TITLE:  Terra Surveys, B-294015, August 4, 2004
BNUMBER:  B-294015
DATE:  August 4, 2004
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   Decision

   A 

   A 

   Matter of:   Terra Surveys

   A 

   File:            B-294015

   A 

   Date:              August 4, 2004

   A 

   Larry M. Whiting for the protester.

   Lynn W. Flanagan, Esq., Department of Commerce, and Thedlus L. Thompson,
Esq.,  General Services Administration, for the agencies.
Susan K. McAuliffe, Esq., and Christine S. Melody, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Protest of agency's failure to conduct procurement for upgrade of national
water level observation network under specialized procedures of the Brooks
Act for procurement of architectural-engineering services is denied where
protester fails to demonstrate that Act is applicable to required
services.  

   DECISION

   A 

   Terra Surveys protests the terms of request for quotations (RFQ) No.
NCNT0000-4-00014, issued by the Department of Commerce, National Oceanic
and Atmospheric Administration (NOAA), for water level monitoring
modernization services in Alaska.  Terra challenges the agency's intended
procurement of the services under a General Services Administration (GSA)
Federal Supply Schedule (FSS), arguing that the services are architectural
and engineering (A-E) in nature, and the agency thus must procure them
under the specialized procedures prescribed by the Brooks Act, 40 U.S.C.
SS 1101-1104 (2000).[1]

   A 

   We deny the protest.

   A 

   The RFQ seeks upgrade and operational field services at several of the
agency's tide observation stations in Alaska.  As part of the agency's
effort to modernize its monitoring infrastructure, the RFQ calls for
contractor services to install, deploy, and recover water level monitoring
instrumentation at various observation sites (as well as to provide
emergency recovery of drifting meter mooring buoys, install a new station
and maintain others, and upgrade hardware and software).  The solicitation
requests quotations for a *best value* competition considering technical
qualifications and price from firms holding contracts under the GSA
schedule for environmental services, geographic information systems.  In
this regard, after determining that the RFQ performance requirements did
not constitute traditional
A-E services, and after conducting market research that showed that a
number of qualified schedule contractors were available to perform the
work, and receiving confirmation from GSA that the RFQ work was within the
scope of the environmental services schedule, the agency decided to
procure the services under the GSA schedule.[2]

   A 

   Terra contends that the RFQ is for A-E services relating to tidal data
acquisition, mapping, and surveying, that require performance by
registered architects or engineers or their employees, and thus, must be
acquired under the Brooks Act.[3]  Terra also contends that the agency is
procuring hydrographic data and services, and that under the Hydrographic
Services Improvement Act of 1998 (HSIA), 33 U.S.C. SSA 892 et seq. (2000),
the procurement of hydrographic data (such as data acquired through tide
and current observations) used in providing hydrographic services (such as
the certification of tidal data for use in the production of nautical
charts) must be conducted under the specialized qualifications-based
procedures of the Brooks Act.  Terra points out that the RFQ mentions that
an objective of the agency's modernization effort is to *acquire new . . .
tidal current measurements.*  While Terra does not identify any specific
RFQ requirement for data acquisition work for mapping and surveying
services by the contractor, the protester nonetheless interprets this
generally stated objective as a performance requirement for the contractor
to obtain and deliver hydrographic data and services, which Terra contends
must be performed by a licensed A-E professional.[4]

   A 

   The agency contends that Terra has misinterpreted the RFQ's requirements
in this regard; the agency asserts that Terra has unreasonably concluded
that the contractor was to perform a generally stated agency objective to
acquire tidal current measurements.  The agency contends that the firm
instead should have realized from the detailed statement of contractor
performance requirements and responsibilities--which is listed under the
referenced objective and does not provide any contractor responsibility
for the retrieval of the tidal data from the instrumentation--that only
the equipment installation/recovery and upgrade/maintenance-type work
specifically identified in the RFQ was required here.  We agree with the
agency's view that Terra bases much of its protest on an unreasonable
interpretation of this *objective* provision in the RFQ.

   A 

   In our view, the stated agency objective, read in context, relates to
NOAA's overall long term modernization plan to acquire new tidal
measurements.  In this regard, the RFQ does not require tidal or current
data compilation by the contractor for any mapping or surveying purpose or
otherwise.  Rather, the RFQ predominantly anticipates contractor services
for the installation and retrieval of water level instrumentation (and, to
a much lesser extent, requires limited performance of certain station
upgrades and maintenance tasks).  As the contracting officer explains,
although the agency may acquire water level or current measurements from
the instrumentation, it will do so on its own, with agency personnel, and
for its own use.[5]

   A 

   The following points--unchallenged by the protester--provide additional
support for the agency's determination that the RFQ's services are not A-E
services under the Brooks Act.  First, the agency reports that it performs
the same work with agency technical staff, not its A-E professional-series
personnel.  Next, only government personnel will calibrate and operate the
instrumentation; in this regard, it is also significant that if any data
is ultimately acquired by agency personnel from the water level monitoring
instrumentation, only agency personnel will access and use it, not the
contractor.  In fact, as the agency points out, under the terms of the
RFQ, the contractor will be paid for its performance of the RFQ's
installation and other equipment and station upgrade work even if no data
is ever acquired from the instrumentation.  See Declaration of NOAA Deputy
Director at 2-4.

   A 

   Terra initially asserted that certain solicitation requirements for field
reconnaissance (related to the installation of a new station) and certain
leveling measurements constituted A-E work requiring Brooks Act
procedures.  The agency has explained, however, that the challenged
leveling measurements are to be taken by the contractor to assess the
propriety of the instrumentation installation, as well as the stability of
the instrumentation, and not, as Terra had speculated, for use in nautical
chart preparation or boundary determinations.  In its comments on the
agency's report on the protest, Terra fails to rebut the agency's
reasonable explanation of its equipment-related needs for this limited
leveling measurement review--which, in our view, essentially relates to
quality assurance of the equipment installation, and not the A-E type of
hydrographic services the protester suggests.[6]  As to its initial
challenge to the RFQ's site planning requirements for the installation of
a new station, the protester abandons that argument in its comments as
well, and, in fact, concedes that the RFQ fails to contain any design work
that is A-E in nature.  In short, as Terra has failed to persuasively
support its challenge to the solicitation, the record before us provides
no basis to question the propriety of the agency's actions.

   A 

   The protest is denied.

   A 

   Anthony H. Gamboa

   General Counsel

   A 

   A 

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

   [1] The Brooks Act requires federal agencies to select contractors for A-E
work on the basis of demonstrated technical competence and qualifications;
the procedures do not include price competition.  Rather, under Brooks Act
procedures, once a firm is selected as the most highly qualified to
provide the services, the agency is to negotiate a contract at a fair and
reasonable level of compensation.  The Brooks Act defines A-E services as,
among other things, professional services of an Aa**E nature required by
state law to be performed by a professional certified to perform the
services, as well as *other professional services of an [A-E] nature, or
incidental services, which members of the [A-E] professions (and
individuals in their employ) may logically or justifiably perform,
including studies, investigations, surveying and mapping . . . .*  40
U.S.C. S 1102(2).

   [2] The agency reports, and GSA confirms in a report requested by our
Office, that the environmental services schedule, among other things,
provides for contractor operational services supporting agencies'
environmental programs using geographic information systems.  Contracting
Officer's Statement at 5.  Terra had initially challenged the agency's use
of the environmental services schedule, only generally contending that the
RFQ was beyond its scope.  The record, however, shows that the protester
failed to rebut the agency's and GSA's analysis supporting use of the
schedule on the basis that the general terms and scope of the schedule
encompass the RFQ's services.  Since the protester fails to provide any
basis to question the reasonableness of the agency's position, with which
GSA concurs, we have no basis to review the matter further.

   [3] We note that although Terra initially argued that Alaska state law
requires a licensed surveyor for the RFQ's work, the firm has not rebutted
the agency's position that no contractor surveying work or any work
related to boundary determinations, as Terra had argued would trigger the
alleged licensing requirement, is included in the RFQ, or the agency's
analysis supporting its determination that the state law cited by the
protester--relating to land surveys--is inapplicable.  Consequently, we
have no basis to review the contention further. 

   [4] In the alternative, Terra appears to be suggesting that the
contractor's placement of the instrumentation itself should be considered
A-E services, because the accuracy of any data ultimately acquired from
that instrumentation (that Terra speculates might be used by the agency in
future hydrographic services or other products of an A-E nature) would
depend upon the contractor's proper installation of the instrumentation. 
As the agency points out, however, and as is discussed in this decision,
the agency will be conducting ongoing evaluation of the propriety of the
installation, and, as such, will itself be conducting the allegedly
A-E-type work described by the protester.  In this regard, agency
personnel will be responsible for confirmation of proper installation and
stability; the agency also reports that it will remain responsible for the
calibration and operation of the equipment, and the retrieval of data.

   [5] As such, we also cannot find that the protester has adequately
supported its general contention that the agency here is procuring
hydrographic data for use in providing hydrographic services under the
HSIA; accordingly, Terra's argument that the HSIA requires use of Brooks
Act procedures here is unpersuasive.  See 33 U.S.C. S 892(4).

   [6] Terra also does not respond to the agency's position that, even if the
RFQ's measurement requirements were considered A-E in nature, given the
minimal amount of such work under the RFQ, which instead predominantly
calls for work that is not A-E in nature, Terra has not shown that the
contracting officer abused his discretion in failing to procure the full
scope of RFQ requirements under the Brooks Act.  See Federal Acquisition
Regulation S 36.601-3(c), (d).