Apogee Engineering, LLC
Highlights
Apogee Engineering, LLC, a small business located in Colorado Springs, Colorado, challenges the terms of request for proposals (RFP) No. SOL-OAA-17-000089, issued by the United States Agency for International Development (USAID), for global health technical professionals. The protester alleges that the RFP is unduly restrictive of competition because it requires that an offeror's subcontractors possess a secret facility clearance at the time of proposal submission.
We deny the protest.
DOCUMENT FOR PUBLIC RELEASE
The decision issued on the date below was subject to a GAO Protective Order. This redacted version has been approved for public release.
Decision
Matter of: Apogee Engineering, LLC
File: B-415976
Date: May 1, 2018
Peter B. Ford, Esq., Michelle E. Litteken, Esq., Meghan F. Leemon, Esq., and Timothy F. Valley, Esq.,Piliero Mazza PLLC, for the protester.
R. René Dupuy, Esq., United States Agency for International Development, for the agency.
Heather Weiner, Esq., and Jennifer D. Westfall-McGrail, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Solicitation requirement that an offeror’s subcontractors possess a secret facility clearance at the time of proposal submission does not unduly restrict competition where the record shows that the requirement is reasonably related to the agency’s needs.
DECISION
Apogee Engineering, LLC, a small business located in Colorado Springs, Colorado, challenges the terms of request for proposals (RFP) No. SOL-OAA-17-000089, issued by the United States Agency for International Development (USAID), for global health technical professionals. The protester alleges that the RFP is unduly restrictive of competition because it requires that an offeror’s subcontractors possess a secret facility clearance at the time of proposal submission.
We deny the protest.
BACKGROUND
USAID issued the RFP on November 14, 2017, as a small business set-aside, seeking proposals to “develop a new cadre” of USAID Global Health technical professionals, and to provide such professionals to the USAID Bureau for Global Health and other agency offices in Washington, D.C. and overseas. RFP at 8. The competition was limited to firms holding one of the General Services Administration’s One Acquisition Solution for Integrated Services (OASIS) small business-pool 1, multiple-award indefinite-delivery contracts for professional, scientific, and technical services. The RFP anticipated the issuance of a cost-plus-fixed-fee task order for a period of performance of five years. Id. at 1, 4. The estimated value of the task order is $125,000,000. Agency Report (AR) at 1.
As relevant here, the RFP’s statement of work provides that “[c]ontract employees hired to work directly with the Bureau for Global Health will be expected to provide whatever services that may be required by the Bureau to accomplish its mission, including participating in design and award of health programs worldwide.”[1] RFP at 10. The RFP advises that the contractor will initially provide support for approximately 156 technical professionals, ranging from junior to expert level, to be phased down to 45 junior to mid‑level technical professionals by year five of the task order. Id.
The RFP also advises that all contractor employees “will co-locate with the Bureau for Global Health” in its office space. Id. at 11. The solicitation therefore specifies that both the “[c]ontractor and subcontractors . . . must secure and maintain [an] active DoD [Department of Defense] Security Service (DSS) Facility Secret clearance,” which will allow the contractor and subcontractors to “request the processing and issuance of Secret clearances for [technical professionals]” under the task order. Id. at 3, 11. Specifically, the solicitation explains that “[t]he facilities clearance is necessary because the contractor will need to supply institutional contract staff with security clearances whose responsibilities will require them to sit in USAID office space on a daily basis.” Id. at 3. The RFP further specifies that the secret facility clearance must be “active at the time of proposal submission.” [2] Id. at 3, 11. With regard to offer acceptability, the RFP provides that the agency may reject an offer as unacceptable if it does not “comply with all of the terms and conditions of the RFP and prospective contract,” including “[p]roof of current/active facility clearance.” Id. at 80.
On January 30, 2018, Apogee filed the instant protest with our Office.[3] Thereafter, on January 31, the agency received seven proposals in response to the RFP, including from Apogee, by the solicitation’s closing date. AR at 11, n.2.
DISCUSSION
Apogee argues that the solicitation requirement that subcontractors possess a secret facility clearance at the time of proposal submission is unduly restrictive of competition.[4] The protester contends that the agency has not established any immediate need for a subcontractor to have a secret facility clearance prior to award, as the RFP contemplates “substantial” time between proposal submission and contract award and performance.[5] Comments at 4. For the following reasons, we find that Apogee’s argument does not provide a basis on which to sustain the protest.
The Competition in Contracting Act of 1984 requires that agencies specify their needs and solicit offers in a manner designed to achieve full and open competition, so that all responsible sources are permitted to compete. 41 U.S.C. § 3306(a)(1)(A). The determination of a contracting agency’s needs and the best method for accommodating them is a matter primarily within the agency’s discretion. Gallup, Inc., B-410126, Sept. 25, 2014, 2014 CPD ¶ 280 at 5. A protester’s disagreement with the agency’s judgment concerning the agency’s needs and how to accommodate them does not show that the agency’s judgment is unreasonable. CompTech-CDO, LLC, B-409949.2, Jan. 6, 2015, 2015 CPD ¶ 62 at 4. Moreover, the fact that a requirement may be burdensome or even impossible for a particular firm to meet does not make it objectionable if the requirement properly reflects the agency’s needs. Allied Protection Servs., Inc., B-297825, Mar. 23, 2006, 2006 CPD ¶ 57 at 3.
Specific to the issues in this protest, our Office has previously found that an agency’s requirement for an offeror to possess a required facility clearance at the time of proposal submission is not unduly restrictive of competition where the agency demonstrates a reasonable basis for the requirement. See, e.g., Contract Services, Inc., B‑411153, May 22, 2015, 2015 CPD ¶ 161 (finding a similar requirement for a secret facility clearance at the time of proposal submission was not unduly restrictive of competition based on the agency’s reasonable concerns regarding potential performance delays attendant to offerors obtaining the clearance); CompTech-CDO, LLC, supra (same, with regard to a similar top secret facility clearance requirement); Allied Protection Servs., Inc., supra (same).
USAID states that the RFP requirement that a subcontractor have a facility clearance at the time of proposal submission is reasonably necessary to “avoid any delay in transitioning current contract employees and start-up of the new contract, once it has been awarded.” Contracting Officer (CO) Statement at 2. The RFP advises that all contractor personnel are required to maintain secret personal security clearances because the contractor employees hired “will co‑locate with the Bureau for Global Health.” RFP at 11. Specifically, the solicitation provides that “[p]lacements under the contract for staffing require the contractor staff to be physically located with other USAID personnel and have connectivity to and use of the USAID computer system[.]” Id. at 3. The agency explains that, “[i]n order to work in, have meetings in, or process information in restricted U.S. Government space where classified information is present and [to] which contractor employees have potential access,” all contractor employees must have “a personal security clearance.” AR at 5. In order for an individual to be considered for a personal security clearance, the company for which the individual works must have a facility clearance at an equal or higher level.[6] RFP at 3, 11. USAID therefore argues that the requirement that subcontractors (as well as prime contractors) possess the requisite facility clearance at the time of proposal submission, is reasonably necessary to ensuring timely staffing and contract performance.[7] See, e.g., AR at 8 (explaining that the “whole purpose of this procurement” is to hire technical professionals from a contractor “to work alongside USAID federal government direct hire staff in restricted office space.”).
We find that the rationale for the timing of the RFP’s subcontractor facility clearance requirement advanced by USAID is reasonable. In this regard, Apogee does not argue that subcontractors do not need to have a facility clearance to perform the task order. The protester also does not challenge the similar requirement that the prime contractor possess a facility clearance at the time of proposal submission as unduly restrictive. Rather, Apogee argues, in essence, that USAID should have tailored the subcontractor facility clearance requirement to accommodate Apogee’s unique circumstances, i.e., the fact that Apogee’s subcontractors did not have a facility clearance at the time of proposal submission. [8] See Comments at 4. An agency, however, is not required to tailor a solicitation to accommodate an offeror’s unique circumstances. Contract Services, Inc., supra at 4. Here, the agency has articulated a reasonable basis for the RFP’s requirement, and the fact that it may be burdensome or impossible for the protester to meet does not make the requirement unreasonable. See Allied Protection Servs., Inc., supra. In sum, we find that Apogee has failed to demonstrate that the RFP’s subcontractor facility requirement was unreasonable, and therefore we deny the protest.[9]
The protest is denied.
Thomas H. Armstrong
General Counsel
[1] The work to be performed by the technical professionals under this task order is in support of the following overarching priorities of the Bureau of Global Health: ending preventable child and maternal deaths, creating an AIDS-free generation, and protecting communities from infectious disease. RFP at 10.
[2] A facility clearance is an administrative determination that a facility is eligible for access to classified information or award of a classified contract. AR at 7, National Industrial Security Program Operating Manual § 2-100.
[3] The estimated value of the task order at issue exceeds $10 million, and therefore exceeds the threshold for GAO bid protest jurisdiction. 41 U.S.C. § 4106(f)(2).
[4] The protester challenges this requirement only as it pertains to subcontractors. Protest at 6, n.4. (“Apogee is not challenging the [facility clearance] requirements as they relate to the prime offeror.”).
[5] Amendment 0003 to the RFP provided that “[t]he anticipated start date . . . will be in either the 3rd or 4th quarter of fiscal year 2018.” RFP, amend. 0003, at 1.
[6] In response to the protest, the contracting officer states that she “spoke to a representative at the DSS [Department of Defense Security Service] Knowledge Management Center,” who confirmed that contractors and subcontractors must have a facility clearance in order for their contract employees to obtain a personal security clearance, and that prime contractors “are not allowed to sponsor multiple subcontractor employees for a security clearance.” CO Statement at 4. The contracting officer further noted that “Apogee’s proposal indicates that its two major subcontractors will be supplying USAID with numerous Technical Professionals.” Id.
[7] During the course of this protest, the agency challenged Apogee’s interested party status, asserting that Apogee would be ineligible for award even if the protest is sustained. In this regard, the agency notes that Apogee has not challenged the facility clearance requirements as they relate to the prime offeror, and yet “Apogee failed to comply with [the] RFP requirement to submit proof of its [facility clearance] with its proposal.” AR at 11, n.2. Although the agency argues that this failure “would” render Apogee’s proposal ineligible for award, it acknowledges that “USAID has not made a determination of the eligibility of Apogee’s proposal nor whether it contains a deficiency.” Agency Email (April 17, 2018), at 1. Furthermore, the solicitation does not require that the agency find Apogee’s proposal ineligible for award. See, e.g., RFP at 92 (“Proposals not conforming to this RFP may be determined as non‑responsive, thereby eliminating them from further consideration.”); RFP at 79-80 (“If an Offeror does not follow the instructions set forth herein, the Offeror’s proposal may be eliminated from further consideration or the proposal may be down-graded . . . .”). In these circumstances, where Apogee is an actual offeror, and the agency has not yet made a determination regarding the eligibility of Apogee’s proposal, we conclude that Apogee is an interested party to pursue this protest.
[8] Although this decision does not discuss all of the protester’s arguments in detail, we have reviewed each and conclude that none provides a basis to sustain the protest. For example, the protester also argues that the agency’s rationale for requiring the subcontractor facility clearance at time of proposal submission is inconsistent with the following RFP language: “Global Health has determined it is imperative that the contractor and subcontractors have an active [facility] clearance in effect at time of award to avoid the unnecessary risk of any delays associated with acquiring the clearance or risk that the clearance cannot be obtained for any reason.” RFP at 11. We disagree. This solicitation language, which acknowledges the importance of a subcontractor having an active facility clearance at the time of award, is not inconsistent with the requirement that the subcontractor possess the clearance at time of proposal submission.
[9] We also note that USAID represents that it received proposals from six other offerors in response to the RFP, and that all of these offerors complied with the subcontractor facility clearance requirement. AR at 11, n.2. This further supports the agency’s position that the facility clearance requirement is not unduly restrictive of competition. See CompTech-CDO, LLC, supra, at 5.