BNUMBER:  B-262074
DATE:  November 21, 1995
TITLE:  Engineering and Professional Services Incorporated

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Matter of:Engineering and Professional Services Incorporated

File:     B-262074

Date:     November 21, 1995

Joseph M. Buccieri for the protester.
Victor Klingelhofer, Esq., and G. Brent Connor, Esq., Cohen & White, 
counsel for Fortran Telephone Communications Systems, an interested 
party.
Nicholas P. Retson, Esq., and Michael J. O'Farrell, Jr., Esq., 
Department of the Army, for the agency.
Peter A. Iannicelli, Esq., and Michael R. Golden, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

1.  Protest that invitation for bids (IFB) for a requirements contract 
to install office telephone systems at Army recruiting stations is not 
specific enough to permit bidders to prepare bids because it does not 
specify the exact number, size, and locations of telephone systems to 
be installed is denied because this information is not available with 
any certainty, and the IFB (1) describes the various sizes and 
features of systems that will be needed, (2) includes estimates of the 
quantities of each size system and key equipment that will be needed, 
(3) includes an up-to-date list of recruiting stations and their 
addresses, and (4) states that at least one system will be installed 
in each state. 

2.  Protest alleging that solicitation for telephone systems is unduly 
restrictive because its specifications can only be met by one 
manufacturer is dismissed where the protest does not include 
sufficient factual information (for example, a statement of which 
specifications are allegedly restrictive or the name of the firm whose 
product is allegedly described by the specifications) or any evidence 
establishing the likelihood that procurement laws or regulations were 
violated.

DECISION

Engineering and Professional Services Incorporated (EPS) protests 
invitation for bids (IFB) No. DABT23-95-B-0068, issued by the 
Department of the Army for delivery and installation of office 
telephone systems.  The protester contends that:  (1) the IFB is not 
specific enough to permit preparation of fixed-price bids and, 
therefore, the agency should issue a request for proposals and 
negotiate with offerors for this requirements contract; (2) the 
specifications are unduly restrictive; and (3) the agency failed to 
respond to its request for technical clarifications.  We deny the 
protest.

Issued on June 21, 1995, the IFB seek firm, fixed-price bids for 
delivery and installation of telephone systems in Army recruiting 
offices throughout the United States and Puerto Rico.  The IFB 
contemplates award of a 1-year requirements contract with an option 
for an additional 1-year period.  The IFB describes various features 
to be included in all telephone systems, including:  speed-dialing, 
conference calls, certain ringing and dialing options, outgoing call 
restrictions, intercom capability, line illumination, transfer 
capability, call hold, and individual programming.  Because the size 
of the telephone system will vary depending upon the size of the 
recruiting office, bids are to include prices for various-sized 
systems.  EPS filed its protest prior to the July 31 bid opening date, 
and the agency extended bid opening indefinitely pending our 
resolution of the protest.
 
The crux of EPS' protest is that the specifications are inadequate to 
permit bidders to intelligently prepare their bids.  Because of 
uncertainties concerning location, type, and number of the telephone 
systems to be replaced/installed, EPS contends that the agency should 
request competitive proposals and conduct negotiations to resolve 
uncertainties.  The protester also states that offerors need to make 
site visits to ascertain the types of systems to be replaced and that 
the contractor will have to travel to unknown locations throughout the 
United States and Puerto Rico to install new systems.  Consequently, 
EPS contends that the solicitation should be amended so that the 
contract will reimburse the contractor for all travel costs incurred 
for pre-award site visits and to install the new telephone systems, 
thus eliminating the "unreasonable amount of risk" for bidders under 
the IFB as written.

The contracting agency has the primary responsibility for determining 
its minimum needs and the best method of accommodating them, including 
the procurement format to be used.  Jewett-Cameron Lumber Corp. et 
al., B-229582 et al., Mar. 15, 1988, 88-1 CPD 265.  The use of 
requirements contracting is authorized by Federal Acquisition 
Regulation  16.503(b), which states that such contracts may be used 
when an agency anticipates recurring requirements but cannot 
predetermine the precise quantity of supplies or services needed 
during a definite period.  Sunrise
Int'l Group, Inc., B-261448, July 21, 1995, 95-2 CPD  43.  Our Office 
will not overturn the agency decision to use a particular procurement 
method unless the decision is shown to be arbitrary or unreasonable.  
See Jewett-Cameron Lumber Corp. et al., supra. 

The contracting agency reports that it anticipates a recurring need 
for installation/ replacement of commercially available telephone 
systems at recruiting stations, but that the locations and number of 
telephone systems that will be needed during the contract period and 
the amount of funding that will be available to replace existing 
systems simply are not known at this time.  The IFB does include the 
agency's estimates of the quantities of each sized systems and key 
equipment that will be needed during the contract period.  For 
example, even though different recruiting stations will require 
different sized telephone systems, the IFB states that an estimated 80 
systems with 1 to 16 lines, 194 systems with 1 to 8 lines, and 41 
systems with 1 to 24 lines will be needed.  Moreover, even though the 
agency does not now know how many recruiting stations will require new 
or replacement systems or the locations where the telephone systems 
will be installed, the IFB notifies offerors that, at a minimum, at 
least one telephone system will be installed in each state.  
Furthermore, in response to the concerns raised by EPS, the IFB was 
amended to include the agency's most up-to-date list of recruiting 
stations and their addresses.

The contracting officer reports that the agency has successfully used 
this method of acquisition a number of times in the past to purchase 
various pieces of equipment and related service and maintenance.  The 
agency also reports that a "multitude of sources" expressed interest 
in the procurement after it was synopsized in the Commerce Business 
Daily, and that it has identified at least six suppliers that can 
provide commercial equipment that will meet the recruiting stations' 
needs.  Moreover, the contracting officer determined that discussions 
with offerors would be fruitless because, among other things, no 
amount of discussions would make the locations of possible 
installation sites any more definite.  In sum, the agency states that 
a requirements-type contract is appropriate because it will allow the 
agency the flexibility to order what it needs and what it can afford 
during the contract period.  As there is no indication in the record, 
and EPS does not argue, that the IFB's estimated quantities and list 
of recruiting stations are inaccurate or somehow could be made more 
precise--by means of a different contract format or discussions--and 
since this approach serves the agency's  needs, we have no basis to 
object to the Army's decision to use a sealed bid requirements 
contract format.    

To the extent that EPS essentially contends that the requirement for 
fixed-price bids is onerous, placing an "unreasonable amount of risk" 
on bidders since travel expenses (for site visits allegedly needed for 
proper bid calculation and for installing telephone systems) must be 
included in bid prices rather than being paid by the government on a 
cost reimbursement basis, the protest provides no basis for overruling 
the agency's decision.  As previously stated, the contracting agency  
bears primary responsibility for determining the procurement format to 
be used.  See Jewett-Cameron Lumber Corp. et al., supra.  Risk is 
inherent in most types of contracts, especially fixed-price contracts 
such as this one, and the fact that a bidder, in computing its bid, 
must consider a variety of scenarios that might differently affect its 
anticipated costs does not render an IFB defective.  Sunrise Int'l 
Group, Inc., supra. 

The protester also contends that the IFB's specifications are unduly 
restrictive because the technical requirements can only be met by one 
manufacturer's equipment.  The agency responds that the IFB does not 
specify particular brand name products, that the specifications and 
required features are based upon the telephone systems currently in 
place and the needs of the various recruiting stations, and that such 
telephone systems are readily available on the commercial market.  The 
agency reports that there are at least six potential telephone 
equipment suppliers whose commercially available equipment can meet 
the requirements.

Our Bid Protest Regulations require that a protest include a detailed 
statement of the legal and factual grounds of protest and that the 
grounds stated be legally sufficient.  4 C.F.R.  21.1(c)(4) and 
21.1(e) (1995).  These requirements contemplate that protesters will 
provide, at a minimum, either allegations or evidence sufficient, if 
uncontradicted, to establish the likelihood that the protester will 
prevail in its claim of improper agency action.  Robert Wall 
Edge--Recon., 68 Comp. Gen. 352 (1989), 89-1 CPD  335; Science 
Applications Int'l Corp., B-265607, Sept. 1, 1995, 95-2 CPD 99.  EPS' 
protest does not indicate which specifications allegedly can be met by 
only one manufacturer's equipment or even the name of the particular 
manufacturer whose equipment is allegedly described by the 
specifications.  Moreover, the record shows that, subsequent to EPS' 
filing this protest, the agency asked EPS to identify the manufacturer 
whose equipment allegedly was described by the specifications, but EPS 
refused to do so.  Because the protest does not include sufficient 
factual information showing that the specifications may violate 
procurement laws or regulations, we have no basis to consider it.          

Finally, the protester contends that the agency failed to respond to 
its requests for technical clarifications.  However, the record shows 
that the agency communicated with the protester on several occasions 
regarding the protester's requests for clarification of certain 
technical specifications.  Moreover, the record shows that, in 
response to questions asked by EPS and other potential bidders about 
various technical specifications, the agency amended the IFB in an 
attempt to clarify any uncertainties; regardless of whether EPS was 
fully satisfied with the agency's responses, the amendment did, in 
fact, address most of the questions asked by EPS.  
The protest is denied.

Comptroller General 
of the United States