TITLE: MCI WorldCom Deutschland GmbH, B-291418; B-291418.2; B-291418.4; B-291418.5; B-291418.6, January 2, 2003
BNUMBER: B-291418; B-291418.2; B-291418.4; B-291418.5; B-291418.6
DATE: January 2, 2003
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MCI WorldCom Deutschland GmbH, B-291418; B-291418.2; B-291418.4; B-291418.5;
B-291418.6, January 2, 2003
Decision
Matter of: MCI WorldCom Deutschland GmbH
File: B-291418; B-291418.2; B-291418.4; B-291418.5; B-291418.6
Date: January 2, 2003
Thomas C. Wheeler, Esq., and David E. Fletcher, Esq., Piper Rudnick, and
Robert Rodrigues, Esq., WorldCom, Inc., for the protester.
Stephanie A. Kreis, Esq., and JoAnn W. Melesky, Esq., Defense Information
Systems Agency, for the agency.
John L. Formica, Esq., and James A. Spangenberg, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Agency's inclusion of a clause in solicitations for telecommunication
circuits between various United States military installations located in
European nations that are members of the North Atlantic Treaty
Organization (NATO), requiring that telecommunication providers (TP) be
accredited by the National Long Lines Agency (NALLA) of the NATO nation or
nations where the military installations are located, is unobjectionable,
where the record establishes that the provision of the services by
NALLA-accredited TPs is reasonably related to the agency's needs.
DECISION
MCI WorldCom Deutschland GmbH protests the terms of numerous solicitations
issued by the Defense Information Technology Contracting Organization
(DITCO)--Europe, Defense Information Systems Agency, for telecommunication
circuits between various United States military installations located in
European nations that are members of the North Atlantic Treaty
Organization (NATO).[1] The protester argues that a standard provision
included in the solicitations, requiring that contractors be accredited by
the National Long Lines Agency (NALLA) of the NATO nation or nations where
the military installations are located, is unduly restrictive of
competition.
We deny the protest.
DITCO-Europe is tasked with providing certain communication circuits for
the United States military. To meet its responsibilities, DITCO-Europe
leases telecommunication circuits within, to, and from NATO nations using
an acquisition process established by ALLA, a NATO agency. The ALLA
process was developed by NATO to, among other things, standardize the
acquisition of telecommunication circuits by NATO members in NATO
nations. Contracting Officer's Statement (Nov. 4, 2002) at 2.
The ALLA process provides for the establishment of NALLAs in each NATO
nation. Agency Report (AR), Tab 3, ALLA Handbook, at I-3. NALLAs, among
other things, maintain a list of the telecommunication providers (TPs) in
their respective countries that have become NALLA accredited, that is,
through application to the NALLA they have *accepted the ALLA circuit
ordering procedures and corresponding obligations.* Id. at I-3, II-3.
These obligations include the TPs' employment of *personnel with the
necessary clearance to access defence facilities.* Id. at II-3. The
NALLAs also provide *an interface* between customers, such as
DITCO-Europe, and the TPs. Id. at I-3, II-3. In this regard, the NALLAs
can obtain information for customers regarding the services available and
pricing from the NALLA-accredited TPs, coordinate the acquisition of the
telecommunication services for the customers and TPs, and assist customers
in the resolution of problems *regarding the provision or operation of
ALLA registered circuits.* Id. at I‑3.
As indicated, each telecommunication circuit obtained through the ALLA
process is registered with ALLA and receives an ALLA number. The
circuit's ALLA number is known to the customer, TP, NALLA or NALLAs
involved, and according to the ALLA Handbook, *recogniz[es] the importance
of the circuit for NATO or national defence purposes.* Id. at I-5. The
NALLAs also *maintain up-to-date records of all internal and international
ALLA registered circuits concerning their countr[ies].* Id. at I-3,
II‑3.
One of the primary advantages of using the ALLA ordering process to obtain
telecommunications circuits is that such circuits are accorded
*preferential treatment in times of peace, disasters, crisis or war,
within the limits of the relevant national regulations or legislation.*
Id. at I-5. In this regard, each ALLA registered circuit carries a
designation as to its *restoration priority* should the circuit be
interrupted. Id. at A-3; Supplemental Agency Report (SAR) at 8.[2]
Another advantage of using the ALLA ordering process is the assurance that
NALLA-accredited TPs employ personnel with the requisite security
clearances to access the necessary facilities. The agency points out here
that *[m]ost of the circuits DITCO-Europe procures terminate on military
facilities that are not owned by the United States,* and that because
these facilities are owned by the NATO nation or nations in which the
facilities are located, DITCO-Europe *is entirely dependent on security
certifications granted by the host country to enable [TPs] access to these
facilities for installation and maintenance work.* SAR at 13-14.
DITCO-Europe states that it has exclusively used the ALLA *process since
its inception . . . to procure circuits for U.S. military use in NATO
countries.* Contracting Officer's Statement (Nov. 4, 2002) at 2. In
order to ensure that it awards contracts for the provision of
telecommunication circuits for U.S. military use at facilities within and
between NATO nations to TPs that are accredited by the relevant NALLAs,
DITCO-Europe recently began inserting the following clause,[3] entitled
*Standard Provision-Ten NATO Country Procedures (Sept. 2002),* in each of
its solicitations:
One or more end points of this circuit terminate in NATO countries that
have [NALLAs] and NALLA accredited [TPs]. As a member and signatory in
[NATO], US is obligated to acquire its military telecommunication services
in accordance with NATO requirements specified in [the ALLA] Handbook.
Therefore, only TPs accredited by NALLAs of respective NATO countries
shall be eligible to receive any order or circuit demand resulting from
this inquiry, for NATO country portions of this circuit. Additionally,
only NALLA accredited TPs can be used as subcontractor TPs in NATO
countries. In NATO countries having no NALLA and/or no NALLA accredited
TPs, quotes from TPs possessing authorization to provide communication
services from appropriate national authority shall be considered. . . . .
Quotes shall provide evidence TP and all subcontractor TPs possess
required NALLA accreditation or national authority authorizations for
countries where this circuit terminates.
AR, Tab 17, Circuit Awards, at 87-88. For example, this clause requires
that if the agency's requirement are for a telecommunication circuit
between two military installations in Germany, a TP, in order to be
considered for award, would have to be NALLA-Germany accredited, or if one
of the installations is in Germany and the other in the United Kingdom,
the TP would have to be NALLA-Germany and NALLA-United Kingdom accredited.
WorldCom protests that this provision, requiring that TPs be accredited by
the relevant NALLA(s), is unduly restrictive of competition.[4] The
protester points out that while it has been accredited by NALLA-United
Kingdom, it has been unable to receive accreditation from any other
NALLA. The protester asserts here, and the agency does not contend
otherwise, that WorldCom has tried but been unable to become NALLA
accredited in other NATO nations in Europe because the respective NALLAs
lack *formal procedures, questionnaires, or forms . . . exhibit complete
indifference and attach no importance to NALLA 'accreditation,' or are
driven by a desire to preserve national carrier monopolies.*[5]
Protester's Comments at 2.
A contracting agency has the discretion to determine its needs and the
best method to accommodate them. Parcel 47C LLC, B-286324, B-286324.2,
Dec. 26, 2000, 2001 CPD P: 44 at 7. In preparing a solicitation, a
contracting agency is required to specify its needs in a manner designed
to achieve full and open competition, and may include restrictive
requirements only to the extent they are necessary to satisfy the agency's
legitimate needs. 10 U.S.C. S: 2305(a)(1), B (2000). Where a protester
challenges a specification as unduly restrictive, the procuring agency has
the responsibility of establishing that the specification is reasonably
necessary to meet its needs. The adequacy of the agency's justification
is ascertained through examining whether the agency's explanation is
reasonable, that is, whether the explanation can withstand logical
scrutiny. Chadwick-Helmuth Co., Inc., B-279621.2, Aug. 17, 1998, 98-2 CPD
P: 44 at 3. Where a requirement relates to national defense or human
safety, as here, an agency has the discretion to define solicitation
requirements to achieve not just reasonable results, but the highest
possible reliability and/or effectiveness. Columbia Imaging, Inc.,
B-286772.2; B-287363, Apr. 13, 2001, 2001 CPD P: 78 at 3; United Terex,
Inc., B-245606, Jan. 16, 1992, 92-1 CPD P: 84 at 4.
There is no dispute that the government's desire to have U.S. military
telecommunication circuits receive *preferential treatment in times of
peace, disasters, crisis, or war,* and to have available TP personnel with
the requisite security clearances to perform necessary services, are
legitimate needs, and can be met by acquiring telecommunication circuits
through the ALLA process from TPs accredited by the relevant NALLAs.
Accordingly, the question becomes whether the need to have these
telecommunication circuits receive such preferential treatment and have TP
personnel available with the requisite security clearances can also be met
by a TP, such as WorldCom, that is not accredited by NALLAs in the NATO
nations where the telecommunication services are required. Based upon our
review of the record and as explained below, we agree with the agency that
the answer is that it cannot.
The protester asserts that it can meet these requirements because the ALLA
Handbook allows for the acquisition of telecommunication circuits through
*commercial procedures,* and for the registration of telecommunication
circuits acquired commercially with ALLA at a later point in time (in
order for the circuits to receive preferential treatment in times of
*peace, disasters, crisis or war*). Protester's Comments at 10.
It is true that the ALLA Handbook does provide for the acquisition of
circuits under a commercial procedure that does not require the
involvement of a NALLA in the acquisition process, and for the
registration of commercially acquired circuits *with ALLA if so
required.* AR, Tab 3, ALLA Handbook, at II-43. However, this section of
the ALLA Handbook also provides that *[o]nly circuits provided by TPs
accredited for defence purposes can be registered.* Id. Since WorldCom
has not asserted that it is *accredited for defence purposes* by any NATO
nation regulatory body (except perhaps the United Kingdom), we fail to see
how the agency can be assured that a telecommunication circuit acquired
from WorldCom for use by U.S. military installations located in NATO
nations could be registered with ALLA absent some showing that WorldCom is
*accredited for defence purposes* in those NATO nations.
The protester also contends that the *preferential treatment* of military
circuits in times of *peace, disasters, crisis or war* and the employment
by the TP of security cleared personnel can be accomplished by
DITCO-Europe's use of the necessary *contract provisions.* Protester's
Comments at 11; Protester's Supplemental Comments at 2-3. DITCO-Europe
responds that there are no contract provisions that will ensure these
things can be accomplished. We agree.
As mentioned previously, the record reflects that DITCO-Europe *is
entirely dependent on security certifications granted by the host country
to enable [TPs] access to these facilities for installation and
maintenance work.* See SAR at 13‑14. WorldCom has failed to
explain how the agency could be assured that a TP not accredited by a
NALLA, such as WorldCom, would be able to provide personnel with the
necessary security clearances simply through the use of *contract
provisions.* WorldCom has also failed to respond to the agency's concern
as to *what [WorldCom's] contractual promise to restore an unregistered
circuit would mean in a situation where the national authorities of the
host countries are directing restoration priority based on the laws of
that country and their previously assembled records of circuits earmarked
for priority restoration* through the ALLA process. The agency asserts
here that it *has no reason to think a private contractual agreement would
carry any weight with NALLAs and offer anything resembling an equivalent
level of security for deployed United States Forces.* SAR at 13.
Finally, in support of its contention that NALLA certification is
unnecessary, the protester also points out, and the record confirms, that
it has performed telecommunication circuit contracts for DITCO-Europe in
the past, even though WorldCom was not NALLA accredited in certain of the
NATO nations where one or both of the U.S. military installations were
located.
The agency explains here that this happened because it erroneously
assumed, based upon WorldCom's receipt of accreditation by NALLA-United
Kingdom, that WorldCom had been accredited by other NALLAs as well. The
agency states that based upon this assumption, it began providing WorldCom
with solicitations for telecommunication circuits in NATO nations other
than the United Kingdom.
The record reflects that these solicitations included a clause advising
potential contractors only that *this service is being ordered in
accordance with ALLA procedures.* Contracting Officer's Statement (Nov.
4, 2002) at 11-12; see AR, Tab 13, Circuit Demands Awarded to WorldCom.
According to the agency, it would send a circuit demand to the relevant
NALLA or NALLAs in accordance with the process set forth in the ALLA
Handbook, and because DITCO-Europe believed that WorldCom was an
accredited TP, it would provide WorldCom with an information copy of the
circuit demand. Contracting Officer's Statement (Nov. 4, 2002) at 12; see
AR, Tab 3, ALLA Handbook at II-3. The agency explains that *[t]he NALLAs
in these countries apparently did not process the Circuit Demand and
failed to inform DITCO-Europe that WorldCom was not accredited.* The
agency adds here that *[r]ather than coming back to DITCO-Europe and
informing the Agency that it was not accredited in these countries,
WorldCom simply proceeded to install the circuits,* with the result being
that the circuits were never registered with ALLA. The agency concludes
here that because an *extended period of time elapsed between the award of
these circuits and the discovery that WorldCom was not [NALLA] accredited
[in these nations],* and the *critical need for the circuits,*
DITCO-Europe chose not to terminate these circuit contracts. Contracting
Officer's Statement (Nov. 4, 2002) at 12-13. Given that, as explained by
the agency, its needs with regard to the telecommunication circuits
awarded to WorldCom were not met insofar as the circuits were never ALLA
registered, we think that the above demonstrates the reasonableness of the
agency's position that the protested clause reflects its minimum needs.
In sum, based upon this record and as set forth above, the agency has
reasonably explained why its solicitations for telecommunication circuits
between U.S. military installations located in NATO nations require that
the TPs be accredited by the relevant NALLA or NALLAs. In this regard,
there is no question that the agency's priority restoration and secured
personnel needs are legitimate, and WorldCom simply has made no showing
that it, as a firm not accredited by a NALLA, could provide the same
priority restoration and secured personnel advantages as a
NALLA-accredited TP.
Although we appreciate WorldCom's frustration regarding its inability to
become accredited, by a NALLA or otherwise, in NATO nations other than the
United Kingdom and Spain. However, WorldCom's frustration in this regard
provides no basis on which to sustain the protest.[6] Once an agency has
established a reasonable basis for the inclusion of a restrictive
provision in a solicitation, as DITCO-Europe has done here, the inclusion
of the provision in the solicitation is not objectionable. Wescam, Inc.,
B-285792, Oct. 11, 2000, 2000 CPD P: 168 at 7.
The protest is denied.
Anthony H. Gamboa
General Counsel
------------------------
[1] The solicitations for the telecommunication circuits protested by
WorldCom that are the subject of this decision involve Alliance Long Lines
Activity (ALLA) circuit Nos. 130499, 130500, 130501, 262706, 262705,
264469, 264448, 264465, 264467, 264466, 264470, 262708, 262709, 268890,
262824, 262825, and 262822.
[2] A similar system is in place in the United States to ensure priority
restoration of *telecommunication services vital to the national interest*
in times of national emergency. See 47 C.F.R. Part 211-Emergency
Restoration Priority Procedures for Telecommunications Services (2000);
SAR at 7-8.
[3] From April 2002, until it began using the September 2002 clause,
DITCO-Europe included a clause in its solicitations (to which WorldCom
also objects) that provided in part as follows:
Any orders issued as a result of this solicitation will . . . be ordered
in accordance with [ALLA] procedures as established by the [NALLA] of that
NATO country.
Protest, attach. 1, RFQ No. 23M1-3 (Apr. 19, 2002).
[4] The protester also argues that, contrary to the language of the clause
(and the agency's arguments), the United States is not obligated to
acquire its military telecommunication services in accordance with the
ALLA Handbook. The record supports this argument of the protester.
Despite our requests, the agency has not pointed to a single document
evidencing that the North Atlantic Treaty, or any other international
agreement, mandates the use of the ALLA process by NATO nations in
acquiring telecommunication circuits for their facilities located within
other NATO nations. Additionally, the ALLA Handbook does not contain any
language that mandates its use. Accordingly, although as detailed below
we do not find that the solicitation is unduly restrictive, given that the
protested clause is reasonably necessary to meet the agency's needs, we
cannot agree with the agency that the inclusion of the protested clause in
the solicitation is authorized by 10 U.S.C. S: 2304(c)(4) (2000), which
allows the head of an agency to use other than competitive procedures in
awarding a contract *if the terms of an international agreement . . . have
the effect of requiring the use of procedures other than competitive
procedures.*
[5] According to the agency, it considers WorldCom authorized to provide
services in the United Kingdom (where WorldCom is NALLA accredited),
Spain, and Iceland. With regard to Spain, the agency explains that the
accreditation of TPs in Spain is handled by the Spanish Telecommunications
Market Commission, and that this commission lists WorldCom as a
*registered* TP. Contracting Officer's Statement at 4. The agency adds
that there is no NALLA in Iceland, and thus no NALLA-Iceland accredited
TPs. Id. at 5.
[6] We find reasonable the agency's approach, as mentioned previously,
that it considers WorldCom authorized to provide telecommunication
circuits in Iceland, given that there is no NALLA-Iceland and there are
thus no NALLA-Iceland accredited TPs. The protester has identified four
additional NATO nations (France, Greece, Hungary, and Luxembourg) that *do
not have any 'accredited' carriers listed on their NALLA web page.*
Protester's Comments at 5. Should there be no NALLA-accredited TPs in any
or all of these four nations (and presuming that there is no other
appropriate accrediting national authority, such as in Spain), the
agency's approach to the situation in Iceland would suggest that the
agency should consider WorldCom authorized to provide telecommunication
circuits in these countries, if otherwise appropriate.