TITLE: USA Information Systems, Inc., B-291417, December 30, 2002
BNUMBER: B-291417
DATE: December 30, 2002
**********************************************************************
USA Information Systems, Inc., B-291417, December 30, 2002
Decision
Matter of: USA Information Systems, Inc.
File: B-291417
Date: December 30, 2002
David K. Wilson, Esq., Troutman Sanders, for the protester.
William B. Barton, Jr., Esq., and William T. Welch, Esq., Barton, Baker,
McMahon & Tolle, for Information Handling Services, Inc., an intervenor.
Maj. Edward E. Beauchamp, and Sharon B. Patterson, Esq., Department of the
Army, for the contracting agency, and Laura Mann Eyester, Esq., and John
W. Klein, Esq., for the Small Business Administration.
Katherine I. Riback, Esq., and James A. Spangenberg, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
1. The provisions of the Small Business Act, as amended, concerning
bundling are not applicable to a solicitation that does not reflect the
consolidation of services previously performed under separate smaller
contracts; all of the services covered by the solicitation at issue were
performed under one predecessor contract.
2. Agency has a reasonable basis to require a single web-based
information retrieval system for on-line documentation as opposed to
obtaining this information from multiple vendors, where it has reasonably
determined that a *one stop shop* solution is critical to the agency's
national defense mission.
DECISION
USA Information Systems, Inc., a small business concern, protests the
terms of request for quotations (RFQ) No. DAAH03-03-T-0009, issued by the
U.S. Army Aviation and Missile Command (AMCOM) for a web-based information
retrieval system for on-line documentation. USA contends that the
procurement is improperly bundled to the disadvantage of small business
concerns. USA also states that the brand name or equal format is
restrictive of competition, contending that this requirement should be
stated in terms of specific performance requirements rather specifying a
brand name.
We deny the protest.
This procurement is for an information retrieval system for AMCOM that
offers an entire range of military and commercial documents,
logistics/parts database services, and vendor catalogs via on-line
capabilities with a Windows application on the World Wide Web using a
standard browser. In fiscal years (FY) 2001 and 2002, the agency
purchased this requirement on a restricted basis identifying Information
Handling Services (IHS), a large business, as the sole-source
provider.[1] Both procurements were synopsized in the Commerce Business
Daily (CBD). The CBD notices stated that all responsible sources could
submit a response, which would be considered by the agency. USA submitted
a response to both notices. In FY 2002, the agency determined that the
majority of USA's response was acceptable; in particular, the agency noted
that USA's *FLIS PLUS* software, which is USA's equivalent to *Haystack*
software, was determined to meet AMCOM's minimum requirements. However,
USA did not offer electronic accessibility to certain documents, e.g.,
Department of Defense (DOD) Adopted Industry Standards and Historical DOD
Standards, a full collection of American Society of Mechanical Engineers
commercial standards, and a full collection of the Underwriters Laboratory
commercial standards; instead, USA offered hardcopy facsimiles and/or next
day delivery via courier where electronic availability did not exist. The
agency determined that the lack of full Internet service availability made
USA's response technically unacceptable.
For FY 2003, the agency originally intended to again issue this
requirement on a sole‑source basis. On August 12, however, before
the solicitation was issued, USA filed a request with the agency that the
solicitation be issued *without company--specific product names and
numbers, using more generic descriptions.* Agency Report, Tab G, Letter
from USA to Army, Aug. 12, 2002. The agency then decided to compete this
requirement on a full and open basis with a statement of work that
described the government's minimum needs. The requirement was publicized
on the Federal Business Opportunities website on September 10, 2002.
On September 12, the present RFQ was issued for the FY 2003 requirement
for an information retrieval system on-line with a Windows application on
the World Wide Web using a standard browser. The information retrieval
system is required to contain *index information* from one website giving
access to actual scanned documents. The system is to provide
accessibility to over 40,000 active military documents, such as military
and federal specifications, standards and handbooks, to allow full-text
search capability, cut-and-paste capability, and intra‑document
links for data integrity. The RFQ provided that all documents are to be
downloadable and printable at the desktop on demand. RFQ Statement of
Work (SOW) S: 2.0. The RFQ stated that the mission of the activity
requires the *fast and unrestricted retrieval of information,* and that
the *weapon system integrity and readiness of our forces must be
maintained by an information retrieval system that provides for this
expeditious processing.* RFQ SOW S: 1.0.
Amendment No. 3, issued September 25, specified that the system is to be
*[IHS]
or equal* and *Haystack or equal,* and stated (at 2):
NOTE: See Statement of Work for a general description of those salient
functional and performance characteristics that an *equal* item must meet
to be acceptable for award. The information retrievable system shall
operate from one web site to access all the required
documentation/information. No partial quotations/multiple awards meet the
government's minimum requirement.
The RFQ stated that the government would award one contract under this
solicitation to the responsible offeror which submitted the low-priced,
technically acceptable quotation.
USA first contends that this requirement is improperly bundled, such that
small business concerns such as USA do not have an opportunity to fairly
compete for the totality of the requirements. USA contends that this RFQ
can readily be drafted to promote small business participation by dividing
the requirements into four lots: (1) military documents, (2) logistics
parts database, (3) DOD-adopted and other adopted commercial standards,
and (4) vendor catalogs on the World Wide Web.
The Small Business Reauthorization Act of 1997, Pub. L. No. 105‑135,
111 Stat. 2592, 2617‑20 (1997), amended the Small Business Act and
provided that, *to the maximum extent practicable,* each agency shall
*avoid unnecessary and unjustified bundling of contract requirements that
precludes small business participation in procurements as prime
contractors.* 15 U.S.C. S: 631(j)(3) (2000). Bundling, for purposes of
the the Small Business Act, as amended, means *consolidating 2 or more
requirements for goods or services previously provided or performed under
separate smaller contracts into a solicitation of offers for a single
contract that is likely to be unsuitable for award to a small-business
concern.* 15 U.S.C. S: 632(o)(2); see Federal Acquisition Regulation S:
2.101. *Separate smaller contract . . . means a contract that has been
performed by 1 or more small business concerns or was suitable for award
to 1 or more small business concerns.* 15 U.S.C. S: 632(o)(3); see FAR S:
2.101. This solicitation does not represent a *consolidation* of two or
more requirements, inasmuch as the record establishes that all of the
requirements here were previously provided under the one predecessor
contract with IHS, a large business, and were not provided under separate
smaller contracts. Thus, the Small Business Act requirements pertaining
to bundling are not applicable to this solicitation.
USA also argues that this solicitation represents an improperly bundled or
total package procurement in violation of the Competition in Contracting
Act of 1984 (CICA). The reach of the restrictions against total package
or bundled procurements in CICA is broader than the reach of restrictions
against bundling under the Small Business Act. Phoenix Scientific Corp.,
B-286817, Feb. 22, 2001, 2001 CPD P: 24 at 9‑10. Specifically, CICA
generally requires that solicitations include specifications which permit
full and open competition and contain restrictive provisions and
conditions only to the extent necessary to satisfy the needs of the
agency. See 10 U.S.C. S:S: 2305(a)(1)(A), (B) (2000). Because
procurements conducted on a bundled or total package basis can restrict
competition, we will sustain a challenge to the use of such an approach
where it is not necessary to satisfy the agency's needs. Better Serv.,
B‑265751.2, Jan. 18, 1996, 96-1 CPD P: 90 at 2. The determination
of a contracting agency's needs and the best method for accommodating them
are matters primarily within the agency's discretion. Specialty Diving,
Inc., B-285939, Oct. 16, 2000, 2000 CPD P: 169 at 3. Of particular
relevance here, where a requirement relates to national defense or human
safety, an agency has discretion to define the solicitation requirements
to achieve not just reasonable results, but the highest possible
reliability and effectiveness. Tucson Mobilephone, Inc., B-250389, Jan.
29, 1993, 93-1 CPD P: 79 at 5, aff'd, B-250389.2, June 21, 1993, 93-1 CPD
P: 472.
The Army states that a single, cohesively packaged, web-based information
retrieval system for on-line documentation with all the information
available from a single vendor is critical to AMCOM's mission. The Army
explains that this logistical and technical information is required in
order to accomplish daily duties of individuals responsible for *worldwide
helicopter depot maintenance, 'safety of flight' investigations/analysis,
weapon system integrity and readiness, and the data is a tool used by the
soldier in the field.* Agency Report at 1. AMCOM's local and
geographically remote user community of highly mobile logistics assistance
representative support personnel located throughout the United States and
in such places as Korea and Germany, liaison engineers, and depot
maintenance engineering teams rely heavily on the information retrieval
system that is the subject of this protest. Agency Supplemental
Submission (Nov. 25, 2002), attach., Declaration of AMCOM Staff Chief,
Associate Director for Aviation. The agency states that the speed with
which this information can be accessed, the ease with which it can be
used, and the ability to expeditiously cross reference information between
sources, is vital to support the journeyman engineers, logisticians and
technicians, many of whom are in the theater of operations. The agency's
concern is that the inability to quickly cross reference information from
various sources relating to aircraft safety, hazardous materials, and
manufacturing and engineering could result in an incomplete investigation,
and would likely cause users to seek information elsewhere or to simply
ignore research requirements because it was too cumbersome to perform,
which, ultimately, could put the soldier in the field at risk. Id.
Because of these needs, the agency has determined that it is critical to
have a *one stop shop* solution for obtaining and retrieving logistics and
technical data necessary to accomplish mission-critical needs.
Contracting Officer's Statement at 8-9. The agency also notes that time
constraints to rapidly respond to critical situations regarding safety
issues preclude hardcopy products as an option. Agency Report, Tab Q,
Development of Minimum Needs, at 3.
While the protester asserts that the agency has exaggerated the problems
with using multiple sources to obtain this information because it can all
be gathered on a single web page, AMCOM states that it does not have the
mission or technical expertise to become the integrator for multiple
vendors providing various data sets. Agency Supplemental Submission (Nov.
25, 2002), attach., Declaration of AMCOM Staff Chief, Associate Director
for Aviation. Finally, the agency notes that although USA's software is
capable of satisfying the AMCOM's requirements, USA, for whatever reason,
apparently will not offer some of the required information instantaneously
in an on-line format.[2] Based on these considerations, we find that the
agency has provided a reasonable basis for its determination to purchase a
web-based information retrieval system for on-line documentation from a
single source.[3] See Specialty Diving, Inc., supra.
USA also contends that the solicitation's mention of the *Haystack* system
effectively allows for award only to IHS, even though it states *Haystack
or equal,* because such a description indicates IHS-specific features not
found in other information retrieval systems. However, in its protest,
USA does not contest or point to any specific salient characteristics in
the SOW that it cannot meet or which are overly restrictive,[4] but
alleges that the agency must state its requirements in terms of specific
performance requirements. We disagree. FAR S: 11.104(a) expresses only a
preference for performance specifications and recognizes that the use of
brand name or equal purchase descriptions may be advantageous under
certain circumstances. Moreover, there is no requirement that agencies
use only performance specifications in a brand name or equal purchase
description. See FAR S: 11.104(b); Adams Magnetic Prods., Inc.,
B-256041, May 3, 1994, 94-1 CPD P: 293 at 6.
The terms of the solicitation, as amended, clearly allow for award on a
brand name or equal basis if the offer met the defined functional
requirements of the IHS and *Haystack* system. USA has failed to show how
the purchase description in the RFQ prevented the protester from
submitting an intelligently prepared proposal or failed to ensure
competition on an equal basis. In this regard, we note that all
specifications and other solicitation requirements are potentially
restrictive of competition to some extent, and the mere fact that a
particular prospective offeror is unable or unwilling to compete under a
solicitation that reflects the agency's needs does not establish that the
solicitation is unduly restrictive or that the agency is using other than
competitive procedures. Virginia Elec. and Power Co.; Baltimore Gas &
Elec. Co., B-285209, B-285209.2, Aug. 2, 2000, 2000 CPD P: 134 at 15.
USA references various other government activities that do allow for
multiple vendors, instead of a single one, as evidence that the agency's
bundling decision is unreasonable. USA also references voluntary
corrective action taken by another government activity in response to its
protest of a *Haystack or equal* specification. However, the way other
agencies have met their particular needs does not establish that the Army
is acting unreasonably, where as here the agency has established a
reasonable basis for its requirements. All-Pro Turf, Inc.,
B‑214339, July 16, 1984, 84-2 CPD P: 49 at 6.
The protest is denied.
Anthony H. Gamboa
General Counsel
------------------------
[1] The agency states that IHS has been the subscription provider for this
information for approximately 12 years, even before instantaneous on-line
delivery of this information became available and was identified as the
agency's requirement. IHS's *Haystack* software has been on‑line at
this activity for more than 6 years.
[2] In its supplemental comments, IHS alleges *on information and belief*
that certain standards organizations that provide documents which are
required by this solicitation have an exclusive agreement with IHS. This
argument is untimely because it was first raised in USA's supplemental
comments, submitted more than 2 months after the original protest was
filed. USA Supplemental Comments (Dec. 9, 2002) at 9. Our Bid Protest
Regulations require that protests based upon alleged improprieties
apparent from the solicitation, such as these contentions, be filed prior
to the time set for receipt of initial proposals. 4 C.F.R. S: 21.2(a)(1)
(2002). Each protest ground must satisfy the timeliness requirements of
our Bid Protest Regulations, which do not contemplate the unwarranted
piecemeal presentation or development of protests. RAMCOR Servs. Group,
Inc., B-276633.2 et al., Mar. 23, 1998, 98-1 CPD P: 121 at 9 n.9.
[3] For the same reasons, this procurement does not violate the FAR S:
19.202-1(a) requirement to divide proposed acquisitions of supplies and
services into reasonably small lots to permit offer on quantities less
than the total requirement.
[4] In its comments on the agency report, USA attacks various provisions
in the SOW. This too constitutes an untimely piecemeal protest of alleged
solicitation improprieties. 4 C.F.R. S: 21.2(a)(1). In these comments,
USA also raises various other new contentions that it could have raised in
its initial protest, e.g., its contention that IHS may have prepared the
SOW and thus has an organizational conflict of interest, which we will not
consider because they were untimely raised.