Plateau Software, Inc.

Decision

Matter of:  Plateau Software, Inc.

File:  B-416386

Date:  August 24, 2018

DIGEST

1.  Protest that solicitation’s requirement to provide meeting space is ambiguous and unduly restrictive of competition is denied where the solicitation provides sufficient information to allow offerors to intelligently prepare their proposals on a common basis and is reasonably necessary to meet the agency’s needs.

2.  Protest challenging agency’s decision not to set aside the procurement for small businesses is denied where the agency reasonably concluded from its market research that it did not have a reasonable expectation of receiving proposals from two or more small businesses capable of performing the required services.

Plateau Software, Inc., a small business of Fairfax, Virginia, protests the terms of request for proposals (RFP) No. N00014-18-R-0004 issued by the Department of the Navy, Office of Naval Research (ONR), for scientific and engineering technical assistance services.  The protester contends that the RFP is ambiguous and unduly restrictive of competition, and the procurement should have been set aside for small businesses.

We deny the protest.

BACKGROUND

In 1996, the National Oceanographic Partnership Program (NOPP) was established to “coordinate existing partnerships and establish new partnerships for the sharing of resources, intellectual talent, and facilities in the ocean sciences and education, so that optimal use can be made of this most important natural resource for the well-being of all Americans.”  National Defense Authorization Act for Fiscal Year 1997, Pub. L. No. 104-201, § 281, 110 Stat. 2469-70; see also 10 U.S.C. §§ 7901-7903.  The NOPP coordinates partnerships among federal agencies, academia, industry, and other members of the oceanographic scientific community.  10 U.S.C. § 7901(b)(2). 

On April 13, 2018, the agency issued the RFP seeking proposals to provide support services for the NOPP Office (NOPPO).  Agency Report (AR), Tab 7, RFP, at 1.  The services include the provision of scientific and engineering technical assistance personnel to work with government employees to implement and manage NOPP activities.  The RFP required offers to perform the following four primary tasks:  (1) working group meeting assistance and topic development; (2) proposal peer review process management and excellence in partnering award; (3) NOPP congressional reporting; and (4) NOPP public outreach.  AR, Tab 7A, Performance Work Statement (PWS), at 1-5. 

Prior to issuing the RFP, the agency conducted market research.  First, the agency reviewed the acquisition history, which shows that this is the fifth procurement for NOPPO support services.  See AR, Tab 5, Market Research Report, at 3.  Of the four prior procurements, only the prior contract was set aside for small businesses.  Id. 

Second, the agency solicited capability statements from interested parties.  On October 26, 2017, the agency posted a sources sought notice to the SeaPort-e portal.[1]  AR, Tab 2, SeaPort-e Sources Sought Notice.  On October 31, the agency posted a sources sought notice to the Federal Business Opportunities website (FBO.gov).  AR, Tab 3, FBO.gov Sources Sought Notice.  The agency received and reviewed a total of seven responses--four from small businesses, two from non-profit entities, and one from a large business--and concluded that it was not likely to receive offers from two or more small businesses capable of performing the requirement.  AR, Tab 5, Market Research Report, at 4-5.  The RFP was issued on FBO.gov on an unrestricted basis, and Plateau filed this protest on May 17, 2018, prior to the RFP’s closing date.

DISCUSSION

Plateau raises two primary challenges to the terms of the RFP.  First, the protester argues that the RFP is ambiguous and unduly restrictive of competition because the agency cannot justify the solicitation’s requirements.  Second, the protester argues that the applicable statutory and regulatory provisions require the agency to set aside the procurement for small businesses.  For the reasons discussed below, we deny the protest.[2]

Ambiguity and Restriction on Competition

The protester challenges the RFP’s requirements regarding the provision of meeting space for the various NOPP activities.  As relevant here, the RFP requires offerors to submit a meeting facility location plan,[3] stating as follows:

Offerors shall submit a plan to address meeting the minimum requirement for facility location.  The specific facility requirements are listed in the PWS, Attachment 1, paragraphs 5.0 and 6.0.  Offerors shall submit a summary about the meeting space location, capacity, equipment, and facility schedule management.

RFP at 42.  Section 5.0 of the PWS states as follows:

As NOPP serves a number of federal agencies, distributed either in or in the vicinity of the District of Columbia (DC), the Contractor shall provide meeting space, within 0.5 miles of a centrally located DC Metro rail station (DC zip code only), capable of accommodating at least 40 people, at no additional direct cost to the government.  At a minimum the meeting spaces shall be equipped with a projector to display PowerPoint presentations and be able to accommodate teleconferencing.  SPACES SHALL BE AVAILABLE YEAR-ROUND TO ACCOMMODATE ALL MEETINGS.  THE CONTRACTOR WILL HAVE SIX (6) WEEKS ADVANCE NOTICE, AS THEY DEVELOP THE SCHEDULE WITH CONCURRENCE BY THE CONTRACTING OFFICER’S REPRESENTATIVE (COR).

AR, Tab 7A, PWS, at 5.  Section 6.0 of the PWS includes the following estimated meeting schedules:

Meeting	Estimate Per Year (+/-50%)	Estimated No. of Attendees	Estimated Duration	Location
[Ocean Research Advisory Panel (ORAP)]	2	40	16 hours	2 in Washington, DC, 1 elsewhere CONUS
NOPP Committee	12	12	2 hours	Washington, DC
[Interagency Working Group-Facilities and Infrastructure (IWG-FI)]	6	12	2 hours	Washington, DC
IWG-Biodiversity	4	12	2 hours	Washington, DC
Peer Reviews	4	20	8-24 hours	Primarily Washington, DC

Id. at 6.

Plateau argues that the RFP is ambiguous regarding whether an offeror must have the required meeting space prior to submitting a proposal or may acquire such space prior to performance.  Protest at 7-8.  In addition, Plateau argues that the RFP requirement that the meeting space be within 0.5 miles of a District of Columbia Metro station is restrictive of competition.  Id. at 8.   

The agency contends that the RFP is neither ambiguous nor unduly restrictive.  The agency argues that it is clear that the contractor can obtain meeting space during contract performance.  The agency explains that contractors are provided six weeks advance notice of when a meeting will take place, and meeting schedules are developed in concurrence with the contracting officer’s representative, providing significant lead time for a contractor to secure the required space for a particular meeting.  Contracting Officer’s Statement and Memorandum of Law (COS/MOL) at 22.  The agency further argues that the PWS does not require that all meetings be held in the same location or prescribe a specific number of locations.  Id.  The agency argues that the solicitation is not ambiguous simply because the RFP requests a “plan.”  Id. at 23.  The agency further asserts that nowhere does the RFP require or imply that a contractor must possess the meeting space prior to submitting a proposal.  Id.

In addition, the agency argues that the requirement for the meeting space to be within 0.5 miles of a District of Columbia Metro station is not unduly restrictive of competition because the requirement is reasonably necessary to meet the needs of the NOPPO since nine of the 14 organizations that participate in NOPP are centrally located in the District of Columbia.  Id. at 24-25.  The agency asserts that under the prior contract, which included no such requirement, interest and participation by NOPP member agencies diminished because the meeting location in Ballston, Virginia was not convenient for most meeting participants.  Id. at 25-26; see also AR, Tab 4B, Decl. of National Science Foundation (NSF) Employee, at 3.[4]  As a result, the agency argues that the requirement is reasonably necessary to fulfill the statutory purpose of the NOPPO by requiring that meeting locations be more convenient to a greater number of participants.  Id. at 26.

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.  Al Raha Grp. for Tech. Servs., B-412963.3, Sept. 19, 2016, 2016 CPD ¶ 262 at 4.  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 that the solicitation contains sufficient information for offerors to compete intelligently and on equal terms.  Phoenix Envtl. Design, Inc., B-411746, Oct. 14, 2015, 2015 CPD ¶ 319 at 3.

Further, agencies must specify their needs in a manner designed to permit full and open competition, and may include restrictive requirements only to the extent they are necessary to satisfy the agencies’ legitimate needs or as otherwise authorized by law. 10 U.S.C. § 2305(a)(1)(B)(ii).  Where a protester challenges a specification or requirement as unduly restrictive of competition, the procuring agency has the responsibility of establishing that the specification or requirement is reasonably necessary to meet the agency’s needs.  Remote Diagnostic Techs., LLC, B-413375.4, B-413375.5, Feb. 28, 2017, 2017 CPD ¶ 80 at 3-4.  We examine the adequacy of the agency’s justification for a restrictive solicitation provision to ensure that it is rational and can withstand logical scrutiny.  Coulson Aviation (USA), Inc., B-414566, July 12, 2017, 2017 CPD ¶ 242 at 3.  A protester’s disagreement with the agency’s judgment concerning the agency’s needs and how to accommodate them, without more, does not establish that the agency’s judgment is unreasonable.  Protein Scis. Corp., B-412794, June 2, 2016, 2016 CPD ¶ 158 at 2.

In this case, we conclude that the RFP provides adequate detail for offerors to compete intelligently and on equal terms.  We agree with the agency that nothing in the RFP states or implies that a contractor must already possess the required meeting space prior to submitting a proposal.  Rather, it seems apparent that any given contractor may either already possess the meeting space or may acquire it as proposed in its meeting facility location plan during performance of the contract. 

Additionally, we find that the agency has provided a reasonable explanation for limiting the location of the meeting space to within 0.5 miles of a District of Columbia Metro station.  As explained by the agency, a majority of the NOPP member agencies are centrally located in the District of Columbia, and we find credible its rationale that requiring the contractor to provide a location that is convenient to the greatest number of meeting participants is more likely to maximize their attendance at meetings, and maintain their interest and participation, to the benefit of the NOPP mission.  On this record, we find no basis to conclude that the solicitation is ambiguous or unduly restrictive of competition, and therefore no basis to sustain the protest.

Small Business Set-Aside

The protester argues that the RFP should have been set aside for small businesses pursuant to Federal Acquisition Regulation (FAR) § 19.502-2(b), also known as the “Rule of Two.”  Protest at 4-5.  Plateau argues that the prior contract was a small business set-aside, and contends that any reasonable market research would have shown that there are more than two capable small businesses interested in competing for this requirement.  Id. at 5-6.  The protester states that a search for small businesses under North American Industry Classification System (NAICS) code 541990 (All Other Professional, Scientific and Technical Services) in the System for Award Management database (SAM.gov) in the District of Columbia, Maryland, and Virginia yields over 6,000 results, and 520 results when limited to only the District of Columbia.  Id. at 6; see also id., exh. A (SAM.gov search results).  Plateau argues that it and at least one or more of these businesses are qualified to perform and would compete for this work.  Id. at 6-7; see also Comments at 7.

The agency argues that its market research was reasonable and properly concluded that it would not receive two or more offers from small businesses capable of performing the requirement.  COS/MOL at 14-21.  The agency contends that program performance under the prior contract has suffered because the prior PWS deemphasized the importance of the technical experience of the required staff and reduced the level of scientific involvement in the program.  Id. at 4-9.  The agency argues that as a result of its revised requirements, the prior procurement history was of limited relevance to the current procurement, and the extent and scope of its market research was reasonably designed to identify businesses capable of performing the revised requirements.  Id. at 16-18.  The agency argues that the responses to the sources sought notices indicated that it would not receive offers from two or more small businesses capable of performing the requirements, and it reasonably determined to conduct the procurement on an unrestricted basis.  Id. at 19-21.

In response to the agency report, the protester argues that the agency ignored the prior procurement history and has overstated the impact of the changes to the PWS, which the protester contends is simply to hire two key personnel that meet the qualifications stated in the PWS and provide other related administrative support services.  Comments at 4-5.  Plateau contends that it is irrational to conclude that a small business cannot hire two qualified personnel and is otherwise not capable of providing the required services, and the agency’s market research demonstrates that the Rule of Two has been satisfied.  Id. at 5-7.

Generally, under FAR § 19.502-2(b), a procurement with an anticipated dollar value of more than $150,000, must be set aside for exclusive small business participation when there is a reasonable expectation that offers will be received from at least two responsible small business concerns, and award will be made at a fair market price.  An agency must undertake reasonable efforts to ascertain whether it is likely to receive offers from at least two responsible small businesses capable of performing the work in question.  Tom Smith Fire Equip. Co., Inc., B-414349, May 15, 2017, 2017 CPD ¶ 148 at 4.  A contracting agency’s investigation to determine the availability of responsible small business concerns for set-aside purposes, must address not only the existence of small businesses that might submit proposals, but also their capability to perform the contract.  Global Tech. Sys., B-411230.2, Sept. 9, 2015, 2015 CPD ¶ 335 at 15.  The fact that multiple small businesses are identified in the course of market research is not necessarily determinative.  Triad Isotopes, Inc., B-411360, July 16, 2015, 2015 CPD ¶ 220 at 5.  

While there is no particular required method of assessing the availability of capable small businesses, the assessment must be based on sufficient facts so as to establish its reasonableness.  Tom Smith Fire Equip. Co., Inc., supra.  The decision whether to set aside a procurement may be based on an analysis of factors such as the prior procurement history, the recommendations of appropriate small business specialists, and market surveys that include responses to sources sought announcements or requests for information.  Commonwealth Home Health Care, Inc., B-400163, July 24, 2008, 2008 CPD ¶ 140 at 3.  Because a decision whether to set aside a procurement is a matter of business judgment within the contracting officer’s discretion, our review generally is limited to ascertaining whether that official abused his or her discretion.  Management Consulting, Inc., B-409332, Mar. 5, 2014, 2014 CPD ¶ 89 at 4.

Here, the record shows that the agency revised its requirements for the current procurement.  Regarding personnel requirements, the prior PWS stated as follows:

The Government anticipates personnel that would fall within technical, graphic design, [information technology], and administrative labor categories.

Personnel that fall within the technical labor category shall have a [Master’s] degree in oceanography or closely related discipline and should have at least ten years of experience or five years with a Project Management Professional Certification.  The technical lead should have demonstrated ability to perform liaison and coordinate efforts among businesses, universities, and federal agencies.  The technical lead must be able to inform and explain to the public, press, and Congress inquiry panels the activities of NOPP.

AR, Tab 1, Prior PWS, at 6.  By contrast, the current PWS requires two full-time key personnel positions, a NOPPO Director and a NOPPO Deputy Director.  AR, Tab 7A, PWS, at 6.  Regarding the qualifications of the NOPPO Director, the PWS states as follows:

The individual shall possess:

1. A Ph.D. in oceanography, atmosphere or marine science.
2. Six years of successful research experience, research administration, and/or substantial managerial experience in academe, industry, or government after award of the Ph.D.
3. Documented participation in extramural grant competitions, preferably as a proposer, reviewer and/or panelist, as well as documented participation in technical and/or scientific publications.
4. Demonstrated knowledge in an oceanographic scientific and technical discipline and experience with cross-disciplinary scientific teams.
5. Documented experience working with teams across a variety of Federal and state government agencies, legislative bodies, and private sector organizations.

Id.  The PWS requires that the NOPPO Deputy Director possess all of the same qualifications as the NOPPO Director, with the exception that the degree requirements are for a “[m]inimum Bachelor’s degree, preferred Master’s degree, in oceanography, atmosphere or marine science.”  Id. at 6-7. 

In addition, the prior PWS did not require scientific and engineering technical assistance while the current PWS requires such assistance in four primary task areas.  For example, the prior PWS states, in pertinent part, for “Task 1 - Working Group and Meeting Support” as follows:

The Contractor shall be responsible for all scheduling and communications; logistics, meeting spaces, and ancillary equipment for meetings; drafting [documents] for printing and distributing preparatory and post-meeting documentation, and preparation and archiving of presentations needed for the meetings or for other activities under NOPP cognizance, including meetings of several subsidiary bodies of the [National Ocean Council (NOC)], including: [ORAP, IWG-Ocean Partnerships (IWG-OP), IWG-FI, and Peer Reviews].

AR, Tab 1, Prior PWS, at 2, 4.  However, the current PWS includes expanded requirements for “Task 1 - Working Group, Meeting Assistance and Topic Development.”  In addition to requirements similar to the prior PWS,[5] the current PWS requires, as follows:

Topic Development:  In the event that a working group or panel knows in advance that it will not be meeting that year, or as often, the [contractor’s scientific and engineering technical assistance] personnel shall develop, short state of the knowledge reports for use by the committees.  This may entail literature searches, journal reading, writing summary findings and identification of knowledge gaps.

AR, Tab 7A, PWS, at 3 (emphasis in original). 

As another example, under “Task 2 - Peer Review Process Management,” the prior PWS explicitly stated that “[t]he contractor shall not review proposals” submitted in response to broad agency announcements (BAA) or other solicitations.  AR, Tab 1, Prior PWS, at 3.  Task 2 of the prior PWS required generally that the contractor prepare summaries of the evaluations prepared by a panel of government-approved reviewers and maintain cognizance of the status of projects for a variety of reporting requirements.  Id.  However, under “Task 2 - Proposal Peer Review Process Management and Excellence in Partnering Award,” the current PWS requires that contractor scientific and engineering technical assistance personnel participate in the development of BAAs, identify candidates to become panelists to review proposals, host the panels during proposal review, and, in coordination with agency personnel, provide summaries recommending award or declination of funding for proposals.  AR, Tab 7A, PWS, at 3-4.  Task 2 of the current PWS additionally requires the contractor to solicit nominations for candidate projects to receive the NOPP Excellence in Partnering award, and to host the award ceremony.  Id. at 4.

To explain the changes in the PWS, the agency submitted a declaration from the ONR program officer responsible for overseeing the NOPPO, an individual who has been involved with the NOPPO in a variety of capacities since 1997.  AR, Tab 4A, Decl. of ONR Program Officer, at 1.  In pertinent part, the ONR program officer stated as follows:

Based on my extensive experience with the NOPP, I can attest to the reduced level of performance of the NOPPO under the current task order as well as the declining participation of the NOPP partner agencies under the present circumstances of the program. . . .  Managing the process of obtaining peer reviews of proposed interagency partnership projects has always been one of the most important functions that the NOPPO contractor performs for the NOPP.  Managing this process involves much more than logistical and administrative support of panel reviews--it requires scientific and technical expertise sufficient to understand proposed research projects and use [of] that understanding to slate panels of peer reviewers that represent diversity of expertise and scientific viewpoints and do not have conflicts of interest due to personal or institutional affiliations.  An important purpose of contracting for [a] NOPPO operator has always been for the Government to obtain this expertise.

Id.  The ONR program officer states that it was important to change the PWS to require scientific and engineering technical assistance personnel that could identify peer review panelists and alternates with subject matter expertise in order for the agency to properly fulfill its requirement.  Id.

As noted, the agency posted sources sought notices in the Seaport-E portal and on FBO.gov, and received a total of seven responses, including four from small businesses.[6]  AR, Tab 5B, Analysis of Capability Statements.  The record shows that prior to posting the sources sought notices, the agency initiated its market research by contacting NOPP and ONR partners to identify entities capable of fulfilling the agency’s requirement.  AR, Tab 4B, Decl. of NSF Employee, at 3.  Eight organizations believed to be capable of performing the requirement were identified and notified about the sources sought notices.  Id. 

The record further shows that the agency evaluated the capability statements using the following five criteria:  (1) key personnel qualifications; (2) facilities; (3) scientific and technical expertise; (4) meeting support; and (5) organizational capacity.  AR, Tab 5B, Analysis of Capability Statements, at 4.  The agency concluded that only one respondent, a non-profit entity, was capable of meeting all five criteria.  Id.  The agency concluded that none of the four small business respondents demonstrated the capability of meeting the key personnel or scientific and technical expertise factor.  Id.  On this basis, the agency concluded that the procurement was not suitable for a small business set-aside.  AR, Tab 5, Market Research Report, at 5.  The agency received concurrence from the ONR associate director of small business.  AR, Tab 6, Small Business Coordination Record, at 2.

Here, the agency considered the procurement history, including both changes in the PWS and performance of the NOPPO when it was set aside for small business.  The agency also considered the responses to the sources sought notices, including the four capability statements received from small businesses.  Based on this information, the agency concluded that there was not a reasonable expectation that proposals would be submitted by two or more small businesses capable of meeting the changed PWS requirements, especially with respect to the new key personnel and scientific and technical expertise requirements.  On this record, we have no basis to question the agency’s conclusion. 

The protest is denied.

Thomas H. Armstrong
General Counsel

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