(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)