TITLE:	Military Agency Services Pty., Ltd.
BNUMBER:	    B-290414; B-290441; B-290468; B-290496,
DATE:		    August 1, 2002
**********************************************************************
Military Agency Services Pty., Ltd., B-290414; B-290441; B-290468; B-290496,
August 1, 2002

Decision


Matter of:   Military Agency Services Pty., Ltd.

File:            B-290414; B-290441; B-290468; B-290496

Date:              August 1, 2002

Chris Mangan for the protester.
Lis B. Young, Esq., Department of the Navy, for the agency.
Peter D. Verchinski and James Spangenberg, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.

DIGEST

1.  General Accounting Office (GAO) will not consider protests that awards
under solicitations for services breach the protester's requirements
contract because this is a contract administration matter and therefore
outside GAO's bid protest jurisdiction.

2.  Protest of solicitation requirement as unduly restrictive is denied,
where the requirement relates to safety and reliability, and the protester
has not shown the requirement is unreasonable or unachievable.

3.  Agency's request for near-immediate responses to requests for quotations
for picket boat services conducted under simplified acquisition procedures
is unobjectionable, where the requirements were needed shortly after when
responses were due, the contracting office was only requisitioned to obtain
the requirements shortly before requesting quotes, only prices were
solicited, and all requested sources timely submitted quotes.

4.  Defense agency was not required to comply with the public notice
requirements contained in Federal Acquisition Regulation part 5 where the
acquisitions were for services performed outside the United States and only
local sources were solicited.

5.  Where no evaluation factors are specified in a request for quotations,
which only requests prices, price is the sole evaluation factor.

6.  Even assuming agency improperly failed to solicit the protester under a
request for quotations (RFQ) issued under simplified acquisition procedures
for picket boat services, the protester was not prejudiced where under the
particular circumstances there was no suggestion that it would have been
successful under the RFQ.

DECISION

Military Agency Services Pty. Ltd. (MAS) protests the award of four separate
orders by the Naval Regional Contracting Center Singapore (NRCCSG) to Parsh
Marine Company under blanket purchase agreement (BPA) No. N68047-95-A-0019,
for picket boat services in the Singapore harbor to protect the United
States Naval Ship (USNS) Niagara Falls, the United States Ship (USS)
Cushing, the USNS Pecos, and the USNS John Ericsson.[1]

We deny the protests in part and dismiss them in part.

To acquire the picket boat services, NRCCSG issued four requests for
quotations (RFQ) between April 19 and 29, 2002, under the simplified
acquisition procedures set forth in Federal Acquisition Regulation (FAR)
part 13.  Each RFQ contemplated the award of a fixed-price order on a
per-day basis for a specified ship.  Previously, on December 13, 2001,
NRCCSG awarded MAS an indefinite-delivery, requirements contract
No. N68047-02-D0022, for ship husbanding services, which included provisions
for picket boat services.  Parsh has been performing a variety of services,
including picket boat services, for the Navy through orders placed under the
BPA, which was executed in 1995.

The first RFQ, for picket boat services for the USNS Niagara Falls, was
issued on Friday, April 19.  Three vendors, including MAS, responded with
quotes before closing on Monday morning, April 22.  At approximately the
same time (and before closing), MAS also submitted a protest to NRCCSG,
alleging that the solicitation breached its requirements contract and that
the picket boat requirements in the
RFQ exceeded the government's legitimate needs.  MAS's quoted price was
1,300 Singapore dollars (S$) per day, the same price as in its requirements
contract.[2]  On that same date, the agency awarded an order for the 3 days
of services to Parsh, which had submitted the low quote of S$1,000 per day.
Performance began later that day.  MAS protested the RFQ and the award to
our Office on May 1.

With regard to the second RFQ, for picket boat services for the USS Cushing
from April 25 until May 15, the contracting officer called three vendors,
including MAS and Parsh, between 4:00 and 4:10 p.m. on April 24, and
requested that oral quotes be submitted by 4:35 p.m.  MAS again offered the
picket boat services at its requirements contract price, S$1,300 per boat
per day, while Parsh submitted the low quote of S$1,000 per boat per day.
Award for two boats was made that same day to Parsh.  Later that day, but
after closing, MAS filed an agency-level protest, again claiming that its
requirements contract had been breached, and also asserting that the RFQ's
request for an immediate response did not give MAS a meaningful opportunity
to compete.  MAS subsequently protested this RFQ and award to our Office on
May 6.

Under the third RFQ, according to the agency, the contracting officer called
MAS, Parsh and another potential source on the morning of April 25,
requesting quotes be submitted for picket boat services for the USNS Pecos
to be performed between April 27 and May 1.  The agency states that it gave
the vendors 24 hours to respond, and that all three responded early on April
25.  MAS states that it was requested to respond "immediately," and the
record shows that it submitted its quote within 5 minutes of the
request.[3]  MAS again responded with a quote of S$1,300 per day and Parsh
again quoted the low price of S$1,000 per day.  MAS states it learned it was
not selected on April 29, when it observed Parsh performing picket boat
services.  MAS filed a protest of the RFQ and award with our Office on May
9.

Quotes under the fourth RFQ for picket boat services for the USNS John
Ericsson from May 1 through June 6 were verbally requested from three
sources on April 26.  MAS was not solicited.  Parsh was solicited and again
submitted the low quote of S$1,000 per day.  MAS states that it first
learned about the requirement when on May 2 it noticed the USNS John
Ericsson in port, and immediately sought out the NRCCSG contracting officer,
and asked who was providing picket boats and why MAS was not contacted for a
quote.  The Navy indicated that it intentionally did not solicit MAS for the
services.  MAS protested this RFQ and award to our Office on May 9.

The primary contention in MAS's protests is that the awards under these RFQs
breach MAS's requirements contract, which assertedly contemplates that these
services would be provided by MAS.  The Navy responds that these services
were not required to be ordered under that contract.  Resolving this issue
would require interpreting MAS's existing contract and determining whether
the Navy's actions constituted a contract breach, which are matters of
contract administration.  Under the Competition in Contracting Act of 1984,
our jurisdiction to resolve bid protests extends to resolving disputes
concerning the alleged violation of procurement laws and regulations in
connection with the award of contracts by federal agencies.  31 U.S.C. ï¿½ï¿½
3551-3552 (2000).  In exercising this authority (with exceptions not
relevant here), we do not review matters of contract administration, which
are within the discretion of the contracting agency and are, under the
Contract Disputes Act of 1978, for review by a cognizant board of contract
appeals or the Court of Federal Claims.  4 C.F.R. ï¿½ 21.5(a) (2002); Hawker
Eternacell, Inc., B-283586, Nov. 23, 1999, 99-2 CPD ï¿½ 96 at 3.  Thus, we
will not review the parties' dispute concerning whether these services were
required to be ordered under MAS's requirements contract.

The protester also alleges, with regard to the USNS Niagara Falls, that the
picket boat requirements included in the RFQ exceeded the agency's
legitimate needs and unduly restricted competition.  However, other than
this general assertion, the protester offers only one specific example:  the
requirement that the picket boat be "free . . . of exposed wires and
connections," with which MAS expresses "doubt [that] any boat afloat can
comply."[4]  Agency-Level Protest of USNS Niagara Falls RFQ at 3-4.

Where a protester challenges a specification as unduly restrictive of
competition, we will review the record to determine whether the restriction
is reasonably related to the agency's needs.  LBM Inc., B-286271, Dec. 1,
2000, 2000 CPD ï¿½ 194 at 3.   Provided that there is a reasonable basis for
the agency's determination of its actual needs, we will not question the
agency's requirements.  Moreover, when a requirement relates to human
safety, the agency has the discretion to define solicitation requirements to
achieve not just reasonable results, but the highest possible reliability
and effectiveness.  Greenwich Air Servs., Inc., B-277656, Nov. 5, 1997, 97?2
CPD ï¿½ 159 at 3.  The protested requirement is clearly related to the safety
and reliability of the craft.  While the protester notes that this
requirement is not included in its requirements contract, it is well
established that each procurement stands on its own, and the requirements of
one contract for services do not invalidate otherwise reasonable
requirements in another contract for the same services.  See T&S Prods.,
Inc., B?272291, Sept. 13, 1996, 96-2 CPD ï¿½ 117 at 2.  In sum,
notwithstanding the protester's general assertion that no boat can meet this
requirement, it has not shown the requirement is unreasonable or
unachievable.[5]

MAS also asserts that the agency's request for a near-immediate response to
the RFQs for the USS Cushing and the USNS Pecos did not provide MAS with a
meaningful opportunity to compete.  MAS claims that the agency should have
known earlier when the services would be required, and that if MAS had had
more time to respond it would have tried to get a lower price from its
subcontractor.[6]

FAR ï¿½ 13.003(h)(2) requires that for acquisitions conducted under simplified
acquisition procedures the agency establish deadlines for the submission of
responses that afford quoters a reasonable opportunity to respond.  The
NRCCSG states that it solicited these services within 24 hours of when it
was provided a requisition for the services by the requesting Navy office.
NRCCSG explains that the requests to NRCCSG for such services are often made
shortly before ships arrive because ships sometimes change their plans and
arrive at dates and times different than expected or not at all.  NRCCSG
states that its policy is to give vendors 24 hours to respond to such
requirements if possible.  While it appears that NRCCSG was at least
generally aware at some earlier time that these ships were coming to
Singapore harbor and that picket boat services would be required, the agency
explains that the specific movements of ships are generally classified
confidential until declassified and the specific requests for services are
made to NRCCSG.  Under the circumstances here, we cannot say that the time
given vendors to respond to these RFQs was unreasonable or insufficient,
given that only prices were requested, all solicited vendors (including MAS)
timely responded, and the services were required soon after NRCCSG was
actually requisitioned for the needs.[7]

The protester also argues that the Navy did not comply with the public
notice requirements before soliciting quotes for the USS Cushing and the
USNS John Ericsson.  FAR ï¿½ï¿½ 5.101, 5.201 and 5.203 contain detailed synopsis
and posting requirements that are generally applicable to all procurements,
including those subject to the simplified acquisition procedures.  FAR ï¿½
5.202 lists the exceptions to these requirements.  These RFQs fall under the
exception contained at FAR ï¿½ 5.202(a)(12) for defense agency contract
actions made and performed outside of the United States when only local
sources are solicited.  MAS nevertheless argues that the introductory clause
of FAR ï¿½ 5.202 specifically limits the exceptions to the public notice
requirements of FAR ï¿½ 5.201, which leaves unaffected the separate notice
requirements found in FAR ï¿½ 5.101, which MAS argues should be applied
here.[8]  However, FAR ï¿½ 13.105, which governs the synopsis and posting
requirements applicable to simplified acquisition procedures, states that
the public display requirements of FAR ï¿½ï¿½ 5.101 and 5.203 are not applicable
if an exception in FAR ï¿½ 5.202 applies.  Thus, the FAR ï¿½ï¿½ 5.101, 5.201 and
5.203 requirements are not applicable to these RFQs.

MAS also argues that the actual evaluations under the USS Cushing and the
USNS Pecos RFQs were inconsistent with factors established by the oral
solicitation.  MAS explains that it was not advised of any specific
evaluation criteria for the RFQs, and the Navy did not, as it should have
done, compare MAS's picket boat with Parsh's boats to determine whether the
competitor's boats met the same specifications that MAS was required to meet
under its requirements contract or to determine which quote represented the
best value.  However, where, as here, price is the only term requested by a
solicitation and no evaluation criteria are specified, price is necessarily
the sole evaluation criterion.  United Marine Int'l LLC, B-281512, Feb. 22,
1999, 99-1 CPD ï¿½ 44 at 4.  In any case, MAS has not shown that Parsh's boats
are not comparable to MAS's or would not meet the same technical
requirements contained in MAS's contract.[9]

MAS also alleges that the contracting officer improperly failed to solicit
MAS under the RFQ for the USNS John Ericsson.  In using simplified
acquisition procedures, agencies are required to "promote competition to the
maximum extent practicable."  10 U.S.C. ï¿½ 2302(g)(3); 41 U.S.C. ï¿½ 427(c);
FAR ï¿½ 13.104.  FAR ï¿½ 13.104(a) expressly prohibits the solicitation of
"quotations based on personal preference" under simplified acquisition
procedures.  Where, as here, a simplified acquisition is excepted by FAR
ï¿½ 5.202 from the synopsis requirements, the contracting officer is required
to:

consider solicitation of at least three sources to promote competition to
the maximum extent practicable.  Whenever practicable, request quotations or
offers from two sources not included in the previous solicitation.
FAR 13.104(b).  We have recognized that while the solicitation of three
vendors may be sufficient to satisfy the statutory requirement to promote
competition to maximum extent practicable where there is no synopsis
requirement, see SF & Wellness, B-272313, Sept. 23, 1996, 96-2 CPD ï¿½ 122 at
2; Omni Elevator Co., B-246393, Mar. 6, 1992, 92-1 CPD ï¿½ 264 at 2, an agency
may not, consistent with this requirement, deliberately fail to solicit a
responsible source which expressed interest in competing .  Bosco
Contracting, Inc., B-270366, Mar. 4, 1996, 96-1 CPD ï¿½ 140 at 3; Kahn Indus.,
Inc.; Midwest Dynamometer & Eng'g Co., B-251777, B-251777.2, May 3, 1993,
93-1 CPD ï¿½ 356 at 4-5.

Here, we need not decide whether the agency's failure to solicit MAS was
improper because there is no evidence that MAS was prejudiced by this
failure under the particular circumstances of this case.  Prejudice is an
element of every viable protest.  Our Office will not sustain a protest
unless the protester demonstrates a reasonable possibility of prejudice,
that is, unless the protester demonstrates that, but for the agency's
actions, it would have had a substantial chance of receiving the award.
McDonald-Bradley, B-270126, Feb. 8, 1996, 96-1 CPD ï¿½ 54 at 3; see
Statistica, Inc. v. Christopher, 102 F3d 1377 (Fed. Cir. 1996).  Here, the
record evidences that if MAS had been solicited, it is unlikely that it
would have submitted the lowest quote.  Indeed, MAS does not allege, and the
record does not suggest, that MAS would have quoted a lower price for this
RFQ if it had been solicited.  We note in this regard that this RFQ was
conducted within the same timeframe as the other three RFQs, on which Parsh
quoted S$1,000 per day (as it did for this RFQ) and MAS S$1,300 per
day.[10]  Thus, the protester has not shown that it had a substantial chance
for award if it had been solicited, and was thus not prejudiced.

The protester also claims the agency violated FAR ï¿½ 33.103(f)(1) by not
staying performance of the contract for the USNS Niagara Falls when MAS
filed its agency-level protest.  However, any failure by the Navy to follow
the regulations in making an award while the agency-level protest was
pending does not affect the validity of the award and does not provide a
basis for us to sustain the protest.  Associated Corp., B-225562, Apr. 24,
1987, 87-1 CPD ï¿½ 436 at 3.   This is merely a
procedural defect, and thus we dismiss this protest ground.  See Carolina
Waste Sys., B?215689.3, Jan. 7, 1985, 85-1 CPD ï¿½ 22 at 3.

MAS finally maintains that its protests involving the USNS Niagara Falls and
the USS Cushing should be sustained because the agency's report on those
protests was untimely filed with our Office.  Pursuant to 4 C.F.R. ï¿½
21.3(f), the Navy requested leave to submit a consolidated report on all
four protests by June 7, a week after the report on the protest was
initially due and a day before the reports were due on the final two
protests.  Our Office granted this request on May 16 and the report was
submitted on June 7.  In any case, this protest ground also relates to an
alleged procedural defect that would not be prejudicial to MAS, and thus
provides no basis to sustain the protest.[11]  See Land Mark Realty, Inc.,
B-224323, Dec. 1, 1986, 86-2 CPD ï¿½ 620 at 2.

The protests are denied in part and dismissed in part.

Anthony H. Gamboa
General Counsel

                          -------------------------

[1] Picket boats are to protect the ship from all waterborne threats by
screening all incoming waterborne craft prior to arrival alongside a ship,
verbally directing all unauthorized watercraft away from the vessel, and
warning the ship of any unauthorized watercraft that continue to head toward
the ship.  Agency Report at 2.
[2] The record reflects an exchange rate of U.S.$1.00=S$1.62.
[3] As pointed out by MAS, some file documentation suggests that this order
was actually placed with Parsh on April 24.  The Navy asserts that this was
a clerical mistake and the request for quotations was not issued and the
responses received until April 25.  While MAS states that this discrepancy
demonstrates that it had no chance in the competition, we find that MAS was
not prejudiced, even if we assume, arguendo, that the order was placed on
April 24, because Parsh quoted a lower price.
[4] We will not consider the protester's general assertion that the
specifications are unduly restrictive.  Our Bid Protest Regulations require
that a protest include a detailed statement of the legal and factual grounds
of a protest.  4 C.F.R. ï¿½ 21.1(c)(4), and that the grounds stated be legally
sufficient.  4 C.F.R. ï¿½ 21.1(f).  These requirements contemplate that
protesters provide, at a minimum, either allegations or evidence that the
protester will prevail in its claim of improper agency action, which is not
satisfied by the protester's general assertion that the specifications are
overly restrictive.  Blackhorse Servs. Co., B-244545, July 5, 1991, 91-2 CPD
ï¿½ 30; Robert Wall Edge--Recon., B-234469.2, Mar. 30, 1989, 89-1 CPD ï¿½ 335.
As indicated, the only specific contention raised in the agency-level
protest, which was incorporated by reference in MAS's protest to our Office,
concerned the exposed wire specification.  While the protester did take
exception to other aspects of the RFQ in its quote, they were neither
protested in MAS's agency-level protest nor in its protest to our Office.
Thus, the agency reasonably did not respond to these other aspects.  To the
extent that MAS protests these specific matters in its comments on the
agency report, these contentions are untimely raised and not for
consideration, since a protester may not delay and present issues piecemeal
when it was aware of those grounds at the time of initial filing.  Digital
Sys. Group, Inc., B?257721, B?257721.2, Nov. 2, 1994, 94?2 CPD ï¿½ 171 at 3?4.
[5] The protester further alleges that the awardee's picket boat did not
comply with the RFQ's restrictive requirements.  MAS does not offer any
evidence to support this bare assertion, conceding, in its comments on the
agency report, that it cannot gain access to its competitor's boat to
substantiate this allegation.  Moreover, whether the contractor will in fact
comply with these requirements is a matter of contract administration that
is the responsibility of the contracting agency, and is not for
consideration by our Office.  Alpha Tech. Servs., Inc., B-250878,
B-250878.2, Feb. 4, 1993, 93-1 CPD ï¿½ 104 at 4.
[6] The Navy alleges MAS's protests of the RFQs for the USS Cushing and the
USNS Pecos were untimely filed after the time set for receipt of quotations
under the respective RFQs.  4 C.F.R. ï¿½ 21.2(a)(1).  However, when a
protester does not have a reasonable opportunity to file its protest before
the time set for receipt of proposals, we will apply the rule at 4 C.F.R. ï¿½
21.2(a)(2), which allows a protester 10 days to file a bid protest from the
date when it knew or should have known there was a basis to protest.
Diagnetics, Inc., B-261712, Sept. 28, 1995, 95?2 CPD ï¿½ 165 at 3 n.3.  Here,
we do not think it is reasonable to require MAS to have protested within the
very limited time it first learned of the solicitation and the time set for
receipt of quotes.  Consequently, we consider these protests to be timely.
The Navy also argues that MAS's protest of the USNS Pecos RFQ is untimely,
even applying the 10-day timeliness rule, since that ship arrived in port on
April 27, MAS states that it "soon observed" another contractor providing
picket boat services, and MAS filed its protest at our Office only on May 9,
more than 10 days later.  However, MAS specifically states that it first
observed the USS Pecos in port soon after April 29, when it thought that
ship was going to arrive, and not April 27 as the Navy asserts.  This is
consistent with MAS's quote, which notes the services were to start on
April 29.  On the record, we consider MAS's protest of this RFQ to be timely
filed.
[7] As noted, there is a dispute between the parties as to how much time was
given the vendors to respond to the RFQ for the picket boat services for the
USNS Pecos, with the protester asserting that it was told to respond
immediately and the agency asserting that it gave the vendors 24 hours.
While MAS generally asserts that it could have obtained lower prices from
its subcontractors if it had been given a "reasonable" time to respond, it
does not indicate that it could have accomplished this within 24 hours.  In
any case, as discussed below (at note 10), the record does not indicate that
MAS would have submitted a lower quote during the timeframe of these RFQs.
Thus, we cannot find MAS was prejudiced, even if it was required to respond
immediately to the request for quotations.
[8] The introductory clause states, "The contracting officer need not submit
the notice required by 5.201 when- . . ."  FAR ï¿½ 5.202.
[9] As noted, MAS concedes that it cannot support its allegations regarding
the characteristics of its competitor's boats because it cannot gain access
to them.
[10] In a July 24 submission, MAS provided for the first time evidence that
it has subsequently submitted lower quotes for picket boat services.  (MAS
produced no such evidence in its multiple earlier submissions.)  However,
the record indicates that, during the timeframe of these RFQs, MAS was
quoting its requirements contract price and asserting that the agency was
required to order these services under that contract.  Thus, the record does
not suggest that MAS would have submitted a lower quote on this RFQ if it
had been solicited.
[11] To the extent that MAS raises new protest bases in its July 24 filing,
these grounds are untimely filed, since a protester may not delay and
present issues piecemeal when it was aware or should have been aware of
those grounds at the time of initial filing or when it received the agency
report.  Digital Sys. Group, Inc., B?257721, B?257721.2, Nov. 2, 1994,
94?2 CPD ï¿½ 171 at 3?4.