BNUMBER:  B-266180; B-266184
DATE:  January 23, 1996
TITLE:  Building Systems Contractors, Inc.

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Matter of:Building Systems Contractors, Inc.

File:     B-266180; B-266184

Date:     January 23, 1996    

Alberto E. Vidal for the protester.
Frank W. Miller, Esq., and Paul D. Warring, Esq., Department of the 
Air Force, for the agency.
Susan K. McAuliffe, Esq., and Michael R. Golden, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Protests alleging that solicitations' requirements for brand name 
equipment are unduly restrictive of competition and that agency's 
decision to bundle its requirements for equipment and services in the 
same procurements is improper are denied where solicitations' stated 
requirements reasonably reflect the agency's minimum needs.

DECISION

Building Systems Contractors, Inc. protests the terms of invitation 
for bids (IFB) Nos. F49642-95-B-0024 and F49642-95-B-0025, issued by 
the Department of the Air Force to replace the heating ventilating and 
air conditioning (HVAC) system, lighting system and air-conditioning 
system of two facilities located at Bolling Air Force Base (AFB).  The 
protester challenges the IFBs' requirements for a brand name 
computerized energy management control system (EMCS) as unduly 
restrictive of competition.  The protester also contends that 
consolidating ("bundling") the HVAC system installation services and 
the acquisition of an EMCS (which will control the HVAC and lighting 
systems) in the same procurements is improper; Building Systems 
contends that those requirements should be broken out into separate 
procurements.

We deny the protests.

The IFBs, as originally issued, required the manufacturer of the EMCS 
to be Landis and Gyr Powers, Inc. or an approved equal.  Building 
Systems initially protested that the "or equal" language of the IFBs 
was meaningless since other solicitation requirements regarding 
installation and system compatibility specifically required the Landis 
EMCS.  In response to the protests, the agency reexamined its needs 
and the solicitations' terms and deleted, by amendment to the IFBs, 
the "or equal" language.  The Air Force determined that since Bolling 
AFB currently has the Landis EMCS installed in 23 facilities on the 
base, and the Landis equipment operates on a proprietary communication 
protocol that allows needed communication and sharing of information 
between facilities, operator consoles, and remote telephone locations, 
it was necessary to limit the procurement to Landis equipment to 
ensure the required compatibility between facilities.  The protester 
contends that the Landis brand name requirement unduly restricts 
competition and exceeds the agency's minimum needs; the protester 
suggests that a separate system for the two facilities in question, 
using another manufacturer's EMCS equipment, would also meet the 
agency's needs.

In preparing a solicitation for supplies or services, a contracting 
agency must specify its needs and solicit offers in a manner designed 
to achieve full and open competition and to include restrictive 
provisions or conditions only to the extent necessary to satisfy the 
agency's needs.  Acoustic Sys., B-256590, June 29, 1994, 94-1 CPD  para.  
393.  The contracting agency, which is most familiar with its needs 
and how best to fulfill them, must make the determination as to what 
its minimum needs are in the first instance, and we will not question 
that determination unless it has no reasonable basis.  Id.; Corbin 
Superior Composites, Inc., B-242394, Apr. 19, 1991,
91-1 CPD  para.  389.  Specifications based upon a particular manufacturer's 
product are not improper in and of themselves, and a protest alleging 
that such requirements are unduly restrictive is without merit where 
the agency establishes that the requirements are reasonably related to 
its minimum needs.  Lenderking Metal Prods., B-252035; B-252036, May 
18, 1993, 93-1 CPD  para.  393; Chi Corp., B-224019, 
Dec. 3, 1986, 86-2 CPD  para.  634.

In a written "justification for brand name" issued by the agency in 
support of the Landis system EMCS requirement, and in the agency 
report responding to the protests, the Air Force states that its 
minimum need is for the EMCS in each of the two facilities (buildings 
5681 and 5683) to be compatible, and be able to communicate, with all 
of the other 23 facilities on the EMCS network at Bolling AFB.  The 
agency reports that direct communication, requiring a Landis EMCS in 
these two facilities due to the proprietary communication protocol of 
the Landis system, will allow the Air Force to gain various 
efficiencies and substantially lower life-cycle costs.[1]  
Establishing a duplicate EMCS system in the two buildings would be 
less efficient and more costly, according to the Air Force, due to 
higher operations costs, such as additional personnel costs from 
requiring monitoring and operation of the system from the individual 
buildings rather than from the central EMCS facility or other 
locations connected to the Landis network, and the possible loss of 
energy and maintenance savings related to the base's network 
monitoring of equipment performance problems.  The Air Force states 
that duplicative databases or peripheral hardware devices and separate 
communication cables connecting the individual systems to the central 
EMCS facility (which would also require additional personnel training 
costs and the procurement of additional equipment, maintenance and 
updating services for another manufacturer's hardware and software, as 
well as the maintenance of an additional parts inventory), would not 
allow the agency to meet its needs.[2]

We think the agency's explanation of its minimum need for the fully 
compatible Landis EMCS equipment is reasonable; we have previously 
found that a single, base-wide, integrated EMCS may be a legitimate 
need furthering operation efficiency and cost savings.  See Bironas, 
Inc., B-249428, Nov. 23, 1992, 92-2 CPD  para.  365.  The Air Force points 
out many advantages of having a single EMCS system including 
compatibility, cost savings from operations, less training, fewer 
spare parts inventory, less equipment, fewer maintenance contracts, 
less personnel, and the elimination of other duplicative efforts.  
Building Systems has not rebutted the agency's explanations, and the 
record provides no reason to suggest bidders would not be able to 
readily comply with the Landis equipment requirement[3] (in fact, nine 
bids were received in response to the IFBs at competitive prices and 
without objection to the requirement), or that the protester has been 
prejudiced by the challenged solicitation term.  We have no basis to 
conclude that the term is unduly restrictive.[4]

Building Systems also challenges the agency's decision to consolidate 
the procurement of the EMCS system and HVAC improvements in one 
contract; the protester contends that the requirements are severable 
and should be procured under separate contracts.  The protester 
contends that breaking out the requirements would make the 
solicitations less restrictive on competition since the HVAC-related 
work constitutes the majority of work under the contracts and bidders 
for the HVAC work would not be hindered by the Landis EMCS terms 
discussed above.  The Air Force reports that the consolidation of the 
requirements in the present procurements is necessary to meet its 
minimum needs since the EMCS and HVAC work are interrelated, and that 
breaking up the IFB requirements would result in inefficiency, work 
delays, and possible claims against the government.

Since bundled or consolidated procurements combine separate, multiple 
requirements into one contract, they have the potential for 
restricting competition by excluding firms that can only furnish a 
portion of the requirement.  Better Serv., B-265751.2, Jan 18, 1996, 
96-1 CPD  para.        .  Our Office reviews such solicitations to determine 
whether the approach is reasonably required to satisfy the agency's 
minimum needs; the consolidation of requirements is unobjectionable 
where the agency provides a reasonable basis for using such an 
approach.  See Resource Consultants, Inc., B-255053, Feb. 1, 1994, 
94-1 CPD  para.  59; Precision Photo Laboratories Inc., B-251719, Apr. 29, 
1993, 93-1 CPD  para.  359.

The agency reports that the EMCS and HVAC work requirements are 
interrelated in that the EMCS controls must be installed at the time 
and in conjunction with the installation of the related HVAC 
equipment, and that a single general contractor is needed to 
coordinate all phases of the statement of work.  The Air Force states 
that having a single contractor install both the EMCS and HVAC 
equipment ensures the HVAC and EMCS systems will work together.  
Installing the control systems after installation of the HVAC system 
rather than at the time of installation would be inefficient, 
according to the agency, in terms of coordinating efforts and costs.

We are not persuaded by the protester's general contention that the 
consolidation of requirements is restrictive of competition or 
otherwise unreasonable.  Building Systems does not refute the agency's 
explanation that a consolidated contract is necessary to meet the 
government's minimum needs.  The record provides no basis to object to 
the consolidation which, as the agency has shown, is reasonably 
related to meeting its minimum needs of ensuring a fully integrated 
system.

The protests are denied.

Comptroller General
of the United States

1. The agency reports that the use of the Landis EMCS network at the 
base resulted in fiscal year 1995 energy cost savings of approximately 
$680,000.

2. In response to the protester's unsupported general allegation that 
limiting the EMCS equipment to Landis will result in higher costs to 
the agency, the Air Force reports that it received nine competitively 
priced bids (one of which was withdrawn) in response to the IFBs 
offering the Landis EMCS, seven of which offered prices lower than the 
government estimates for the procurements. 

3. The protester contends that it could have in fact complied with the 
Landis EMCS requirement had it been given more time to seek prices 
from Landis and prepare its bid prior to the amended time for bid 
opening.  To the extent Building Systems challenges a lack of 
sufficient time to submit its bid, that contention is untimely and not 
proper for our consideration.  Apparent solicitation improprieties 
must be protested prior to the time of bid opening.  4 C.F.R.  sec.  
21.2(a)(1) (1995).  The protester's general statement to the agency 
prior to bid opening that it did not accept the terms of the amendment 
deleting the "or equal" language from the IFBs does not constitute a 
protest of the amended bid opening time.  See BF Goodrich Co.--Recon., 
B-25836.4 et al., Mar. 28, 1995, 95-1 CPD  para.   182.

4. In its initial protests, Building Systems also challenged the IFBs' 
requirement for installation of certain equipment to be performed by 
the EMCS manufacturer, Landis.  By amendment to the solicitations, the 
agency deleted much of the initially required Landis installations, 
except for the installation of the EMCS which requires the use of 
Landis proprietary technical data and software.  In light of our 
decision finding the requirement for the Landis EMCS reasonable and 
the proprietary nature of the software needed for installation, we 
find the requirement for installation of the EMCS by Landis 
unobjectionable; the protester does not show otherwise.