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FAR 11:  Describing agency needs - Defective or inadequate specifications and descriptions

Comptroller General - Key Excerpts

New Our Office has explained that offerors are obligated to advise agencies of material changes in proposed key staffing, even after submission of proposals. General Revenue Corp., et al., B-414220.2 et al., March 27, 2017, 2017 CPD ¶ 106 at 22. Additionally, when a solicitation (such as this one) requires resumes for key personnel, the resumes form a material requirement of the solicitation. Pioneering Evolution, LLC, B-412016, B-412016.2, Dec. 8, 2015, 2015 CPD ¶ 385 at 8. When the agency is notified of the withdrawal of a key person, it has two options: either evaluate the proposal as submitted, where the proposal would be rejected as technically unacceptable for failing to meet a material requirement, or open discussions to permit the offeror to amend its proposal. General Revenue Corp., supra. According to the agency, however, the language in the RFP afforded it a third option in this case. We disagree.

Specifically, the agency argues that the terms of the instant RFP permitted offerors to substitute key personnel, including the center director, at any time. The agency further maintains that allowing offerors to do so does not constitute discussions. DOL argues that this situation differs from prior situations considered by our Office because the RFP for this procurement contained an explicit requirement that offerors notify the agency if any of their proposed key personnel become unavailable. The agency's argument is based on the following language:

Offerors must notify the [c]ontracting [o]fficer in writing of any change in the availability of proposed key personnel when the change in status occurs, at any point in the procurement process.

RFP at 88. The agency contends that the notification requirement contains an implicit requirement for offerors to substitute key personnel when making their notification. Supp. AR at 9. Specifically, the agency explains:

When a proposed person becomes unavailable, the offeror must notify the [a]gency. But the obligation does not end there. For the notice to have any meaning, the offeror must also offer up a substitute person for that position. That person will then be evaluated for suitability against the RFP's requirements for that position, even if it is late in the procurement.

Supp. AR at 8. Thus, according to the agency, it did not conduct improper discussions, but simply allowed MTC to make a late key personnel substitution as permitted by the RFP. Supp. AR at 8.

In response, YWCA argues that the plain language of the requirement does not support DOL's interpretation because it is silent with regard to the submission of a proposal revision substituting a new key person for one that has become unavailable. Supp. Comments at 5. YWCA also contends that DOL's interpretation would create a conflict between the key personnel notification provision and the provision dealing with late modifications because the late modifications provision does not contain an exception for the type of proposal modifications necessary to propose new key personnel after the time specified for the receipt of offers. Supp. Comments at 5. We agree.

Where a dispute exists as to a solicitation's actual requirements, we will first examine the plain language of the solicitation. Intelsat General Corporation, B-412097, B-412097.2, Dec. 23, 2015, 2016 CPD ¶ 30 at 8. Where a protester and an agency disagree over the meaning of solicitation language, we will resolve the matter by reading the solicitation as a whole and in a manner that gives effect to all of its provisions; to be reasonable, and therefore valid, an interpretation must be consistent with the solicitation when read as a whole and in a reasonable manner. Id.

The plain language at issue here, on its face, creates nothing more than an obligation for an offeror to provide notification if proposed key personnel become unavailable. Moreover, if we were to adopt DOL's interpretation of the notification provision, the notification requirement would be in conflict with the provision prohibiting late modifications, which does not include an exception for the receipt of late modifications when a key person becomes unavailable. See RFP at 96-97. In sum, we do not find the agency's interpretation to be reasonable, and we conclude that the notification requirement in the solicitation did not implicitly grant special permission for offerors to make late modifications regarding key personnel.

Further, even assuming for the sake of argument that the solicitation could reasonably be read to permit offerors to make late substitutions of key personnel, the agency's decision to allow MTC to submit a late modification to its proposal would still have been tantamount to the conduct of discussions. Submission of key personnel resumes after receipt of final proposals constitutes discussions, not clarifications, because without the resumes, the proposal would omit material information required by the RFP. Pioneering Evolution, LLC, supra. When an agency conducts discussions with one offeror, it must conduct discussions with all offerors in the competitive range. SRA Int'l, Inc., supra. at 5. Here, we find the agency's conduct of discussions with only one offeror constituted unequal and therefore improper discussions.  (YWCA of Greater Los Angeles B-414596, B-414596.2, B-414596.3: Jul 24, 2017)


Glock contends that the Army was obligated to award at least two base contracts, and was similarly required to complete the section H testing, prior to selecting a single awardee. Glock Comments at 1-11. In contrast, the agency argues that the section M provision allowing award of “up to three” base contracts permitted an award of a single contract at that stage, and that it has the discretion to not conduct the section H testing, evaluation, and final selection. MOL/COSF at 16-17.

Where a protester and agency disagree over the meaning of solicitation language, we will resolve the matter by reading the solicitation as a whole and in a manner that gives effect to all of its provisions; to be reasonable, and therefore valid, an interpretation must be consistent with the solicitation when read as a whole and in a reasonable manner. Intelsat Gen. Corp., B-412097, B-412097.2, Dec. 23, 2015, 2016 CPD ¶ 30 at 8; C & S Corp., B-411725, Oct. 7, 2015, 2015 CPD ¶ 311 at 3; Alliance Tech. Servs., Inc., B-410307, B-410307.3, Dec. 1, 2014, 2014 CPD ¶ 345 at 3. Where a dispute exists as to a solicitation’s actual requirements, we will first examine the plain language of the solicitation. Intelsat, supra; Point Blank Enters., Inc., B-411839, B-411839.2, Nov. 4, 2015, 2015 CPD ¶ 345 at 3.

Section M allows the Army to “make up to three (3) base awards.” RFP at 387. Those “base awards” are limited, however, to the purchase of “the Weapons System Component Package requirements in accordance with CLIN [0]001 of the base contract and Statement of Work [SoW] C.3.1 . . . .” Id.; id. at 296, ¶ H.3.1. After receiving a base contract award, offerors (now contractors) may downwardly adjust their prices and update their proposed license rights. Id. at 295, ¶¶ H.1.1.1, H.1.1.4. Evaluated prices will consist of all CLINs except CLINs 0001 and 0002, which were previously ordered. Id. at 295. Next, “[t]he Government will then make a final down-selection to a single contractor by following the evaluation procedures contained in section H of this RFP.” Id. at 2.

The agency relies on the section M term permitting “up to three (3) base awards” in order to justify the award of a single base contract. MOL/COSF 16-17. The protester contends that awarding fewer than two base contracts is inconsistent with sections H and M, which, it alleges, clearly anticipate further evaluation prior to the selection of a single contractor for MHS production. Glock Comments, Apr. 10, 2017, at 7. We think that the most reasonable interpretation of the solicitation is that the Army is permitted to award only one base contract. Although section M expressed the agency’s plan to award one, two or three contracts, this expression cannot reasonably be read as creating a legal requirement for multiple awards. See Canadian Commercial Corp./Liftking Indus., Inc., B-282334 et al., June 30, 1999, 99-2 CPD ¶ 11 at 3, 9 (phrase “up to two contracts” did not obligate the agency to make two awards); Global Readiness Enters., B-284714, May, 30, 2000, 2000 CPD ¶ 97 at 5 (phrase “up to three (3) awards” did not obligate the agency to make three awards). In this regard, giving effect to all provisions of the solicitation, a reasonable reading is that the RFP language regarding multiple awards is permissive and does not exclude award of a single contract. In sum, the Army was not required to make a second base award to satisfy the terms of the RFP.  (Glock, Inc. B-414401: Jun 5, 2017)
 


In its protest, Al Raha challenges the proposed parts ranges, claiming that the Air Force’s failure to specify which NSNs will be included in which ranges renders the Air Force’s requirements too vague and undefined for offerors to compete on a common basis. Protest at 19-23. Al Raha notes that the prices of catalog parts corresponding to the NSNs vary widely, from a low of $0.01 for a lock washer to a high of $136,776.88 for a deflector assembly. Id. at 22. Additionally, the anticipated annual requirement for NSNs varies from a low of 1 part to a high of 42,552 parts. Protester’s Comments at 9. Because offerors are required to propose on a fixed-price incentive basis for any mix of NSNs, this disparity in prices and part quantities could result in widely varying cost exposure, especially in the 0-7000 part range. Id. at 8. For example, Al Raha notes that if an offeror is called on to supply the 7,000 most expensive NSNs, the parts would range in cost from $136,776.88 to $28.88, while the 7,000 least expensive would range from $7.77 to $0.01. Id. at 9.

Al Raha argues that the Air Force has provided inadequate guidance to offerors concerning the potential mix of NSNs to be priced into each range, requiring offerors to make “blind guesses.” Protester’s Comments at 10. According to Al Raha this vagueness, combined with the proposed evaluation criteria, encourages offerors to play the “lowball pricing game,” which will disadvantage offerors making more realistic proposals, and differs significantly from previous support contracts, which have been priced based on fixed, unit prices for each NSN. Id. at 12-13.

Protester argues, in sum, that the RFP’s pricing requirements are so vague and undefined as to prevent offerors from competing on a common basis, and that the agency has failed to provide any additional guidance that would clarify the issue. Protester’s Comments at 12. In response, the agency argues that it has provided all the information available to it, and, in fact, generated additional data to help guide offerors. Contracting Officer’s Statement of Facts at 15 and Agency Memorandum of Law at 4. Furthermore, the Air Force notes that it has included “over and above” provisions in the contract that allow for a switch to cost-based pricing if the quantity of parts required increases significantly, and that these provisions help to provide additional clarity for the offerors concerning the requirements. See Contracting Officer’s Statement of Facts at 25-28.

As a general rule, a solicitation must be drafted in a fashion that enables offerors to intelligently prepare their proposals and must be sufficiently free from ambiguity so that offerors may compete on a common basis. Raymond Express Int’l, B-409872.2, Nov. 6, 2014, 2014 CPD ¶ 317 at 9. However, there is no requirement that a competition be based on specifications drafted in such detail as to completely eliminate all risk or remove every uncertainty from the mind of every prospective offeror; to the contrary, an agency may provide for a competition that imposes maximum risks on the contractor and minimum burdens on the agency, provided the solicitation contains sufficient information for offerors to compete intelligently and on equal terms. Phoenix Environmental Design, Inc., B-411746, Oct. 14, 2015, 2015 CPD ¶ 319 at 3.

In this case, we conclude that the RFP provides adequate detail for offerors to compete intelligently on equal terms. The agency has provided a catalog listing all 18,168 NSNs to be priced under CLIN 0001 with estimated annual requirements for each stock item, and has provided prices for approximately 98% of the items. See RFP, Catalog Appendix. While an offeror cannot know which mixture of NSNs it may be called upon to supply in any given task order, the offeror does know: the universe of items it may be called upon to supply; the quantity of items likely to be needed for any given NSN over the course of a year; and, for the vast majority of items, what the items will cost. Id. This information can be used to estimate the offeror’s likely total cost exposure and, to some extent, the likelihood that any given NSN will be needed in any given month based on the annual expected quantity. Additionally, the RFP includes “over and above” clauses that allow for a switch to cost-reimbursable pricing if the quantity of parts exceeds the established value for the period by more than 5%, which allows an offeror to better estimate its worst‑case potential cost exposure. [4] See Contracting Officer’s Statement of Facts at 26-27.

Al Raha is correct that the RFP’s proposed pricing structure allows for significant variation in an offeror’s potential cost exposure, but the agency has provided sufficient information to apprise prospective offerors of the nature and approximate scope of that risk. Put another way, the fact that Al Raha is capable of identifying both the worst-case and best-case sampling of NSNs from information provided in the RFP reinforces the fact that adequate information is available to offerors to understand the agency’s requirements and to compete intelligently and on equal terms. An offeror playing the “low-ball pricing game” would do so at its peril when the data provided in the RFP makes it clear that there is substantial risk in doing so.

In support of its contention that the proposal is impermissibly vague, Al Raha relies primarily on our prior decision in Global Technical Systems, B-411230.2, September 9, 2015, 2015 CPD ¶ 335, but this reliance is misplaced. Protester’s Comments at 10. In Global Technical Systems, the solicitation required that offerors propose a detailed labor mix for a collective 100,000 hours of engineering services, but provided only a vague description of the actual engineering services required. Global Technical Systems, supra at 17-19. That fact pattern, however, is the reverse of the instant case; here, the government has provided a detailed catalog that minutely outlines the universe of parts that an offeror will be called on to provide under the fixed-price CLIN.[5] While, the government does not know when and in what amount those parts will be needed, it has provided estimated annual requirements for all catalog items, and included “over and above” provisions in the RFP allowing for a switch to cost-reimbursable pricing in the event that requirements significantly exceed those estimates.

As noted above, the agency is not required to eliminate all risk or remove every uncertainty, and, in fact, may impose maximum risks on the contractor and minimum burdens on the agency, provided the solicitation contains sufficient information for offerors to compete intelligently and on equal terms. Phoenix Environmental Design, Inc., supra at 3. In this case, the agency’s provision of a detailed parts catalog with estimated annual quantities provides adequate information for offerors to understand the agency’s requirements and to compete intelligently and on equal terms. In this context, we conclude that the fact that the

RFP contemplates task orders with an unknown composition of NSNs is not a lack of definition in the solicitation, but rather an expressly identified element of risk that the agency may reasonably shift to the offeror.  (Al Raha Group for Technical Services B-412963.3: Sep 19, 2016)


[company’s operations specifications] OpSpec

ACHI contends that offerors were required to have all of their proposed aircraft on their OpSpecs at the time of proposal submission, and argues that Erickson’s proposal should have been found unacceptable because its heavy-lift helicopters were not listed on its OpSpec. In response, the agency argues that it would have been unreasonable to expect offerors to have the heavy-lift helicopters on their OpSpecs at the time of proposal submission because the agency would not be in a position to exercise the option requiring heavy-lift helicopters until one or two years after the base period, if at all. Supp. AR, at 6. According to the agency, such a requirement would exceed the agency’s requirements. Id. Where, as here, a dispute exists as to the actual meaning of an RFP provision, we will read the RFP as a whole and in a manner giving effect to all of its provisions in determining which interpretation is reasonable. SRA International, Inc., B-408624, B-408624.2, Nov. 25, 2013, 2013 CPD ¶ 275 at 7-8. Based on our review of the RFPs and of the record, we find no basis to conclude that the agency’s interpretation of the solicitations, and its evaluation of proposals in this regard, was unreasonable.

As noted above, § L‑3.2.1(i) required each offeror to furnish, among other documentation, a contractor-specific OpSpec showing that proposed aircraft are authorized to conduct operations under 14 CFR part 135 and certified for and fully capable of operating in instrument meteorological conditions per sections C‑2.8, C‑3.3 and C‑11.2.6. For the FAA to add an aircraft to an aircraft operator’s OpSpec, the operator must own or possess a current lease for the aircraft, Supp. AR, Attachment 3, Declaration of Cmdr. Petras, at 1-2, and the solicitation here provided for the possibility that an offeror might not own or possess an aircraft at the time of proposal submission by allowing offerors to provide proof of a binding agreement to purchase/charter aircraft if awarded the contract. RFPs, at § L‑3.2.1. Consistent with that possibility, the solicitation allows a contractor to revise and update its OpSpec throughout the performance period. We think that when these sections are read together, it is clear that the agency did not intend to require that all proposed aircraft be listed on the offeror’s OpSpec at the time of proposal submission, but rather intended to allow offerors to enter into leases for aircraft, and to update their OpSpecs to add the leased aircraft to their listing of authorized aircraft, after award.

Binding Obligation

ACHI also argues that Erickson should have been found technically unacceptable because it did not meet the requirement to provide proof of ownership or a binding agreement to purchase/charter aircraft if awarded the contract. In this regard, both Erickson and ACHI proposed to enter into leases to satisfy the requirements for heavy-lift helicopters if they were awarded the contracts. ACHI, however, contends that it provided detailed lease agreements for the four [DELETED] aircraft that it proposed in submission one, while Erickson only provided “speculative and futuristic agreements” regarding its proposed [DELETED] heavy-lift helicopters. Comments on AR, at 5. In response, the agency argues, and the record reflects, that the agreements provided by ACHI in both of its proposals fall short of the “detailed lease agreements” it claims to have provided, and, similar to what was provided by Erickson, provide nothing more than evidence of ACHI’s capability to lease heavy-lift helicopters from another company in the future. Supp. AR, at 4.

According to the agency, both parties provided information that was sufficient to satisfy the evaluators, despite the fact that they did not provide what might generally be considered “binding agreements.” In this regard, the agency argues that the solicitation only required a showing that an offeror would be able to meet the requirements in sections C‑3.3 and C‑11.2.6. Supp. AR, at 2. The agency also contends that the term “binding agreement,” when used in the aviation industry, and in the context of contracting for aviation detachment services, is understood to require evidence of capability to enter into a binding agreement before performance. Supp. AR, Attachment 3, Declaration of Cmdr. Petras, at 1.

As discussed above, where, as here, a dispute exists as to the actual meaning of an RFP provision, we will read the RFP as a whole and in a manner giving effect to all of its provisions in determining which interpretation is reasonable. SRA International, Inc., supra. In this instance, it is clear that the agency did not require offerors to have ownership or be in possession of the aircraft proposed at the time of proposal submission, such that something less than an actual lease agreement could satisfy the solicitation submission requirements. As discussed above, such an understanding is consistent with the requirements related to OpSpecs, which allowed for updates and revisions. Because the agency was looking for information other than proof of ownership or a fully executed lease agreement, it was not unreasonable for the agency to find that information related to potential future leases or purchases of proposed aircraft was sufficient. Moreover, even assuming for the sake of argument that the agency’s finding in this regard could be considered a waiver of a requirement, the agency effectively waived the requirement for both the protester and awardee; as a result, there is no basis for our Office to find that the protester was prejudiced by the agency’s action. Geo-Seis Helicopters, Inc., supra, at 3 (no prejudice shown where agency found letter of intent to purchase a helicopter acceptable and neither vendor provided proof of ownership or binding purchase agreement as required). Competitive prejudice is an essential element of every viable protest, and we will not sustain a protest where a record does not establish prejudice. Id.

The protest is denied.  (Air Center Helicopters, Inc. B-412789, B-412789.3, B-412790, B-412790.3: Jun 2, 2016)  (pdf)


Next, DRS argues that the Army’s evaluation of the awardee’s proposed transition plan was inconsistent with the terms of the RTEP, which the protester contends required offerors to provide full operational performance starting on the first day of the task order. Supp. Protest at 13-18. As such, the protester asserts that the agency should have found LMIS’s proposed transition plan unacceptable, since it did not provide for full staffing and performance until the [DELETED] day of the task order. Id. at 18. In support of its contention, the protester notes that the PWS provided that the successful “contractor shall provide a plan to seamlessly transition work from the incumbent contractor immediately.” AR, Tab 11, PWS, at 2. DRS takes the position that the term “immediately” indicated that the awardee must provide all of the required services at the start of performance. Supp. Protest at 14-15. We find DRS’s interpretation unreasonable, as it is at odds with the RTEP’s requirement that offerors propose a phase-in plan detailing how they would “take over from the incumbent contractor ensuring minimal disruption of operations.” RTEP at 2. In short, if full, immediate performance were required under the RTEP, the Army would not have requested firms to submit a transition plan in the first place. Rather, when read in context, we agree with the agency that the term “immediately” simply indicated that the successful contractor was to begin the transition of work immediately, not that full performance was required on day one. INFICON, Inc., B-410502, Jan. 5, 2015, 2015 CPD ¶ 24 at 4 (denying protest where protester's interpretation of solicitation was not consistent with relevant provisions when read in context).

The protester also argues that the Army unreasonably failed to take into account that under the awardee’s proposed transition plan, the agency would be required to pay its incumbent contractors to continue performance. Protester’s Supp. Comments at 21-27. As discussed above, under the awardee’s proposal, LMIS would not begin full operational performance until the [DELETED] day of the base period, which in turn resulted in a LOE reduction of [DELETED] hours. AR, Tab 31, LMIS Technical Proposal, at 53. The protester contends--and the agency does not dispute--that the Army would need its incumbent contractors to continue to perform during LMIS’s proposed transition period in order to continue operational performance. Protester’s Supp. Comments at 21-24. By contrast, under DRS’s proposal, the incumbents would serve as subcontractors and provide full operational performance starting on the first day of the task order. Id. Citing our decision in L-3 Communications Titan Corp., B-299317 et al., March 29, 2007, 2007 CPD ¶ 66 at 11-13, DRS argues that the Army’s selection decision was irrational, as it was based on cost savings resulting from LMIS’s transition plan, which will in fact result in no real savings to the agency. Protester’s Supp. Comments at 26.

In response, the Army contends that the protester’s argument is an untimely challenge to the evaluation scheme of the RTEP, as it was not raised prior to the solicitation’s closing date. Supp. Memorandum of Law, at 12-13.

In L-3 Communications, a case with facts analogous to those at issue here, the incumbent protester and awardee proposed different levels of effort for the transition period, with the awardee’s proposal resulting in higher out-of-contract costs to the government than the incumbent’s proposal. L-3 Commc’ns Titan Corp., supra at 11. The agency’s evaluation scheme, however, did not account for the offerors’ materially different approaches to transition. Id. at 13. As such, we found that the evaluation scheme was not rational or reasonable, as it did not support a meaningful comparison and discrimination between the two proposals. Id. at 13. In L-3 Communications, however, we declined to address the agency’s contention that the protester’s argument was an untimely challenge to the terms of the solicitation, as we sustained the protest on two other grounds. Id. at 13, n.18.

In the instant protest, we find the protester’s argument that the agency erred in failing to consider the relative costs of the offerors’ different transition approaches to be untimely. As discussed above, the RTEP made clear that there would be “no work stoppage as a result of [the] award,” but also directed offerors to propose a phase-in plan. AR, Tab 11, PWS, at 2; RTEP at 2-3. Moreover, the RTEP provided no indication that the agency would consider out-of-contract costs resulting from firms’ transition plans as part of its cost evaluation. RTEP at 7-8. Rather, the solicitation simply indicated that the agency would calculate an offeror’s total evaluated cost using the information provided in the firm’s cost proposal, subject to any cost realism adjustments. Id. at 7. As such, DRS should have recognized that while it was proposing full performance at the start of the task order, other offerors could propose a transition period with a lower LOE, and that the agency’s evaluation scheme would not capture the government’s costs resulting from the incumbent contractors’ continued performance. Thus, under 4 C.F.R. § 21.2(a)(1), DRS’s argument is an untimely challenge to the terms of the solicitation. See Cherokee Elecs. Corp., B-240659, Dec. 10, 1990, 90-2 CPD ¶ 467 at 3 (“[S]ince it was obvious that the RFP, requesting fixed-price proposals, did not contemplate the consideration of transition costs, [the protester] should have filed any protest that such costs must be considered prior to the closing date for receipt of proposals.”); see also FirstLine Transp. Sec., Inc. v. United States, 100 Fed. Cl. 359, 385-390 (2011) (“Because [the protester] did not protest the price evaluation scheme in the RFP before the submission deadline, it cannot now complain that the out-of-contract costs for [the awardee’s] transition period were not considered in the evaluation of [the awardee’s] price proposal.”). As discussed below, however, we find this situation is appropriate for the use of the significant issue exception to our timeliness rules. 4 C.F.R. § 21.2(c).

While our Bid Protest Regulations provide that protests based upon alleged improprieties in a solicitation that are apparent prior to closing shall be filed prior to closing, 4 C.F.R. § 21.2(a)(1), our Regulations also provide that GAO may consider an untimely protest that raises issues significant to the procurement system. 4 C.F.R. § 21.2(c). In this regard, what constitutes a significant issue is to be decided on a case-by-case basis. Pyxis Corp., B-282469, B-282469.2, July 15, 1999, 99-2 CPD ¶ 18 at 4. We generally regard a significant issue as one of widespread interest to the procurement community and that has not been previously decided. Satilla Rural Elec. Membership Corp., B-238187, May 7, 1990, 90-1 CPD ¶ 456 at 3. The issue here--whether an agency’s evaluation scheme is reasonable where it fails to fairly account for offerors’ differing transition approaches--is one which we did not squarely address in L-3 Communications given our resolution of the case on other grounds, and is one that can be expected to arise in future procurements for service contracts where there is an incumbent contractor competing with a non-incumbent. Accordingly, we will address this basis of protest on the merits.

It is a fundamental principle of government procurement that a contracting agency must provide a common basis for competition and may not disparately evaluate offerors with regard to the same requirements. See, e.g., Lockheed Martin Info. Sys., B-292836 et al., Dec. 18, 2003, 2003 CPD ¶ 230 at 11-12; Rockwell Elec. Commerce Corp., B-286201 et al., Dec. 14, 2000, 2001 CPD ¶ 65 at 5. Likewise, while it is up to the agency to decide upon some appropriate and reasonable method for evaluating offerors’ costs, an agency may not use an evaluation method that produces a misleading result. See Bristol-Myers Squibb Co., B-294944.2, Jan. 18, 2005, 2005 CPD ¶ 16 at 4; AirTrakTravel, et al., B-292101 et al., June 30, 2003, 2003 CPD ¶ 117 at 22. The method chosen must include some reasonable basis for evaluating or comparing the relative costs of proposals, so as to establish whether one offeror’s proposal would be more or less costly than another’s. AirTrakTravel, et al., supra.

Here, the solicitation established that there would be “no work stoppage as a result of [the] award” and provided an estimated LOE based on full staffing of the agency’s requirements during the entire base period of performance. AR, Tab 11, PWS, at 2; RTEP, attach. 2, at 3. This is exactly what DRS proposed and included in its cost proposal--full staffing from the first day of the task order. AR, Tab 25, Technical Evaluation Report, at 6-7. In contrast, LMIS proposed a transition period, also consistent with the solicitation, that reduced the agency’s LOE by more than [DELETED] hours, as it would not be providing full operational performance during the [DELETED] of the base period. AR, Tab 31, LMIS Technical Proposal, at 54-55. The Army does not dispute that under LMIS’s transition plan, the agency would be required to pay its incumbent contractors to continue performance during the transition period in order to prevent a stoppage of work. See Supp. Agency Legal Memorandum, exh. 1, Declaration of FOFH Director, at 2 (describing how agency expected LMIS to hire incumbent employees during phase-in period, “as mission allows”). Thus, by failing to account for these disparities in the offerors’ proposals, the RTEP’s evaluation scheme did not provide for an apples-to-apples comparison, and effectively penalized offerors that proposed to provide full contract performance sooner than those offerors with a more prolonged transition period. See L-3 Communications Titan Corp., supra at 11-13; see also FirstLine, 100 Fed. Cl. at 387. Accordingly, we find that the agency’s award decision was not reasonable or rational.  (DRS Technical Services, Inc. B-411573.2, B-411573.3: Nov 9, 2015)  (pdf)


GTS also contends that the solicitation is unreasonably vague and ambiguous regarding the requirement for engineering services, thus preventing offerors from competing on a common basis. In this regard, the protester notes that the solicitation contains contract line items (CLINs) for 100,000 hours of engineering services, and requires offerors to propose a labor mix, but does not contain information essential for offerors to formulate an acceptable labor mix or labor rates. Protest at 3-4.

As set forth above, the RFP requires that offerors “propose a labor mix with supporting rationale for engineering services as described in Section C. . . [and] provide job descriptions for each proposed labor category.” RFP at 176. However, the description of these services in Section C provides only a vague outline of the requirement, which is shown here in its entirety:

ENGINEERING SERVICES CLINs 0009 (if exercised, 1009, 2009, 3009, and 4009) - If ordered, the Contractor shall provide engineering services (ES), conduct engineering studies, provide engineering analysis and trade-off studies, and/or support engineering changes as directed by the Government. Contractor shall provide any travel, incidental material consumed, and/or subcontractor effort necessary in the performance of the required ES. The specific tasks shall be defined in each Delivery Order.

RFP at 55. Further, the solicitation requires that, in proposing rates for these general engineering services, “[a]ny travel, incidental material consumed, other direct costs (ODCs) and/or subcontractor effort associated with the performance of this effort shall be included in the proposed man-hour rate.” Id. at 50; see also AR, Tab 30, Questions and Answers, at 2 (“The costs for travel, incidental material consumed, [and] subcontracted effort shall be included in the offeror’s proposed hour rate”).

When the agency received questions from potential offerors regarding these services, it refused to provide any additional information. See, e.g., AR, Tab 30, Questions and Answers, at 4. In this regard, one offeror asked: “Please provide guidance as to which labor categories are desired, and provide additional details on what tasks are required for Engineering Services.” Id. The agency, however, did not furnish any additional information, answering instead that: “The Offerors shall propose the labor categories necessary to succes[s]ful[l]y complete the tasks iden[ti]fied for the statement of line items 0009, 1009, 2009, 3009, and 4009.” Id.[12] However, each of these CLINs described the requirement only as “Engineering Services,” and contained references to a “note” informing offerors that “[l]abor hours for each task shall be established through negotiation in each delivery order via a Government-provided Statement of Work (SOW).” RFP at 50; see, e.g., id. at 20.

GTS contends that the lack of any meaningful description of the types of engineering services required or the goals to be achieved, coupled with the fact that award under the solicitation is to be made to the lowest-priced, technically acceptable proposal, RFP at 191, will encourage offerors to propose unrealistic labor mixes in order to achieve the lowest possible price; according to the protester, offerors who do not “play the lowball pricing game” will be disadvantaged for proposing what they believe to be a more realistic labor mix. Protest at 45. In any event, the protester argues that, given the current dearth of information regarding the engineering services requirement, offerors will be forced to make “wild guesses” in proposing engineering services costs. Id.

As a general rule, a solicitation must be drafted in a fashion that enables offerors to intelligently prepare their proposals and must be sufficiently free from ambiguity so that offerors may compete on a common basis. Raymond Express Int’l, B‑409872.2, Nov. 6, 2014, 2014 CPD ¶ 317 at 9. That is, offerors must be given sufficient detail to allow them to compete intelligently and on a relatively equal basis; the agency’s description of its needs must be free from ambiguity and describe the agency’s minimum needs accurately. See Haworth, Inc.; Knoll N. Am., Inc., B‑256702.2, B‑256702.3, Sept. 9, 1994, 94-2 CPD ¶ 98 at 5.

The solicitation’s requirement for engineering services does not meet this standard. Although Offerors were required to “propose a detailed labor mix,” RFP at 176, the RFP’s vague description of the engineering services required did not provide offerors with a sufficient description of the work to be performed or the results to be achieved on which to base their proposed labor mix. In this regard, the solicitation’s description stated only that the engineering services could include tasks such as providing engineering analysis, conducting studies “and/or” supporting engineering changes. RFP at 55.

The agency argues that, when the statement of work outlines the work to be performed, the agency is not required to prescribe a particular labor mix or level of effort--rather, agencies may require offerors to propose the appropriate labor mix and level of effort to achieve the identified goals. AR at 35-39. However, while an agency may require offerors to propose the labor mix and level of effort appropriate for performing the work required under the solicitation, the solicitation must provide a sufficiently detailed description of the work to be performed or the goals to be achieved to allow offerors to intelligently propose a labor mix and level of effort.

Here, the solicitation contains no description, beyond the vague requirement to provide analysis, conduct studies and/or support engineering changes, of the type of work to be performed or the goals to be achieved. As a result, offerors had no basis on which to formulate their proposed labor mix under this lowest-priced technically acceptable procurement. Therefore, we sustain the protest on this basis.  (Global Technical Systems B-411230.2: Sep 9, 2015)  (pdf)


Prosperity argues that the agency's evaluation criteria lack a rational basis because they fail to account for cost savings associated with remaining in the protester's buildings. Protests at 6. The protester asserts that the flaw in the agency's methodology for calculating present value is that it "does not include the option of subtracting the value of the [Tenant Improvement allowance] TIA from an offeror's present value evaluation, should it exceed the tenant agency's requirements, which would most certainly be the case for the incumbent lessor, or otherwise crediting the incumbent lessor . . . for existing improvements." Id. As such, Prosperity argues that the RLPs do not provide a sufficient basis for determining whether one offeror's proposal is more or less costly to the government because they fail to consider the actual cost to meet the agency's tenant and security improvement requirements. Protests at 7. Our review of the record gives us no basis to question the agency's evaluation criteria.

Agencies are required to consider the cost to the government in evaluating competitive proposals. Health Servs. Int'l, Inc.; Apex Envtl., Inc., B-247433, B‑247433.2, June 5, 1992, 92-1 CPD ¶ 493 at 3-4. While it is up to the agency to decide upon an appropriate and reasonable method for proposal evaluation, it may not use an evaluation method that produces a misleading result. Id. at 4. The method chosen must include some reasonable basis for evaluating or comparing the relative costs of proposals, so as to establish whether one offeror's proposal would be more or less costly than another's. SmithKline Beecham Corp., B‑283939, Jan. 27, 2000, 2000 CPD ¶ 19 at 4-5. Moreover, while as a general rule, agencies are not required to structure acquisitions in order to neutralize the competitive advantage of an incumbent, agencies may nonetheless use an evaluation method that attempts to foster competition by increasing the feasibility of a proposal being submitted by non-incumbent offerors. See Int'l Computaprint Corp., B-207466, Nov. 15, 1982, 82-2 CPD ¶ 440 at 3.

GSA responds that the [requests for lease proposals] RLPs are not defective and provide all information needed to make informed offers. Contracting Officer's Statement at 2. The agency explains that it chose this procurement method because the specific requirements were not known at the time the RLPs were issued, the actual costs of tenant improvements are not known exactly until after award, and may even continue to change after award because the tenant agency has the right to change its build-out after award. Contracting Officer's Statement at 3-4; Supp. Contracting Officer's Statement at 1-2. The agency also argues that requiring offerors to use the provided allowances relieves the government of having to inspect and value specific existing improvements in each offered location and having to develop individual construction cost estimates based on individual building characteristics at multiple offered locations. Contracting Officer's Statement at 3-4.

Finally, the agency argues that it structured the lease so as to promote competition. Legal Memorandum at 4; Supp. Contracting Officer's Statement at 5. In this regard, the agency explains that incumbent landlords enjoy a significant advantage in competing for follow-on leases due to existing improvements obtained through government investment. As a result of this advantage, the agency explains, "it is a challenge to obtain competition in this sort of procurement, and the incumbent, when it calculates the rental rate it will offer for a follow-on lease, naturally factors the advantages of incumbency into its offer, so that the value of the government's investment in the incumbent space is used by the incumbent to demand higher rent than might otherwise [be] the case." Legal Memorandum at 4. According to the agency, structuring the lease as it has here encourages participation by non-incumbent offerors, and encourages the incumbent to offer rental rates closer to market rates. Id. at 4-5.

Our review of the record and the agency's rationale for utilizing allowances rather than requiring offerors to price proposals based on actual tenant improvement requirements, gives us no basis to question the agency's evaluation methodology. In this regard, we are provided no basis to question the agency's assertion that it utilized the specified allowances in part because the specific requirements were not known at the time the RLPs were issued. However, even if the requirements were known with certainty we find GSA's evaluation methodology to be unobjectionable as we conclude that GSA has structured the subject solicitation in a manner that attempts to promote, rather than stymie, competition. While the agency's chosen method for leveling the playing field has the effect of reducing or eliminating Prosperity's incumbent advantage, we find that unobjectionable in view of GSA's broader objective of fostering competition, which is consistent with the overarching mandate of the Competition in Contracting Act to obtain full and open competition for the government's requirements. See New Mexico State University, B-409566, June 16, 2014, 2014 CPD ¶ 228 at 4.  (Prosperity Metro Plaza of Virginia, LLC B-411547, B-411548: Aug 21, 2015)  (pdf)
 


Olympus also protests that the solicitation only requires a minimum of two custodians at each school for each of the day and evening shifts, which, according to the protester, is not a sufficient number of staff to perform the tasks listed in the PWS. Olympus asserts that since the solicitation defines an acceptable rating as meeting the minimum requirements of the solicitation, an offeror proposing this minimum staffing would be evaluated as acceptable, and eligible for award, even though two custodians per shift is, in the protester’s view, inadequate. Protest at 9-10.

Olympus’ protest in this regard is based upon a misinterpretation of the solicitation. In this regard, we will resolve controversies over the meaning of a solicitation by reading it as a whole and in a manner that gives effect to all of its provisions; to be reasonable, and therefore valid, an interpretation must be consistent with the solicitation when read as a whole and in a reasonable manner. Alluviam LLC, B‑297280, Dec. 15, 2005, 2005 CPD ¶ 223 at 2.

Olympus essentially argues that the agency has improperly estimated the required custodial work under the PWS. Where an agency establishes an estimate of its requirements in a solicitation, the estimate must be established in good faith, based on the best information available, and accurately represent the agency’s anticipated needs. CW Government Travel, Inc.‑‑Reconsideration, et al., B‑295530.2, et al., July 25, 2005, 2005 CPD ¶ 139 at 7.

Here, however, it is clear from the solicitation when read as a whole that the agency was not setting forth in the solicitation an estimate of required custodians, but is instead simply indicating the minimum required staffing for the proposal to receive further consideration. In this regard, the agency explains that the stated minimum staffing levels are required to perform the immediate needs during the school day and evening shift, but this is not the only staff the contractor is required to provide to be acceptable. Agency Report at 6-7.

Further, nothing in the solicitation indicates that an offeror proposing only two custodians for each of the shifts without any regard to the work to be performed will be rated acceptable. While the solicitation requires that for each of the day and evening shifts the contractor must provide a minimum of two custodial workers at each school, PWS §§ 2.6.2.2, 2.6.2.3, the solicitation also sets out a detailed list of tasks that the contractor must perform (e.g., sweep and mop restroom floors) with the required frequency; details regarding the square footage of the various areas of the school (e.g., classrooms with carpet); and additional relevant details (e.g., the number of toilets). Offerors are required to propose a sufficient number of trained custodial workers and laborers to promptly perform the required work. PWS § 2.5.1.1. Further, offerors are instructed to include a detailed narrative of the offeror’s management approach which discusses adequate manning, including the number of employees by type, number of hours and schedules worked for each type, sufficient oversight, and an effective custodian work schedule and cleaning schedule to ensure uninterrupted service. RFP at 5. Thus, while a proposal will be rated unacceptable if it does not include at least two custodians at each school per shift, the solicitation requires that to be deemed acceptable, a proposal must include a sufficient, detailed plan, including sufficient personnel, to perform all of the requirements of the PWS in a timely manner.  (Olympus Building Services, Inc. B-411474, B-411474.2, B-411474.3: Jul 30, 2015)  (pdf)


Lack of Information

First, the protester contends that the agency has not provided vendors with sufficient information to prepare quotations. Specifically, GMCS argues that in order for it to determine the level of effort necessary to conduct the audits, and thus submit a quotation, it must know the “[c]omplexity [c]ategory” assigned to the agency by the incumbent auditor. Protest (Mar. 20, 2015) at 2. In this regard, the protester explains that third‑party EMS audits are subject to requirements and standards identified in a document known as International Accreditation Forum (IAF) Mandatory Document (MD) 5. See AR, Tab 9, IAF MD 5, at 5. According to IAF MD 5, an auditor determines EMS audit durations primarily based on two factors: the number of personnel at the organization being audited and the complexity of the work being performed by the organization. Id. at 7. With respect to the complexity of the work being performed, IAF MD 5 identifies five complexity categories--high, medium, low, limited, or “[s]pecial [c]ases”--that auditors assign to organizations based, in part, on the organization’s business sector. Id. at 17-20. GMCS contends that it needs to know the complexity category assigned to NUWCDIVNPT in order to determine the level of effort necessary to perform the contract.

A solicitation must contain sufficient information to allow offerors to compete intelligently and on an equal basis. See Tennier Indus., Inc. , B-299624, July 12, 2007, 2007 CPD ¶ 129 at 2. However, there is no legal requirement that a solicitation contain such detail to completely eliminate all risk or remove all uncertainty from the mind of every prospective offeror. Tennier Indus., Inc., supra; Triple P Servs., Inc., B-271629.3, July 22, 1996, 96-2 CPD ¶ 30 at 5 n.2.

Here, we find no basis to sustain the protester’s argument that the Navy’s failure to provide the agency’s complexity category prevents the firm from submitting a quotation. The Navy maintains that it cannot disclose the complexity category because it does not have that information. AR, Tab 4, Amendment 0002, at 2-3, Contracting Officer (CO) Statement (Apr. 17, 2015) at 6. In this regard, the Navy’s predecessor contract did not require that the auditor provide the organization’s complexity category. See AR, Tab 13, Current Contract SOW, at 21‑24. The agency explains that it cannot compel the incumbent auditor to provide the agency’s complexity category, and any attempt to obtain it will result in additional costs to the agency. CO Supplement (May 11, 2015) at 2.

The Navy instead provided vendors with information about the type of work performed at NUWCDIVNPT, so potential vendors could make their own assessments about the complexity of these audits. Specifically, in amendment 3, the agency advised vendors that the business sector that “best aligns” with NUWCDIVNPT’s work was “technical testing and laboratories.” AR, Tab 7, Amendment 0003, at 2. Pursuant to IAF MD 5, an organization that engages in technical testing and laboratories is usually assigned a medium complexity rating. See AR, Tab 9, IAF MD 5, at 18. In addition, the agency informed vendors that the audits would be limited to NUWCDIVNPT’s campus (which has approximately 5,000 employees), and provided the campus’ normal hours of operation; the record shows that these elements inform audit durations under IAF MD 5. See Id. at 7-8. The agency also disclosed the dollar value of the prior EMS audit contract; identified the minimum number of hours expected for each type of audit (based on 14 years of prior audit history); and released a copy of the most recent certificate of conformance issued to NUWCDIVNPT. RFQ at 31-32; AR, Tab 6, Amendment 0001, at 2; Tab 4, Amendment 0002, at 2‑6; Tab 7, Amendment 0003, at 2-3; Tab 5, Certificate of Conformance, at 1.

Moreover, although GMCS argues that it received complexity category information under other solicitations for audit services, the protester has not established that the absence of NUWCDIVNPT’s complexity category, in this particular instance, prevents the firm from competing intelligently and on a relatively equal basis. This is especially true in light of the other information provided to vendors by the agency.

In sum, because the Navy does not have the complexity category information being requested by the protester, and because the agency provided vendors with additional information about the organization, we find that the RFQ, including information disclosed in subsequent amendments, contains sufficient information to allow vendors to compete intelligently. Although the protester would have preferred that the agency provide vendors with even more information, GMCS’s complaints fail to provide a basis to sustain the protest.  (Government and Military Certification Systems, Inc. B-411261: Jun 26, 2015)  (pdf)


In its protest, Kingdomware argues that the RFQ did not accurately describe the agency’s material specifications. Specifically, Kingdomware complains that it was unreasonable for the agency not to define the term “unlimited,” which, according to the protester, can be defined “a number of different ways.” Protest at 2. In essence, Kingdomware alleges that the term “unlimited” is ambiguous.

Where a request for quotations invites competition, vendors must be given sufficient detail to allow them to compete intelligently and on a relatively equal basis; the agency’s description of its needs must be free from ambiguity and describe the agency’s minimum needs accurately. Am. Overseas Book Co., Inc., B-276675, July 10, 1997, 97-2 CPD ¶ 12 at 2; see Richen Mgmt., LLC, B-406750, B-406850, July 31, 2012, 2012 CPD ¶ 215 at 4. 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. Richen Mgmt., LLC, supra, at 3; Am. Contract Servs., Inc., B-256196.2, B-256196.3, June 2, 1994, 94-1 CPD ¶ 342 at 2.

Here, we disagree with the protester that it was unreasonable for the agency not to define the term “unlimited.” As explained above, the RFQ detailed with specificity the notification services and the various features sought by the agency. These required features included the ability to send messages or alerts without any restriction or constraint on the number of recipients or the amount of messages or alerts that could be sent. In this regard, the term “unlimited” indicated that the agency required more than the ability to send a finite number of messages/alerts, and the agency did not want a cap on the number of recipients that would receive the alerts. See AHNTECH Inc., B-291998, Apr. 29, 2003, 2003 CPD ¶ 90 at 4 (GAO relies on plain meaning of language to interpret a solicitation). Additionally, the agency informed interested vendors that it expected more than 15,000 contacts in the system at any one time. The agency also made clear in the RFQ’s questions and answers that it did not want per transaction pricing but wanted quotes for an unlimited plan. Although Kingdomware argues that historical information provides the firm a “solid basis” to prepare a quote, Comments at 4, as noted above, the agency is not required to remove all uncertainty from the mind of every prospective vendor. See Dellew Corp., B-407159, Nov. 16, 2012, 2012 CPD ¶ 341 at 5 (unobjectionable for agency not to disclose in solicitation certain historical workload data). Finally, the agency reports that “multiple” vendors submitted quotes for the RFQ’s requirement. Contracting Officer Statement at 4. On this record, we find that the agency provided sufficiently detailed information to allow vendors to compete intelligently and on a relatively equal basis under the RFQ.

The protest is denied.  (Kingdomware Technologies, B-407628, Jan 9, 2013)  (pdf)


In its challenge to the terms of the solicitation, the protester focuses on the agency’s alleged failure to provide more specific information regarding the potential requirement for simultaneous training scenarios. In this regard, the protester asserts that “[w]ithout better insight in the frequency of overlapping exercises, it is virtually impossible to price the contract or to meet the Key Personnel technical requirements for project managers and alternative project managers.” Protest at 2. Katmai further alleges that the incumbent contractors for each mobilization training center would possess historical knowledge of the frequency of simultaneous training scenarios, thus providing them with an unfair competitive advantage. Id. at 5. As a general rule, agencies must provide sufficient detail in a solicitation to enable offerors to compete intelligently and on a relatively equal basis. Crown Contract Servs., B-288573, Oct. 31, 2001, 2001 CPD ¶ 179 at 2. When an agency solicits offers for a requirements contract on the basis of estimated quantities, the agency must base its estimates on the best information available. Inventory Accounting Serv., Inc., B-271483, July 23, 1996, 96-2 CPD ¶ 35 at 2-3.

Here, the detailed estimates provided by the agency in the solicitation, which are unchallenged by the protester, coupled with the agency’s response to numerous questions from prospective offerors, provides sufficient information to allow offerors to compete intelligently and on a relatively equal basis. Specifically, the solicitation includes detailed estimates of the total number of labor hours for all contemplated labor categories for each ordering period, detailed descriptions of the training scenarios with estimated hours per scenario, total number and type of role-player per scenario, uniforms and equipment requirements for each scenario, and estimated number of scenarios per ordering period. These estimates provide a detailed picture of the overall scale and magnitude of the agency’s requirements to be performed under the contract.

Moreover, the record confirms, as the agency argues, that the solicitation describes the roles and responsibilities for the project manager position. Specifically, the RFP establishes that the project manager will be “a full time, on-site project manager who shall be responsible for the overall management and coordination of the contract upon receipt of a task order” and the project manager or alternate “shall be available between the hours of 7:30 - 4:30.” RFP amend. 1, PWS at 4. In essence, offerors must provide one project manager for each site, Fort Dix and Camp Shelby. Thus, notwithstanding the protester’s assertion to the contrary, there is no ambiguity with respect to staffing of the project manager position since staffing for this position is independent of the number of scenarios ordered, or whether the scenarios are ordered simultaneously.

We do, however, recognize that the solicitation creates some risk where offerors have to anticipate “occasionally” performing scenarios simultaneously. This introduces an undefined variable that likely will affect offerors’ staffing for positions other than that of the project manager, and the offerors’ pricing strategies. However, the mere presence of risk in a solicitation does not make the solicitation inappropriate or improper. It is within the 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 ¶ 147 at 5; TN-KY Contractors, B-291997.2, May 5, 2003, 2003 CPD ¶ 91 at 3. There is no requirement that a competition be based on specifications drafted in such detail as to completely eliminate all risk or remove every uncertainty from the mind of every prospective offeror. Abba Int’l, Inc. et al., B-311225.4, Feb. 2, 2009, 2009 CPD ¶ 28 at 7; AirTrak Travel et al., B-292101 et al., June 30, 2003, 2003 CPD ¶ 117 at 4. Risk is inherent in most types of contracts, and firms must use their professional expertise and business judgment in anticipating a variety of influences affecting performance costs. JRS Mgmt., supra; AirTrak Travel et al., supra. Based on the record before us, where the solicitation provides extensive and detailed estimates regarding the overall scale and magnitude of the agency’s requirements, we conclude that the risk associated with the possible “occasional” requirement for overlapping scenarios, does not expose an offeror, such as Katmai, to an unacceptable or undue risk, or undermine the ability of offerors to compete intelligently and on a relatively equal basis.  (Katmai Information Technologies, LLC, B-406885, Sep 20, 2012)  (pdf)


DNO also protests that the solicitation does not provide estimated quantities for each produce item. Protest at 8-9; Supp. Protest at 3. The protester argues that, without estimated quantities, the agency “cannot reasonably ascertain the actual likely price of each offeror’s proposal, or, therefore, the relative price amongst the offerors (e.g., even where one offeror offers lower prices for one product, the agency will not be able to compare the relative prices of the offerors without estimating the overall quantities to be ordered between and among products).” Supp. Comments at 13.

The agency responds that it is impossible to include an estimate of its needs in the RFP because of the procurement strategy used and the nature of the pilot program. See AR at 21. In this regard, the agency states that the pilot program provides schools with an optional method to obtain fresh produce but that schools are not obligated to use the pilot program. See id. The agency adds that whether or not any orders are placed against a particular contract is entirely dependent on the contractor’s marketing efforts and the schools own decision-making. Id. According to the agency, USDA intends to award contracts to all offerors that can demonstrate an acceptable level of compliance with the evaluation factors and that propose reasonable prices. Id. at 22. In this respect, the agency states that pricing under each contract will change on a monthly basis to allow for an economic price adjustment and, as a result, the vendor offering the lowest overall price for each produce item can change monthly. Id. The agency also points out that it has already received three offers, suggesting that other offerors found information in the RFP to be adequate for preparation of proposals. Id. at 23.

Agencies are required to consider cost or price to the government in evaluating competitive proposals. 41 U.S.C. § 3306(c)(1)(B) (2011); see Kathpal Tech., Inc.; Computer & Hi-Tech Mgmt., Inc., B-283137.3 et al., Dec. 30, 1999, 2000 CPD ¶ 6 at 9. While it is up to the agency to decide upon some appropriate, reasonable method for proposal evaluation, the method chosen must include some reasonable basis for evaluating or comparing the relative costs of proposals, so as to establish whether one offeror’s proposal would be more or less costly than another’s. See Aalco Forwarding, Inc., et al., B-277241.15, Mar. 11, 1998, 98-1 CPD ¶ 87 at 11. Where estimates are not reasonably available, an agency may establish a notional estimate, consistent with the RFP requirements, to provide a common basis for comparing the relative costs of the proposals. See High-Point Schaer, B-242616, B-242616.2, May 28, 1991, 91-1 CPD ¶ 509 at 6-8.

Here, we agree with DNO that the solicitation fails to provide sufficient information to allow a common basis for evaluating offerors’ proposed prices. The RFP informs offerors that awards would be made on a cost/technical tradeoff basis. See RFP at 133 (evaluation factors, including price, identified in descending order of importance). In this regard, the solicitation also provides for a qualitative evaluation of the non-price factors. See id. at 134-35. Although the solicitation requests unit pricing from the offerors, the RFP does not identify what each unit reflects or against what quantity the proposed unit prices would be applied to determine an evaluated price for each offeror. Absent such information (which, as noted above, may be notional in the absence of better estimates), the agency has no meaningful way to evaluate the offerors’ prices to determine their relative standing.

In its report, USDA states that it does not intend to make its award determinations on a cost/technical tradeoff basis. Rather, the agency states that it intends to award contracts to all offerors that can demonstrate an acceptable level of compliance with the evaluation factors and that propose reasonable prices. AR at 22. In essence, the agency contends that it will make awards without qualitatively comparing the merits of the offerors’ technical and price proposals. This, however, is not consistent with the basis for award stated in the RFP. It is a fundamental principle of federal procurement law that a contracting agency must treat all offerors equally and evaluate their proposals evenhandedly against the solicitation’s requirements and evaluation criteria. Brican Inc., B-402602, June 17, 2010, 2010 CPD ¶ 141 at 4.  (DNO Inc., B-406256,B-406256.2, Mar 22, 2012)  (pdf)


InfraMap asserts that the RFP is flawed because the workload estimates fail to provide an accurate basis on which to calculate future work. Specifically, it argues that, in light of the magnitude of the upcoming electric cable burial work to be performed, the agency’s instruction simply to anticipate an annual 10% increase in excavation permits fails to adequately convey the magnitude of the likely work under the contract.

As a general rule, a contracting agency must give sufficient detail in a solicitation to enable bidders to compete intelligently and on a relatively equal basis. Crown Contract Servs., B-288573,Oct. 31, 2001, 2001 CPD ¶ 179at 2. When an agency solicits offers for a requirements contract on the basis of estimated quantities, the agency must base its estimates on the best information available. While the estimates need not be absolutely correct, the estimated quantities must be reasonably accurate representations of anticipated needs. Inventory Accounting Serv., Inc., B-271483, July 23, 1996, 96-2CPD ¶ 35 at2-3.

Here, the record shows that the agency’s estimates are not based on the best information available. With regard to the upcoming electric cable burial work, the agency states that it does not expect that the workload will vary significantly from current RFP estimates. Decl. 2 of Chief Engineer, at 1. In this regard, the agency maintains that the “workload generated under the [UPP] is considered to be similar in kind to the process of how excavationpermits are issued under the multiple award minor construction contracts; designed, planned, scheduled and executed.” Id. at 3. Accordingly, while the agency included the 10% annual increase, based on the agency’s projection “of a gradual increase over the 2010 level,” Decl. 2 of Chief Engineer at 3, the Chief Engineer acknowledges that the “10% factor was not based on any indication that the workload would in fact increase.” Id. Indeed, the 10% annual increase offerors were to assume under the solicitation isthe same escalation percentage the agency used in the last solicitation for these services in 2005. RFP No. W91ZLK-06-D-0002 at 20.

The record, however, shows that the agency’s assumption of a 10% escalation rate, without any supporting analysis, failed to account for information indicating the likelihood of a more significant increase in workload. In this regard, we note that while the agency included the 10% escalation rate to account for potential increases in the number of permits, the actual increase under the prior contract from year to year ranged from 17%to 19%, well above the assumed future growth. Aberdeen Annual Permit Data Printout. Although the agency states that it reduced the 2010 baseline permit numbers to account for the completion of a Defense Base Closure and Realignment (BRAC) effort at Aberdeen, the agency has not shown the extent to which the 3-year BRAC effort may have been responsible for the higher than 10% increases during the 5-year prior UUL contract. On the contrary, it appears that the number of permits may not have decreased with the completion of the BRAC work; rather, in the 2 months since completion of the BRAC work, and before commencement of any electric cable burial work, the number of permits increased relative to the 2010 monthly numbers reported in the RFP--from 85 permits in September 2010 to 97 in September 2011 (an 14.1% increase), and from 88 permits in October 2010 to 110 in October 2011 (an 25% increase). Decl. 1 of InfraMap President ¶ 7. While the agency suggests that the variations in monthly permits are such that any particular month’s number is of limited significance, Decl. 2 of Chief Engineer at 3, we think that, at a minimum, the above information available to the agency suggests that the 10% annual escalation figure includes little or no allowance for new, significant additional workload.

The record, however, indicates that just such new, significant additional workload is likely as a result of the electric cable burial work under the electrical privatization contract. In this regard, the agency estimates that approximately 30 miles of electrical line will need to be buried each year. Decl. 2 of Chief Engineer, at 2.

While the agency asserts that the electric cable burial work will result in only an additional 45 permits per year, or approximately 2/3 mile of excavation for each permit, the agency has not explained how it arrived at the estimate of 45 annual permits attributable to electric cable burial, and the historical data strongly suggests that the estimate is significantly understated. In this regard, the agency’s assumption of approximately 2/3 mile of excavation for each permit appears inconsistent with InfraMap’s overall reported experience over 15 years as the incumbent contractor at Aberdeen, during which time each permit covered from 100 feet to 1,000 feet, and some permits would expire, requiring reprocessing. Decl. 1 of InfraMap President, Dec. 12, 2011, ¶6.d; Decl. 2 of InfraMap President, Dec. 29, 2011, ¶ 14. The agency’s assumption also appears inconsistent with InfraMap’s specific experience processing digging permits, under a separate contract at Aberdeen, for a 22-month BRAC-related project (known as I3MP) for the installation of 20 miles of underground ductwork for a comprehensive network of communication lines servicing Aberdeen and the Edgewood Area. As reported by the agency, I3MP involved 137 permits, Decl. 3 of Chief Engineer at 2, which represents approximately 6.85 permits per mile. Thus, as noted by InfraMap, if this number of permits per mile under the I3MP effort were applied to the 30 miles of electric cable burial work per year that the agency expects, the result would be more than 200 permits per year, well above the 45 permits estimated by the agency.

The agency reports that the significance of any individual permit depends on the nature and timing of the work involved; according to the agency, a “project close to an existing building, intersecting more than one utility, or intersecting utilities in multiple locations will be more difficult than one traversing open fields with no known utilities.” Decl. 3 of Chief Engineer at 2-3. While the agency asserts that the electric cable burial work will be “meaningfully different” from that under the I3MP contract, with the accelerated I3MP project including work on communication lines close to buildings on the installation, id., the electrical distribution system to be buried presumably likewise runs to each of the same buildings as the communications lines under the I3MP contract and thus likewise would appear to involve work in “congested areas.” In any case, the agency has offered no analysis showing that the expected electric cable burial work will be sufficiently different in character from the I3MP effort, requiring significantly less underground utilities location work per mile of excavation, such that the agency could reasonably discount what appears to be very relevant workload metrics from the I3MP excavations.

In sum, the record shows that the agency estimates of future underground utilities location work did not reasonably account for the significant workload to be expected in connection with electric cable burial under the utility privatization contract, and thus did not reflect a reasonably accurate representation of the agency’s anticipated needs. Since offerors are required to propose an annual fixed price for all UUL work, the RFP’s failure to provide reasonably accurate estimates deprived InfraMap and other offerors of the information required to assess the likely cost to perform the contract requirements. Accordingly, we sustain the protest on this basis.  (InfraMap Corp., B-405167.6, Feb 6, 2012)  (pdf)


As relevant here, the wheelchairs must comply with the design, performance, identification, labeling, instructions, warnings, and disclosure provisions of RESNA standard WC‑19, Wheelchairs Used as Seats in Motor Vehicles. RFP at 82-85. Similar to relevant requirements for automobile seatbelts and child safety seats, WC-19 standards require that wheelchairs have, among other things, anchored belts and secure attachment points so that the wheelchair is properly secured and the user is properly restrained when seated on the wheelchair while riding, for example, on a public bus. See id. at 85‑86; Agency Report (AR), Tab 4, RESNA's Position on Wheelchairs Used as Seats in Motor Vehicles, at 6.

With regard to the wheelchairs' transportability, the RFP requires that each wheelchair type be transportable using a lift and vehicle hitch attached to a user's private car. See RFP at 6. More specifically, the CPW must be transportable using a Class 2 passenger vehicle hitch, and the SPW must be transportable using a Class 3 passenger vehicle hitch. Id.

(sections deleted)

Pride Mobility contends that there is a "serious design conflict" in the RFP's requirement that wheelchairs be both transportable by a hitch and meet WC-19 safety standards, arguing that these requirements are "mutually exclusive."  Protest at 2; Comments at 1. The protester maintains that transportability using a hitch requires a design emphasis on decreasing a wheelchair's overall weight, while compliance with the WC-19 safety standards (which the protester describes as crash worthiness) requires a design emphasis on increasing a wheelchair's overall weight. See id. In this respect, the protester provides data regarding maximum weight loads for various car models and contends that the wheelchairs cannot exceed a certain weight given the added weight of the vehicle hitch and wheelchair lift. See Comments at 2-5. For example, according to the protester, the required CPW must weigh less than 300 pounds to ensure that it can be safely transported using a passenger vehicle equipped with a Class 2 hitch. Id. at 5.

The VA asserts that Pride Mobility's protest reflects only its disagreement with the wheelchair specifications. AR at 6. In this respect, the agency maintains that the protester has presented no evidence that the safety and transportability requirements are mutually exclusive and the agency points out that in response to the RFP it has received a number of offers that can presumably meet the specifications. See AR at 6-7. The agency also argues that it can properly specify requirements based on the needs of veterans and that its medical judgments in that regard are entitled to deference. See id. at 8-10, citing, inter alia, GlaxoSmithKline, B-291822, Apr. 7, 2003, 2003 CPD para. 77 at 5 (matters involving agency medical judgments and policies are inappropriate for review under GAO's bid protest function). According to the agency, veterans often transport their power wheelchairs using an external hitch and wheelchair lift attached to personal cars, but in other circumstances veterans are transported in public and other vehicles while seated in a wheelchair. Declaration of Prosthetics Clinical Coordinator, at 2. Moreover, the agency states that the RFP's specifications were developed by a team of VA subject matter experts, including physical and occupational therapists, psychiatrists, and technical, prosthetics, and sensory aid specialists, as well as representatives for patient safety and from veteran service organizations. See Contracting Officer's Statement at 1.

A contracting agency has the discretion to determine its needs and the best method to accommodate them and the responsibility for drafting proper specifications that reflect the government's needs is the contracting agency's. JRS Mgmt., B-402650.2, June 25, 2010, 2010 CPD para. 147 at 3; Instrument Control Serv., Inc.; Science & Mgmt Resources, Inc., B-289660, B-289660.2, Apr. 15, 2002, 2002 CPD para. 66 at 6. 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. Where a protester alleges that performance is impossible, we will not substitute our judgment for that of the agency or sustain the protest in the absence of clear and convincing evidence that the specifications are in fact impossible to meet or unduly restrict competition. Cardion Elec., B-218566, Aug. 15, 1985, 85-2 CPD para. 172 at 8; Instrument Control, supra. Where a requirement reflects an agency's minimum needs, the fact that the protester 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 at 5.

The protester here has not shown that the VA's requirement for wheelchairs that are both transportable by a hitch and meet specified safety standards is unreasonable. Moreover, the protester fails to provide any clear and convincing evidence that the RFP's wheelchair specifications are, in fact, impossible to meet. For example, although the protester provides data regarding maximum weight loads and contends that the required CPW must weigh less than 300 pounds, the protester provides absolutely no evidence showing that an offeror could not, in fact, meet such a weight requirement. Indeed, the protester concedes that wheelchair lifts vary in weight and lifting capacity, and does not otherwise dispute the agency's assertion that there are commercially available, WC-19 compliant wheelchairs--including models sold by the protester itself--that are within wheelchair weight limits. See Comments at 5.

Although Pride Mobility disagrees with the VA's judgment concerning its wheelchair requirement and how to accommodate veterans' needs, the protester has not showed that the agency's requirements are unreasonable or impossible to meet. See Cardion Elec., supra; Instrument Control, supra. 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. This is especially true in procurements such as this which involve an agency's judgment as to its medical needs. CardioMetrix, B‑242678, B-242678.2, May 17, 1991, 91-1 CPD para. 477 at 2.  (Pride Mobility Products Corporation, B-405371, October 25, 2011)  (pdf)


Excessive Risk

As indicated above, CWT asserts that various solicitation provisions impose excessive risk on the ETS2 contractor. Protest at 35. The objectionable provisions, according to CWT, include those requiring the ETS2 contractor, throughout the term of the contract, to update the ETS2 system to comply with changes in federal IT security regulations and policy, and changes in federal travel regulations and policy, at no additional cost to the government. Protest at 13-15, 18-19, 35. CWT objects on the same basis to certain provisions that require compliance with federal IT security standards and that require accommodation of various customer agency functions. Id. at 16, 21-22, 28-32, 35-36. CWT similarly objects to provisions regarding compatibility with emerging mobile platforms and the alignment of the ETS2 system with the FEA framework. Id. at 17, 20, 36. In CWT's view, these groups of provisions potentially involve "an unlimited number of unknown updates and refreshments to the[] ETS2 System, at a fixed price." Id. at 35. CWT asserts that because the nature and extent of future updates is uncertain, the ETS2 contractor is faced with "an unreasonable risk of loss." Id. As a related ground of protest, CWT objects to the term of the contemplated contract, which is fifteen years, including options. Id. at 23, 35.

In its report to our Office, the agency responds that the first group of challenged provisions reflects the agency's decision to "shift the risk for changes that will be necessary to remain current in two primary areas; IT security and Federal travel policy." Memo. of Law at 6. The agency explains that it adopted this strategy after concluding that "the administrative burden of dealing with requests for price adjustments [in connection with ETS1] was eating into the savings and efficiencies that ETS1 was established to facilitate." Id. at 6; see also Supp. Contracting Officer's Statement para. 2. The agency acknowledges that this strategy involves a risk of higher pricing, but asserts that this risk is mitigated by the likelihood that the potential offerors in this procurement have a high level of sophistication as to the formulation of pricing. Memo. of Law at 7, 9. In this regard, the agency asserts that "[t]he sophisticated contractors that provide end-to-end travel management services in the commercial sector have to 'stay current' in the course of performing those contracts, and are in a position, based on their expertise, to 'price' that risk into their proposals." Id. at 6; see also Supp. Contracting Officer's Statement para. 4 (describing specific ETS2 market research indicating that potential ETS2 offerors or team members typically incorporate research and development costs into their pricing). The agency further asserts that offerors can mitigate risk by applying historical trends regarding the number and significance of changes in federal IT security policy and federal travel policy when they develop their pricing. Memo. of Law at 7. Finally, the agency argues that the solicitation mitigates risk by permitting price adjustments for "unforeseeable major changes in market conditions." Contracting Officer's Statement para. 46 (citing RFP sect. D.41).

With respect to the protester's objection to solicitation provisions regarding compliance with federal IT security standards, the agency asserts that it "expects offerors to price said compliance into [the] transaction fee over the life of the contract." Id. para. 63. The agency maintains that many of the federal standards in question align with commercial security standards. Id. para. 65. The agency also points out that the provisions at issue reflect the necessity that the agency itself comply with the security standards in question. Id.

Regarding the solicitation provisions that require the ETS2 system to support various customer agency functions, the agency suggests that the risk to offerors is reduced because the solicitation encourages offerors to offer an ETS2 system that is "configurable," meaning a system in which updates are made through changes to "business rules and policy" rather than through custom software development. Id. para. 58. The agency states that it understands that certain system integration activities related to customer agency functions "may be more costly for some vendors," but maintains that meeting customer agency needs is a "key component of ETS2." Id. paras. 59, 61.

As for the provisions regarding ETS2 system alignment with the FEA framework, the agency asserts that several pertinent industry standards are consistent the FEA framework. Id. para. 62. The agency defends the solicitation provision regarding ETS2 system compatibility with emerging mobile platforms on grounds that the provision is an SOW objective, and therefore is not a mandatory requirement. Id. para. 66. Finally, the agency explains that consistent with GSA Acquisition Manual sect. 517.204(c), the contracting officer sought and obtained approval from the head of the contracting authority to exceed the 5-year limitation on service contracts found at FAR sect. 17.204(c). Id. para. 42; see also AR, Tab 46, Determination and Finding to Exceed Five‑Year Performance Limitation for ETS2 RFP. The agency also asserts that commercial contracts of similar complexity as ETS2 typically involve terms of 15 years or longer. Contracting Officer's Statement para. 42.

In its comments on the agency report, the protester renews its arguments that solicitation imposes excessive risk on the ETS2 contractor. Comments at 29-36; see also Comments at 6-7, 9-10, 17-29. At base, the protester's position remains that the provisions at issue improperly "require the Contractors to estimate the future costs and investment necessary to meet undefined demands for the next fifteen years." Id. at 30-31.

The mere presence of risk in a solicitation does not make the solicitation inappropriate or improper. 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; TN-KY Contractors, B-291997.2, May 5, 2003, 2003 CPD para. 91 at 3. There is no requirement that a competition be based on specifications drafted in such detail as to completely eliminate all risk or remove every uncertainty from the mind of every prospective offeror. Abba Int'l, Inc. et al., B-311225.4, Feb. 2, 2009, 2009 CPD para. 28 at 7; AirTrak Travel et al., B-292101 et al., June 30, 2003, 2003 CPD para. 117 at 14. Risk is inherent in most type of contracts, especially fixed-price contracts, and firms must use their professional expertise and business judgment in anticipating a variety of influences affecting performance costs. JRS Mgmt., supra; AirTrak Travel et al, supra.

While we appreciate that the solicitation here imposes risk on the contractor by requiring pricing to include the cost of updating the ETS2 system over a potentially lengthy term, we do not find, on the record before us, that the solicitation exposes offerors to unacceptable or undue risk. CWT has identified certain system updates for which there may be uncertainty regarding the required effort or cost. CWT, however, has not shown that offerors cannot minimize the risk attendant to such uncertainty through, among other things, the measures suggested by the agency. Nor has CWT shown that there is a significant likelihood that the cost of complying with the solicitation provisions in question will greatly exceed that which can be reasonably anticipated. The protester also has not shown that the solicitation places no limit on the required work. To the contrary, there are distinct parameters around the scope of work; e.g., offerors must update the ETS2 system to comply with changes within a distinct set of federal regulations and policies and must conform the system to support a number of distinct customer agency functions. In this regard, the solicitation provides offerors with adequate information to factor risk into pricing using business judgment.

Moreover, the solicitation permits offerors to account for risk by escalating their pricing in each of the three 4-year option periods, see RFP sections B.2.1, B.2.2, and by permitting the negotiation of price adjustments in the event of "unforeseeable" changes in market conditions.  Id. sect. D.41. Finally, the agency is willing to accept the risk of higher prices because it expects a reduction in the administrative burden of negotiating change orders for ETS2 system updates. The agency's decision to accept this risk is not improper. See Braswell Servs. Group, Inc., B-278521, Feb. 9, 1998, 98-1 CPD para. 49 at 5 n.6. CWT's protest regarding the solicitation's alleged imposition of excessive risk is denied.  (CWTSatoTravel, B-404479.2, April 22, 2011)  (pdf)
 


JRS also protests the Navy's amendment of the RFQ's schedule of supplies and services, arguing that the solicitation should provide a second CLIN for the additional hours (up to 5 percent of the overall contract hours) that the sail loft instructor may be required to work. JRS contends that without another CLIN for these additional hours there would be no way for the vendor to charge the agency for any additional hours performed. Protest at 3. The Navy responds that it expects vendors to account for the possibility of the additional hours when pricing their quotations.

We find no basis to object to the agency's request that vendors provide sail loft instructor pricing under a single CLIN. Although the risk that additional hours (up to 5 percent of the overall contract hours) may be required, the imposition of risk on an offeror or vendor does not make the solicitation inappropriate or improper. It is within the discretion of an agency to offer for competition a proposed contract that imposes maximum risks upon the contractor and minimum burdens on the agency, and an offeror should account for this in formulating its proposal. TN-KY Contractors, B-291997.2, May 5, 2003, 2003 CPD para. 91 at 3. Risk is inherent in most type of contracts, especially fixed-price contracts, and firms must use their professional expertise and business judgment in anticipating a variety of influences affecting performance costs. See Sea-Land Serv., Inc., B-278404.2, Feb. 9, 1998, 98-1 CPD para. 47 at 11. Here, the RFQ provides sufficient information upon which firms can price their quotations and does not have an unlimited scope of work.  (JRS Management, B-402650.2, June 25, 2010)  (pdf)


Quantico's protest essentially raises one issue--that the RFQ improperly fails to specify with precision what is meant by the size designations of small, medium, large, extra large, and XX large. In this regard, Quantico contends that there is no single industry standard for shirt sizes, and that a sample of only two large-sized shirts will not allow the Marine Corps to determine whether vendors are offering comparably-sized products.

In response, the Marine Corps argues that it has adequately stated its needs in the context of a purchase of commercial items. While the agency acknowledges that it uses size specifications for short- and long-sleeved T-shirts, it contends it is not required to do so here. The Marine Corps explains that in the case of short- and long-sleeved T-shirts, those shirts are part of the visible uniform, making a high degree of consistency important. The agency explained that it decided not to specify sizes in this procurement because it places a higher priority on the flame-resistant function, than on uniformity of sizes.

The Marine Corps also points out that T‑shirts intended for Marines to wear during physical fitness activities and under their daily uniforms might be sized differently than a flame-resistant base-layer garment, like long-sleeved FROG shirts. That is, T‑shirts are expected to be looser-fitting, while flame-resistant FROG shirts are intended to be worn under the layers of a combat uniform, and thus, may be closer-fitting. Agency Report at 2. The Marine Corps rejects any connection between using size measurements in procuring T-shirts, while not doing so in procuring FROG shirts, and rejects Quantico's claim that one competitor's large shirt is sized smaller than the T-shirt size standards used by the Marine Corps. Agency Report at 7.

Finally, the Marine Corps explains that in all three of its recent purchases of FROG shirts (of which two were the brand that Quantico challenges as undersized), the solicitation left the sizes undefined, and the Marine Corps is satisfied with the results of those procurements. Agency Report at 9. The Marine Corps summarizes its judgment as follows:

In order to receive the best product available [the Marine Corps] in its best technical judgment, determined that inserting numeric size dimensions . . . would unnecessarily limit a prospective offeror's ability to offer the best product to meet the Marine Corps requirement.

Agency Report at 2-3.

In reply, Quantico argues that the Marine Corps will not obtain sufficient information from vendors to allow the agency to compare quotations, and notes that even retail stores resort to setting size standards for their products. Protester's Comments at 6‑8. Quantico also argues that even if the large-sized sample shirts show similar sizing among vendors, the Marine Corps will not know whether other sizes are consistent with previous purchases of long-sleeved FROG shirts. Protester's Comments at 10. For the reasons set forth below, we conclude that the agency was not required to include detailed size specifications in this solicitation.

The FSS program, directed and managed by the General Services Administration, gives federal agencies a simplified process for obtaining commonly used commercial supplies and services. Federal Acquisition Regulation (FAR) sect. 8.402(a). In preparing specifications for commercial item procurements, contracting officers are encouraged to "describe the type of product . . . and explain how the agency intends to use the product . . . in terms of function to be performed, performance requirement or essential physical characteristics." FAR sect. 12.202(b). A key element of efforts to increase purchases of commercial products is stating requirements in broad functional or performance terms, rather than using detailed military specifications. Wincor Mgmt. Group, Inc., B-278925, Apr. 10, 1998, 98‑1 CPD para. 106 at 2‑3. While we will consider a protest that a solicitation lacks sufficient detail for vendors to compete intelligently, and on a common basis, for an order, the level of detail needed in a commercial item specification is a matter left largely to the judgment of agency contracting officials. Adventure Tech, Inc., B-253520, Sept. 29, 1993, 93-2 CPD para. 202 at 5 (denying protest that IFB for rain jackets in sizes "large, medium, and small" was defective because sizes were not defined); see also Adventure Tech, Inc.‑‑Recons. & Entitlement to Costs, B‑253520.2, B-253520.3, Feb. 9, 1994, 94‑1 CPD para. 105 at 3.

We recognize that the approach taken by the Marine Corps here generates some risk. By not specifying what it means by each of the stated sizes in this solicitation, the agency risks that some vendors might attempt to cut corners on shirt sizes to save money on fabric costs, and thus undercut their competition. There is also some risk that the agency might receive shirt sizes that do not meet its (unstated) expectations. On the other hand, we also recognize that this procurement is limited to companies that already hold FSS contracts, so that the Marine Corps might reasonably expect that it will receive quotations for products that are acceptable in the commercial marketplace.

In our view, the risk here is consistent with--and appropriate in light of--longstanding Congressional direction that agencies should take advantage of the commercial marketplace, and avoid creating detailed specifications for commercial goods. 10 U.S.C. sect. 2377 (2000); see also S. Rep. No. 103-258, at 5 (1994), as reprinted in 1994 U.S.C.C.A.N. 2561, 2566 (“The purchase of proven products such as commercial . . . items can . . . reduce the need for detailed design specifications or expensive product testing”). Here, there is an existing commercial market for these shirts, and the Marine Corps has experience in purchasing (directly or indirectly) almost 250,000 such shirts in the recent past without incident.

In short, we cannot conclude that the agency was required to impose size specifications on the vendors of these flame resistant shirts. We also think that Quantico has not established that the lack of size specifications in the RFQ impairs vendors from competing intelligently, and on a common basis, for this Marine Corps requirement. See Adventure Tech, Inc.‑‑Recons. & Entitlement to Costs, supra.  (Quantico Arms & Tactical Supply, Inc., B-400391, September 19, 2008) (pdf)


The crux of BAE's protest is based on its interpretation of the term "Contractor's facility." BAE contends that the use of the term "Contractor's facility" in describing where the work had to be performed, as well as the location and place of performance, precluded the use of a government-owned drydocking facility. In support of this argument, BAE argues that the use of the possessive case denoted ownership, which required the drydocking facility to be contractor-owned. In this connection, BAE cites the definitions of "Federally-controlled facilities" and government property contained in Federal Acquisition Regulation (FAR) sections 2.101 and 45.101. Section 2.101 defines federally-controlled facilities as including federally owned buildings or leased space and section 45.101 defines government property as all property owned or leased by the government. BAE argues that these definitions indicate that the Navy's graving dock, which is a government-owned facility, cannot be considered a "Contractor's facility," which BAE asserts was required to be used to perform the work under the IFB, and that Puglia's bid, based on the use of this government-owned facility, is nonresponsive.

The Coast Guard responds that the term "Contractor's facility" in the various provisions of the IFB only identified the location of contract performance and does not denote or suggest facility ownership. In fact, according to the Coast Guard, the San Diego Naval Station Graving Dock was one of the facilities that the Coast Guard, during the pre-solicitation stage, contemplated would be proposed under the solicitation because it is a Coast Guard-certified facility approved for work on this class cutter, and that there are only a limited number of useable drydock facilities that meet the IFB's geographical restrictions.

Where a dispute exists as to the meaning of the IFB's terms, our Office resolves the matter by reading the IFB as a whole and in a manner that gives effect to all the IFB's provisions. D & L Constr. Co., Inc., B-279132, May 11, 1998, 98-1 CPD para. 136 at 4. To be reasonable, an interpretation of the IFB language must be consistent with the IFB when read as a whole. Id. We will not read a provision restrictively where it is not clear from the solicitation that such a restrictive interpretation was intended by the agency. Sturm, Ruger & Co., B-250555, Feb. 2, 1993, 93-1 CPD para. 92 at 5.

Based on our review of the IFB as a whole, we find that BAE's restrictive interpretation of the term "Contractor's facility" under this IFB as requiring a contractor-owned facility and prohibiting a government-owned facility is not reasonable. We agree with the Coast Guard that the term "Contractor's facility," as used in the IFB, merely denotes the drydock facility where the contractor will perform the work and that the use of the term contractor in the possessive in these provisions is recognizing nothing more than the possessive relationship between the contractor and the facility it was proposing. In this regard, the IFB is devoid of any language making ownership of the drydock a prerequisite to performing the work, nor does it specifically exclude the use of government-owned facilities. In the absence of a specific requirement for contractor ownership of the drydocking facilities or a prohibition on using government-owed drydocking facilities, there is no basis to conclude that the possessive nature of the term "Contractor's facility" requires that the drydock facilities be contractor owned or precludes the use of government-owned drydock facilities. Thus, neither the general definition of federally controlled property in FAR sect. 2.201 nor the definition in FAR sect. 45.101, which only applies when the procuring agency is providing property under the contract, are relevant here, since neither regulation defines Contractor's facility or property, and the drydock is not being provided to the contractor by the Coast Guard under the contract. Since the IFB did not make contractor ownership of the drydock a material term, Puglia’s bid was responsive since it took no exception to the IFB.

BAE nevertheless argues that the bid was conditioned on the Navy making the drydock facility available to Puglia under the contract, and that the record reflects that Puglia did not have approval of its use agreement with the Navy until June 4, which was after contract award. The timing of the approval of Puglia's agreement with the Navy to use its drydock has no effect on the responsiveness of Puglia's bid, which bound Puglia to perform the work at that facility. Rather, this is a matter that could affect Puglia's ability to perform in accordance with its bid, that is, its responsibility or to the administration of the contract, which under the circumstances is not appropriate for our review. In this regard, we note that Puglia has in fact performed the contract at the Navy facility. See Aviation Specialists, Inc; Aviation Enters., Inc., B-218597; B-218597.2, Aug 15, 1985, 85-2 CPD para. 174 at 2.  (BAE Systems San Diego Ship Repair, B-400350, September 22, 2008)  (pdf)


Here, as stated further below, although we cannot find that this solicitation for security guard services is a model of clarity regarding the agency's overall training requirements for the guards, we believe that, when read as a whole, the requirements are sufficiently clear to have allowed AMS to prepare its price proposal. Initially, although AMS asserts that a chart of training requirements included in the RFP is inconsistent with the training requirements set out elsewhere in the RFP, the record does not support the protester’s contention. Although the RFP provides that all security guards working under this contract must take the training specified in the chart, there is no indication that the chart was intended or presented as a definitive and complete list of the numerous training requirements listed throughout the RFP. Instead, as discussed below, the solicitation must be read as a whole to assess the full extent of the training required here, including the requirements of exhibits 4A through 4F. While the protester asserts that the RFP’s training chart failed to list the number of hours for chemical agent spray training (one training subject listed under exhibit 4E), the RFP, as noted above, specifically advised that the contractor was to decide how many hours would be necessary for each training topic. The omission of an estimate of hours for chemical agent spray training topic in no way prevented the protester from making that determination of hours for chemical agent spray training based on its own knowledge, experience, research, and business judgment. Additionally, while, as the protester points out, the RFP training chart also failed to include exhibit 4C’s government-provided training hours, the solicitation makes clear that such training was mandatory under exhibit 4C. In short, we do not agree with the protester that the chart in any way created a material inconsistency in the RFP that prevented intelligent preparation of a proposal under the solicitation. As to the protester’s other specific allegations--for instance, that the RFP is flawed for not listing baton equipment, under the RFP, the contractor was responsible for providing all equipment to perform the services required under this solicitation, including baton training; in our view, this would reasonably include the cost of the batons. Lastly, regarding the protester’s contention that the requirement of 40 hours of annual refresher weapons training under exhibit 4F appears inconsistent with the RFP’s general provision that no specific additional training is required for the guards’ annual requalification, we agree that the solicitation is not a model of clarity concerning what “specific additional training” is referred to in the provision. Exhibit 4F, however, specifically requires no less than 40 hours of training using the course at exhibit 4E. Consequently, in our view, the solicitation’s notation that no specific additional training is required can only refer to the fact that, in light of the mandatory training of exhibit 4F, no training for requalification beyond that referenced in exhibit 4F is required by the RFP. (AMS Group, B-299369, April 12, 2007) (pdf)
 


The principal issue in this case concerns a matter of statutory interpretation, specifically, whether the RFP, which provides for the award of a 6-year contract, violates 31 U.S.C. sect. 5114(c).[7] It is well established that “when the statute’s language is plain, the sole function of the courts--at least where the disposition required by the text is not absurd--is to enforce it according to its terms.” Hartford Underwriters Ins. Co. v. Union Planters Bank, N.A., 530 U.S. 1, 6, 147 L. Ed. 2d 1, 120 S. Ct. 1942 (2000). See Caminetti v. United States, 242 U.S. 470, 485 (1917) (“Where the language is plain and admits of no more than one meaning, the duty of interpretation does not arise, and the rules which are to aid doubtful meanings need no discussion.”). We believe that the plain language of section 5114(c) resolves the protest here. The relevant portion of section 5114(c) expressly provides that the BEP may enter into a contract “for a period of not more than four years” for the manufacture of currency paper. The RFP provides for the award of a currency paper contract with a total period of 6 years. The BEP argues that while the RFP allows for the award of contract for a period of 6 years, such an award does not violate section 5114(c) because the manufacturing period of such a contract would be limited to 4 years, and that the additional 2 years are merely a mobilization period, rather than a manufacturing period. The agency’s argument, however, does not comport with the limiting language of section 5114(c), which modifies the length of the contract period, not the period of any specific activity under the contract. The phrase in section 5114(c)--“to manufacture distinctive paper for United States currency and securities”--simply describes the type of contract whose term is limited to a 4-year period. (Crane & Company, Inc., B-297398, January 18, 2006) (pdf)


The agency’s actions were unobjectionable; the RFP requirements remained the same throughout the procurement, so there was no need for the agency to amend the solicitation. The RFP clearly required compliance with state regulations that made it “necessary to produce and sustain a five foot difference between the depth of waste and the water table.” PWS sect. 6.2.3. Shaw does not dispute the clarity of this requirement. Thereafter, while, as Shaw alleges, the agency responded to various questions regarding the requirement, all of its answers were consistent with the RFP. For example, Shaw asked if “the performance standard [was] regulator approval or sustaining a 5 foot difference.” RFP, amend. 8, at 7, Question No. 25. The agency responded that the “performance standard [was] to meet the requirements in Title 27.” Id., Answer No. 25. The agency addressed other offerors’ questions similarly, by either referring offerors to the Question 25 response, or otherwise calling for the contractor to meet the regulatory requirements in Title 27. Id., Question/Answer Nos. 75-76. Nothing in these responses, calling for compliance with Title 27 as a whole, indicated that the otherwise clearly stated 5‑foot requirement had been relaxed. Although the regulatory provisions dealing with closure of landfills (sections 20080 and 20950) do not mention the 5-foot requirement, this silence did not serve to relax the requirement which, again, was clearly stated in the RFP. There is nothing inherently inconsistent in requiring the 5‑foot separation to meet the section 20950 requirement to minimize infiltration of water into waste, and the section 20080(b) allowance of the use of alternative methods that afford “equivalent protection against water quality impairment.” 27 CCR sect. 20080(b)(2)(B). Shaw therefore had no reasonable basis to believe that the agency had modified the PWS to eliminate the 5‑foot separation requirement, and it follows that there was no basis for the agency subsequently to advise Shaw that the requirement was reinstated. Since Shaw’s alternative approach did not address the separation requirement, its proposal was reasonably rejected as technically unacceptable. (Shaw Environmental, Inc., B-297294, December 2, 2005) (pdf)


Here, in bidding f.a.s. Tacoma, OPC offered delivery of the requested commodity at a location listed in the KC-362, as specifically authorized by the terms of the invitation. However, OPC lacked a critical piece of information necessary for it to compete intelligently and on an equal basis--that acceptance of its offer depended on receipt by the agency of a transportation bid matching its delivery location, in a solicitation for freight bids that was being conducted roughly concurrently with the procurement for the potato flakes. OPC thus bid f.a.s. Tacoma without the knowledge that it risked being ineligible for award if the transportation solicitation did not produce a corresponding transportation bid. The agency's failure to alert offerors to this potentially fatal pitfall meant that OPC lacked sufficient information to bid intelligently on this invitation; that is, had OPC known about the risk that its offer might not be considered depending on the outcome of the solicitation for transportation bids, it might have offered delivery to other locations (for example, to its plant location, as did the other offerors), or decided not to compete at all. (Oregon Potato Company, B-294839, December 27, 2004) (pdf)


Notwithstanding the contracting officers reasons for not amending the RFQ, we think it is clear from the record that the RFQ did not clearly convey the Armys staffing requirements. Although the contracting officer stated, as quoted above, that she expected to receive technical and price quotations for eight positions only, with the additional personnel being addressed only in the technical portion of each quotation, we believe the RFQ did not make this distinction. [10] As described above, the RFQ solicited staff over and above the eight core positions and, as evidenced by the quotations of all four vendors, all of them understood that the RFQ required additional support. In this regard, the vendors--albeit to varying degrees--quoted prices for these additional personnel, since there was nothing in the RFQ that even suggested that the vendors were not supposed to price the additional support. In fact, the RFQ stated that vendors should provide a spreadsheet listing all labor categories, hourly rates, and extended labor costs. RFQ 15.5. If, as the contracting officer now argues, the RFQ was intended to seek prices for only the eight core positions, then the RFQ did not reasonably convey this intent. Where an agency invites firms to submit quotations, it has an obligation to describe its needs accurately, so that all vendors may compete on a common basis. Nautica Intl, Inc. , B-254428, Dec. 15, 1993, 93-2 CPD 321 at 5. GSAs failure to accurately reflect in the RFQ the Armys perceived need for only eight positions, in our view, created confusion among the competitors and uncertainty about the total cost of each vendors approach. This lack of clarity in the RFQ led to a flawed evaluation. Since each vendor addressed the additional support differently, the contracting officer had no way to meaningfully compare the total cost of each vendors quotation to the other quotations. Thus, the contracting officer eliminated from consideration Alions quotation based on its excessively high price, which included the additional support that was required under the terms of the RFQ. The contracting officers decision was improper, absent a determination by the contracting officer that Alions total price was unreasonable in light of its technical approach. In short, here, the contracting officer never meaningfully evaluated the total prices quoted by Alion and the other vendors in the context of their proposed technical approaches to meet all of the RFQ requirements, but, rather, based the evaluation on the eight core positions only. We conclude that the contracting officers actions were unreasonable. See Symplicity Corp. , B-291902, Apr. 29, 2003, 2003 CPD 89 at 7 (agency must meaningfully assess total cost to government when evaluating quotations). (Alion Science & Technology Corporation, B-294159; B-294159.2, September 10, 2004) (pdf)


When a dispute exists as to the 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 the provisions of the solicitation. Energy Maint. Corp., B-223328, Aug. 27, 1986, 86-2 CPD ¶ 234 at 4. Here, RAM’s proposal reflected the RFP as clarified. Specifically, the RFP as clarified defined the requested core staffing in a manner that indicated a desire for a reduced operational component. In instructing offerors “to propose the costs for providing a CORE staff responsible for maintenance of the equipment and other management requirements,” “to propose a CORE group to handle maintenance,” and to address how they “will ramp up with an adequate number of operators when needed,” the RFP indicated that the core staffing should be based on the maintenance requirement, with any additional staffing required for operations to come from surge staffing. RFP, amend. No. 0002, Question and Answer Nos. 58, 63. Further, although not binding on the agency, the contracting officer’s statements during the site visit‑‑instructing offerors to reduce costs by bidding on a core group of full-time employees, with the capability to obtain additional personnel during surge requirements, and raising the possibility that significantly lower staffing might be acceptable‑‑reinforced this direction. COS, Sept. 29, 2003, at 1, 6. We conclude that RAM’s proposal to meet the solicitation’s maintenance requirements with a core staff, and to meet additional operational missions by providing additional maintenance operators, as needed, from a pool of surge employees, was consistent with the RFP. In these circumstances, TSMO’s assignment of weaknesses to RAM’s proposal on account of its reduced core staffing, reliance on surge staffing for some operational requirements, and attempt to mitigate the directed staffing reduction by extensive cross-training, was unreasonable, and we sustain RAM’s protest on this basis. (Research Analysis & Maintenance, Inc.; Westar Aerospace & Defense Group, Inc., B-292587.4; B-292587.5; B-292587.6; B-292587.7; B‑292587.8, November 17, 2003) (pdf)


Under Federal Acquisition Regulation (FAR) § 16.202, an agency properly may solicit on a fixed-price basis if performance uncertainties can be identified and reasonable estimates of their cost impact can be made, and the contractor is willing to accept a fixed price representing assumption of the risks involved. Here, we believe that the agency has made every reasonable effort to identify and disclose the performance uncertainties associated with this procurement. Moreover, as noted by the agency, travel services have traditionally been procured on a fixed-priced basis, a wealth of information was provided to offerors, and offerors could factor in the risk of the DTS in their proposed fees. Also, we believe a significant portion of the risk complained of by the protesters was addressed by certain equitable adjustment provisions in the RFP, including amendment No. 0011, as discussed in more detail below.  Although the protesters suggest that it would be more appropriate to negotiate the DTS‑related services with each contractor on a cost basis after award to adequately insulate the protesters from the risks of the DTS, there is no requirement for the agency to take this approach. There are considerable problems associated with noncompetitively negotiating, evaluating and monitoring small business costs in an industry whose fees are generally fixed-price. Moreover, the agency advises that a major element of transitioning to an automated process requires the agency to establish contracts with CTOs that cover both the traditional services and the new automated DTS services, and to mix the traditional and automated services to meet the full spectrum of DoD's requirements. See Agency Report, DTS/PMO Statement, at 4. While we are mindful, as the protesters note, that miscalculating risk can be detrimental to small businesses, it is, as noted above, within the ambit of an agency's administrative discretion to solicit offers for a contract imposing maximum risk upon the contractor and minimum burdens upon the government. National Customer Eng'g, supra. We therefore find no basis to find that the agency has imposed undue risk on the offerors or question the agency's decision to use a fixed‑price contract here.  (AirTrak Travel etal., B-292101; B-292101.2; B-292101.3; B-292101.4; B-292101.5, June 30, 2003)  (pdf)


The mere presence of risk in a solicitation does not make the solicitation inappropriate or improper. It is within the ambit of administrative discretion for an agency to offer for competition a proposed contract that imposes maximum risks upon the contractor and minimum burdens on the agency, and an offeror should account for this in formulating its proposal. Instrument Control Serv., Inc.; Science & Mgmt. Res., Inc., B-289660, B-289660.2, Apr. 15, 2002, 2002 CPD ¶ 66 at 7; Clifford La Tourelle, B-271505, June 5, 1996, 96-1 CPD ¶ 270 at 3. Here, the protester has not demonstrated that the allocation of risk is unreasonable.  Contrary to the protester's contentions, the work here is not unlimited, but is restricted to grass cutting and grounds maintenance of specified areas and acreage for specified durations within specified height requirements. [3] The RFP also includes maps of the cutting areas, and provided contractors with the opportunity to visit the site to inspect the type of grass and vegetation growing. In our view, the RFP provides sufficient information for offerors to intelligently formulate their prices.  (TN-KY Contractors, B-291997.2, May 5, 2003)  (pdf)


Risks are inherent in procurements, and an agency may properly impose substantial risk upon the contractor, even where the risk in question is financial in nature. Bean Dredging Corp., B-239952, Oct. 12, 1990, 90-2 CPD ¶ 286 at 3. There is no legal requirement that a solicitation be drafted so as to eliminate all performance uncertainties; the mere presence of risk does not render a solicitation improper. Braswell Servs. Group, Inc., B-278521, Feb. 9, 1998, 98-1 CPD ¶ 49 at 3. Thus, offerors are reasonably expected to use their professional expertise and business judgment in anticipating risks and computing their offers. McDermott Shipyards, Division of McDermott, Inc., B-237049, Jan. 29, 1990, 90-1 CPD ¶ 121 at 7. In this regard, a procuring agency must provide sufficient information in a solicitation to enable offerors to compete intelligently and on a relatively equal basis. Braswell Servs. Group, Inc., supra at 3.  (Flight Safety International, B-290595, August 2, 2002)  (pdf)


Where estimates are provided in a solicitation, there is no requirement that they be absolutely correct; rather they must be based on the best information available and present a reasonably accurate representation of the agency's anticipated actual needs. Service Technicians, Inc., B-249329.2, Nov. 12, 1992, 92-2 CPD para. 342 at 2.  (Crown Contract Services, B-288573, October 31, 2001) (pdf)


The issue originally raised by the protester-- whether it should have received credit for experience in special use areas-- in fact turns on whether the RFP adequately indicated that the contractor would be called on to provide specialized maintenance and repair work of the type now said by the agency to be required at the DEA, EPA, and FBI laboratories. If the solicitation, reasonably read, did not so indicate, the agency could not reasonably deny credit to the protester for lack of such experience without first amending the RFP to advise that such services would be required. As Page 6 B- 285127 discussed below, we conclude that the RFP did not place offerors on notice that they would be required to perform specialized maintenance and repair work. A procuring agency must provide sufficient information in a solicitation to enable offerors to compete intelligently and on a relatively equal basis. J& J Maintenance, Inc., B- 272166, July 29, 1996, 96- 2 CPD para. 56 at 3. An agency can accomplish this by furnishing offerors with sufficiently detailed information in the solicitation or, to the extent the agency is unable to furnish the necessary level of detail, by giving offerors the opportunity to obtain such information on their own through site visits.  (Meridian Management Corporation, B-285127, July 19, 2000)  (pdf))


Solicitations must contain sufficient information to enable bidders to compete intelligently and on a relatively equal basis. RMS Indus., B-248678, Aug. 14, 1992, 92-2 CPD para. 109 at 2. There is no requirement, however, that a solicitation be drafted so as to eliminate all possible risk to the contractor. Id. An agency may properly impose substantial risk upon the contractor and minimal risk upon itself, and offerors reasonably are expected to use their professional expertise and business judgment in anticipating risks and preparing their offers. AT&T Corp., B-270841 et al., May 1, 1996, 96-1 CPD para. 237 at 8. Here, the risk imposed on offerors appears to affect all offerors equally and all offerors are capable of taking those risks into account in preparing their proposals; ARAMARK, as the incumbent, is most familiar with the recent historical pattern and in this respect should be particularly able to calculate the risk factor in preparing its proposal. It is proper for agencies to impose reasonable risks on contractors in order to limit the burdens on the government. International Creative and Training, Ltd., B-245379, Jan. 6, 1992, 92-1 CPD para. 26 at 5. Under the actual-count system, offerors bear a risk that fewer students than anticipated may avail themselves of the food and that the contractor will be able to bill the government for only that smaller number of meals. If that risk did not fall on the contractor, the government would bear it: that is, either the contractor risks incurring costs for meals that are not served, or the government risks paying for meals in excess of the actual number served. It is within FLETC's discretion, in the exercise of its business judgment, to impose those risks, which ARAMARK has not shown to be unreasonable.  (ARAMARK Services, Inc., B-282232.2, June 18, 1999)

Comptroller General - Listing of Decisions

For the Government For the Protester
Glock, Inc. B-414401: Jun 5, 2017 New YWCA of Greater Los Angeles B-414596, B-414596.2, B-414596.3: Jul 24, 2017
Al Raha Group for Technical Services B-412963.3: Sep 19, 2016 DRS Technical Services, Inc. B-411573.2, B-411573.3: Nov 9, 2015  (pdf)
Air Center Helicopters, Inc. B-412789, B-412789.3, B-412790, B-412790.3: Jun 2, 2016  (pdf) Global Technical Systems B-411230.2: Sep 9, 2015  (pdf)
Prosperity Metro Plaza of Virginia, LLC B-411547, B-411548: Aug 21, 2015  (pdf) DNO Inc., B-406256,B-406256.2, Mar 22, 2012  (pdf)
Olympus Building Services, Inc. B-411474, B-411474.2, B-411474.3: Jul 30, 2015  (pdf) InfraMap Corp., B-405167.6, Feb 6, 2012  (pdf)
Government and Military Certification Systems, Inc. B-411261: Jun 26, 2015  (pdf) Crane & Company, Inc., B-297398, January 18, 2006 (pdf)
Kingdomware Technologies, B-407628, Jan 9, 2013  (pdf) Oregon Potato Company, B-294839, December 27, 2004 (pdf)
Katmai Information Technologies, LLC, B-406885, Sep 20, 2012  (pdf) Alion Science & Technology Corporation, B-294159; B-294159.2, September 10, 2004 (pdf)
Pride Mobility Products Corporation, B-405371, October 25, 2011  (pdf) Research Analysis & Maintenance, Inc.; Westar Aerospace & Defense Group, Inc., B-292587.4; B-292587.5; B-292587.6; B-292587.7; B‑292587.8, November 17, 2003 (pdf)
CWTSatoTravel, B-404479.2, April 22, 2011 (pdf) Meridian Management Corporation, B-285127, July 19, 2000  (pdf)
JRS Management, B-402650.2, June 25, 2010  (pdf)  
Quantico Arms & Tactical Supply, Inc., B-400391, September 19, 2008 (pdf)  
BAE Systems San Diego Ship Repair, B-400350, September 22, 2008  (pdf)  
AMS Group, B-299369, April 12, 2007 (pdf)  
Shaw Environmental, Inc., B-297294, December 2, 2005 (pdf)  
AirTrak Travel etal., B-292101; B-292101.2; B-292101.3; B-292101.4; B-292101.5, June 30, 2003  (pdf)  
TN-KY Contractors, B-291997.2, May 5, 2003  (pdf)  
Flight Safety International, B-290595, August 2, 2002  (pdf)  
Instrument Control Service, Inc.; Science & Management Resources,, B-289660; B-289660.2, April 15, 2002   
Crown Contract Services, B-288573, October 31, 2001 (pdf)  
HG Properties A, L.P., B-284170; B-284170.2; B-284170.3, March 3, 2000  
Jones, Russotto & Walker, B-283288.2, December 17, 1999  
ARAMARK Services, Inc., B-282232.2, June 18, 1999  
Braswell Servs. Group, Inc., B-278521, Feb. 9, 1998  

U. S. Court of Federal Claims - Key Excerpts

A. Plaintiff Alleges That the RFP Lacks Adequate Information Regarding Agency Requirements to Permit Offerors to Compete Intelligently and on an Equal Basis for the Virtual Machines Sample Task Order

In its motion for judgment on the administrative record, plaintiff asserts that the RFP does not tell offerors what they need to know in order to compete intelligently on an equal basis with respect to data storage for the technical service line for virtual machines. For instance, plaintiff argues that the RFP does not state what the agency’s actual storage requirements are and directs offerors to allocate proposed storage volumes in an irrational manner. Further, plaintiff asserts that the agency does not identify how many virtual machines the agency requires, and the range provided in the solicitation is “so broad as to be meaningless.” CenturyLink Reply 10.

As the agency explained during the GAO proceedings, the virtual machines sample task order requested that offerors propose virtual servers, which are machines that regulate and direct network traffic and provide support to other computer systems, but do not store users’ files or data. See AR Tab 6 at 2523; AR Tab 17, GAO Hearing Recording 16:04-51. The storage for the virtual servers is for system, not user, files, which take comparatively little space. AR Tab 17, GAO Hearing Recording 16:04-51. The government states that because these system files are routinely generated, their aggregate size is predictable, and as a result, there are established standards for how much digital space is appropriate for a particular server. See id. at 14:25-57. These standards are set differently by various companies that provide commercial servers, but they generally depend on the performance characteristics of the server, the server’s operating system, and the number of computers for which the server would be providing services. See id. at 14:25-57, 18:22-35.

Moreover, DOI provided all the necessary parameters for the virtual servers. For instance, the government described the type of operating systems that the servers would need to run—Windows, Unix, and Linux—and identified the percentage of each system that would be required; the performance characteristics of the computers that the servers would be serving; and the speed of data access that the servers would be required to support. See AR Tab 5 at 1836;  AR Tab 6 at 2370, 2523. Further, the government points out that the different categories of speed were identified as separate “classes,” and the solicitation defined how much of each class the servers would have to provide. See AR Tab 5 at 1836; AR Tab 6 at 2370. The sample task order also set the maximum number of virtual machines and identified how many of those would be required each year. See AR Tab 6 at 2522-23. DOI established a “From” and “To” quantity for each year of performance. Id. Therefore, all offerors knew that, for example, for the first year of performance, DOI anticipated between 100 and 500 virtual machines would be required. Id.

As is typical in IDIQ solicitations, DOI did not detail the exact needs to be satisfied under the contract because those needs were unknown. See Linc, 96 Fed. Cl. at 713. Based on the parameters set forth in the solicitation, it was up to the offerors to determine how best to provide those servers. “‘When the agency lacks sufficient information to provide the offerors with realistic estimated quantities, it is not unreasonable for the agency to base the solicitation upon the best available information . . . and rely on the professional expertise and business judgment of the bidders to fill in the missing information for themselves.’” N.C. Bus. Enters., 110 Fed. Cl. at 368 (quoting Glenn Defense, 97 Fed. Cl. at 580 (citation and internal quotation marks omitted)).

Plaintiff also complains that the combined storage allocation of 110% among storage classes for virtual machines is “problematic” because the RFP instructs the “offerors to allocate storage across the various storage classes in impossible and irrational ratios.” CenturyLink Mot. 10. Notably, DOI received nearly 500 questions and responded to them all, but no potential offeror, including plaintiff, asked a question about the patently erroneous 110% storage allocation. Thus, the first time this obvious mathematical error was raised as an issue was in a bid protest, and not, as one would anticipate, during the questions-and-answers period, which occurs before the proposals are submitted. The government acknowledges that the 110% allocation was an error but argues it is de minimis. Moreover, the government notes that offerors could adjust their storage allocations by removing 10% from one of the three classes, or could scale the 110% of required storage to 100% by multiplying the percentage assigned to each storage class—40% for Class A, 40% for class B, and 30% for class C—by 100/110 to arrive at the actual percentage of each storage class they needed (which would be 36.36% for Class A, 36.36% for Class B, and 27.27% for Class C).

In this regard, the United States Court of Appeals for the Federal Circuit (“Federal Circuit”) has made clear that “[d]e minimis errors in the procurement process do not justify relief.” Glenn Def. Marine (Asia), PTE v. United States, No. 2012-5125, 2013 WL 3185536, at *5 (Fed. Cir. June 25, 2013); see also Grumman Data Sys. Corp. v. Widnall, 15 F.3d 1044, 1048 (Fed. Cir. 1994) (holding that “small errors made by the procuring agency are not sufficient grounds for rejecting an entire procurement”). An error is small if it is “so insignificant when considered against the solicitation as a whole that [it] can safely be ignored and the main purposes of the contemplated contract will not be affected.” Andersen Consulting v. United States, 959 F.2d 929, 935 (Fed. Cir. 1992). As the Federal Circuit has stated: “‘[O]verturning awards on de minimis errors wastes resources and time, and is needlessly disruptive of procurement activities and governmental programs and operations.’” Grumman Data Sys., 15 F.3d at 1048 (quoting Andersen Consulting, 959 F.2d at 932). The agency’s error regarding the 110% allocation is de minimis, which is illustrated by the fact that not one of the potential offerors asked a question concerning the mathematical error. Indeed, as explained previously, DOI received twenty-six industry responses to its RFI, and thereafter, eleven timely proposals in response to its RFP. AR Tab 16 at 2986; Gov’t Cross-Mot. 8 n.4. Consequently, a de minimis mathematical error, to which no potential offeror raised a question, is insufficient grounds to reject a solicitation as arbitrary, capricious, or otherwise not in accordance with the law.  (Qwest Government Services, Inc., d/b/a CenturyLink QGS v. U. S., No. 13-193C, July 29, 2013)  (pdf)


A. The Solicitation

On June 5, 2012, the Army issued Solicitation W91247-12-R-0019 (the “Solicitation”) for full food services at Fort Bragg. The Solicitation was set aside for Historically Underutilized Business Zone (“HUBZone”) small business concerns with a priority afforded to plaintiffs pursuant to the Randolph-Sheppard Act. The Solicitation contemplated the award of a contract for an initial one-year base period and four options for a total potential contract duration of five years. AR 207.

Even before issuing the Solicitation, the Army was well aware of the problem of unpredictable headcount. In its Combined Acquisition Strategy/Plan, issued in May of 2012, the Army acknowledged that the number of meals that would be required at Fort Bragg was “extremely unpredictable.” Id. 70. Indeed, as the Army well understood, there was “no way to accurately forecast the number of meals to be served or to provide interested contractors enough data to submit a reasonable proposal.” Id. The Army went so far as to describe fluctuation in headcount as the “primary element of risk” in supplying meals to Fort Bragg. Id. at 60.

The Solicitation’s pricing methodology reflects the Army’s concerns. The Solicitation calls for an indefinite-delivery indefinite-quantity (“IDIQ”) contract priced on a per meal basis. According to Section B, the Solicitation has a guaranteed minimum payout to the contractor of $10,000 applicable to the base period and an overall maximum quantity of 15,883,475 meals. Id. at 125.

Also in Section B, the Solicitation lists a number of CLINs consisting of various locations at Fort Bragg at which the awardee is to provide full food services. Id. at 125-205. Each CLIN requires an offeror to determine a unit price—that is, a price per meal—and multiply it by a given number of meals called the “MAX QUANTITY” to arrive at a dollar-figure denoted a “MAX AMOUNT.” Id. The Solicitation provides that award will be made “to the offeror whose technically acceptable proposal represents the lowest reasonable price to the Government.” Id. at 251. The Solicitation further provides that “[p]rice will be evaluated for reasonableness in accordance with FAR 15.404-1.” AR 251.

The Solicitation does not provide any estimate of the expected number of meals to be served. Rather, in addition to the amounts listed in Section B, the Solicitation provides historical data in Technical Exhibit B. Id. at 257-76. Elsewhere in the Solicitation, the Army explains that “Technical Exhibit B has been provided to demonstrate operating schedules, meal serving period/hours, seating capacity, number and type of serving lines, physical characteristics of each building, and historical headcount data. It is to be utilized in aiding offerors with the pricing schedule in Section B.” Id. at 385.

C. The Price Per Meal Methodology

1. Count One

In Count One, plaintiffs argue that because price per meal is dependent on headcount, it is irrational for the Army to require offerors to submit a price per meal. Amend. Compl. ¶¶ 16-75; Pls.’ Mot. at 12-26. Plaintiffs appear to contend that because headcount is so unpredictable, and because a price per meal is so dependent upon headcount, the Army’s pricing methodology does not enable offerors to bid intelligently. Pls.’ Mot. at 19 (“Without being able to predict the headcount per day to within a reasonable degree of certainty, it is not possible to quote an accurate price per meal.”); id. at 20 (“The Army does not know what its headcounts will be next week, much less 5 years from now. How is an offeror supposed to price intelligently such an unknown?”); id. at 21 (“Without knowing headcount per day to within a reasonable degree of certainty, it is not possible accurately to estimate a price per meal.”); id. at 22 (“Without knowing actual future headcount within a reasonable range of certainty, there is no way a contractor can reliably forecast its earnings.”); id. at 26 (“[T]here is no coherent and reasonable explanation for the Army’s stubborn determination to use a pricing methodology dominated by unpredictable headcount with respect to which there is ‘no way’ for offerors to be able to submit a reasonable proposal.”). This argument is without merit.

This court has noted that “‘[a]s a general rule, offerors must be given sufficient detail in an RFP to allow them to compete intelligently and on a relatively equal basis.’” Glenn Defense Marine, 97 Fed. Cl. at 578 (quoting Interface Flooring Sys., Inc., B-225439, 1987 WL 101567, at *5) (Comp. Gen. Mar. 4, 1987)). But “[i]n a solicitation for an IDIQ contract, where an agency’s needs are indeterminate at the time of contracting, a comparative price evaluation of competing proposals presents a particular challenge.” Linc Gov’t Servs., LLC v. United States, 96 Fed. Cl. 672, 713 (2010). The indeterminacy of the agency’s needs also makes difficult the offeror’s task of bidding intelligently. Ordinarily, the problem is solved by having the solicitation contain an estimate of the agency’s admittedly uncertain needs. See Glenn Defense Marine, 97 Fed. Cl. at 578 (citing West Coast Copy, Inc., B-254944 et al., 1993 WL 476970, at *5 (Comp. Gen. Nov. 16, 1993)). But “[w]hen the agency lacks sufficient information to provide the offerors with realistic estimated quantities, it is not unreasonable for the agency to base the solicitation upon the best available information . . . and rely on the professional expertise and business judgment of the bidders to fill in the missing information for themselves.” Id. at 580 (internal quotation marks and citations omitted).

In this case, all are agreed that the Army cannot reasonably estimate its needs at Fort Bragg. This does not mean, as plaintiffs would have it, that the Army must forego asking for a price per meal and instead allocate to itself the risk of fluctuating headcount. Rather, the Army need only provide the “best available information” to enable offerors to estimate headcount for themselves. See id. Beyond that, the Army is free to “rely on the professional expertise and business judgment of the bidders” to arrive at their own estimates of headcount. See id. In short, nothing requires the Army to bear the risk of fluctuating headcount, so long as the Army enables offerors to compete “intelligently” by providing them with the “best available information.”

Plaintiffs have not argued, much less established, that the Army has withheld information. The closest plaintiffs come to making such an argument is to suggest, in argument relating to Count Two (discussed below), that the historical data provided in Technical Exhibit B is insufficient to enable offerors reasonably to estimate headcount. Pls.’ Mot. at 38-42. But plaintiffs admit that they based their own estimates on 16 years of experience. 2nd Anderson Affidavit ¶ 16. Accordingly, even if the Army could have provided more historical information to enable offerors better to estimate headcount at Fort Bragg, plaintiffs are not prejudiced by this failure.

Plaintiffs argue that the unpredictability of headcount affects the contractor’s compensation and could cause the contractor’s “financial ruin” in the event that the contractor’s estimated headcount does not materialize. See Pls.’ Mot. at 21-22. But plaintiffs cannot explain the relevance of this fact. There is nothing unusual about a private business having to assume risk—even risk of “financial ruin”—if business is slow. If plaintiffs do not wish to bear that risk, they do not have to compete for the contract. But they have pointed to no substantive law that requires the Army to change the Solicitation so that plaintiffs can compete without taking the risk that other businesses take all the time.

Plaintiffs also argue that the Army “failed to consider an important aspect of the problem” by failing to consider using a different pricing methodology. Pls.’ Mot. at 23 (quoting Ala. Aircraft Indus., 586 F.3d at 1375). Specifically, plaintiffs argue that they urged the Army to consider employing “headcount ranges,” whereby offers would be asked to submit prices per meal for various ranges of possible headcounts. Plaintiffs argue that this methodology would obviate the need for offerors to bear the risk of headcount fluctuations.

As explained above, whether other pricing methodologies might have been better from plaintiffs’ perspective is not “an important aspect of the problem” because no statute or regulation renders it important. See Oregon Nat. Res. Council, 92 F.3d at 798 (“In law, unlike religion or philosophy, there is nothing which is necessarily important or relevant.”). The issue is not whether the Army could have selected a pricing methodology that (from plaintiffs’ perspective) was better—the issue is whether the pricing methodology the Army did select is arbitrary, capricious, or otherwise contrary to law. Plaintiffs may prefer that the Army permit them to quote many different prices to cover many different possible headcounts, but no statute or regulation demands that result.

2. Count Five

Plaintiffs argue that even if the price per meal methodology is generally permissible, it is not permissible in the case of so-called “field feeding pricing,” which concerns the provision of meals at various locations at Fort Bragg outside the dining facilities. Pl.’s Mot. at 22. In Count Five of their amended complaint, plaintiffs point out that CLIN 0100, see AR 140, “imposes a full food service filed requirement with an annual MAX QUANTITY of 437,209 meals.” Amend. Compl. ¶ 128. Plaintiffs argue that because the Solicitations does not provide information about “average headcounts, average number of field locations, or average durations of each type (i.e. breakfast, lunch, dinner) of field feeding,” id. ¶ 132, they cannot reasonably estimate price per meal for field feeding.

But, again, plaintiffs do not allege that the Army is withholding any information that is available. Indeed, plaintiffs concede that such information might be unavailable. Id. ¶ 135 (“If the Army cannot provide such data, then the Army should solicit its field feeding requirement on a cost-reimbursable basis or on a unit price per field feeding occurrence preferably with headcount ranges.”). But the remedy for the Army being unable to provide more information is not to require the Army to choose a new pricing methodology—it is for plaintiffs to either agree to assume the risks or to refrain from competing for the contract.

3. Count Six

In Count Six of their amended complaint, plaintiffs argue that the Army selected the price per meal methodology because it was operating under the “false premise” that contractors can control costs by closing dining facilities. Amend. Compl. ¶¶ 138-49; Pls.’ Mot. at 45-47. Plaintiffs argue, see Amend. Compl. ¶¶ 138-44; Pls.’ Mot. at 45-46, that although only installation commanders can close dining facilities, the Combined Acquisition Strategy/Plan wrongly assumes that contractors can close facilities on their own initiative when it says, “The wide fluctuation [in headcount] requires the contractor to be efficient in opening and closing dining facilities on short notices as dictated by mission requirements.” AR 60.

Although government counsel apparently has nothing to say about this issue, the court does not read the Combined Acquisition Strategy/Plan the same way plaintiffs do. It seems to the court that the more plausible reading of the statement in question is that when the installation commander gives “short notice” that a dining facility must be closed or opened, the contractor should be efficient carrying out whatever work is needed to close or open that facility. Thus, the court does not agree that the price per meal methodology was based upon a “false premise” that a contractor can open and close dining facilities on its own initiative.

D. The MAX QUANTITY Figures

1. Count Three

In Count Three, plaintiffs allege that the Army’s use of a “MAX QUANTITY” for each CLIN is improper. Amend. Compl. ¶¶ 94-112; Pls.’ Mot. at 27-38. In particular, plaintiffs contend that the MAX QUANTITY figures have no rational basis and that offerors are forced to distort their unit prices by basing those prices on these supposedly irrational MAX QUANTITY figures. Id. In plaintiffs’ telling, the Solicitation requires offerors to assume a headcount equal to each MAX QUANTITY, to use that headcount in calculating cost of performance, and to plug that headcount into the PPM Fraction to arrive at a price per meal. Id. In other words, plaintiffs regard each MAX QUANTITY as an estimate of actual headcount which plaintiffs must use in calculating their unit prices. Id.

Plaintiffs’ objection is based on an erroneous reading of the Solicitation. The Solicitation does not require offerors to plug each MAX QUANTITY into the PPM Fraction in order to calculate a price per meal. The Solicitation permits each offeror use its own estimate of actual headcount in calculating a price per meal. Indeed, as plaintiffs admit, that is precisely what they did. See 2nd Anderson Affidavit ¶ 16.

It is true that the Solicitation requires offerors to multiply the price per meal (however calculated) by the given MAX QUANTITY to arrive at a MAX AMOUNT dollar-figure. But the Solicitation does not indicate that the MAX QUANTITY is to be regarded (either by the offeror or by the Army) as an estimate of actual headcount. Indeed, the very word “MAX” suggests that both the MAX QUANTITY and the MAX AMOUNT are upper limits—worst-case scenarios—rather than estimates.

Thus, even assuming that each MAX QUANTITY is “inaccurate” as an “estimate” of headcount, plaintiffs are not prejudiced. It is not the intended function of a MAX QUANTITY to serve as an estimate of actual headcount, and this is clear to any reasonable offeror. Plaintiffs’ own conduct demonstrates that they grasp this, for in submitting their offer they did not treat each MAX QUANTITY as an estimate of headcount. In calculating their own unit price for each CLIN, plaintiffs apparently ignored the MAX QUANTITY for the very sound reason that they did not want to be stuck with a relatively low price per meal if the actual headcount turned out to be far below the MAX QUANTITY. 2nd Anderson Affidavit ¶ 18 (noting that plaintiffs based their prices per meal on their own estimates of headcount). There is no ground for fearing that other bidders will throw caution to the wind and lower their own prices on the assumption that a figure described as a “MAX QUANTITY” is an estimate of probable headcount.

Accordingly, the court finds no prejudicial error in the Solicitation’s “MAX QUANTITY” figures.

2. Count Four

Plaintiffs allege that the Solicitation’s minimum purchase guarantee of $10,000 applicable to the initial one-year Base Ordering Period and the MAX QUANTITY figures violate FAR 19.202-1(c), see Amend. Compl. ¶¶ 113-26; Pls.’ Mot. at 42-45, which provides that a contracting officer shall “[e]nsure that delivery schedules are established on a realistic basis that will encourage small business participation to the extent consistent with the actual requirements of the Government.” FAR 19.202-1(c). Plaintiffs contend that neither the $10,000 minimum purchase guarantee nor the MAX QUANTITY figures are “realistic” because neither reflect what the Army’s actual needs are likely to be.

Assuming arguendo that the minimum purchase guarantee and the MAX QUANTITY figures are comprehended by the term “delivery schedule”—a point that the parties do not address but that is far from clear to the court—plaintiffs’ arguments as to FAR 19.202-1(c) proceed as though the minimum purchase guarantee and the MAX QUANTITY figures were intended to be estimates. But of course they are not estimates. The minimum purchase guarantee represents a “minimum” amount that the Army “guarantees” will be paid, and the MAX QUANTITY figures (as already explained) represent the “maximum” number of meals authorized to be purchased for each CLIN. Given what these figures represent, it makes no sense to require them to be “realistic” in the sense of accurately estimating the Army’s probable needs.

Rather, the FAR elsewhere specifically addresses the requirements for the minimum purchase guarantee in an IDIQ contract. See FAR 16.504(a). That provision states that the minimum purchase guarantee may be a number of units or a dollar figure, id., and that it must be “more than a nominal quantity, but . . . should not exceed the amount that the Government is fairly certain to order,” FAR 16.504(a)(1). Plaintiffs do not attempt to argue that the minimum purchase guarantee here is “nominal,” and the court rejects their efforts to supplant the requirement that the minimum guarantee be “more than a nominal quantity” with a requirement that it be a “realistic” estimate of the Army’s actual needs.

E. Technical Exhibit B

Finally, in Count Two, plaintiffs contend that the Solicitation falsely and misleadingly portrays headcount as stable when it is acknowledged to be fluctuating. Amend. Compl. ¶¶ 76-93; Pls.’ Mot. at 38-42. Specifically, plaintiffs point to Technical Exhibit B, which “contains seemingly precise information about each of the ten dining facilities at Fort Bragg for which prices are being solicited.” Pls.’ Mot. at 39. Plaintiffs point to the Army’s statement in the Solicitation that the historical data “is to be utilized in aiding offerors with the pricing schedule,” AR 386, arguing that without a warning that headcount fluctuates, this statement will induce “unwary offerors . . . to rely to their detriment on unreliable and non-binding historical headcount data.” Pls.’ Mot. at 41.

Of course, the Army’s call for offerors to “utilize” the historical data in Technical Exhibit B is a far cry from directing offerors to uncritically accept the historical data as indicative of future headcount. The historical data, like the MAX QUANTITY figures, are not estimates and do not purport to be. It is quite true, as plaintiffs say, that “[e]stimates put in a solicitation which bidders may not reasonably rely upon ‘would be surplusage at best or deception at worst.’” Pls.’ Mot. at 42 (quoting Womack v. United States, 389 F.2d 793, 801 (Ct. Cl. 1968)). But that principle applies to estimates, not historical data.

But even more to the point, plaintiffs are not “unwary.” Indeed, they know full well that headcount fluctuates, and they are not misled by the historical data into believing that headcount will be stable. Their fear that other offerors will be misled by the data is entirely speculative, and it is not clear how plaintiffs would be prejudiced even if other offerors are misled.

F. Summary

This exhausts plaintiffs’ allegations of error. In short, while plaintiffs go to great lengths to show the dire risks of competing in the instant procurement, they show no prejudicial legal errors. Under the deferential standard governing this court’s review of procurement actions, the court must sustain the instant Solicitation.  (State of North Carolina Business Enterprises Program, et. al., v. U. S., No. 12-459C, April 17, 2013)  (pdf)


The principal issue is whether the Army’s interpretation, that the RFQ required that all proposed employees be United States citizens with a NACI, no later than two to seven days following the contract award, was correct. MTC characterizes the Government’s argument to be that it required all proposed employees be U.S. citizens at the time of proposal submissions. Pl’s Mot. 13. In the Court’s view, the Government’s argument is more nuanced; that is, that the RFQ required employees who could be confirmed as United States citizens with a NACI, no later than two to seven days following the contract award, and that this security provision imposed a burden on offerors to demonstrate in their proposals an ability to fulfill this requirement with respect to all proposed employees.

In evaluating the Army’s interpretation, the Court does not inquire as to whether that interpretation was reasonable; rather, the Court construes the terms of the RFQ de novo. “It is well settled that the task of construing the terms of a government solicitation essentially involves contract interpretation, and therefore presents issues of law to be determined by the court. Indeed, the principles governing contract interpretation apply with equal force to the interpretation of government issued solicitations.” Rotech Healthcare, Inc. v. United States, 71 Fed. Cl. 393, 424 (2006) (citations omitted). Furthermore, in interpreting the RFQ, the document should be construed in such a way as to best give meaning to all of its provisions, so that no provision is rendered superfluous. First Nationwide Bank v. United States, 431 F.3d 1342, 1347 (Fed. Cir. 2005); Hol-Gar Mfg. Corp. v. United States, 169 Ct. Cl. 384, 395, 351 F.2d 972, 979 (1965).

The Court finds that the RFQ required that personnel be United States citizens with a NACI for security purposes. Furthermore, the RFQ set forth a brief time-period post-award within which the security requirements had to be met. Because the RFQ stated that “[t]he proposal must be definitive enough to provide the government a clear understanding of how the Offeror intends to staff this task order to meet all requirements” (AR 50), the onus was on the offeror to demonstrate its ability to meet the security requirements within a period of two to seven days after award. The request for clarification regarding U.S. citizenship did not constitute a modification of the RFQ requirements, but was rather an attempt by the Army to gather the requisite information to determine if the RFQ requirements were met, in light of the inadequate information received. MTC argues in the alternative that if citizenship status was a material requirement of the RFQ, “the failure of the SSEB to evaluate Denysys on this matter taints the entire evaluation.” Pl.’s Opp. 7. This argument ignores the fact that Denysys made the affirmative representation that all proposed employees were U.S. citizens. AR 2. It appears from the record that the reason this aspect of the Denysys proposal was not discussed in the various evaluation documents is that the SSEB and SSA both understood that Denysys, in its response to the request for clarification, had made clear that it met the requirement of the security provision.

MTC’s correspondence with the Army suggests that MTC understood the requirement but believed it to be too stringent in light of what it claimed to be the actual practice at the facility. See AR 576, Email Correspondence from MTC Integration (Troutman) to Contracting Officer (Denton), Subj: Request for Clarification w/ attachments, dated March 28, 2007 (“this security guideline of ‘U.S. citizens’ has a documented history of being ‘relaxed’ on Ft. Detrick . . . where Green Card /non-U.S. citizen contractors who possess NACIs are used.”). To the extent MTC believed that the citizenship requirement was too stringent or otherwise improper, MTC should have raised its objection with the Army prior to submitting its proposal. Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308, 1313 (Fed. Cir. 2007) (failure to challenge the terms of the solicitation prior to the close of the bidding process waives the plaintiff’s ability to raise the same objection later in a bid protest in the Court of Federal Claims).  (Masai Technologies Corp., v. U. S., 07-714C, Reissued November 29, 2007.) (pdf)

U. S. Court of Federal Claims - Listing of Decisions
For the Government For the Protester
Qwest Government Services, Inc., d/b/a CenturyLink QGS v. U. S., No. 13-193C, July 29, 2013  (pdf)  
State of North Carolina Business Enterprises Program, et. al., v. U. S., No. 12-459C, April 17, 2013  (pdf)  
Masai Technologies Corp., v. U. S., 07-714C, Reissued November 29, 2007 (pdf)  
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