that since the agency has been able to operate in the protester’s building without this requirement for the past 20 years, it should be able to do so for the next 15 years. Protest at 33. Parcel 49C also states, as it did for the ceiling height requirement, that it could provide an alternative as described by a professional design firm. Id. at 35-36.

GSA, again relying on the FCC’s statement of its needs, rejects the protester’s assertions. The agency observes that many things have changed since the inception of FCC’s current lease, and that the frequency of events that can result in a loss of power to a building--such as foreign and domestic terrorist activities, natural disasters, and electrical blackouts--has increased, and is likely to increase further. AR, Tab 7, Agency Denial of First Agency-Level Protest, at 8. Id. Further to this point, FCC states that its Safety & Homeland Security Bureau, which coordinates FCC activities related to public safety, homeland security, national security, emergency management and preparedness, and disaster management, operates within the FCC headquarters--i.e., part of the leased space at issue here. The agency asserts that power redundancy is needed to maintain signal security and to ensure, for example, that the FCC’s

. . . public safety and homeland security mission requirements are met, that there is ample capacity for increased load concentrations, an agile work environment with increased technology demands over the short and long term, and [to] ensure that in the event that power is disrupted or cut from one source into the building, that the redundant power circuits are able to provide uninterrupted service.

AR, Tab 12, FCC Senior Procurement Executive Statement, at 5. On this basis, FCC asserted to GSA that it would not be prudent to rely solely on one power source for an agency-critical mission in a headquarters facility. Id.

We find no basis for objecting to the requirement. The fact that Parcel 49C disagrees with the agency’s judgment concerning this issue does not, by itself, establish that the judgment is unreasonable. Dynamic Access Sys., supra.  (Parcel 49C Limited Partnership B-412552, B-412552.2, B-412552.3: Mar 23, 2016)


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. Gov’t & Military Certification Sys., Inc., B-411261, June 26, 2015, 2015 CPD ¶ 192 at 7. We examine the adequacy of the agency’s justification for a restrictive solicitation provision to ensure that it is rational and can withstand logical scrutiny. Id. Furthermore, 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. JRS Staffing Servs., B‑410098 et al., Oct. 22, 2014, 2014 CPD ¶ 312 at 7.

Here, we find that the agency has established a reasonable basis for the peer review requirement in the solicitations. In this regard, NASA maintains that the requirements are necessary for compliance with federal law. Specifically, the agency explains that the Inspector General (IG) Act of 1978 requires agency IGs to assure that work performed by nonfederal auditors, such as the financial audits here, complies with [Generally Accepted Government Auditing Standards]  GAGAS. Agency Report (AR) at 2, citing 5 U.S.C. app. § 4(b)(1). GAGAS, the agency points out, requires that organizations performing audits “have an external peer review performed by reviewers independent of the audit organization being reviewed at least once every 3 years.” GAGAS § 3.82(b). Therefore, NASA asserts that contracting with a vendor that has not had a peer review would be in contravention of GAGAS and, by extension, the IG Act.

Moreover, the agency further explains that the inclusion of the peer review requirements is also in response to a recommendation from the NASA IG’s Office. In this respect, a NASA IG review of a prior financial audit of the exchange deemed the audit deficient because the nonfederal auditing firm did not meet the GAGAS peer review requirement, among other reasons. AR, Tab 7, NASA IG Report No. ML-11-001, at Bates 104. The NASA IG recommended that all future audits of the exchange comply with GAGAS, and the agency highlights that these solicitations reflect compliance with the IG’s recommendation. Id. at Bates 114; CO Statement at 2.

The above considerations support the reasonableness of the peer review requirements. The record reflects that the requirements reasonably relate to ensuring compliance with an IG recommendation, GAGAS, and, ultimately, the IG Act. While the protester bases its objection on its view that certain firms may be exempt from the GAGAS peer review requirement, it has not shown that the requirements here lack a rational basis or that the agency’s justifications are otherwise unreasonable. Moreover, as noted above, that certain vendors, including WPTA, may be precluded from performing the financial audits does not mean that the peer review requirements are objectionable. See JRS Staffing Servs., supra.

The protests are denied.  (W.P. Tax & Accounting Group B-411806, B-411807: Oct 7, 2015)  (pdf)


According to the VA, it prohibited offerors from using consultants to assist in the preparation of the sample task responses in order to help ensure that the responses received by the agency would reflect the technical abilities of the offerors and their subcontractors, and not that of outside experts who would not be involved in performing the contract. CO’s Statement at 3. The VA reasons that this restriction reduces the risk of unsuccessful performance because it makes it more likely that its technical evaluation will be based on the knowledge and abilities of the individuals who would actually be involved in performing under an awarded contract. Id. The protester challenges the agency’s rationale on several bases, however, as discussed below, we find the agency’s restriction on consultants unobjectionable, and the protester’s arguments unavailing.

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 Res., B-403209, Oct. 4, 2010, 2010 CPD ¶ 226 at 3. We 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 ¶ 34 at 7. The determination of a contracting agency’s needs, including the selection of evaluation criteria, is primarily within the agency’s discretion 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. SML Innovations, B-402667.2, Oct. 28, 2010, 2010 CPD ¶ 254 at 2.

Here, the RFP’s sample tasks evaluation subfactor is “designed to test the Offeror’s expertise and innovative capabilities to respond to the types of situations that may be encountered in performance of a contract resulting from this solicitation.” RFP at 121. Likewise, offerors’ responses to the sample tasks are to be used to evaluate their understanding of the problems presented and the feasibility of their proposed approaches. Id. at 122. Since the fundamental purpose underlying the sample tasks is to gauge an offeror’s ability to successfully perform the contract, it is reasonable to require that the sample task responses be prepared by the firms proposed to perform the contract, as opposed to outside consultants who have not been identified as members of the offeror’s team. In this regard, the provision is analogous to an agency’s decision to consider only the experience and past performance of contractors with which the agency will have contractual privity. In such cases, we have found that the government’s desire to reduce the risk of unsuccessful performance was rationally achieved by restricting its consideration of experience and past performance to the firms contractually obligated to meet the agency’s requirements. See Valor Constr. Mgmt., LLC, B-405365, Oct. 24, 2011, 2011 CPD ¶ 226 at 3; HK Consulting, Inc., B‑408443, Sept. 18, 2013, 2013 CPD ¶ 224 at 2-3. Similarly here, the VA’s restriction on consultant assistance with the sample task responses is directly related to the government’s legitimate interest in focusing its technical evaluation on the abilities of firms actually proposed to perform the contract.

ACCI challenges the VA’s rationale for restricting the use of consultants on the basis that the RFP does not actually require the individuals who prepare the sample tasks to also perform under the contract. Protest at 8. The protester notes that an offeror’s employees (or its subcontractor’s employees) who prepare the sample task responses may only be involved in the preparation of proposals, or may no longer work for the offeror (or its subcontractor) at the time of performance. Id. Thus, according to the protester, the agency’s restriction on consultants is not rational, as it provides no guarantee that the same individuals who prepare the sample tasks will also perform services under an awarded contract. Our decisions recognize, however, that the government’s interest in simply reducing the risk of unsuccessful performance is a legitimate basis for including a restrictive solicitation provision. See Valor Constr. Mgmt., LLC, supra, (denying challenge to solicitation provision where agency was concerned with “limiting the risk of unsuccessful performance”) (emphasis added); Aljucar, Anvil-Incus & Co., B-408936, Jan. 2, 2014, 2014 CPD ¶ 19 at 5 (denying protest where challenged solicitation provision was included to address “the possibility of increased performance risk from newly-formed joint ventures without prior experience operating as a joint entity.”) (emphasis added). Although we agree with the protester’s observation that the provision at issue in this protest does not guarantee that the same individuals who prepare the sample task responses will also perform under the contract, the provision eliminates the possibility that an offeror will submit sample task responses that do not reflect its own technical ability because the responses were prepared by an outside consultant. As such, we find that the agency reasonably concluded that the restriction on consultants would reduce risk to the government.

ACCI also challenges the logic of prohibiting consultant assistance in preparing sample task responses because it is possible for an offeror to contract with a consultant firm not only for the preparation of the sample tasks, but also to assist the offeror in performing under the government contract if the offeror receives an award. Protester’s Comments at 3. Thus, the protester argues, the VA’s blanket prohibition on consultant assistance with the sample tasks responses is unduly broad. Id. The protester’s argument is misplaced, however, as it ignores the fact that the RFP allows for an offeror’s subcontractors to participate in the preparation of the sample task responses, so long as the subcontractors are part of a CTA and identified in the offeror’s proposal. RFP at 119. As such, under ACCI’s hypothetical, a consultant could in fact assist with the sample task responses, provided the consultant was part of a CTA for the contract and identified in the offeror’s proposal.

Finally, the protester challenges the RFP’s prohibition on consultants on the basis that it may require a small business offeror to rely on a large business subcontractor to assist in the preparation of the sample task responses, and thereby jeopardize the offeror’s status as a small business for the purposes of the procurement. Protest at 8-9. The fact that a requirement may be burdensome or even impossible for a particular firm to meet, however, does not make it objectionable, so long as the requirement properly reflects the agency’s needs. See Valor Constr. Mgmt., LLC, supra, at 2-3 (denying protest where protester alleged that it might lose its small business status if it entered into a joint venture with a large business in order to have the experience/past performance of the large business considered in the agency’s evaluation). As discussed above, the agency’s limitation on the use of consultants is reasonably related to the agency’s goal of reducing the risk of unsuccessful performance. Accordingly, the protester’s argument provides no basis to sustain the protest.  (Advanced Communication Cabling, Inc. B-410898.2: Mar 25, 2015)  (pdf)


Smith & Nephew argues that the RFQ’s requirement for a minimum fluid handling capacity of 20 g/10cm2/24hr is unduly restrictive of competition. In this regard, Smith & Nephew asserts that this specification is not reasonably necessary to meet the agency’s needs and that its inclusion in the RFQ prohibits Smith & Nephew and other firms from competing for a BPA under CLIN 0002. See Protest at 2, 8-9,

In response, the agency does not address how a minimum fluid handling capacity of 20 g/10cm2/24 hr is necessary to meet any specific need. Instead, the agency states that its “goal is to procure the most absorbent and fluid-handling capable dressings available.” AR at 3 (quoting AR, Tab 8, Wound Care Integrated Product Team Chair Decl., at 1). Therefore, the agency explains, it chose the “top tier” (i.e., highest) fluid handling capacity value that was identified in the responses to the RFIs; i.e., the agency chose the 20 g/10cm2/24hr specification based on the value that was provided as one of [deleted] two test results. See AR at 3.

In preparing a solicitation, a contracting agency is generally required to specify its needs and solicit offers in a manner designed to achieve full and open competition, so that all responsible sources are permitted to compete. 41 U.S.C. § 3306(a)(1)(A) (2012). A solicitation may include restrictive provisions or conditions only to the extent necessary to satisfy the agency’s needs or as authorized by law. Id. § 3306(a)(2)(B). 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 ¶ 43 at 3.

We find the RFQ here to be unduly restrictive because the agency has not explained how the challenged specification is reasonably necessary to meet an actual need of the agency. As an initial matter, we observe that the agency has failed to identify an absorbency threshold (or range) that actually is needed by the government, but has instead identified a general “goal” of attaining “top tier” absorbency. While we recognize that the VA is entitled to great discretion in establishing its medical needs, the agency has offered no support for limiting the competition to offerors whose products can meet the specific threshold of 20 g/10cm2/24hr instead of any other number (lower or higher).

Beyond this issue, we also observe that the VA acknowledges it established the specification based only on information it received in response to the RFIs, and that it relied on this information because it knew of no supporting market research or industry standard for any specific fluid handling value. AR, Tab 6b, E-Mails Related to Second RFI, at 7. However, as shown above, only one response--[deleted] response to the first RFI--represented that a product could meet the 20 g/10cm2/24hr specification, and that representation was contradicted by another test result from the same vendor, for the same product, showing a capacity of 10 g/10cm2/24hr (half the required value).

Moreover, the agency made its decision in the face of considerable product data from other vendors indicating that the 20 g/10cm2/24hr specification was higher than any known product could achieve. See, e.g., AR, Tab 6b, [deleted] Response to the Second RFI, at 11-16. Additionally, the agency seems to have ignored data provided by two of the vendors showing that the 20 g/10cm2/24hr specification significantly deviated from standards derived from clinical studies and industry usage. See id. at 11; AR, Tab 6e, [deleted] Response to the Second RFI at 30. Given the nature and amount of contradictory information that was presented to the agency, and the agency’s apparent failure to reasonably determine whether the 20 g/10cm2/24hr specification was nonetheless necessary, we find that the agency’s decision to rely on a single, internally inconsistent result from one vendor to establish its minimum requirement does not withstand logical scrutiny.

We note that the agency has taken the position that responses to the RFIs indicated that at least two vendors could meet the 20 g/10cm2/24hr specification. COS at 4. The agency apparently is relying upon the fact that [deleted], in its response to the second RFI, checked a box stating it could comply with the fluid handling capacity cited for CLIN 0002. AR, Tab 6e, [deleted] Response to the Second RFI, at 30. This indication, however, is located directly below a lengthy paragraph wherein [deleted] states that its products have a fluid handling capacity of 11‑14 g/10cm2/24hr, which “is in alignment with all leading manufacturers,” and that the 20 g/10cm2/24hr specification is “unfair” and “potentially eliminates all” but one manufacturer. Id. Given these statements, we do not find reasonable the agency’s reliance on [deleted] apparently pro forma checked response.

The agency also argues that the determination of how much fluid a dressing must be able to absorb is directly related to its medical needs, and that our office should defer to the agency’s judgment. In this regard, the agency quotes our decision in G.H. Harlow Co., Inc., B-254839, Jan. 21, 1994, 94-1 CPD ¶ 29, which stated “we will not question the contracting agency’s determination of its minimum needs and the best method of accommodating those needs unless it has no reasonable basis.” AR at 3. In G.H. Harlow, however, the agency provided a reasonable explanation for including a requirement--approval from an independent testing authority--that the agency acknowledged would significantly restrict the pool of competition. G.H. Harlow Co., Inc., supra, at 3. In contrast, the agency here has failed to provide any reasonable basis for its restrictive requirement, did not demonstrate that the 20 g/10cm2/24 hr specification is related to its actual needs, and fails to acknowledge that its specification appears to exceed the fluid handling capacity of any known product.  (Smith and Nephew, Inc. B-410453: Jan 2, 2015)  (pdf)
 


The solicitation requested offers for 74,274 track pads with an option to purchase 74,274 additional units. RFP at 5, 8. The solicitation required offerors to submit proposals on an “all or none” basis. Id. at 3. WKF, which submitted an offer for 28,040 track pads, protests that the requirement to propose on an “all or none” basis is unduly restrictive of competition.

In preparing a solicitation, a contracting agency is generally required to specify its 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. §§ 2304(a)(1), 2305(a)(1)(A). A solicitation may include restrictive provisions or conditions only to the extent necessary to satisfy the agency's needs or as authorized by law. 10 U.S.C. § 2305(a)(1)(B)(ii). To the extent that a protester challenges a specification as unduly restrictive, that is, it 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. Nova Constructors, LLC, B-410761, Jan. 21, 2015, 2015 CPD ¶ 51 at 3. Once the agency establishes support for the provision, the burden shifts to the protester to show that the requirement is clearly unreasonable. J. Squared Inc., d/b/a Univ. Loft Co., B‑408388, Aug. 27, 2013, 2013 CPD ¶ 201 at 5; Outdoor Venture Corp; Applied Cos., B-299675, B‑299676, July 19, 2007, 2007 CPD ¶ 138 at 5.

Here, DLA explains that its requirement for track pads for the Abrams tank is uncertain. The agency notes in this regard that the track pads that are being purchased support multiple programs, including requirements for the Anniston Army Depot, various Marine Corps programs, and foreign military sales. There is also inherent uncertainty in the mission requirements for the Abrams tank. The agency maintains that, given the uncertainty and volatility in demand for the track pads, it needs a single source of supply with a 100% option quantity to ensure that any mission requirements are satisfied. Supplemental Agency Report at 1.

While WKF disagrees with the agency’s position, the protester has not demonstrated that it is unreasonable for the agency to choose to procure the entire quantity from one source in order to deal with the uncertainty in its requirements. WKF would like the agency to make multiple awards, instead of procuring the track pads on an all or none basis. Specifically, of the 74,272 track pads currently required, WKF would like to provide 28,040 because this is the number it has available. In our view, however, the statutory mandate to conduct procurements on the basis of full and open competition does not require agencies to modify their mission-related needs to accommodate the limited capabilities of a particular offeror.  (WKF Friedman Enterprises B-410827: Feb 23, 2015)  (pdf)
 


CompTech argues that the requirement to possess a Top Secret facility clearance by the submission date for new FPRs is unduly restrictive of competition. The protester argues that the agency has not established any immediate need for an offeror to have the Top Secret facility clearance in order to perform the first task order; and that, further, CompTech will not be able to obtain a Top Secret facility clearance until it has been awarded a contract with this clearance requirement. Protest at 9. These arguments provide no basis to sustain the protest.

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 Streit USA Armoring, LLC, B-408584, Nov. 5, 2013, 2013 CPD ¶ 257 at 4. We 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 ¶ 34 at 7. A protester’s 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, B-400107, B-400107.2, Aug. 1, 2008, 2008 CPD ¶ 143 at 5.

Here, it is undisputed that access to classified information at the Top Secret level is required to perform some of the work under the contract; the RFP indicated from the beginning that the requirements included Top Secret-level work. RFP at 10-11; Comments at 7. The agency points out that, after awarding the first task order (which requires only a Secret facility clearance), it intends to issue task orders in March, 2015 that will require performance at the Top Secret level. COS at 12. It is also undisputed that the process of obtaining a Top Secret facility clearance can take several months. AR, Tab 4, Clearance Question E-mails, at 3; MOL at 6.

The record shows that amendments Nos. 1 and 3 each extended the time within which offerors could obtain the required clearance. Further, we note that the time from when the RFP was issued (on October 31, 2013) until the ultimate date for submission of FPRs (November 19, 2014) spanned more than a year. Given these undisputed facts, we find reasonable the agency’s conclusion that it could not further delay the requirement for the Top Secret facility clearance without jeopardizing its ability to obtain the services it will need. The fact that CompTech disagrees with the agency’s judgment concerning those needs does not show that the agency’s judgment is unreasonable. Exec Plaza, LLC, supra. Accordingly, we deny this aspect of the protest.

CompTech further contends that it cannot obtain a Top Secret facility clearance unless/until it has been awarded a contract that requires a Top Secret facility clearance. Protest at 9. Given our conclusion, above, that the agency’s clearance requirement is reasonably necessary to meet its needs, the protester’s inability to satisfy that need does not render the agency’s need improper. 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. See JBF/Naylor Station I, LLC, B-402807.2, Aug. 16, 2010, 2010 CPD ¶ 194 at 4. In fact, the record here shows that five firms responded which hold a Top Secret facility clearance, undercutting CompTech’s argument that the requirement is unduly restrictive.  (CompTech-CDO, LLC B-409949.2: Jan 6, 2015)  (pdf)


Gallup asserts that the inclusion of FAR clause 52.227-14, as opposed to FAR clause 52.227-17, Rights in Data – Special Works (DEC 2007), or, alternatively, FAR clause 52.227-14, Alternate II (DEC 2007), is unreasonable because FAR clause 52.227-14 effectively exceeds DHS’ needs. Specifically, Gallup contends that utilization of FAR clause 52.227-14 will prevent the awardee from delivering data subject to limited rights[3] in performance of the resulting order and, therefore, “provides the Government with excessive rights beyond those necessary to complete the work specified under the solicitation.” Protest at 1.[4] For the reasons discussed below, we find no basis to sustain the protest.

Substitution of FAR clause 52.227-17

First, Gallup asserts that the RFQ should include FAR clause 52.227-17, in lieu of FAR clause 52.227-14, because the former provision would allow the awardee to deliver limited rights data under the resulting order. See Protest at 1. As discussed below, we deny this aspect of the protest because Gallup’s assertion is predicated on a faulty interpretation of the applicable FAR clauses.

Gallup is correct that the basic version of FAR clause 52.227-14 does not allow a contractor to deliver data subject to limited rights to the government in the performance of a contract. Rather, FAR clause 52.227-14(g)(1) provides that the contractor may withhold from delivery certain limited rights data. Alternatively, if the contractor is authorized or required to deliver limited rights data under the contract, the government does not obtain unlimited rights in the data. Id. at (b)(1)(iv), (b)(2)(iv); see also FAR § 27.404-2(a), (c).

Contrary to Gallup’s assertion, however, FAR clause 52.227-17 similarly does not allow a contractor to deliver data subject to limited rights to the government in the performance of a contract. As DHS correctly notes, FAR clause 52.227-17 does not contain any provisions for the identification and delivery or withholding of limited rights data. In contrast to the express limited rights provisions of FAR clause 52.227-14, under FAR clause 52.227-17(b)(1)(i), the government generally obtains unlimited rights in all data delivered under the contract or first produced in the performance of the contract. Thus, to the extent that Gallup argues that FAR clause 52.227-17 is more appropriate, Gallup fails to explain how the clause provides a greater degree of protection for its proprietary data. On this record, we deny this protest argument.

Inclusion of FAR clause 52.227-14, Alternate II

Alternatively, Gallup asserts that DHS was required to incorporate Alternate II to FAR clause 52.227-14 into the RFQ and, as a result of not incorporating the provision, will effectively and unreasonably restrict vendors from delivering any limited rights data to DHS under the resulting order. See Protest at 2; Protester’s Response to GAO Questions (Aug. 14, 2014), at 2. As discussed below, we find no merit to this argument.

A contracting agency generally has the discretion to determine its needs and the best method to accommodate them. Y&K Maint. Inc., B-405310.2, Oct. 17, 2011, 2011 CPD ¶ 239 at 5. A protester’s 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. Id. 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. Id.

Here, we see nothing improper about DHS’ decision to decline to incorporate any of the alternate provisions to FAR clause 52.227-14 into the RFQ. Gallup argues that DHS must include Alternate II because FAR § 27.402(b) requires the government “[to] balance the Government’s needs and the contractor’s legitimate proprietary interests.” See, e.g., Protester’s Response to Request for Dismissal (Aug. 5, 2014) at 2. Gallup, however, identifies nothing that requires DHS to accept the delivery of limited rights data. Gallup’s disagreement with DHS’ judgment not to require or accept limited rights data does not provide a basis to sustain the protest.  (Gallup, Inc., B-410126: Sep 25, 2014)  (pdf)
 


The Competition in Contracting Act of 1984 requires that solicitations generally permit full and open competition and contain restrictive provisions only to the extent necessary to satisfy the needs of the agency. 10 U.S.C. § 2305(a)(1)(B)(ii) (2006). Where a protester challenges a solicitation provision as unduly restrictive of competition, the procuring agency must establish that the provision is reasonably necessary to meet the agency’s needs. See Total Health Res., B-403209, Oct. 4, 2010, 2010 CPD ¶ 226 at 3. We 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 ¶ 34 at 7. The determination of a contracting agency’s needs is primarily within the agency’s discretion 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. SML Innovations, B-402667.2, Oct. 28, 2010, 2010 CPD ¶ 254 at 2.

Here, we find that GMCS’s protest provides no basis to question the revised solicitation requirements. As noted, GMCS concedes the need for an accredited certification body and auditors who are competent in the fields of construction and engineering services, Protest at 1-2, and also concedes requiring Scope Code 34 (Engineering Services) for acceptance of accreditation by other than ANAB. While GMCS questions the need for Scope Code 28 (Construction) on the basis that the Corps performs construction management rather than construction, it has not refuted the Corps’s position that it is an engineering and construction organization not all of whose construction involvement is construction management. Supp. AR at 4. Furthermore, GMCS has made no showing as to why, even allowing for the Corps’ focus on construction management, a scope code for construction is not at least as appropriate as the scope codes for other services (Scope Codes 35) or public administration (Scope Code 36) suggested by the protester.

GMCS also challenges the RFP’s requirement for certification “with an identified main scope of Management System Certification conforming to ISO/IEC 17021:2011 with Option 2 as the management system.” RFP, Amendment No. 1, at 6. However, while GMCS asserts that the requirement for Option 2 is “unnecessary and overly restrictive,” GMCS is not an interested party to raise this issue since it concedes that, in fact, it has Option 2 as part of its accreditation. Comments at 2. In this regard, we have held that a prospective offeror generally lacks standing to challenge a specification as unduly restrictive in cases where it can meet the requirement set forth in the solicitation, as such a challenge would be, in essence, on behalf of other potential suppliers who are economically affected by the specification’s allegedly restrictive nature. Westinghouse Elec. Corp., B‑224449, Oct. 27, 1986, 86-2 CPD ¶ 479 at 3; see also American Sterilizer Co., B‑223493, Oct. 31, 1986, 86-2 CPD ¶ 503; cf., J. Squared Inc., d/b/a University Loft Co., B-408388, Aug. 27, 2013, 2013 CPD ¶ 201 at 4 (protester is an interested party where its economic interests are prejudiced by the agency’s decision to restrict procurement to oak constructed furniture, as the firm could compete more effectively if permitted to offer furniture constructed of another type of wood); Gould, Inc., B–224365, Oct. 17, 1986, 86–2 CPD ¶ 464 (prospective offeror is an interested party where, despite being able to meet the solicitation’s terms, the firm is an established manufacturer of an item excluded by a restrictive specification).

Finally, GMCS asserts that the Corps has drafted the SOW to ensure that the incumbent receives award. To the extent that GMCS argues that the agency is biased in favor of the incumbent contractor, government officials are presumed to act in good faith, and we will not attribute unfair or prejudicial motives to procurement officials on the basis of inference or supposition. Where a protester alleges bias, it must provide credible evidence clearly demonstrating bias against the protester or in favor of the successful firm. Detica, B-400523, B-400523.2, Dec. 2, 2008, 2008 CPD ¶ 217 at 4-5. Here, the protester has made no such showing. Rather, the protester relies on the fact that the incumbent is able to meet the requirements of the RFP (and subsequent amendments) and asserts that this constitutes “clear evidence that the Agency is seeking to ensure that only one contractor can bid on this requirement.” Supp. Comments at 3. We have held, however, that where a solicitation’s requirements favor an incumbent who possesses the required knowledge and experience, any such advantage is not improper when the requirements are reasonably related to the agency’s needs. 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 ¶ 195 at 4.  (Government and Military Certification Systems, Inc., B-409420: Apr 2, 2014)  (pdf)


Air USA challenges the terms of the amended solicitation, asserting that the requirement for airworthiness data documentation at the time of proposal submission is unduly restrictive of competition. According to the protester, the documentation is impossible to provide prior to proposal submission for any offeror other than the incumbent because the data “cannot be obtained until the acquisition of the aircraft is complete.” Protest at 9. For the reasons discussed below, we conclude that the requirement for airworthiness data documentation at the time of proposal submission is not unduly restrictive of competition.

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 Streit USA Armoring, LLC, B-408584, Nov. 5, 2013, 2013 CPD ¶ 257 at 4. We 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 ¶ 34 at 7. Where, as here, the challenged requirement relates to national defense or human safety, we have held that 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. The determination of a contracting agency’s needs, including the selection of evaluation criteria, is primarily within the agency’s discretion 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. SML Innovations, B‑402667.2, Oct. 28, 2010, 2010 CPD ¶ 254 at 2.

As discussed above, the amended solicitation states that offerors were required to address five elements under the technical factor. RFP at 100. At issue here, the second technical element requires offerors to provide documentation relating to aircraft airworthiness for each aircraft proposed. The RFP states that offerors should provide the following airworthiness data documentation: (1) a parts life tracking process and status report, to identify all parts with original equipment manufacturer (OEM)/military-defined life limits and plan for replacing the part; (2) a part overhaul tracking process and status report, to identify parts with OEM/military‑defined time between overhaul and plan for overhauling/reworking the parts; (3) a scheduled inspections process and status report, to demonstrate a comprehensive scheduled inspection plan for each aircraft; (4) an aircraft modifications status report, to provide the date each aircraft was retired from military use and demonstrate airworthiness of each aircraft modifications; (5) a maintenance history report, to account for the timeframe from manufacture to proposal submission that aircraft has been properly maintained; and (6) a fatigue life status report, to demonstrate all proposed aircraft have the remaining fatigue life to allow safe operation throughout contract performance, based upon projected usage rates. Id. at 82-83. The solicitation states that all airworthiness data documentation was required at the time of proposal submission. Id. at 79.

As relevant here, the solicitation states that the agency’s airworthiness data evaluation will assess an offeror’s “ability to meet the current and continued airworthiness requirements by evaluating the plan and supporting data used to maintain airworthiness.” RFP at 101. In this regard each offeror’s airworthiness documentation will be reviewed to determine whether the offeror demonstrates: the maintenance history of each aircraft; tracking of parts/components with defined limits; a supply strategy to replace parts or to overhaul/rework parts; the structural fatigue life limit remaining for each aircraft; the maintenance plan and scheduled inspection plan; and support for aircraft modifications. Id.

Air USA primarily argues that the requirement to submit airworthiness data documentation is unduly restrictive of competition because it is impossible for any offeror, other than the incumbent, to obtain and submit such data by the time of proposal submission. In this regard, the protester alleges that airworthiness data, such as log books and maintenance data, cannot be obtained prior to the purchase of an aircraft since a seller “will not supply [l]og [b]ooks or maintenance data” in advance of completion of the sale. Protest at 7.

In response to the protester’s allegations, the Navy first asserts that Air USA’s difficulty providing the airworthiness data documentation is not due to the terms of the solicitation. Rather, the agency states that Air USA could not fulfill the requirement because the protester chose to purchase the aircraft it proposed, which was not a requirement of the solicitation. Indeed, prior to the submission of proposals, the Navy clarified to all offerors that aircraft may be “owned, subcontracted, and leased,” which put offerors on notice that purchasing the aircraft was only one of the many approaches available. AR at 36; Tab M, Solicitation Question and Answers (Aug. 14, 2013). Additionally, the agency notes that [DELETED] offerors submitted proposals in response to the solicitation that provided the required airworthiness data--who were not the incumbent contractor. AR at 20.

The agency also argues that its requirement for offerors to present certain airworthiness data documentation at the time of proposal submission is necessary to ensure military and civilian personnel safety during the performance of the contracted air services effort. In this regard, the Navy explains that a Department of Defense directive requires, “[a]ll aircraft and air systems owned, leased, operated, used, designed, or modified by DoD must have completed an airworthiness assessment in accordance with Military Department policy.” AR at 3; citing DoDD 5030.61 (May 24, 2013), Policy, at 1. The Navy states that it requires the airworthiness data documentation at the time of proposal submission to ensure that the technical evaluators have sufficient time to perform a thorough evaluation as part of the mandated overall airworthiness assessment. For example, each aircraft’s modification status report must be evaluated to assess the safety of modifications made after the aircraft’s retirement from military service to ensure all modifications are supported by appropriate engineering analysis and documentation, and to evaluate the risk that a modification to the aircraft was improperly installed. AR at 29-30.

Finally, the Navy contends that unlike the FAA airworthiness certificates, which require only a validation that the offeror possess the certificates, the evaluation of the airworthiness data documentation requires a time intensive review process. For example, each aircraft’s maintenance history documents must be evaluated for the entire life of the aircraft to determine if there are lapses in the aircraft’s maintenance; based upon this information, the evaluators must assess the risk that an aircraft may be unsafe for flight, due to prior negligent or improper maintenance. Id. at 25. In addition, the evaluators must also assess the risk of part failure based upon an offeror’s documentation of its parts replacement plan to avoid the risk of part failure on the aircraft when in flight. Id. at 26. Thus, the agency asserts that the evaluation of the airworthiness data documentation is not simply a check-the-box validation; rather, it requires a comprehensive evaluation and risk assessment. Id. at 24

Based on this record, we think the agency has reasonably established a legitimate need for airworthiness data documentation at the time of proposal submission. Given the critical need to ensure the safety of government and civilian 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 find that the agency’s interest in evaluating each aircraft’s airworthiness data through a thorough assessment of the documentation provided at the time of proposal submission is reasonable to achieve the highest level of reliability and effectiveness.

Moreover, the Navy does not need to delay the procurement simply to accommodate Air USA’s choice of technical approach. See JBG/Naylor Station I, LLC, B-402807.2, Aug. 16, 2010, 2010 CPD ¶ 194 at 4 (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.) Indeed, as the agency asserts, Air USA’s technical approach appears to be the reason why this information was not readily available to them at the time of proposal submission. While the protester asserts that the agency’s legitimate need for airworthiness data is not relevant at the time of proposal submission because the data would be out of date by the time of award, our Office will not question an agency’s determination of its minimum needs--or the best method to meet them--unless there is a clear showing that the determination has no reasonable basis. Mid–South Dredging Co., B-256219, B-256219.2, May 25, 1994, 94-1 CPD ¶ 324 at 5. We find that the agency has reasonably identified a need to thoroughly evaluate an offeror’s ability to meet the current and continued airworthiness requirements.  (Air USA, Inc., B-409236: Feb 14, 2014)  (pdf)


The crux of AAI’s protest is that the RFP is unduly restrictive of competition because the solicitation, with respect to joint venture offerors, limits consideration of experience to that of the joint venture itself. AAI complains that the solicitation does not allow newly-formed joint venture offerors to satisfy the experience requirements through the experience of the individual members of the joint venture. Protest at 14-15; Comments at 4.

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 ¶ 226 at 3. We 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 ¶ 34 at 7. The determination of a contracting agency’s needs, including the selection of evaluation criteria, is primarily within the agency’s discretion 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. SML Innovations, B-402667.2, Oct. 28, 2010, 2010 CPD ¶ 254 at 2.

GSA states that its market research led it conclude that newly-formed joint ventures (that is, joint ventures without a proven “track record” of experience) could pose performance risks. See AR at 5; see also, e.g., AR, Tab 3, OASIS Market Research Summary, at 7-8. The agency also states that this is particularly so under a solicitation, as here, that involves complex, high-dollar service requirements. AR at 2. GSA also maintains, citing Valor Construction Mgmt. LLC, B-405365, Oct. 24, 2011, 2011 CPD ¶ 226, that it can be reasonable for an agency to limit consideration of experience to the entity that will hold the contract with the government--i.e., the joint venture itself. AR at 3.

Included within the GSA’s market research was a survey of articles and books assessing problems resulting in lower success rates for joint ventures. AR, Tab 3, OASIS Market Research Summary, at 6-7. For example, GSA cites a Harvard Business Review article that concluded that companies forming a joint venture rarely commit sufficient resources to the launch, and mistakes made at that point can result in problems such as strategic conflicts between the allied companies, governance gridlock, and missed operational synergies. See J. Bamford, D. Ernst, and D.G. Fubini, Launching a World-Class Joint Venture, Harvard Bus. Rev., Feb. 2004. Examples of other articles and books reviewed by GSA include Valerie Orsoni-Vauthey, Happy About Joint Venturing (2006) (joint ventures have high rates of failure within 5 years of formation), and Janel Vaughan, What is a Joint Venture?, University of Iowa College of Law Center for International Finance and Development (differences between joint venture members in priorities, direction, and values can result in confusion, frustration, and a distinctly slower decision-making process).

The agency states that, in addition to the academic research described above, it received information from clients and industry, from which it concluded that while joint ventures could be successful, they raise certain challenges and risks, and may have problems with such issues as governance, control issues, and diverging priorities of the affiliated companies. See AR, Tab 3, OASIS Market Research Summary, at 7-8; see also AR, Tab 6, Decl. of OASIS Deputy Director, at 4. Based on these concerns, and the complexity of the integrated service requirements being procured, the agency decided that while joint ventures should not be excluded, they should be required to demonstrate a proven record of experience working together as an entity. Id.

In an attachment to its initial protest filing, AAI argues that GSA’s survey of business literature addressing lower success rates for joint ventures was misleading and biased. Initial Protest, Attach. 2 at 19-22. In several instances, AAI argues that the GSA took quotes out of context to bolster its business case. Id. at 19, 21. In at least one instance, AAI even offers to “arrange a discussion with the Authors” of an article to demonstrate that the purpose of the article was intended as a roadmap to increase the success of joint ventures. Id. at 19.

As an initial matter, we will not assume that GSA officials acted in bad faith in preparing their literature survey. Pemco Aeroplex, Inc., B-310372, Dec. 27, 2007, 2008 CPD ¶ 2 at 15. While we do not accept that GSA manipulated its market survey to harm any potential pool of offerors, we accept as valid the protester’s claim that many of the materials cited in GSA’s survey were written to increase the likelihood of successful performance by joint ventures--or to provide a roadmap for increased success, in AAI’s words. Initial Protest, Attach. 2 at 19. Even so, these articles were clearly written to address performance problems experienced by joint ventures. GSA surveyed this literature and concluded that, if possible, it would prefer to avoid some of these risks. We think the agency acted within its discretion to take notice of this work, and to reach conclusions about the possibility of increased performance risk from newly-formed joint ventures without prior experience operating as a joint entity. On questions like this one, we will not substitute our judgment for the agency’s judgment. See e.g., R2Sonic, LLC, B-405864, Jan. 6, 2012, 2012 CPD ¶ 21 at 3.

With regard to AAI’s comments, the protester contends that our decision in Valor Construction supports its argument that GSA must credit joint ventures with the experience of its individual members. In this regard, AAI states that in Valor we recognized that an agency may restrict consideration of a team member’s experience to “only those firms with which [the agency] has contractual privity for purposes of performing the contract.” See Comments at 6.

As an initial matter, AAI is correct that the agency procurement at issue in Valor Construction was, in fact, structured to permit consideration of the experience of the various entities forming the joint venture. See Valor Construction, supra at 2. However, we do not agree that the Valor decision supports AAI’s contention that an agency is required to credit joint ventures with the experience of its individual members. In Valor, we found that a solicitation provision--restricting consideration of individual team members’ past performance and experience to those firms with which the agency would be in privity of contract--did not prohibit teaming arrangements and was not unduly restrictive of competition. See Valor Construction, supra, at 3. Contrary to AAI’s arguments, we did not hold in Valor that an agency is required to consider the experience of individual joint venture members. In addition, we are unaware of any law or regulation requiring that agencies do so.

More importantly, AAI’s argument misses the broader principle on which Valor is based, which is that the determination of a contracting agency’s needs, including the selection of evaluation criteria, is primarily within the agency’s discretion, 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. Valor Construction Mgmt. LLC, supra, at 2-3. Here, the agency has expressed an interest in reducing risk by evaluating the experience of its contractor--in performing government contracts, integrating solutions across multiple disciplines, and, when that contractor is a joint venture, working together as a unified entity. AR at 5.

In short, the relevant experience requirement here reflects the agency’s interest in the performance of the joint venture as an established and experienced team. Although AAI disagrees with the agency’s judgment in this regard, this disagreement does not show that the solicitation’s experience requirement for joint ventures is unduly restrictive of competition.

The protest is denied.  (Aljucar, Anvil-Incus & Co. B-408936, Jan 2, 2014)  (pdf)


As relevant here, section M of the RFP states that, in assessing a principal offeror’s performance confidence, the agency will not consider the experience and past performance of proposed subcontractors and key personnel. RFP amend. 3, § M-3(B)(3)(1), at 4; see also amend. 2, § L-8(c)(3)(2), at 9.

HK protests the criterion, arguing that it unduly restricts competition and is not reasonably related to the Air Force’s needs. Protest at 4. The protester points out in this regard that a prior version of the RFP provided for consideration of key personnel and subcontractor past performance and, in HK’s view, the agency has not adequately justified the revision. See Comments at 5. HK asserts that the restriction prevents all but the incumbent from being assessed the highest performance confidence rating (substantial confidence), which, according to the protester, an offeror must receive to be considered for contract award under the RFP’s adjectival rating scheme and basis for award. Id. at 3. Without reliance on the past performance of proposed subcontractors and key personnel, the protester claims, many potential offerors may not submit a proposal, because they may not receive a high enough performance confidence rating to be competitive for award. See id.

Where a protester challenges a solicitation provision as unduly restrictive of competition, the procuring agency must establish that the provision is reasonably necessary to meet the agency’s needs. See Total Health Res., B-403209, Oct. 4, 2010, 2010 CPD ¶ 226 at 3. We 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 ¶ 34 at 7. The determination of a contracting agency’s needs, including the selection of evaluation criteria, is primarily within the agency’s discretion 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. SML Innovations, B-402667.2, Oct. 28, 2010, 2010 CPD ¶ 254 at 2.

The agency maintains that limiting the performance confidence assessment to the principal offeror’s past performance is necessary to ensure that the evaluation focuses on those with whom the Air Force will have privity of contract, and prevents ratings from being inflated by the past performance of key personnel who have no obligation to perform under the contract. AR at 2. The Air Force explains that it cancelled the earlier RFP because the agency had not properly assessed performance confidence ratings based, in part, on offerors’ proposed key personnel. Id. at 6-7. According to the agency, the revised past performance criteria, as well as the newly added technical evaluation factor, address these concerns. Supp. AR at 2.

We find the RFP’s past performance requirements unobjectionable and see no reasonable way that they can be said to restrict competition. First, an agency has a legitimate interest in assessing performance risk by considering only the experience and past performance of entities with which it will have contractual privity. Valor Constr. Mgmt., LLC, B-405365, Oct. 24, 2011, 2011 CPD ¶ 226 at 4. Secondly, as the protester concedes, Comments at 3, there is no legal requirement that an agency attribute employee experience to the contractor in evaluating its experience and past performance. See Olympus Bldg. Servs., Inc., B-282887, Aug. 31, 1999, 99-2 CPD ¶ 49 at 4. Finally, consistent with FAR part 15, the solicitation here provides that offerors lacking recent or relevant past performance history will not be evaluated favorably or unfavorably in that regard, but will be assessed a neutral rating. RFP amend. 3, § M-3(B)(3)(1), at 4; FAR § 15.305(a)(2)(iv). In other words, the RFP does not preclude HK from submitting a proposal and, contrary to the protester’s suggestion, the RFP does not preclude award to an offeror with a neutral performance confidence rating. Futurecom, Inc., B-400730.2, Feb. 23, 2009, 2009 CPD ¶ 42 at 2-3.

While the protester would apparently prefer to receive the highest possible performance confidence assessment rating based on the quality of its proposed key personnel’s past performance, as opposed to a neutral rating based (ostensibly) on a lack of relevant corporate past performance, the fact remains that the only impact of the contested provision is the difference between those two ratings. Olympus Bldg., supra, at 3; Valor Constr., supra, at 2 (that RFP’s evaluation criteria may prevent a number of firms from obtaining positive experience and past performance ratings not dispositive of whether provision is unduly restrictive).

Accordingly, there is no basis to find the solicitation’s past performance evaluation criteria unreasonable or inconsistent with applicable procurement laws and regulations, and the protester’s disagreement with the agency’s judgment concerning its needs and how to accommodate them does not provide a basis to sustain the protest. See Exec Plaza, LLC, B-400107, B-400107.2, Aug. 1, 2008, 2008 CPD ¶ 143 at 5.  (HK Consulting, Inc. B-408443, Sep 18, 2013)  (pdf)


Requirement for Oak

Uloft challenges the agency’s solicitation on the grounds that it has not justified limiting the procurement to oak furniture and that the decision of the agency to do so unduly restricts competition. As discussed below, we find that the agency’s decision in this regard was reasonable.

Where a protester challenges a specification as unduly restrictive, that is, challenges both the restrictive nature of the specification and the agency’s need for the restriction, the agency has the responsibility of establishing that the restrictive specification is reasonably necessary to meet its legitimate needs. GlobaFone, Inc., B-405238, Sept. 12, 2011, 2011 CPD ¶ 178 at 1. 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. Id. Once the agency establishes support for the challenged solicitation term, the burden shifts to the protester to show that it is clearly unreasonable. Id.

We have recognized that an agency may use detailed specifications where the record demonstrates that particular size, strength, or material requirements are necessary to ensure adequate performance, or that a particular design is reasonably related to maintaining an aesthetic appearance. Dixon Pest Control, Inc., B-248725, Aug. 27, 1992, 92-2 CPD ¶ 132 at 2. Specifications for the use of particular materials may be justified when they are necessary to ensure adequate performance or that a particular design is reasonably related to the agency's aesthetic needs. Abescon Mills, Inc., B-251685, Apr. 19, 1993, 93-1 CPD ¶ 332 at 2; ACH Food Cos., Inc., B-286794, Feb. 12, 2001, 2001 CPD ¶ 47 at 3. Such consideration of aesthetics and suitability is a subjective exercise. Abescon Mills, supra, at 2. For example, agencies may use specifications requiring a particular color where the agency reasonably establishes that the color restriction is necessary to match an established color scheme. Craigrick’s, Inc., B-261356, Jul. 5, 1995, 95-2 CPD ¶ 2 at 2; Diverstech Co., B-257395, July 27, 1994, 94-2 CPD ¶ 61. Similarly, uniformity of appearance can lead to a specification which assures consistency with the agency’s previous acquisitions. Fry Communications, Inc., B-220451, March 18, 1986, 86-1 CPD ¶ 265 at 2-3.

The agency explains that, in 1997, the UPH Furniture Program undertook a comprehensive effort to determine the needs for wooden barracks furniture, and, with the assistance of the installations, GSA, and the furniture industry, developed a specification that remains the standard for the UPH program. Agency Supp. Report at 1. According to the agency, two important goals of this initiative were standardization across the Army and durability.

With respect to standardization, the then-Technical Lead of the UPH Furniture Program explained that standardization was desirable for several reasons. First, the effect of Base Realignment and Closures, and frequently changing strategic needs led to a need for furniture to be interchangeable between barracks buildings and installations. Second, the Army wanted all barracks to look similar so that when a soldier changes locations, familiarity with the furniture helps them feel at home. Id. Additionally, the agency’s Interior Design Manual identifies similarity of furnishings across barracks as a policy underlying the transition to a centrally procured and funded furniture program. Id. at Exh. D.

The agency argues that, while oak was originally specified because of its availability, appearance, cost, and durability, as well as industry standards, the agency’s subsequent efforts to further standardize barracks furniture now means that red oak is the best material to provide a “uniform appearance and interchangeability” with its existing furniture supply and inventory. Agency Supp. Report at 4. Therefore, the agency concludes, “[t]he exclusive procurement of red oak in the UPH program for over 15 years has had the effect of making it a salient feature of the specification.” Id. In other words, “[r]ed oak, through repeated procurements over the years, has become the standard.” Id.

With respect to durability, the agency argues that it has a legitimate reason for requiring oak as it is more suitable for barracks due to its superior durability as compared with the product offered by Uloft. Contracting Officer’s Statement at 3. The agency explains that barracks furniture goes through much use and abuse, and needs to be as durable as possible to avoid repurchasing furniture more often than necessary. Id. According to the agency, it has a legitimate reason to purchase durable furniture that resists denting, resists screws pulling out (fastener withdraw), and maintains structural integrity over time. Id.

With respect to aesthetics, a representative of GSA observed, “the appearance of the rubber wood is significantly different from the oak. The wood grain on the rubber wood does not contain as much grain pattern, nor is the grain pattern as well defined as on oak. Oak is a ring porous species that has excellent grain definition, while rubber wood does not have clearly defined growth rings and therefore has little grain definition.” AR, Exh. 5 at 2. Other evidence submitted by the agency notes that rubber wood lacks a distinct grain pattern and is less aesthetically pleasing when used in residential-style furniture. Agency Supp. Report at Exh. A. Also, the agency notes while “[r]ed oak provides a warm, inviting look and contains a noticeable grain pattern that is attractive. . . [r]ubber wood has no discernable grain pattern, and the method of construction gives it a butcher block appearance.” Id. at Exh. B. Finally, the agency submitted photographs of typical oak barracks furniture along with pictures of Uloft’s EFT furniture obtained from a tour of a local college dormitory. While we rely more on the observations made by experts in the field, the submitted photographs show a marked difference in appearance between the oak furniture and Uloft’s EFT furniture. Agency Supp. Report at 5-8.

After considering the agency’s arguments and supporting evidence, we cannot find its justifications for requiring oak for barracks furniture unreasonable. Most compelling is its stated goal of ensuring standardized furniture procurements across the agency, which have historically been oak furniture procurements, and the need for future procurements to be consistent with the existing furniture for both aesthetic and practical reasons. While Uloft asserts that EFT “shares the look and color of oak,” Protest at 3, we cannot so conclude from the record.

Having considered the agency’s rationale for the restrictive oak specification, and found its rationale to be supported, we now turn to Uloft’s arguments to determine if it has met its burden to show the agency’s restrictive specification is clearly unreasonable. We find that Uloft has not met its burden.

Uloft first argues that furniture made with EFT has been tested and approved for purchasing by the GSA for over a decade and that EFT-constructed furniture is also purchased by the Air Force, Navy and Marine Corps. Comments at 2. Uloft asserts that the agency could have consulted with other federal agencies to assess EFT furniture construction. Id. at 4. The firm concludes, “[d]ue to the fact that multiple United States Government agencies purchase [EFT] bedroom furniture, it is difficult to ascertain why the agency in the present matter does not.” Id. However, as our office has held, agencies have broad discretion to determine their needs and the best way to meet them. URS Federal Support Servs., Inc., B-407573, Jan. 14, 2013, 2013 CPD ¶ 31. Here, the agency has identified a need for standardization of its furniture procurements. As discussed, we view this identified need as reasonable and within the agency’s broad discretion. The fact that other services and agencies view EFT furniture as acceptable is a function of those agencies’ needs, and does not render the Army’s rationale any less reasonable.

Second, Uloft argues that EFT furniture has been tested and passed rigorous GSA testing standards as well as those of independent testing facilities. Id. In this regard, Uloft cites to furniture testing it commissioned at the Federal Testing Laboratories comparing its EFT furniture versus oak furniture of a competitor, the results of which Uloft submits “clearly evidence the durability of [EFT] wood in furniture construction.” Id. at 7-8. Uloft also submitted its own material comparison, comparing EFT to northern red oak, which it asserts shows the comparable hardness of each wood. Id. at Exh. E. Finally, Uloft references a certain “hardness” test used to evaluate wood’s resistance to denting and impact. Uloft argues that the test results, which shows EFT is 10-14 percent softer than red oak, evidences the relative comparability of the two woods.

As noted previously, we do not find the agency’s argument and evidence that oak is more durable than EFT particularly compelling. Nor has the agency clearly shown that oak, and not EFT, meets its minimum needs for durable furniture. In a similar vein, we are not convinced that Uloft’s evidence to the contrary clearly shows that oak and EFT are equivalent with respect to durability. This position is buttressed by the fact that, even after raising this concern to the parties, neither party materially advanced their position on this issue when submitting supplemental pleadings. However, on this record we need not conclude whether either party has met its burden as we decide this matter based on the agency’s justification with respect to standardization and appearance.

In response to the agency’s arguments pertaining to standardization, Uloft submitted an affidavit from its Plant Manager along with photographs of its current government line of furniture, which the firm asserts depicts its oak finish that gives EFT the appearance of oak. Our review of the four photographs submitted by Uloft leaves us unconvinced that its EFT furniture is aesthetically equivalent to oak, and unconvinced that the agency was unreasonable in concluding the material did not meet its requirement for standardization. Consequently, we cannot conclude that the agency’s specification is unduly restrictive.  (J. Squared Inc., d/b/a University Loft Company, B-408388, Aug 27, 2013)  (pdf)


Corporate Experience and Understanding of the Navy’s MHPI Program Factors

Emax argues that the RFP’s focus on the Navy’s [Military Housing Privatization Initiative] MHPI program under the corporate experience factor and under the understanding of the Navy’s MHPI program factor unfairly favors the incumbent. Protest at 9. Emax contends that the solicitation should provide that experience with any DOD MHPI program would be of equal weight to specific experience with the Navy’s MHPI program under the corporate experience factor. Similarly, Emax contends that the RFP should only require offerors to demonstrate their understanding of the DOD’s MHPI program rather than the Navy’s specific program. Id.; Comments at 9. Emax argues that the Navy’s program is not significantly different from other housing privatization programs run by the other military services. Protest at 10; Comments at 9.

The Competition in Contracting Act of 1984 (CICA) requires that solicitations generally permit full and open competition and contain restrictive provisions only to the extent necessary to satisfy the needs of the agency. 10 U.S.C. § 2305(a)(1)(B)(ii) (2006). 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 ¶ 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 ¶ 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, B-400107, B-400107.2, Aug. 1, 2008, 2008 CPD ¶ 143 at 5.

The Navy points out that the RFP does not preclude consideration of offerors’ experience with other housing privatization programs, but simply informs offerors that the Navy will value experience with its own program more favorably. AR at 7. In this regard, the Navy states that its PPV program is a large, complex program with features that are significantly different from that of other DOD MHPI programs. For example, the Navy notes that its PPV program is executed by two separate commands, the Naval Facilities Engineering Command, which has primary responsibility for executing project business agreements, and Commander Naval Installations Command, which has responsibility for overall policy and requirements definition. AR at 7. The Navy invests appropriated funds and takes a membership interest in developers carrying out its privatization projects, and enters into operating agreements that describe the governance, terms, and structure of the developer. In comparison, the Air Force makes direct loans to developers without an ownership interest. The agency also explains that the Navy requires a PPV offeror to propose project scope, design, management, and financial structure up front, whereas the Air Force and Army work with the selected firm to develop project details. AR at 10. The Navy also uses fewer consultants because of the services provided by the Naval Facilities Engineering Command. The Navy contends that a contractor’s familiarity with the Navy’s program and command structure will reduce the contractor’s learning curve and require less initial government oversight, thus enabling the contractor to perform more efficiently and to provide better support services to the Navy. AR at 7.

The record does not support Emax’s objection that the corporate experience and understanding of the Navy’s MHPI program factors are unduly restrictive of competition. First, we agree with the Navy that agencies are not prohibited from assigning a greater value to program-specific experience. Indeed, we have long recognized that, even under generally-worded experience criteria, an agency properly may evaluate the extent to which offerors have experience directly related to the work required by the RFP. See ITT Corp., Sys. Div., B-310102.6 et al., Dec. 4, 2009, 2010 CPD ¶ 12 at 7 (more favorable consideration of incumbent’s experience not improper); Systems Integration & Dev., Inc., B-271050, June 7, 1996, 96-1 CPD ¶ 273 at 4 (higher rating for experience with specific computer system unobjectionable).

Next, the Navy has, in our view, adequately explained the importance of the differences between its housing privatization program and other DOD programs such that it is not unreasonable for the agency to assign greater value to specific experience with its program or to require offerors to demonstrate an understanding of the Navy’s program as opposed to other DOD programs. Moreover, as noted by the Navy, offerors with experience with other housing privatization programs are not excluded from competing or precluded from being rated favorably. AR at 7. Although Emax contends that the differences between the Navy’s program and other DOD program are minimal, Comments at 7, the protester has not explained any similarities in the programs.

Emax also complains that the RFP informed offerors that a prime contractor’s experience may be more favorably rated than that of subcontractors under the corporate experience factor. Emax argues that only the incumbent contractor has experience as a prime contractor with the Navy’s PPV program. Protest at 9. Emax contends that the experience of its intended subcontractor, who is experienced with the Navy’s Enhanced Use Lease program, should be considered to be of equal value to that of the prime contractor. Comments at 5.

The Navy responds that it places more value on the experience of the proposed prime contractor because the agency will be in privity of contract with only the prime contractor and that placing greater emphasis on the prime contractor’s own experience limits performance risk for the project. AR at 8.

While agencies are permitted to consider the experience of a subcontractor in the evaluation of corporate experience, the significance of, and the weight to be assigned to, a subcontractor’s corporate experience is a matter of contracting agency discretion. See Loral Sys. Co., B-270755, Apr. 17, 1996, 96-1 CPD ¶ 241 at 5. An agency has a legitimate interest in assessing performance risk by considering only the experience and past performance of entities with which it will have contractual privity. Valor Constr. Mgmt., LLC, B-405365, Oct. 24, 2011, 2011 CPD ¶ 226 at 4. In our view, the agency’s concern with limiting the risk of unsuccessful performance by favoring the experience of firms that will be in privity with the government, and thus obligated to perform in accordance with the contract requirements, reasonably relate to the agency’s needs in choosing a contractor that will best serve the government’s interests with respect to a complex project. See id. at 3 (agency’s decision not to consider team member’s experience and past performance not unduly restrictive of competition).

In short, Emax has not shown to be unreasonable the agency’s explanation for the RFP’s emphasis on specific corporate experience and the requirement that offerors demonstrate understanding of the Navy’s MHPI program. Accordingly, we find that these factors are not unduly restrictive of competition.

Past Performance Factor

Emax also complains that the RFP’s weighting of the past performance factor--past performance is equal to the other non-price evaluation factors combined--is unduly restrictive of competition. Emax argues that this also unfairly favors the incumbent contractor, which, Emax contends, is the only firm that can receive the highest evaluation rating under the past performance factor. Protest at 16; Comments at 12-13.

The Navy responds that the RFP’s relative weighting of past performance was not done to improperly benefit the incumbent contractor. The Navy explains that its goal is to award to the most qualified contractor, and that emphasizing past performance is a reasonable methodology to ensure successful performance. AR at 14. In this regard, Navy notes that FAR § 12.206 directs agencies to include past performance as an important element of every evaluation in commercial acquisitions, and that the Naval Facilities Acquisition Supplement (NFAS) requires that past performance be equal to all technical factors combined. See NFAS § 15.304 (“In all [Source Selection Plans], Technical factors shall be equal to Past Performance”).

Emax’s complaint is without merit. The choice of evaluation factors that apply to an acquisition, and their relative importance, are within the broad discretion of the agency. American Med. Info. Servs., B-288627, Nov. 7, 2001, 2001 CPD ¶ 188 at 2. Here, the Navy has explained the importance of past performance to successful performance and indicated that agency regulations require such an emphasis on past performance. The fact that it may be difficult for the protester to compete under such an evaluation scheme does not by itself render the scheme improper. Id. To the extent that the basis for the protester’s complaint is that the incumbent has the most relevant past performance, we have recognized that incumbent contractors with good performance records can offer real advantages to the government in terms of lessened performance risk. Philadelphia Produce Market Wholesalers, LLC, B-298751.5, May 1, 2007, 2007 CPD ¶ 87 at 3.  (Emax Financial & Real Estate Advisory Services, LLC, B-408260, Jul 25, 2013)  (pdf)


Womack complains that the revised testing requirement is unreasonable and was added only to exclude the protester from the competition. In this regard, Womack contends that NASA knew that Womack could not comply with the testing requirements without being provided a sample of the manifold. Protester’s Comments at 3.

In preparing a solicitation for supplies or 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. § 2305(a)(1) (2006). 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 ¶ 44 at 7. 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 ¶ 146 at 3. 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. AT&T Corp., B-270841 et al., May 1, 1996, 96-1 CPD ¶ 237 at 7-8.

Here, the record shows that NASA concluded during its evaluation of quotations that the RFQ’s failure to include testing requirements would preclude the agency from determining whether the proposed manifolds would be compatible and interchangeable with the agency’s existing manifolds. CO’s Statement at 2. Although Womack disagrees with this judgment, it does not show that the decision to include the testing requirement was unreasonable or was not necessary to satisfy the agency’s needs. Rather, the crux of the protester’s argument is that the agency should be required to accept a vendor’s promise to provide a compliant product in response to the RFQ. Given that the manifold is only part of an overall hydraulic testing system and was required to be compatible and interchangeable with the existing manifold, we do not think that it was unreasonable for NASA to require test results to assure that a vendor’s products would meet the agency’s needs.

We also find no merit to Womack’s contention that the agency has “deliberately and maliciously” sought to prevent Womack from contracting with the agency under this solicitation. Protest at 2. As noted above, the record shows that NASA’s amendment of the RFQ was required to provide performance requirements and testing to ensure that the agency received a manifold that would meet its needs. We see no support for Womack’s contention that the agency acted in bad faith.  (Womack Machine Supply Co., B-407990, May 3, 2013)  (pdf)


Before DLA issued the RFP, the agency conducted market research to assess the availability of commercial [quality management tool] QMT software. In mid-2010, DLA surveyed the available commercial products, and among other things, analyzed the commercial terms offered by vendors for licensing the software. The analysis showed that commercial vendors typically licensed QMT software based on a fixed number of concurrent users from an unrestricted population (a concurrent-user license), or else based on a fixed list of users without limit on concurrent use among that population (a name license, or seat license). The market research indicated that concurrent-user licensing appeared to be the most common. The market research also concluded that commercial license terms typically classified individual users as having either “full” access or “review/comment” access. Commercial terms differed over whether the license was perpetual (a one-time purchase to license the current version) or subscription-based (analogous to a term lease of software license rights). AR, Tab 3, Preliminary Market Research Report, at 5-6.

Following the initial market research, in Autumn 2010, DLA published a request for information (RFI), which requested that interested vendors respond with information on the capabilities of available QMT software, the extent of their commercial sales, and rough pricing for licensing, maintenance, and training. AR, Tab 4, DLA Request for Information, at 2. DLA received RFI responses from 6 small businesses, and 2 large businesses. ASC did not respond to the RFI.

In Spring 2012, DLA analyzed the name licensing structure of the contract for its existing QMT and the results of the market research. From this analysis, DLA concluded that by changing from the existing name licensing structure to a concurrent-user licensing structure for the new contract, DLA could align its license rights with its actual usage of the QMT, could better control software access centrally by automatically timing out users that were inactive, and could deploy the software to the maximum number of potential users. AR, Tab 7, Memorandum for Record, Apr. 2, 2012, at 1. DLA also concluded that, under a concurrent-user licensing structure, the agency would expect to receive significantly lower prices than under the name licensing structure for the existing QMT software. AR, Tab 6, Addendum to Acquisition Plan, May 23, 2012, at 1. Accordingly, DLA issued the RFP seeking a commercial QMT software application on a concurrent-user licensing basis.

(sections deleted)

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. 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. 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. Northrop Grumman Tech. Servs., Inc., B-406523, June 22, 2012, 2012 CPD ¶ 197 at 8.

The record here supports the reasonableness of DLA’s requirement for QMT software with a concurrent-user license. As described above, the contemporaneous record shows that DLA conducted market research before issuing the RFP to determine the performance and licensing models offered in the commercial marketplace. The market research supports the conclusions that small businesses are likely to compete for the agency’s QMT requirements and that concurrent-user licensing is commercially available (or even preferred), that is offers flexibility that supports the agency’s plans to increase its use of the QMT software, and is likely to result in cost savings. These considerations all support DLA’s decision to specify its requirement for concurrent-user licensing terms. Although ASC may desire another licensing method, it has not shown that the RFP is unduly restrictive of competition or that the agency’s decision to require concurrent-user licensing lacked a rational basis.  (ASC Group, Inc., B-407136, Nov 15, 2012)  (pdf)


Richen protested the terms of both RFPs. Richen contends that the agency’s failure to provide answers to its pre-proposal questions regarding subcontractor information, service call logs and more detailed repair history data prevented Richen from submitting a proposal and demonstrated bias in favor of the incumbent contractor.

As a general rule, a procuring agency must give sufficient detail in a solicitation to enable bidders to compete intelligently and on a relatively equal basis. AirTrak Travel et al., B-292101 et al., June 30, 2003, 2003 CPD ¶ 117 at 13; Service Technicians, Inc., B-249329.2, Nov. 12, 1992, 92-2 CPD ¶ 342 at 2. Specifications must be free from ambiguity and describe the minimum needs of the procuring activity accurately. However there is no legal requirement that a competition be based on specifications drafted in such detail as to eliminate completely any risk for the contractor or that the procuring agency remove all uncertainty from the mind of every prospective offeror. American Contract Servs., Inc., B-256196.2, B-256196.3, June 2, 1994, 94-1 CPD ¶ 342 at 2. In this regard, proposals for service contracts, by their very nature, often require the computation of prices based on visual inspections, and the presence of some element of risk does not mean that fair competition is precluded or that a solicitation is improper. Ronald E. Borello, B-232609, Jan. 11, 1989, 89-1 CPD ¶ 28 at 3-4.

Here, we find that the agency provided sufficiently detailed information to allow offerors to compete intelligently and on a relatively equal basis under both RFPs. The agency’s performance-based commercial item solicitations requested offerors to submit proposals for janitorial and maintenance services. The RFPs set forth a detailed list of all services required by the agency. The agency held multiple pre-proposal conferences with the potential offerors and gave responses to the questions received from the offerors. These answers provided further information regarding the services requested in the statement of work. With regard RFP -0023, this information included the current contractor’s name and address; the annual contract costs for janitorial, snow removal, and mechanical maintenance services; a listing of the number of repairs over $2,500 and under $2,000; and the total number of emergency call-backs conducted in the last year. AR (RFP -0023), Tab 5, Questions and Answers, at 4, 8. With regard to RFP -0050, the information provided included the current contractor’s name and address; the value of the current contract; and a listing of the number of repairs over $1,000 and under $1,000. AR (RFP -0050), Tab 5, Questions and Answers (May 31, 2012), at 3-4. All potential offerors were provided the same information.

We do not agree with the protester that the agency’s decision to withhold the incumbent’s subcontractor’s names, the service call log information and more detailed repair history data, hindered Richen’s ability to submit an intelligent proposal. As our Office has previously stated, proposals for service contracts, by their very nature, often require the computation of prices based on visual inspections, and the presence of some element of risk does not mean that fair competition is precluded or that a solicitation is improper. Ronald E. Borello, supra. While Richen has provided evidence that the GSA has released subcontractor information in response to potential offerors’ requests on at least some previous procurements, we think the agency acted reasonably in declining to do so here, given its determination that this information as it pertains to these procurements is proprietary or not subject to release. Moreover, we note that knowledge as to the nature of the incumbent contractor's work force is strictly an advantage of incumbency, and the government thus has no obligation to disseminate that information to other offerors. See Master Security, Inc., B-232263, Nov. 7, 1998, 88-2 CPD ¶ 449 at 3-4. Thus, the agency’s refusal to provide subcontractor information, service call logs or more detailed repair history data here did not prevent offerors from competing intelligently and on a relatively equal basis.  (Richen Management, LLC, B-406750, B-406850, Jul 31, 2012)  (pdf)


In response to Maersk’s argument that MARAD’s section 2 citizenship requirement violates CICA, MARAD contends that permitting a foreign corporation to manage its RRF vessels would be inconsistent with the national security and industrial mobilization purposes of the 1946 Act, the NDRF and RRF programs authorized by that Act, and MARAD’s implementing regulation. In addition, MARAD essentially argues that since the section 2 citizenship requirement is expressly mandated by agency regulation, it inherently reflects a legitimate minimum need and is not “unduly” restrictive of competition. See CESC Skyline, LLC, B-402520, B-402520.2, May 3, 2010, 2010 CPD ¶ 101 (holding that solicitation requirement necessary to meet statutorily imposed deadlines are not unduly restrictive of competition). As set forth below, we agree with the agency.

CICA mandates full and open competition in government procurements obtained through the use of competitive procedures, so that all responsible sources are permitted to compete. 41 U.S.C. §§ 3301(a), 107. 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. Innovative Refrigeration Concepts, B-272370, Sept. 30, 1996, 96-2 CPD ¶ 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 ¶ 146 at 3. Moreover, CICA provides several exceptions to the general requirement for competition, such as when it is necessary to award the contract to a particular source to maintain a facility, producer, manufacturer, or other supplier available for furnishing property or services in case of a national emergency or to achieve industrial mobilization. 41 U.S.C. § 3304(a)(3)(A).

The solicitation’s section 2 citizenship requirement is clearly set forth in 46 C.F.R. §§ 315.3, 315.5. As explained above, this requirement, drawn from a 1951 regulation and, thus, in existence for more than 60 years, requires ship managers to meet the citizenship requirements set forth in section 2 of the Shipping Act of 1916, and incorporated by reference in the 1946 Act. Throughout its protest, Maersk essentially attacks the validity of these regulations as providing a legitimate basis for the solicitation’s incorporation of the section 2 citizenship requirement. These attacks, however, are misplaced.

First, Maersk asserts that the regulations are inconsistent with CICA because they authorize MARAD to procure vessel manager services only from section 2 citizens. This argument, however, puts the cart before the proverbial horse. CICA allows agencies to include restrictive requirements to the extent they are necessary to satisfy the agency’s legitimate needs. Maersk’s contention that the section 2 citizenship requirement, as set forth by MARAD’s regulations, is contrary to CICA simply assumes that the requirement is without a legitimate basis. However, the legitimacy of the requirement is to be determined independent of the provisions of CICA, which does not mandate agency requirements.

Second, Maersk argues at great length that the section 2 citizenship requirement set forth in MARAD’s regulations is not authorized by the 1946 Act. Essentially, the protester is asking our Office to invalidate the section 2 citizenship requirement set forth in these regulations, which have a history dating back to 1951. As discussed below, we conclude that the agency’s incorporation of the section 2 citizenship requirements in its regulations was reasonable and based on a permissible construction of relevant statutes.

MARAD acknowledges that the 1946 Act does not “specifically mandate” that operators of these vessels be “Citizens of the United States.” J&A, at 3. However, it is also apparent that the requirement is not inherently inconsistent with the 1946 Act and MARAD maintains that its approach to interpreting the statute takes into account the overall statutory scheme of the 1946 Act and its declaration of policy, definition of “Citizen of the United States,” and authorization for the NDRF and RRF programs. Under this approach, MARAD has interpreted the 1946 Act, as amended, as providing it a sufficient basis to include this requirement as one of the minimum eligibility requirements in its implementing regulation. MARAD also contends its interpretation, as set forth in a duly promulgated regulation, is entitled to deference.

Our analysis begins with the interpretation of the relevant statute. In matters concerning the interpretation of a statute, the first question is whether the statutory language provides an unambiguous expression of the intent of Congress. If it does, our analysis ends there, for the unambiguous intent of Congress must be given effect. Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984); Ashland Sales & Serv. Co., B-401481, Sept. 15, 2009, 2009 CPD ¶ 186 at 4. If, however, the statute is silent or ambiguous with respect to the specific issue, deference to the interpretation of an administering agency is dependent on the circumstances. Chevron, 467 U.S. at 843-45; United States v. Mead Corp., 533 U.S. 218, 227-37 (2001). An agency’s interpretation must be reasonable and based on a permissible construction of the statute; such a construction need not be the only one the agency permissibly could have adopted. Chevron, at 843; see also Conoco, Inc. v. Skinner, 970 F.2d 1206, 1217 (3d Cir. 1992) (interpreting section 2 of the Shipping Act of 1916 for other purposes). Lastly, a determination must be made as to whether the agency’s current interpretation is consistent with its previous interpretations. Conoco, supra. An agency’s interpretation of a statute it is responsible for administering is entitled to substantial deference, and should be upheld if it is reasonable. Appalachian Council, Inc., B-256179, May 20, 1994, 94-1 CPD ¶ 319 at 16.

Maersk argues that MARAD is not entitled to Chevron deference because Congress has directly addressed the citizenship requirement at issue and unambiguously expressed its intent, citing FDA v. Brown and Williamson, 529 U.S. 120, 132-33 (2000) (if Congress has directly spoken to the precise question at issue, the court must give effect to the unambiguously expressed intent of Congress). In this regard, Maersk contends that the 1946 Act, as enacted, addressed the citizenship requirement by making it applicable only to those provisions concerning the disposition of vessels to private parties, not to the provision authorizing the NDRF (and RRF) programs. Maersk also argues that the 1991 amendments unambiguously expressed Congress’ intent not to impose a citizenship requirement on ship managers. Finally, Maersk asserts that even if Chevron applies, MARAD’s interpretation must be permissible, and it is not.

We cannot conclude that, in enacting the 1946 Act, Congress addressed the citizenship requirement with respect to the NDRF (and RRF) provision by only making the requirement expressly applicable to the Act’s other provisions. We also cannot conclude that, in enacting the 1991 amendments, Congress directly addressed the precise requirement at issue and unambiguously expressed its intent. As a result, we find that Chevron deference applies. We further find that MARAD’s interpretation is reasonable.

With respect to the 1946 Act, MARAD asserts that the citizenship requirement in its regulation is consistent with the 1946 Act’s declaration of policy. As relevant here, the declaration of policy states that “[i]t is necessary for the national security . . . of the United States that the United States have an efficient and adequate American-owned merchant marine . . . owned and operated under the United States Flag by citizens of the United States . . . “ 50 App. U.S.C. § 1735(a). The policy of the Act, inclusive of Section 11, is “to foster the development and encourage the maintenance of such a merchant marine,” i.e., a merchant marine owned and operated by citizens of the United States as defined in the 1946 Act. J&A, at 3. MARAD interprets the word “and” in the phrase “owned and operated” to mean that Congress intended that vessels be both “owned” as well as “operated” by citizens. AR, at 21. Because the United States owns the vessels in the NDRF and RRF, they are both “American-owned” and “operated” by citizens, consistent with the declaration of policy.

Maersk argues that MARAD has misread the 1946 Act, which the protester asserts is “utterly silent” concerning citizenship requirements relating to the NDRF and RRF programs. Comments, at 23.

Maersk agrees with MARAD that the 1946 Act’s declaration of policy must be read in the context of the purposes of the act as originally intended, but disagrees with MARAD’s view of those purposes. In Maersk’s view, the purpose of the Act was simply “to provide for the sale of surplus war-built vessels.” Maersk argues that the declaration of policy’s language concerning an “American-owned merchant marine owned and operated under the U.S. flag by citizens of the United States” concerns the vessels that were to be disposed of under the Act’s provisions for the sale, charter, or exchange of these vessels, all of which made express use of the term “citizen of the United States” or “citizen.” Maersk maintains that the declaration of policy does not concern section 11’s authorization of the NDRF and RRF. We do not agree.

Maersk is correct that most of the 1946 Act’s provisions concerned the disposition of these vessels to private parties through sale, charter, or exchange. However, it was not limited to this purpose. In this regard, we note that the preamble to the 1946 clearly explains that the Act is “to provide for the sale of surplus war-built vessels, and for other purposes.” As discussed above, the legislative history reinforces the fact that the objectives of the Act were twofold: “(1) The establishment of a firm pricing policy for the sale of war-built vessels, and (2) the establishment of an inactive merchant vessel reserve promptly available for security needs, but frozen as commercial use is concerned.” S. Rep. No. 79-807, supra.

There is also no support for Maersk’s attempt to divorce the declaration of policy’s emphasis on the necessity, for national security, of having an American-owned merchant marine, owned and operated by citizens of the United States, from the national defense purposes of Section 11. The words of a statute must be read in their context and with a view to their overall statutory scheme. See Davis v. Michigan Dept. of Treasury, 489 U.S. 803, 809 (1989). Moreover, the 1946 Act permitted the sale of vessels to non-U.S. citizens only if certain conditions were met, including that the vessel was not needed for the defense of the United States. Such limitations were designed to protect American operators and the national security. S. Rep. No. 79-807, supra, at 4. As MARAD argues, inasmuch as Congress permitted the sale of vessels to foreigners only if they were not needed for the national defense, it would be “illogical and at cross-purposes” with the Act’s intent to hold that MARAD must permit foreign corporations to manage vessels in the RRF, which are expressly reserved for the national defense. AR, at 23 n.30.

Maersk asserts that the citizenship requirement contemplated by the declaration of policy does not apply here because the vessels are not “owned and operated by citizens of the United States” but, rather, are owned by the U.S. government. As noted above, MARAD interprets the word “and” in the phrase “owned and operated” to mean that Congress intended that vessels be both “owned” as well as “operated” by citizens. AR, at 21. MARAD contends that the protester’s reading would mean that Congress was concerned that private vessels owned by section 2 citizens be operated by section 2 citizens, but was wholly unconcerned with the citizenship of the operators of vessels in the NDRF, whose purpose is national defense. We cannot find MARAD’s reading unreasonable.

MARAD also asserts that, under Maersk’s interpretation, no citizenship requirement would apply to the ship manager program. According to MARAD, this would be contrary to the Act’s purposes and the underlying intent of the regulations, since allowing foreign corporations to maintain and operate these vessels in times of war could be particularly problematic. This is because the national interests of foreign countries to which the foreign operator owes allegiance may not be consistent with the interests of the United States, and foreign nationals are subject to the control and laws of their respective governments. AR, at 22-23. MARAD states that the interests and loyalties of section 2 citizens are more likely to be aligned with those of the U.S. during such crises. As a result, rather than allow companies owned and controlled by citizens of foreign countries to manage the vessels reserved for national emergencies and war, MARAD determined that operating such vessels should be reserved for entities that are section 2 citizens. Id.

Turning to the 1991 amendments to Section 11, MARAD contends that they state a person is eligible for an RRF ship manager contract “if the Secretary determines, at a minimum, that the person meets two listed requirements. J&A, at 2, citing 50 App. U.S.C. § 1744(c)(2) (emphasis added). MARAD states that it construes the inclusion of the words “at a minimum” to mean that Congress granted the Secretary the authority to impose other minimum eligibility requirements in his discretion. This would include the section 2 citizenship requirement MARAD had been imposing for the prior 40 years, of which the Congress was aware. AR, at 18; J&A, at 3-4.

Hence, MARAD states, when issuing its regulation to implement section 11 of the 1946 Act, it reasonably decided to include as one of its mandatory eligibility requirements a requirement consistent with one of the 1946 Act’s underlying policies and its definitions: that a company managing these government-owned vessels be a “Citizen of the United States.” J&A, at 3-4.

Maersk argues that MARAD reads too much into the phrase “at a minimum.” Maersk reads it as only referring to the determination that the Secretary must make as to the two existing requirements, i.e., the Secretary may require that the persons have particular types of experience in operating commercial or public vessels or particular management capabilities to operate such vessels. Comments, at 35-36. Maersk argues that the 1991 amendments directly addressed the question of citizenship and unambiguously did not impose a citizenship requirement on vessel managers. We do not agree.

There is no indication that Congress considered the citizenship of vessel managers in enacting the 1991 amendments. As Maersk itself appreciates, Congress’ interest in vessel managers was driven by managerial problems that arose during Desert Storm/Desert Shield. There is, further, no indication in the legislative history that, by using the words, “at a minimum,” the Congress intended the Secretary’s determinations to be confined to the two specified requirements. MARAD’s position is that Congress was not restricting the eligibility requirements the Secretary could prescribe but simply adding two minimum eligibility requirements to address these managerial problems. AR, at 17. By using the phrase “at a minimum,” MARAD believes Congress contemplated that additional requirements might be added in the Secretary’s discretion. We find MARAD’s interpretation reasonable.

In addition, the 1991 amendment required that all officers and most remaining seamen performing services under any RRF vessel management contract be U.S. citizens. Maersk argues that if Congress had intended to have citizenship requirements for ship managers, it would have so specified at the same time it was specifying citizenship requirements for their crews. We cannot read such intent into Congress’ silence. The precise reason for the crew citizenship requirement is not clear, but it is entirely consistent with MARAD’s argument that Congress intended that RRF vessels should be “operated” by U.S. citizens, both vessel manager and crew. It would be illogical for Congress to be concerned about the citizenship of the crews of RRF vessels, but not at all concerned about the citizenship of their employers, the ship managers. The same concerns about the potentially divergent interests and loyalties of non-citizens operating vessels reserved for the purpose of national defense are equally applicable to both crew and ship managers.

Finally, as discussed above, for more than 60 years MARAD has interpreted the 1946 Act as authorizing the section 2 citizenship requirement for its NDRF and RRF ship manager contracts. Conoco at 1217, citing Chevron (“[T]he weight of an administrative interpretation will depend . . . upon ‘its consistency with earlier and later pronouncements’ of an agency.”) MARAD has twice signaled a willingness to revisit its interpretation in light of evolving facts and circumstances. 58 Fed. Reg. 9,135, supra; 76 Fed. Reg. 76,811, supra. However, our review of its longstanding existing interpretation affords us no basis to find it unreasonable.

In conclusion, the solicitation’s section 2 citizenship requirement, which is clearly mandated by agency regulations, reflects a legitimate agency requirement and is not unduly restrictive of competition.  (Maersk Line, Limited, B-406586, B-406586.2, Jun 29, 2012)  (pdf)


Restriction on Competition

Northrop Grumman also challenges a number of the RFP’s terms as being unduly restrictive of competition. Specifically, Northrop Grumman contends that spare parts for the C-37 aircraft are generally not available from sources other than Gulfstream, unlike for the older C-20 aircraft. Protester’s Comments at 3. The protester contends that, as a result, the solicitation’s requirements to establish a spare parts inventory “of sufficient range and quantity” to meet the required mission capability requirements, to provide fixed-price flying hour pricing for 5 years, and to transition within 90 days unduly restricts competition, where only Gulfstream can provide required quantities of C-37 parts and has refused to provide adequate pricing for the parts. Id. at 3.

The Air Force disputes that the RFP’s requirements are unduly restrictive of competition. Specifically, the agency disagrees that Gulfstream is the only source for C-37 parts and that potential offerors have not been provided with sufficient information to provide fixed-price flying hour pricing. AR at 19. With respect to the 90-day phase-in period, the Air Force notes that it conducted extensive market research to determine an appropriate transition period for this contract. AR at 32. The agency reports that most respondents to the October 2010 RFI stated that 90 days would be sufficient. Id.

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 ¶ 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 ¶ 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, B-400107, B-400107.2, Aug. 1, 2008, 2008 CPD ¶ 143 at 5.

Sufficient Inventory

Northrop Grumman’s contention that the RFP’s requirement for “a sufficient inventory” of C-37 parts unduly restricts competition is based upon its view that only Gulfstream can provide the required quantities of C-37 parts and that Gulfstream “has refused to provide adequate pricing.” Protester’s Comments at 4. In this regard, Northrop Grumman maintains that [Deleted] percent of the parts of the C-37 aircraft (based on value of the parts) are controlled by Gulfstream and must be procured from Gulfstream. Id. at 12.

As an initial matter, the Air Force argues that, although the solicitation requires the contactor to provide a sufficient quantity of parts to meet mission capability requirements, the solicitation leaves it to the discretion of each offeror to determine according to its supply strategy what constitutes a “sufficient quantity.” Supp. AR at 3. The Air Force states in this regard that an inventory of parts would generally be built up over time as there is no requirement in the solicitation to have a complete inventory on hand by the end of the phase-in period, as the protester apparently believes. Id.

The Air Force also disagrees with Northrop Grumman’s contention that the RFP required the contractor to acquire C-37 parts from Gulfstream or that Gulfstream is the only source for these parts.[11] AR at 17, 19. The Air Force states that the only requirement pertaining to Gulfstream was for the awardee to establish agreements with the OEMs (e.g., Gulfstream) to obtain approved data and technical support, and to ensure that mission capability requirements are not impacted by an inability to obtain data or support from the OEMs. AR at 18-19 citing Tab 5.2, PWS ¶ 1.3.10. In this regard, the Air Force notes that Gulfstream has issued a letter of intent stating that Gulfstream will continue its existing policy of providing technical support, over-the-counter sales of parts and supplies, engineering support, and aircraft maintenance services in accordance with its standard commercial terms and conditions. AR at 25.

Here, the Air Force explained that the mission of the C-20 and C-37 aircraft--to provide “safe, comfortable, reliable, worldwide air transportation with robust communications capabilities for the Vice President, Cabinet members, [various combatant commands], and other high-ranking U.S. and foreign government officials”--is a “no-fail mission” that requires aircraft to maintain a high mission capable status at each location. AR at 12, 13. To satisfy this mission capability rate, the RFP requires that the contractor maintain sufficient inventory. Although Northrop Grumman asserts that the requirement for sufficient inventory unduly restricts competition, the protester has not shown that the requirement is not reasonably necessary to meet mission capability rates. Moreover, we think the Air Force’s claimed need for these requirements is reasonably apparent from the record.

We also agree with the Air Force that the solicitation does not require contractors to stock a specific amount of inventory of C-37 parts, but rather leaves it to the discretion of the offerors to determine the appropriate amount and variety of parts to meet the mission capability requirements. With regard to Northrop Grumman’s contention that C-37 parts must be purchased from Gulfstream and therefore the requirement is unduly restrictive, the record does not support the protester’s position. That is, the record indicates that suppliers other than Gulfstream can supply some of the C-37 parts. The Air Force and Gulfstream identified third-party sources for C-37 parts, see CO’s Statement at 25; Intervenor’s Comments, exhib. 1, Decl. of Gulfstream Government Contracts and Trade Compliance Director, at 6, and Northrop Grumman acknowledged that some parts are available, albeit not in the quantities it wants to establish its inventory. Protester’s Comments at 1, 8, attach. A, exhib. 5, [Deleted] Response, at 18 (“[Deleted] currently owns and stocks nearly $40 million in aircraft spare parts, including items applicable to the Gulfstream G-V/G-VSP/G550 aircraft.”). Moreover, the Air Force purchased over $10 million in C-37 parts (1,241 different part numbers) which the agency intends to furnish the logistics support contractor as government furnished property to reduce risk.

We conclude that the fact that other suppliers cannot provide parts in the quantities that Northrop Grumman would like does not render the requirement unduly restrictive. In any event, even if all of the C-37 parts must be purchased from Gulfstream, that alone does not support the protester’s position. Northrop Grumman has not demonstrated that Gulfstream will not sell it C-37 parts if Northrop Grumman wins the contract, nor has Northrop Grumman demonstrated that in its past and current dealings with Gulfstream with respect to the C-20 that it has been unable to obtain the parts needed.[12] In this regard, Gulfstream expressly stated that it would provide technical support, over-the-counter sales of parts and supplies, engineering support and aircraft maintenance services in accordance with its standard commercial terms, conditions, prices and established policies. AR, Tab 19, Gulfstream Letter of Intent. Moreover, one of Northrop Grumman’s potential suppliers praised Gulfstream’s ability to expeditiously provide parts, stating the Gulfstream has the “very best service and support record in the industry,” and was willing to ship parts overnight anywhere in the world. Protester’s Comments, attach. A, exhib. 16, [Deleted] Response to Northrop Grumman, at 1-2. 
(Northrop Grumman Technical Services, Inc., B-406523, Jun 22, 2012)  (pdf)


The protesters specifically challenge the RFP provision, establishing that fixed transaction fees will not be adjusted as a consequence of variations from the solicitation's estimated workload quantities absent a determination that the variation constitutes an "out of scope" change. According to the protesters, this provision, which was not included in prior contracts, puts undue risk on prospective small business contractors. Protest at 5. In this regard, the crux of the protesters' challenge to the reasonableness of this provision is that prior contracts for the same services imposed less risk on the contractors. Protest at 7-10. The protesters argue that

[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)

Comptroller General - Listing of Decisions

For the Government For the Protester
New Simplex Aerospace B-414566.2: Aug 8, 2017 Pitney Bowes, Inc. B-413876.2: Feb 13, 2017
RCR Properties, G.P. B-414590: Jul 21, 2017 Smith and Nephew, Inc. B-410453: Jan 2, 2015  (pdf)
Vanguard Building LP B-414207, B-414207.2: Mar 21, 2017 NCS Technologies, Inc., B-403435, November 8, 2010  (pdf)
Remote Diagnostic Technologies, LLC B-413375.4, B-413375.5: Feb 28, 2017 Total Health Resources, B-403209, October 4, 2010  (pdf)
Sumaria Systems, Inc. B-413508.2: Dec 29, 2016 SMARTnet, Inc., B-400651.2, January 27, 2009 (pdf)
Evolver Inc.; Armed Forces Services Corporation B-413559.2, B-413559.8: Dec 21, 2016 Dellew Corporation, B-299408, May 1, 2007 (pdf)
Nexagen Networks, Inc. B-411209.7: Jun 20, 2016  (pdf) Prisoner Transportation Services, LLC; V1 Aviation, LLC; AAR Aircraft Services, B-292179; B-292179.2; B-292179.3, June 27, 2003
Parcel 49C Limited Partnership B-412552, B-412552.2, B-412552.3: Mar 23, 2016  (pdf) BMAR & Associates, Inc., B-281664, March 18, 1999
W.P. Tax & Accounting Group B-411806, B-411807: Oct 7, 2015)  (pdf) Container Products Corporation, B-280603.2, November 4, 1998
Advanced Communication Cabling, Inc. B-410898.2: Mar 25, 2015  (pdf) Chadwick-Helmuth Company, Inc., B-279621.2, August 17, 1998
WKF Friedman Enterprises B-410827: Feb 23, 2015  (pdf)  
CompTech-CDO, LLC B-409949.2: Jan 6, 2015  (pdf)  
Gallup, Inc., B-410126: Sep 25, 2014  (pdf)  
Government and Military Certification Systems, Inc., B-409420: Apr 2, 2014  (pdf)  
Air USA, Inc., B-409236: Feb 14, 2014  (pdf)  
Aljucar, Anvil-Incus & Co. B-408936, Jan 2, 2014  (pdf)  
HK Consulting, Inc. B-408443, Sep 18, 2013  (pdf)  
J. Squared Inc., d/b/a University Loft Company, B-408388, Aug 27, 2013  (pdf)  
Emax Financial & Real Estate Advisory Services, LLC, B-408260, Jul 25, 2013  (pdf)  
Womack Machine Supply Co., B-407990, May 3, 2013  (pdf)  
ASC Group, Inc., B-407136, Nov 15, 2012  (pdf)  
Richen Management, LLC, B-406750, B-406850, Jul 31, 2012  (pdf)  
Maersk Line, Limited, B-406586, B-406586.2, Jun 29, 2012  (pdf)  
Northrop Grumman Technical Services, Inc., B-406523, Jun 22, 2012  (pdf)  
WingGate Travel, Inc.; AirTrak Travel; and Alamo Travel Group, B-405007.9, November 29, 2011  (pdf)  
Technosource Information Systems, LLC; TrueTandem, LLC, B-405296; B-405296.2; B-405296.3, October 17, 2011  (pdf)  
Kitco Defense, Inc., B-405510,October 4, 2011  (pdf)  
GlobaFone Inc., B-405238, September 12, 2011  (pdf)  
Helionix Systems, Inc., B-404905.2, May 26, 2011  (pdf)  
USA Jet Airlines, Inc.; Active Aero Group, Inc., B-404666, April 1, 2011  (pdf)  
RSL Electronics Ltd., B-404117.3; B-404117.4; B-404117.5; B-404117.6, March 28, 2011  (pdf)  
Airforce Turbine Service, Ltd., B-404478, February 16, 2011  (pdf)  
Northwest Airport Management, L.P., B-404098; B-404098.2, January 5, 2011  (pdf)  
SML Innovations, B-402667.2, October 28, 2010  (pdf)  
JLT Group, Inc., B-402603.2, June 30, 2010  (pdf)  
Eisenhower Real Estate Holdings, LLC, B-402807, July 27, 2010  (pdf)  
JRS Management, B-402650.2, June 25, 2010  (pdf)  
COB EventLizenz GmbH, B-401999.2, January 12, 2010 (pdf)  
Messier-Bugatti, Safran Group, B-401064, May 5, 2009  (pdf)  
North Shore Medical Labs, Inc., B-310747, February 6, 2008 (pdf)  
Trident World Systems, Inc., B-400901, February 23, 2009 (pdf)  
Nordic Air, Inc., B-400540, November 26, 2008 (pdf)  
Richard Bowers & Company, B-400276, September 12, 2008 (pdf)  
G. Koprowski, B-400215, August 12, 2008 (pdf)  
Exec Plaza, LLC, B-400107; B-400107.2, August 1, 2008 (pdf)  
AdaRose, Inc., B-299091.3, March 28, 2008 (pdf)  
Harris Enterprises, Inc., B-311143, March 27, 2008 (pdf)  
Armor Group International Training, Inc., B-298401, August 31, 2006 (pdf)  
Paramount Group, Inc., B-298082, June 15, 2006 (pdf)  
Allied Protection Services, Inc., B-297825, March 23, 2006 (pdf)  
Computers Universal, Inc., B-296501, August 18, 2005 (pdf)  
United Paradyne Corporation, B-296609, August 19, 2005 (pdf)  
Vertol Systems Company, Inc., B-295936, April 18, 2005 (pdf)  
Boehringer Ingelheim Pharmaceuticals, Inc., B-294944.3; B-295430, February 2, 2005 (pdf)  
Washington Adventist Hospital, B-294371.3; B-294371.4, January 21, 2005 (pdf)  
Military Waste Management, Inc., B-294645.2, January 13, 2005 (pdf)  
Kenwood USA Corporation, B-294638; B-294638.2; B-294638.3, November 29, 2004 (pdf)  
First Federal Corporation--Costs, B-293373.2, April 21, 2004 (pdf)  
Atlantic Coast Contracting, Inc., B-291893, April 24, 2003  (pdf)  
MCI WorldCom Deutschland GmbH, B-291418; B-291418.2; B-291418.4; B-291418.5; B-291418.6, January 2, 2003  
Dynamic Instruments, Inc., B-291071, October 10, 2002  
Mark Dunning Industries, Inc., B-289378, February 27, 2002 (Pdf Version)  
Crofton Diving Corporation, B-289271, January 30, 2002  (Pdf version)  
Keystone Ship Berthing, Inc., B-289233, January 10, 2002  
C. Lawrence Construction Company, Inc., B-289341, January 8, 2002  (past performance issue)  
Daniel Technology, Inc., B-288853, December 13, 2001  (Simplified Acquisition Procedure)  
Surface Technologies Corporation, B-288317, August 22, 2001  
Columbia Imaging, Inc., B-286772.2; B-287363, April 13, 2001  
Day Zimmermann Hawthorne Corporation, B-287121, March 30, 2001  
Government Business Services Group, B-287052; B-287052.2; B-287052.3, March 27, 2001  
ACH Food Companies, Inc., B-286794, February 12, 2001  
Inventory Accounting Service, B-286814, February 7, 2001  
Schering Corporation, B-286329.3; B-286329.4, February 2, 2001  
Parcel 47C LLC, B-286324; B-286324.2, December 26, 2000  
LBM Inc., B-286271, December 1, 2000  (A-76 issue)  
Specialty Diving, Inc., B-285939, October 16, 2000  (consolidation issue)  
Wescam, Inc., B-285792, October 11, 2000  
Virginia Electric and Power Company; Baltimore Gas & Electric, B-285209; B-285209.2, August 2, 2000  (consolidation issue)  
Northrop Grumman Corporation, B-285386, August 1, 2000  
HG Properties A, L.P., B-284170; B-284170.2; B-284170.3, March 3, 2000  (geographic restriction)  
Safety-Kleen (TS), Inc., B-284125, February 23, 2000  (waiver of requirement)  
CHE Consulting, Inc.; Digital Technologies, Inc., B-284110; B-284110.2; B-284110.3, February 18, 2000  
American Eurocopter Corporation, B-283700, December 16, 1999  (Simplified Acquisition Procedure)  (brand name)  
Thorner Press, Inc., B-283545, November 4, 1999  (geographic restriction)  
Olympus Building Services, Inc., B-282887, August 31, 1999  (evaluation criteria)  
E.D.P. Enterprises, Inc., B-282232, June 17, 1999  (performance bond)  
Borders Consulting, Inc., B-281606, March 10, 1999  (evaluation criteria)  

U. S. Court of Federal Claims - Key Excerpts

B. The [request for lease proposals] RLP’s Maximum Rent Per Square Foot

Under the Competition in Contracting Act, agencies must “create specifications that solicit proposals ‘in a manner designed to achieve full and open competition.’” CW Gov’t Travel Inc. v. United States, 99 Fed Cl. 666, 681 (2011) (quoting 41 U.S.C. § 3306(a)(1)(A)–(C)). Accordingly, an agency may include restrictive requirements in a solicitation only if they are necessary to meet the government’s minimum needs. Am. Safety Council, Inc. v. United States, 122 Fed. Cl. 426, 435 (2015). The “agency’s minimum needs,” however, are “within the broad discretion of agency officials . . . and [are] not for the court to second guess.” Savantage Fin. Servs. Inc. v. United States, 595 F.3d 1282, 1286 (Fed. Cir. 2010) (internal quotation and alteration omitted). Therefore, where a plaintiff challenges a solicitation provision as unduly restrictive, it bears the burden of showing that the allegedly restrictive solicitation term “is so plainly unjustified as to lack a rational basis.” Id. at 1286–87.

Cleveland Assets asserts that the RLP’s maximum annual rental rate per square foot is unduly restrictive of competition. According to Cleveland Assets, GSA set the cap so low that no offeror who meets it will be able to meet the RLP’s other requirements. See Pl.’s Mem. at 13–23; see also Compl. ¶¶ 33–34 (asserting that there are “no existing buildings that currently meet the specifications set forth in the RLP” and also that a new facility cannot be constructed based on the maximum rental rate). Cleveland Assets further claims that the local rental rates upon which GSA based the rental cap either did not include some of the cost components required by the RLP, did not involve properties comparable to the space the RLP requires, or were outdated. Pl.’s Mem. at 14–15; see also Compl. ¶¶ 11, 36. Relatedly, it alleges that the rental cap “improperly shifts all risk to the contractor and effectively deletes the technical evaluation factors.” Compl. at 11. These arguments lack merit.

Contrary to Cleveland Assets’ arguments, the record reveals that at each stage of the procurement process, GSA took reasonable steps to determine the appropriate rental cap rate. It did so before it submitted its prospectus to Congress in 2010, before it issued the RLP in 2016, and before the period for submitting offers expired earlier this year. Specifically, GSA commissioned an appraisal and conferred with OMB before it submitted the prospectus, and performed site visits and conducted market surveys before issuing the RLP. While the surveys, appraisal, and other documents yielded a variety of possible rental rates, there are several documents in the record which reflect and provide support for GSA’s ultimate conclusion that it could secure adequate space for the FBI in the Cleveland business district (on a “turnkey” basis) for a rate of $26 per square foot or less.

For example, prior to issuing the final prospectus, GSA prepared an Analysis of Replacement Lease Rental Rate reflecting the results of an analysis that it conducted in collaboration with OMB. See AR Tab 45 at 656. This document reflects cost estimates that were based upon a “market analysis by [a] staff appraiser,” and the use of the CoStar database. Id. The analysis yielded a rental rate of $26 per square foot. Id.

Further, the $26 rental cap is also supported by a more recent market analysis that GSA conducted at the beginning of this year, to update the work it did in preparing the prospectus. Based on that analysis, which is described above and is documented in detail in the record, GSA calculated an average asking rental rate for office buildings in the Cleveland business district of $21.30 per square foot based on 2016 year-end data. Id. Tab 54 at 681. This further supports the reasonableness of GSA’s $26 rental cap.

Cleveland Assets argues nonetheless that this Court should set aside GSA’s decision to set the cap at $26 per square foot on the grounds that GSA employed flawed methodologies to reach that figure. But the choice of methodologies used to set the rental cap is a matter that is squarely within GSA’s discretion. See McConnell Jones Lanier & Murphy LLP v. United States, 128 Fed. Cl. 218, 235–36 (2016) (noting agency’s broad discretion to determine methodology for price analysis); Afghan Am. Army Servs. Corp. v. United States, 90 Fed. Cl. 341, 358 (2009) (same); see also Tri-States Serv. Co., B-216024, 84-2 CPD ¶ 432 (Comp. Gen. Oct. 22, 1984) (upholding price ceiling because determination of agency’s minimum needs was within its discretion, “there was more than adequate competition,” and “while [the plaintiff did] not agree with the Army’s determination . . . , such difference of opinion [was] not sufficient to upset the Army’s determination”); Knoll Int’l, B-210256, 83-1 CPD ¶ 317 (Comp. Gen. Mar. 28, 1983) (holding that determining government’s minimum needs is within discretion of agency and refusing to disturb price ceiling reached after consultation with industry and users).15 The Court therefore declines Cleveland Assets’ invitation to get into the weeds and second-guess GSA’s determinations regarding which properties and rental rates in the Cleveland business district should serve as comparators for the agency in conducting its market analyses.

Further, even if GSA’s analysis of the market were as imperfect as Cleveland Assets contends, the Court would still be reluctant to conclude that a $26 per square foot rental cap is “so plainly unjustified as to lack a rational basis.” For one thing, there is no question that “[a]n agency may appropriately impose price ceilings or mechanisms on a contractor that maximize the risk to the contractor and minimize the risk to the Federal Government or its beneficiaries.” Am. Safety Council, Inc., 122 Fed. Cl. at 440 (citing Sims v. United States, 112 Fed. Cl. 808, 817 (2013)). And it seems self-evident that the government should not be precluded from issuing an RLP to test the waters regarding whether it can secure rental space at the lowest possible rate, even a below-market rate. See Gould, Inc. v. United States, 66 Fed. Cl. 253, 261 (2005) (noting that it is “the obligation of [every] Government agency . . . to protect the fisc”); see also Intersport Fashions W., Inc. v. United States, 84 Fed. Cl. 454, 463 (2008) (observing that the government has a “substantial interest in protecting the public purse” (quoting Flora v. United States, 362 U.S. 145, 175 (1960))); Wheeler Bros., Inc., B-212158, 84-1 CPD ¶ 480 (Comp. Gen. Apr. 25, 1984) (noting that government’s primary interest is “fulfilling its minimum needs at the lowest possible cost”).

Moreover, Cleveland Assets’ claim—that no offeror will be able to comply with the RLP’s requirements and also meet the rental cap—is at this point highly speculative. First, while not dispositive, it is relevant to note that there have been [***] offers made in response to the RLP, including one from Cleveland Assets itself. See Pl.’s Mem. at 24–26; Def.’s Mot. at 10–11; see also AR Tabs 24–25, 28–30; Am. Safety Council, Inc., 122 Fed. Cl. at 436 (noting that receipt of multiple proposals “undercut[s] the argument that the terms are unduly restrictive”); Supreme Foodservice GmbH, B-404400.1 et al., 2011 CPD ¶ 244 (Comp. Gen. Oct. 31, 2011) (finding that submission of multiple proposals required GAO to conclude that protester failed to show terms of solicitation prevented a responsible source from submitting proposal). Second, Cleveland Assets ignores that modifications of at least some of the lease requirements may also be negotiated as part of the discussion and proposal revision process. See AR Tab 8 at 75.

In addition, the RLP provides that GSA will evaluate the prices of the offers received. See id. at 76, 80–81. Thus, once GSA has completed the evaluation process, following discussions with offerors and receipt of final proposal revisions, GSA will be able to assess the potential risks of adhering to the rental cap and exercise its considerable discretion to determine whether those risks are worthwhile. FCN, Inc. v. United States, 115 Fed. Cl. 335, 375 (2014) (stating that “an assessment of potential risk associated with a proposed price [is] generally within the sound exercise of the agency’s discretion” (quoting Mil-Mar Century Corp. v. United States, 111 Fed. Cl. 508, 541 (2013))).

Finally, it also bears noting that, in this case, GSA has legitimate reasons independent of market considerations to seek offers that comply with a rental cap of $26 per square foot. Specifically, GSA has no appropriations available to pay a rent higher than $26 per square foot because that is the rental rate prescribed in the prospectus Congress approved. Having been unsuccessful in its efforts to negotiate acceptable terms for a new lease with Cleveland Assets, see AR Tab 1 at 2, it was hardly irrational for GSA to solicit offers from other prospective lessors who might provide space that meets the FBI’s needs at a rate that does not exceed the $26 cap.

In short, the Court rejects Cleveland Assets’ argument that the rental cap is unduly restrictive of competition or otherwise irrational. Accordingly, the government is entitled to judgment on the administrative record as to Counts III and IV of Cleveland Assets’ complaint.  (Cleveland Assets, LLC v. U. S., No. 17-277C, June 1, 2017)


Plaintiff contends that the Agency’s delay in the procurement process coupled with the solicitation requirements for Type III and Type IV aircraft and operational readiness caused offerors “to bear expenses five times longer than forecast” and violated CICA. Pl. Mot. for Judgment on the AR 25.

Plaintiff presents no authority to support the proposition that it is a violation of CICA for an agency to delay an award, causing “difficult but reasonable” solicitation requirements to become unduly restrictive of competition due to the passage of time. CICA requires procuring agencies to “obtain full and open competition through the use of competitive procedures in accordance with the requirements of this division [41 U.S.C. §§ 3301 et seq.] and the Federal Acquisition Regulation” and to “use the competitive procedure or combination of competitive procedures,” such as sealed bids “that is best suited under the circumstances of the procurement.” 41 U.S.C. § 3301 (2012).

Plaintiff has not demonstrated that the procedures NAVAIR used in the instant negotiated procurement – which still has [***] offerors – were anti-competitive or violated any statutory or FAR provision. Plaintiff does not allege a failure of the Agency to use an identified competitive procedure required by CICA and the FAR. Rather, Plaintiff persists in attempting to raise an untimely challenge to the facial terms of the solicitation, by protesting the delay in the procurement process. While CICA sets forth procedures for the Government to sustain a policy of full and open competition, the statute does not mandate that a procurement take place in a certain amount of time or expressly provide that any delay, let alone reasonable, justified delay, is prohibited. While Plaintiff suggests that it may have to drop out of the competition because it can no longer provide Type IV aircraft, it has not yet withdrawn and there is no evidence that the other [***] offerors cannot meet the Type IV requirement or are planning to withdraw. Indeed, Plaintiff requests alternative relief that suggests that it could remain in the competition -- that the Agency “allow all offerors, including Draken, a reasonable opportunity to offer new aircraft in the event that aircraft that were originally proposed are no longer available due to the delays in the procurement process.” Am. Compl. at 26. Plaintiff has not established that the restrictive solicitation terms and delay caused a reduction in competition that rises to the level of a violation of CICA.

Plaintiff further argues that the Agency violated § 3306(a)(2)(B) of CICA which provides that agencies may “include restrictive provisions or conditions only to the extent necessary to satisfy the needs of the executive agency or as authorized by law.” 41 U.S.C. § 3306(a)(2)(B) (2012). Plaintiff identifies the Agency’s “restrictive provision” here as the solicitation’s requirements for both Type III and Type IV aircraft and for operational readiness coupled with the delay in conduct of the procurement. However, Plaintiff cannot establish restrictive solicitation provisions here because its challenge to these solicitation terms is untimely. Plaintiff admits that these solicitation provisions were not restrictive at the time it submitted its offer. In plaintiff’s view, what made the provisions restrictive under CICA was the length of time the procurement took. But, as Plaintiff admits, this delay did not result from any fault of the Agency -- either arbitrary and capricious conduct or a separate statutory or regulatory violation. The original solicitation had an anticipated award date of March 1, 2014. AR at 586. In Amendment 6, due to the Air USA protest and the change in the proposal submission date, the Agency moved the anticipated award date to April 1, 2014. The Agency did not make an award on April 1, 2014, but continues to engage in discussions with offerors and now anticipates awarding the contract in February 2015. Decl. of Phillip Smith ¶ 9. These delays have been caused by legitimate, unremarkable procurement occurrences -- pre-award agency-level and GAO protests by Air USA and Draken, and the Agency’s need to evaluate offerors’ responses to 107 ENs and conduct discussions. See id. at ¶¶ 7-9.

Plaintiff purports to combine two agency actions, neither of which was independently illegal, to construct a violation of procurement law. But Plaintiff’s invocation of procurement delay does not either convert what were legal solicitation terms into illegal terms, or grant Plaintiff a reprieve for its untimely challenge to solicitation terms. If this Court permitted Plaintiff to pursue an untimely challenge to solicitation terms and ordered the Agency to revise the belatedly challenged solicitation terms merely because there was subsequent legitimate procurement delay, the Court would do violence to Blue & Gold.
In addition to failing to demonstrate that this procurement delay created the type of “restrictive solicitation provisions” prohibited by CICA, Plaintiff has failed to appreciate that the Agency amply justified these challenged solicitation terms. The no-fault delay that ensued did not vitiate that Justification. The Assistant Secretary’s Determination and Findings articulated rational reasons for including the Type IV supersonic aircraft along with the Type III subsonic aircraft in this procurement:

  • The efficiencies gained by having a single provider provide all resources at all sites as compared to having two contractors at each location using additional space, tooling, and personnel.
  • The ability to fulfill Type III missions with Type IV aircraft billed at the lower Type III rate, which allowed the Government “to minimize the required quantity of high subsonic aircraft without compromising the ability to cover surge requirements.”
  • The avoidance of a scenario where two contractors would use overlapping resources, which would cause logistical difficulties, reduce the funds available for training and decrease the quality of training provided.
  • The recognition that the task orders under the contract are so integrally related that only a single source could reasonably perform the effort.
    The avoidance of duplication of costs to provide and maintain multiple fleets of aircraft.

AR 4470-71.

It is well settled that an agency has discretion in defining its needs. See Che Consulting, Inc. v. United States, 74 Fed. Cl. 742, 747 (2006) (“An agency’s determination of the ‘best method of accommodating’ its needs . . . falls within the agency's discretion.” (quoting United Enter. & Assocs. v. United States, 70 Fed. Cl. 1, 26 (2006)). This Court would be hard pressed to force the Agency to redefine its needs here because such needs have allegedly become unjustified due to delay that did not result from any procurement error or irrational agency decision.

This is not to say that an agency’s procurement delay is either a matter of unfettered agency discretion or immune from judicial review. The Government submits that procurement delay is purely a matter of procedure that has no effect on the validity of the procurement and does not alone provide a basis to protest. Def. Cross-Mot. for Judgment on the AR 18 (citing Am. Fuel Cell and Coated Fabrics Co., B-234395, Feb. 21, 1989, 89-1 CPD ¶ 183 (holding that a contractor’s protest of an agency’s delay in making an award had no merit because “a delay in meeting procurement milestones is a procedural deficiency which does not alone provide a basis of protest, because it has no effect on the validity of the procurement”). This Court does not agree. Rather, an agency’s illegal, irrational, or arbitrary delay could provide both a basis for protest and relief. An agency has an obligation of good faith and fair dealing to bidders participating in Federal procurements, and that duty would prohibit an agency from arbitrarily unduly delaying a procurement by stringing offerors along, requiring them to be at the ready at substantial expense for an unnecessarily extended period. See generally Heyer Prod. Co. v. United States, 135 Ct. Cl. 63, 71 (1956). However, this is not the argument Plaintiff is pressing in this case. Plaintiff emphasizes that it is not claiming that the procurement delay here resulted from any arbitrary, capricious, or irrational conduct by the Agency. Dec. 8, 2014 Oral Arg. Tr. 13:13-21. (“[W]e are not ascribing fault to the agency for the delays. [. . .] And it's not necessary, in our view, to say that the delays were the agency’s fault.”).  (Draken International, Inc. v. U. S. and Airborne Tactical Advantage Co., LLC, No. 14-1005C, February 13, 2015)  (pdf)


Thus, where an agency's specifications have been overstated and are deemed to be overly restrictive, a cancellation of the solicitation is appropriate. See Vanguard Security, Inc., v. United States, 20 Cl. Ct. 90, 109-110 (1990) citing Aviation Enterprises, Inc. v. United States 8 Cl. Ct. 1, 19 (1985) (solicitation cancellation based upon overstated specifications was reasonable); see also American Television Systems, B-220087.3, 86-1 C.P.D. ¶ 562, at 2 ("[c]hanging the requirements of a procurement after bid opening to express properly the contracting agency's minimum needs generally constitutes a compelling reason for cancellation. . ."); Lesko Associates, Inc., B-209703, 83-1 C.P.D. ¶443, at 2 ("[W]here a solicitation contains an unnecessary requirement, the criteria must be construed as being unduly restrictive of competition and that, ordinarily, in that circumstance the solicitation should be canceled before award."); Haughton Elevator Division, Reliance Electric Company, 76-1 C.P.D. ¶294 (Where IFB was misleading and unduly restrictive of competition to the prejudice of others by erroneously indicating that consideration would be limited to bidders having a minimum of 5 years' experience, a cogent and compelling reason existed for cancellation of the IFB).  (Chas. H. Tompkins Company, v. U.S., No. 99-122C, May 12, 1999)

U. S. Court of Federal Claims - Listing of Decisions
For the Government For the Protester
Cleveland Assets, LLC v. U. S., No. 17-277C, June 1, 2017 Chas. H. Tompkins Company, v. U.S., No. 99-122C, May 12, 1999
Draken International, Inc. v. U. S. and Airborne Tactical Advantage Co., LLC, No. 14-1005C, February 13, 2015  (pdf)  
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