Matter of: Tucson Mobilephone, Inc. File: B-250389 Date: January 29, 1993

B-250389: Jan 29, 1993

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PROCUREMENT Contractor Qualification Responsibility criteria Organizational experience Protest that solicitation's provisions relating to qualifications of contractor's personnel are unduly restrictive is denied where agency demonstrates that requirements are necessary in order for it to meet its minimum needs. PROCUREMENT Sealed Bidding Invitations for bids Terms Ambiguity allegation Interpretation PROCUREMENT Sealed Bidding Invitations for bids Terms Risks Protest that provisions of solicitation relating to quantity and complexity of work are unduly vague is denied. Fact that contract's uncertain nature imposes some risk upon bidders is immaterial where bidders are provided with adequate information to intelligently prepare bids and compete on a relatively equal basis.

Matter of: Tucson Mobilephone, Inc. File: B-250389 Date: January 29, 1993

PROCUREMENT Contractor Qualification Responsibility criteria Organizational experience Protest that solicitation's provisions relating to qualifications of contractor's personnel are unduly restrictive is denied where agency demonstrates that requirements are necessary in order for it to meet its minimum needs. PROCUREMENT Sealed Bidding Invitations for bids Terms Ambiguity allegation Interpretation PROCUREMENT Sealed Bidding Invitations for bids Terms Risks Protest that provisions of solicitation relating to quantity and complexity of work are unduly vague is denied. Fact that contract's uncertain nature imposes some risk upon bidders is immaterial where bidders are provided with adequate information to intelligently prepare bids and compete on a relatively equal basis.

Attorneys

DECISION Tucson Mobilephone, Inc. protests the terms of invitation for bids (IFB) No. F04700-92-B-0027, issued by the Department of the Air Force to obtain installation, removal, maintenance and repair services for various land mobile radio systems at Edwards Air Force Base. Tucson argues that various portions of the IFB are either unduly restrictive of competition or are ambiguous.

We deny the protest.

The IFB was issued by the Air Force to acquire contractor services in connection with maintaining various commercial two-way communications systems (such as radios, pagers, etc.) in use at Edwards Air Force Base.

The IFB calls for a basic contract of 12 months and contains four 1-year options. The services are roughly divided between recurring and nonrecurring requirements. Services of a recurring nature, such as the performance of periodic scheduled maintenance, are to be priced on a fixed, price-per-month basis. Services of a nonrecurring nature, such as the installation or removal of equipment and the repair of broken equipment, are to be priced on a cost-per-activity basis. In addition, the IFB separately provides for the repair of misused or abused equipment as well as the crystallization or recrystallization of radios on a cost reimbursable basis. The IFB provides estimated workloads for each of the various service requirements, which are broken down by type of task and type of equipment (for example, the solicitation provides that an estimated 360 hand-held radio repairs will be required during the base year of the contract). The solicitation contains a separate contract line item number (CLIN) for each activity.

The IFB also contains a detailed statement of work describing the various discrete tasks contemplated by the solicitation (as well as the "turn around" time for any given task), the types of equipment to be repaired and the educational and experience requirements for the contractor's personnel. In addition, the IFB contains estimates of the quantities and types of equipment on hand at the base, broken down by manufacturer and model number.

UNDULY RESTRICTIVE REQUIREMENTS

Tucson's first group of objections relate to the IFB's qualification requirements for contractor personnel. Tucson is primarily concerned with the educational and experience requirements of the solicitation, and also objects to a provision relating to the physical demands which may be placed on contractor personnel during emergency repairs. All of the protester's objections in this group relate to the allegedly restrictive nature of the requirements.

As a general rule, the determination of a contracting agency's minimum needs and the best method for accommodating them are matters primarily within the agency's discretion. Glock, Inc., B-236614, Dec. 26, 1989, 89-2 CPD Para. 593. Where a protester challenges a solicitation's provisions as unduly restrictive, we will review the record to determine whether the restrictions imposed are reasonably related to the agency's minimum needs. Tek Contracting, Inc., B-245454, Jan. 6, 1992, 92-1 CPD Para. 28. We have reviewed the record and find that the challenged provisions are reasonably related to the Air Force's minimum needs. We discuss two of the challenged provisions below.

The IFB contains certain educational requirements for the contractor's employees. Specifically, the solicitation provides that the contractor must ensure that a sufficient number of on-site employees have attended courses or schools conducted by or available from the original equipment manufacturer (OEM) to ensure that the integrity of specialized OEM equipment is maintained. The contractor is to provide the government with a certificate of competency showing that the training by or available from the OEM has been completed for technicians working on specialized equipment.

Tucson maintains that this requirement exceeds the government's minimum needs for two reasons: first, it essentially requires technicians who are not working on specialized equipment to be over-qualified, and second, it requires that contractor personnel obtain their training only through courses conducted by or available from the OEM. According to Tucson, the government's needs would be met by merely requiring offerors to certify that their technicians had been trained using appropriate technical data and training materials used by the OEM. The Air Force responds that the IFB's educational requirements are necessary for it to retain the enforceability of the OEMs' warranties on the specialized equipment.

We find the educational requirements unobjectionable. Specifically, we think a requirement imposed to ensure that OEM equipment warranties will remain in force is a reasonable one. Tucson has provided no evidence to the effect that the warranties can be protected if the education requirements are relaxed (for example, by permitting offerors to train their technicians using the OEM's technical data). The agency points out, furthermore, that by permitting training courses "available" through the OEM, the IFB actually was meant to allow the requirement to be satisfied with courses taught by entities other than the OEM, so long as the OEM agrees that its equipment warranties will not be voided as a result of a particular individual working on the specialized equipment.

In addition, contrary to Tucson's position, nothing in the solicitation requires that all of the contractor's personnel be qualified under the educational requirements; contractors are simply required to ensure that a sufficient number of on-site employees meet the educational requirements so that the agency's specialized equipment is maintained in accordance with OEM standards. Personnel not working on the agency's specialized equipment thus do not have to meet the IFB's additional educational requirements for on-site personnel. Tucson also challenges the experience requirements. The IFB provides that the contractor's on-site employees must have between 3 and 5 years of experience in working on 6 particular types of specialized equipment (the number of years of experience being dependant upon the equipment in question).

These experience requirements relate primarily to highly complex equipment used in connection with communications "nets" employed by vital elements at the base such as the commander's office, fire and hospital units, and those responsible for water supply monitoring. In some cases, the experience requirements are for data encryption equipment used in connection with the transmission of sensitive national security data. Tucson objects to the experience requirements for two reasons. First, Tucson alleges that the Air Force has improperly established these requirements based on what is required to become a proficient "level 7" military technician. According to Tucson, this violates internal Air Force regulations which prohibit the agency from establishing contractor personnel qualifications based on government personnel qualification standards. Second, Tucson maintains that it is unnecessary for it to have on-site employees with the required level of experience because it supports its field personnel with round-the-clock depot resources located in Tucson, Arizona.

The Air Force responds that the requirements for on-site employee experience are necessary for the contractor to effectively support many of the critical activities occurring at the base. According to the agency, the experience requirements relate to vital equipment that is used primarily by mission-critical personnel performing, for example, hospital, fire, emergency response and security functions. The Air Force maintains that the need of these units to have operative communications equipment is paramount and that on-site support is necessary to avoid the delay that would be occasioned by shipping a piece of equipment to Tucson's depot for repair. The Air Force notes that in a number of incidents its personnel were required to troubleshoot equipment and make equipment or component purchases using credit cards in order to avoid unacceptably long down time for some of these critical components. These actions were apparently necessary because Tucson (the current contractor) did not have qualified technicians on hand to perform the necessary work at the time. In addition, the Air Force states that it based the length of its various experience requirements on a comparison of the amount of time it takes for a military mechanic to become proficient at repairing the specialized equipment.

We find that the solicitation's experience requirements for specialized equipment are reasonable. We have held in connection with solicitation provisions relating to human safety or national defense that an agency has the discretion to set its minimum needs so as to achieve not just reasonable results but the highest possible reliability and effectiveness. United Terex, Inc., B-245606, Jan. 16, 1992, 92-1 CPD Para. 84.

Given the agency's explanation--unrefuted by Tucson--that the equipment involved here is used by those units at the base responsible for human safety and the safeguarding of information relating to national security, we have no basis for objecting to the imposition of the experience requirements. Specifically, we see nothing improper in the agency's taking steps to insure that the personnel maintaining the specialized equipment are particularly well-qualified to do so, and the experience requirements seem to us to be reasonably aimed at achieving this end. The agency's on- site personnel requirement appears equally reasonably founded. The functions relying on the specialized equipment being of a critical safety or national security nature, it follows, we think, that the agency reasonably may structure the requirement so as to minimize potential down time for the equipment; the agency's past experience bears this out. The experience requirement does this by assuring that, if necessary, maintenance can be performed quickly by on-site personnel, eliminating the potential delays from shipping the equipment to the contractor's facility, as Tucson would prefer. We conclude that the experience requirements are reasonably designed to meet the agency's needs.

AMBIGUOUS OR VAGUE SPECIFICATIONS

Tucson's next group of objections concern provisions of the IFB which the protester alleges are too vague and either impose an unreasonable risk on bidders or exceed the government's minimum needs. These objections relate primarily to alleged informational deficiencies in the IFB which the protester maintains preclude it from intelligently preparing a bid. Tucson also objects to a large number of solicitation provisions in this group of allegations. Based on our review, we find Tucson's arguments to be without merit. We again discuss two of Tucson's arguments below.

Tucson asserts that the IFB fails adequately to inform bidders of the agency's current inventory of equipment which is to be serviced under the contract. According to the protester, without a comprehensive listing of all of the agency's equipment by serial number and make and model number, it cannot prepare its bid because it does not know the quantity or condition of the equipment to be serviced.

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. There is no requirement, however, that a solicitation be drafted so as to eliminate all possible risk to the contractor. Id. Agencies may properly impose substantial risk upon the contractor, even where the risk in question is financial in nature. DGS Contract Servs., Inc., B-249845, Dec. 23, 1992, 92-2 CPD Para. ___; Bean Dredging Corp., B-239952, Oct. 12, 1990, 90-2 CPD Para. 286.

We find that the solicitation contains adequate information relating to the quantity and type of equipment on hand to enable bidders to compete intelligently. As noted above, the IFB contains a detailed list of the estimated equipment quantities on hand, broken down by make and model number. In addition, the IFB provides workload estimates divided by type of equipment and task. Although the estimates are of course subject to fluctuation, we see nothing objectionable in the agency's retaining some flexibility to have all of its needs met even if the quantities change somewhat prior to award. In any case, the IFB eliminates most of the potential uncertainty for offerors by providing for an equitable adjustment in the event that the contractor's workload varies more than 5 percent beyond the stated estimates. This information is, in our view, sufficient to permit bidders to compete intelligently and on a relatively equal basis and at the same time provides a contract format sufficiently flexible to meet the agency's needs. The mere fact that some risk is involved in preparing a bid does not, in and of itself, provide a basis for concluding that the IFB is impermissibly vague. DGS Contract Servs., Inc., supra.

Tucson also alleges that the solicitation's "CLIN summaries" are ambiguous. In this regard, the pricing schedule of the IFB contains what are essentially subtotal lines which are labeled "fixed price CLINS," "estimated fixed price CLINS" and "estimated cost CLINS." According to the protester, this portion of the pricing schedule is ambiguous because the nomenclature used for these subtotal lines does not correspond to any terms used elsewhere in the pricing schedule.

Although the agency perhaps could have made the IFB clearer, we think it is sufficiently clear from a reading of the solicitation that the "fixed price CLINS" subtotal line corresponds to the recurring maintenance requirement CLINs of the IFB (which are compensated for on a fixed-price- per-month basis); that the "estimated fixed price CLINS" subtotal line corresponds to the nonrecurring maintenance requirements CLINs of the IFB (which are compensated for on the basis of unit prices for each task and which contain estimates of the quantity requirements for each task); and that the "estimated cost CLINS" subtotal line corresponds to the IFB's requirements for the repair of misused/abused equipment and for the crystallization/recrystallization of equipment (which are compensated for on a cost reimbursement basis). We therefore have no basis to find that this aspect of the pricing schedule is ambiguous or misleading.

The protest is denied.