BNUMBER:  B-280284             
DATE:  September 15, 1998
TITLE: Aerostructures, Inc., B-280284, September 15, 1998
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Matter of:Aerostructures, Inc.

File:B-280284            
        
Date:September 15, 1998

Dennis J. Riley, Esq., and Richard A. Ong, Esq., The Riley Law Firm, 
for the protester. 
Daniel A. Laguaite, Esq., Naval Air Systems Command, for the agency. 
Scott H. Riback, Esq., and John M. Melody, Esq., Office of the General 
Counsel, GAO, participated in the preparation of the decision.

DIGEST

1.  Protest against solicitation terms relating to evaluation of 
offeror personnel and cost is denied where record shows that 
solicitation reflects agency's needs and protest contentions 
essentially amount to assertions that solicitation should be more 
restrictive.   

2.  Protest that agency improperly withdrew small business set-aside 
is denied where, based on acquisition history and technical nature of 
requirement, agency reasonably determined it was unlikely that at 
least two offers from responsible small businesses would be received. 

DECISION

Aerostructures, Inc. protests the terms of request for proposals (RFP) 
No. N00421-97-R-1269, issued by the Department of the Navy for 
services in connection with its aircraft structural life surveillance 
program.  Aerostructures principally maintains that the RFP improperly 
relaxes certain requirements included in previous solicitations, and 
that the agency improperly issued the RFP on an unrestricted basis, 
rather than as a small business set-aside.

We deny the protest.

The solicitation seeks proposals for a base year, with four 1-year 
options, to perform engineering analyses, technical studies and 
structural testing for the structural management of the Navy's 
aircraft.  The contract awarded will be an indefinite-quantity, 
fixed-price-per-labor-hour contract.  The RFP calls for firms to 
submit detailed technical, past performance, management and cost 
proposals to demonstrate their ability to perform the requirement.  As 
part of their technical proposals, firms are required to submit 
numerous resumes to show the education and experience of their 
proposed employees, as well as detailed information relating to 
similar prior or ongoing contracts for purposes of evaluating the 
firm's past performance.

RFP PROVISIONS

Personnel Qualifications

Aerostructures maintains that the RFP improperly relaxes requirements 
(compared to prior RFPs for this acquisition)--and thereby eliminates 
a competitive advantage it otherwise would enjoy as the incumbent 
contractor--in the area of personnel qualifications by imposing only 
minimal educational and experience requirements. 

In drafting solicitations, agencies may include restrictive provisions 
or conditions only to the extent necessary to satisfy the needs of the 
agency or as authorized by law.  10 U.S.C.  sec.  2305(a)(1)(B)(ii) (1994).  
We will question a solicitation provision only where the protester 
shows that it is not reasonably related to the agency's requirements 
and has the effect of restricting competition, see Micromass, Inc., 
B-278869, Mar. 24, 1998, 98-1 CPD  para.  93 at 3, since our role in 
reviewing bid protests is to ensure that the statutory requirement for 
full and open competition is met, not to protect the competitive 
interest a protester may have in solicitation terms that could make it 
more difficult for certain firms to compete.  Simplix, B-274388, Dec. 
6, 1996, 96-2 CPD  para.  216 at 5-6.[1] 

The protester's challenge to this RFP is untenable.  An agency simply 
is not required to limit a competition to firms offering personnel 
with a certain amount of education or experience, or even to award 
additional evaluation credit to firms offering personnel with greater 
education or experience, where it has determined that the additional 
qualifications are unnecessary to the fulfilling of the government's 
needs.  The protester's position would require the solicitation to be 
modified to require more--i.e., personnel with greater 
qualifications--than the agency actually needs; this is inconsistent 
with the principle of full and open competition, and does not provide 
a valid basis for protest.

In any case, the RFP and source selection plan both provide for the 
possibility that a firm's personnel qualifications will merit 
additional consideration in the evaluation.  In this respect, the RFP 
specifically provides that individuals exceeding the minimum 
requirements in the areas of experience and education may be rated 
higher, RFP at 135, and further provides for the assignment of a range 
of adjectival ratings for each prospective employee that is evaluated.  
RFP at 133, 135.  The source selection plan also provides for detailed 
consideration of each proposed employee's relative merit through the 
evaluation of each resume submitted, with the evaluators assigning 
adjectival ratings and including a narrative discussion of the 
employee's strengths and weaknesses.  See, e.g., Source Selection 
Plan,   Attachment 3 at 4-5.  

Turnover Costs

Aerostructures also asserts that the RFP improperly fails to provide 
for consideration of turnover costs if the agency makes award to a 
firm other than the protester.  According to Aerostructures, a new 
contractor cannot hope to function at a level of efficiency comparable 
to the protester, who has been performing the contract for an extended 
period of time.

This argument fails for essentially the same reason as discussed 
above, that is, there is no requirement that an agency include 
particular factors in its evaluation.  Rather, an agency is 
responsible for determining which considerations must be evaluated to 
meet the agency's legitimate needs, and must fashion the RFP to 
reflect this determination.  Sea-Land Serv., Inc., B-278404.2, Feb. 9, 
1998, 98-1 CPD  para.  47 at 6.  Again, the fact that an offeror may have an 
interest in certain factors being considered in the award decision is 
not a valid basis for challenging a solicitaion.  In any case, the RFP 
provides for assessing the offerors' capacity to perform in accordance 
with the agency's requirements--including the timely and efficient 
delivery of the services to be provided--by requiring firms to provide 
a detailed plan for fulfilling each contract line item that describes 
the techniques, procedures, experience, facilities and personnel that 
the offeror intends to utilize in performance of the contract; 
offerors are also required to discuss how they will provide rapid 
turnaround of urgent requirements.  RFP at 111, 135.  In addition to 
this general information, firms are required to submit detailed 
responses to five sample tasks for purposes of demonstrating their 
capability to perform the contract.  These responses must include a 
step-by-step description of the technical approach being proposed, a 
detailed work plan, a description of the labor hours by category that 
will be used to complete the sample task, and a schedule for the work 
to be performed.  RFP at 111-21, 136.  These proposal submission 
requirements will enable the agency to assess the relative efficiency 
of awarding the contract to one firm versus another.[2]  

WITHDRAWAL OF SMALL BUSINESS SET-ASIDE

Aerostructures asserts that the agency did not adequately investigate 
possible small business interest, and as a result, improperly issued 
the solicitation on an unrestricted basis rather than setting it aside 
for small businesses as it had done with the past two solicitations 
for this requirement.   Specifically, it maintains that the agency 
should have conducted a current market survey and investigated the 
capabilities of small businesses on the solicitation mailing list.  

Acquisitions with an anticipated value in excess of $100,000 must be 
set aside for exclusive small business participation where the 
contracting officer determines that there is a reasonable expectation 
that offers will be received from at least two responsible small 
businesses, and that award will be made at a fair market price.  
Federal Acquisition Regulation (FAR)  sec.  19.502-2(b).  In determining 
whether to set an acquisition aside, the agency must undertake 
reasonable efforts to ascertain whether there is a realistic 
expectation that two or more small business offerors will actually 
submit proposals.  Talon Mfg. Co., Inc., B-257536, Oct. 14, 1994, 94-2 
CPD  para.  140 at 10.  

The Navy proceeded reasonably here in withdrawing the set-aside.  The 
contracting officer's decision to withdraw the set-aside was based 
primarily on the procurement history and technical complexity of the 
requirement, and there is no basis for the protester's assertion that 
the agency was required to use other means to assess the likelihood of 
receiving two small business offers.  In this regard, there is no 
requirement that agencies use any particular method for making this 
assessment; rather, such factors as the nature of the supplies or 
services to be acquired, the procurement history of the requirement, 
current market climate, and advice from the agency's small business 
advocate all may constitute adequate grounds for 
determining that a set-aside is not appropriate.  Cardiometrix, 
B-276912, B-276912.2, Aug. 11, 1997, 97-2 CPD  para.  45 at 2-3; Talon Mfg. 
Co., Inc., supra, at 10.  Thus, there is nothing improper with the 
method the Navy used in making its determination.

The agency's conclusions based on the procurement history and 
technical nature of the requirement also were reasonable.  In this 
regard, the agency had received only one small business offer (from 
Aerostructures) during the past two acquisition cycles, when the 
requirement was set aside for small businesses.  As for the technical 
nature of the requirement, the contract requires a large staff of 
highly specialized personnel with qualifications in the fields of 
engineering and computer programming.  Offerors are required to submit 
23 key personnel resumes, and the RFP calls for as many as 42 highly 
specialized professionals designated as key personnel.  RFP at 8.  
(For example, the solicitation estimates that the contractor will be 
required to have 12 senior engineering analysts, RFP at 8; these 
individuals must have a minimum of 12 years of experience in 
contemporary aircraft airframe design and analysis, and knowledge and 
experience in a minimum of 6 discrete specialty areas such as the 
design of metallic and composite airframe structures; full scale 
aircraft or major component static, dynamic and fatigue testing; and 
fatigue/durability and damage tolerance analysis.  RFP at 158.)  The 
contracting officer reasoned that there was little or no likelihood 
that there were two small business concerns with the large number of 
highly specialized personnel required.  Based on his concerns, the 
contracting officer sought the views of the agency's small and 
disadvantaged business advocate (SDBA); the SDBA concurred that the 
set-aside should be withdrawn based on the history and technical 
complexity of the requirement.   We note that the agency proceeded 
with the receipt of offers after this protest was filed, and again 
received only one small business offer, from Aerostructures.  Given 
these circumstances, we conclude that the agency reasonably decided to 
issue the RFP on an unrestricted basis.

Aerostructures contends that the decision to issue the requirement on 
an unrestricted basis was motivated by the contracting officer's bias 
against the firm.  Aerostructures asserts in this regard that it was 
aware of the contracting officer's alleged bias because of statements 
he made to the effect that he no longer wished to contract with 
Aerostructures and was tired of doing business with the firm.  We need 
not decide the question of bias since, as discussed, the decision to 
withdraw the set-aside was otherwise proper.  Where, as here, the 
reasonableness of a       set-aside decision is independently 
verifiable, alleged improper agency motives do not provide a basis for 
disturbing the decision.  York Int'l Corp., B-244748, Sept. 30, 1991, 
91-2 CPD  para.  282 at 6. 

The protest is denied.

Comptroller General 
of the United States

1. In its original protest, Aerostructures maintained that the RFP 
required the submission of only 24 resumes whereas, previously, the 
agency had required the submission of 42 resumes.  The protester does 
not mention this contention in its comments, and we deem the 
allegation abandoned.  TMI Servs., Inc., B-276624.2, July 9, 1997, 
97-2 CPD  para.  24 at 4 n.3.  In any case, this allegation, like the 
protester's other argument relating to the evaluation of personnel 
qualifications, amounts to an assertion that the RFP should be drafted 
in a manner that is more restrictive than necessary to meet the 
agency's requirements, a contention we will not consider.  Simplix, 
supra.

2. Aerostructures also originally protested that the RFP improperly 
required firms to have prior experience in systems engineering (which 
the protester states is a discrete engineering discipline), even 
though the contract is for performance of structural engineering 
services.  In response, the Navy explained that the RFP reference to 
systems engineering was intended, not to require system engineering 
experience per se, but to reflect its intention to evaluate experience 
in managing any complex program for engineering services.  The Navy 
further advised that, during the pendency of the protest, it received 
the protester's offer and found the firm's experience acceptable for 
purposes of the past performance requirement.  Since the protester 
does not continue to allege that it has been prejudiced by this RFP 
provision, we have no basis to further consider this aspect of  the 
protest.