TITLE:  CW Government Travel, Inc.--Reconsideration; CW Government Travel,, B-295530.2; B-295530.3; B-295530.4, July 25, 2005
BNUMBER:  B-295530.2; B-295530.3; B-295530.4
DATE:  July 25, 2005
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   Decision

   Matter of: CW Government Travel, Inc.--Reconsideration; CW Government
Travel, Inc.; CI Travel; The Alamo Travel Group; National Travel Service;
Bay Area Travel; Knowledge Connections

   File: B-295530.2; B-295530.3; B-295530.4

   Date: July 25, 2005

   Lars E. Anderson, Esq., Benjamin A. Winter, Esq., and Julia M. Kiraly,
Esq., Venable LLP, for CW Government Travel, Inc.; and Josephine L.
Ursini, Esq., for CI Travel, The Alamo Travel Group, National Travel
Service, Bay Area Travel, and Knowledge Connections, the protesters.

   Marc Stec, Esq., for SatoTravel, an intervenor.

   Raymond M. Saunders, Esq., and Maj. Anissa N. Parekh, Department of the
Army, for the agency.

   Jonathan L. Kang, Esq., and Michael R. Golden, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   1.  Protest challenging solicitation's price evaluation scheme is
sustained where offerors are not required to propose binding transaction
and management fees for the services being procured under the
solicitation, thereby precluding the agency from meaningfully evaluating
proposals' cost to the government, and where the agency has not explained
why it cannot request and evaluate this pricing information. 2.  Request
for reconsideration of prior bid protest decision is denied where new
information regarding agency's determination of solicitation's guaranteed
minimum amount provides no basis to disturb the decision.

   DECISION

   CW Government Travel, Inc. (CWGTI), CI Travel, The Alamo Travel Group,
National Travel Service, Bay Area Travel, and Knowledge Connections
protest the terms of request for proposals (RFP) No. W91QUZ-04-R-0014,
issued by the Department of the Army for commercial travel office services
under the developmental, automated Defense Travel System (DTS)
program.[1]  The protesters primarily contend that the price evaluation
scheme of the RFP is flawed.  CWGTI additionally requests reconsideration
of our decision in CW Gov't Travel, Inc., B-295530, Mar. 7, 2005, 2005 CPD
Paragraph 59, in which we concluded that the RFP's guaranteed minimum
amount was legally adequate.

   We sustain the protests in part and deny them in part.  We also deny the
request for reconsideration.

   The RFP anticipates multiple awards of indefinite-delivery,
indefinite-quantity (ID/IQ) contracts for Department of Defense (DOD)
worldwide travel agent services.  The base ordering period is 2 years,
with three 1-year option ordering periods.  RFP amend. 9, at 22. 
Subsequent task orders will be competed among the ID/IQ contract
awardees.  The RFP seeks to consolidate and standardize travel services
within DOD under a single procuring activity.  The DTS services are
intended to replace "traditional" travel services, which require direct
communication between government travel customers and travel agents, with
an automated, paperless system.  However, because of ongoing DTS
transition efforts under a separate contract, the contractors will be
required to provide both traditional non-automated as well as DTS
services.  Task orders will be issued for various regions, and the task
order amounts will consist of transaction fees paid to contractors for
processing travel arrangements and fixed-price monthly management fees for
provision of travel support services.  During the performance of task
orders, individual DOD activities will place travel orders with the
contractors which have received task orders; the contractor will process
the travel transaction using the ordering activity's funds, and will
receive a fee for each transaction processed.

   The RFP states that award will be made to responsible offerors whose
proposals are "the most advantageous/best value" to the government based
on the following factors, in decreasing order of importance:  performance
risk, technical, extent of participation of small and small disadvantaged
business concerns, and price.  RFP amend. 9, at 23.  The non-price
factors, when combined, "are significantly more important than price." 
Id.

   The RFP requires offerors to respond to two sample tasks to evaluate
"[o]fferor's capability to perform travel services in accordance with the
terms and conditions of the Request for Proposal[s] under the Full and
Open solicitation."  RFP amend. 10, Sample Tasks, at 1.  The first sample
task required offerors to respond to work requirements for "Army, Air
Force and DOD sites within Europe," and the second task required responses
for "all Marine and DOD sites" in the continental United States.

   With respect to price, the RFP contains a price schedule for fixed
transaction and management fees but advised offerors not to complete it as
part of their proposals:  "CLINS in section SF 1449 are to be used for
future task orders.  Offerors are required to complete the pricing section
attached to the sample task."  RFP amend. 8, at question and answer (Q&A)
5.  For the sample tasks, however, the agency informed offerors that
proposed prices would not be binding for purposes of future task order
competitions:  "Price will not be binding, nor relevant to the proposed
prices offered on the actual task orders; but will only be used for
evaluation purposes to select the best value proposals."  RFP amend. 10,
Sample Tasks, at 1.  In its response to questions posed by offerors, the
agency confirmed that the proposed sample task prices would not be
binding:

   [Question] Reference "Price" for the Sample Task.  Does this pricing
commit the Offeror to the quoted rates?  If yes -- is that commitment only
to this specific task?  How will pricing proposed for the Sample Task be
related to pricing requested after award on other tasks?

   [Answer] The pricing for the . . . sample tasks is for evaluation purposes
only.  This pricing does not commit the offeror to the sample task rates
for future task orders.

   RFP amend. 8, at Q&A 12.

   The agency further clarified that "[t]he sample task pricing does not have
any relation to the future task order pricing as requirements may differ
from sample tasks."  Id. at answer 16.

   CWGTI previously filed a protest with our Office on December 10, 2004,
challenging the terms of the solicitation on grounds similar to those
raised here.  The agency informed our office on January 4, 2005 that it
would take corrective action with regard to most of the protest grounds,
and we dismissed the protest grounds subject to the corrective action as
academic.  Our office subsequently issued a decision denying the remaining
protest ground regarding the legal adequacy of the solicitation's
guaranteed minimum amount.  CW Gov't Travel, Inc., B-295530, Mar. 7, 2005,
2005 CPD Paragraph 59.  Following the issuance of a revised RFP, CWGTI and
CI Travel filed these protests, and CWGTI requested reconsideration of our
earlier decision.

   DISCUSSION

   Price Evaluation

   The protesters argue that the solicitation's price evaluation scheme is
flawed because it does not require offerors to propose binding prices,
that is, fixed transaction and management fees that they must honor in
task order competitions.  Cost to the government under this RFP will
essentially be in the form of these transaction and management fees the
contractor will charge.  The protesters contend that the lack of binding
fees precludes the agency from meaningfully evaluating cost to the
government, and will permit offerors to "game" the competition by
proposing low fees for purposes of evaluation that they do not intend to
propose during task order competitions.

   Agencies must consider cost to the government in evaluating competitive
proposals.  10 U.S.C. Section 2305(a)(3)(A)(ii) (2000); AirTrak Travel et
al., B-292101 et al., June 30, 2003, 2003 CPD Paragraph 117 at 22; Health
Servs. Int'l, Inc.; Apex Envtl., Inc., B-247433,
B-247433.2, June 5, 1992, 92-1 CPD Paragraph 493 at 3-4.  While it is up
to the agency to decide upon some appropriate, reasonable method for
proposal evaluation, an agency may not use an evaluation method that
produces a misleading result.  AirTrak Travel
et al., supra, at 22; Health Servs. Int'l, Inc.; Apex Envtl., Inc., supra,
at 4.  The method chosen must include some reasonable basis for evaluating
or comparing the relative costs of proposals, so as to establish whether
one offeror's proposal would be more or less costly than another's.  Id. 
For example, in our decision in S.J. Thomas Co., Inc., B-283192, Oct. 20,
1999, 99-2 CPD Paragraph 73, we sustained a protest of a solicitation that
did not consider price or cost to the government.  The solicitation in
S.J. Thomas provided for evaluation of offerors' proposed markups of their
costs, but did not consider offerors' actual underlying labor rates and
material costs.  The agency in S.J. Thomas explained that its decision to
evaluate only markup rates was prompted by the concern that the sample
tasks were so abstract that they did not require or allow for binding
prices, thus leaving the agency without a meaningful way to evaluate cost
to the government.  Id. at 4-5.  We concluded that this evaluation scheme
did not provide for a meaningful comparison of the proposals' relative
costs to the government because it ignored the underlying rates that each
offeror would charge and did not take into consideration the mix of labor
that performing the work would require.  Id.  Similarly, in Aurora Assoc.,
B-215565, Apr. 26, 1985, 85-1 CPD
Paragraph 470, we sustained the protest where the agency solicited only
indirect rate multipliers, and did not consider offerors' actual direct
costs.

   We acknowledge that the evaluation of price or cost in the award of an
ID/IQ "umbrella" contract can be challenging, particularly in the
procurement of services, because the more meaningful price competition may
take place at the time individual task or delivery orders are to be
issued.  Nonetheless, in our view, the way in which sample tasks are to be
evaluated under this solicitation does not satisfy the legal requirement
to consider cost to the government.[2]  Here, the RFP does not require
offerors to propose the transaction and management fees that an awardee
will ultimately charge the government under the ID/IQ contract.  The
agency has not advanced a rationale for not requesting and evaluating
binding transaction and management fees from offerors in a manner similar
to other ID/IQ umbrella contracts where, for example, fixed hourly rates
are requested and evaluated.[3] 

   The agency instead argues that, notwithstanding the lack of binding
transaction and management fees, several features of the RFP allow the
agency to meaningfully evaluate cost to the government.  The agency
contends there are sufficient indicia of the reliability of proposed fees
because offerors are required to submit explanations for their pricing
assumptions, and the agency will evaluate proposals for price realism and
reasonableness.  Id. at 6-7.  We find this argument without merit. 
Requesting information to support proposed transaction and management fees
for the purpose of evaluating price reasonableness and realism presumes
that the offerors have proposed fees that will be used during contract
performance, a presumption that cannot be made here.[4]  Because the
sample task pricing is not binding, a price realism and reasonableness
analysis based on that pricing provides no meaningful assessment of the
likely cost to the government of an offeror's proposal.

   The agency additionally argues that, because price is the least important
of all evaluation factors, "the low relative importance of price in the
published evaluation scheme tends to prevent the non-selection of an
offeror proposing costs based on its best estimates solely because other
offerors propose low prices that they may have not intention of
replicating at the task order level."  Agency Supplemental Responses, June
17, 2005, at 6.  This argument also lacks merit because, no matter what
weight is assigned cost or price in an evaluation, as discussed above, the
evaluation scheme must provide some reasonable basis for evaluating or
comparing the relative costs of offerors' proposals.  The MIL Corp.,
B-294836, Dec. 30, 2004, 2005 CPD Paragraph 29 at 9-10.  The statutory
requirement that cost to the government be considered in the evaluation
and selection of proposals for award is not satisfied by the promise that
cost or price will be considered later, during the award of individual
task orders.  S.J. Thomas, supra, at 4; The MIL Corp., supra, at 9-10.  To
the contrary, an agency may not eliminate a proposal from consideration
for award of an ID/IQ task order contract without taking into account the
relative cost of that proposal to the government.  S.J. Thomas, supra, at
4; The MIL Corp., supra, at 9-10. 

   We conclude that the protesters are prejudiced by the RFP's flawed price
evaluation scheme because offerors who propose based on actual intended
fees might be excluded from award of an ID/IQ contract in favor of
proposals containing lower fees submitted by offerors who do not intend to
propose those fees at the task order level.  We sustain the protest on
this basis and recommend that the agency revise the solicitation to
provide a price evaluation scheme that reasonably evaluates cost to the
government.

   Sample Task Evaluation

   The protesters next contend that the solicitation is flawed because the
sample tasks do not require offerors to demonstrate the ability to meet
all of the requirements of the performance work statement (PWS).  The RFP
specifies that the agency will evaluate offerors under the past
performance and experience subfactors of the performance risk evaluation
factor and the technical approach/capability and management
approach/capacity subfactors of the technical evaluation factor.  RFP
amend. 9, at 23.  The RFP further explains that certain "PWS requirements
are not applicable to the sample task, however, these tasks may be
required on actual task orders from the contract."  RFP amend. 11, at 9. 

   The agency argues that the PWS requirements omitted from the sample tasks
are either similar to other required PWS tasks or are so de minimis as to
not warrant specific evaluation under the task orders.  Agency Response to
GAO Questions,
June 17, 2005, at 1, 12.  For many of the requirements, the agency states
that it does not know or have estimates for the anticipated level of work,
but assumes that they are insignificant in quantity or cost to the
government.  Id. 

   Agency acquisition officials have broad discretion in selecting evaluation
factors that will be used in an acquisition, and we will not object to the
absence or presence of particular evaluation factors or an evaluation
scheme so long as the factors used reasonably relate to the agency's needs
in choosing a contractor that will best serve the government's interests. 
Olympus Bldg. Servs., Inc., B-282887, Aug 31, 1999, 99-2 CPD Paragraph 49
at 3; ViON Corp., B-256363, June 15, 1994, 94-1 CPD Paragraph 373 at
10-11.

   In light of the fact that this is an ID/IQ contract where the omitted PWS
elements are still contractual requirements at the task order level, and
because the agency anticipates them to have a minimal impact on the cost
to the government, we find no basis to conclude that the agency's
evaluation scheme is unreasonable.

   Lack of Sufficient Information

   The protesters next allege that the RFP fails to reasonably describe the
scope and purpose of the potential work that will be required under task
orders.  Specifically, the protesters contend that the RFP is
geographically unlimited, and does not provide enough data concerning the
volume and complexity of the anticipated work, including DTS
requirements.[5]

   Generally, a contracting agency must provide offerors sufficient detail in
a solicitation to enable them to compete intelligently and on a relatively
equal basis.  AirTrak Travel et al., supra, at 12-13.  There is no
requirement that a competition be based on specifications drafted in such
detail as to completely eliminate all risk or remove every uncertainty
from the mind of every prospective offeror; to the contrary, an agency may
provide for a competition that imposes maximum risks on the contractor and
minimum burdens on the agency, provided the solicitation contains
sufficient information for offerors to compete intelligently and on equal
terms.  Braswell Servs. Group, Inc., B-278521, Feb. 9, 1998, 98-1 CPD
Paragraph 49 at 3.  The specifications need not be precise; rather, agency
information and estimates are unobjectionable so long as they were
established in good faith, based on the best information available, and
accurately represent the agency's anticipated needs.  Howard Johnson,
B-260080, B-260080.2, May 24, 1995, 95-1 CPD Paragraph 259 at 3.  The fact
that offerors may respond to the risk differently in calculating their
prices is a matter of business judgment that does not preclude a fair
competition.  DGS Contract Servs., Inc., B-261879, Oct. 31, 1995, 95-2 CPD
Paragraph 199 at 2-3. 

   Here, the agency has provided historical performance data from fiscal
years 2000 and 2001 regarding the travel requirements that may be expected
under the anticipated task orders.  Memorandum of Law at 11; RFP amend.
6.  If this information is the best information available and accurately
represents the agency's anticipated needs, it may be unobjectionable.  In
light of our recommendation, however, the agency may wish to review
whether the RFP data regarding the history of performance requirements are
the best information available at the time a revised solicitation is
issued.

   Ambiguities

   The protesters finally argue that the RFP is ambiguous as to whether
awardees will be able to obtain equitable adjustments to compensate for
fluctuations in exchange rates.[6]  The agency informed our Office that it
has clarified that "offerors must factor into their prices any risk they
believe they will face due to fluctuation of the value of the U.S. dollar
against foreign currencies."  Contracting Officer's Supplemental
Statement, June 30, 2005.  As explained above, such a clearly-disclosed
imposition of risk does not render a solicitation improper.  The agency's
clarification of this issue renders the protest of this alleged ambiguity
academic.  Since it is not our practice to consider academic questions,
this protest issue is dismissed.  Dyna-Air Eng'g Corp., B-278037, Nov. 7,
1997, 97-2 CPD Paragraph 132.

   REQUEST FOR RECONSIDERATION

   CWGTI requests reconsideration of our decision in CW Gov't Travel, Inc.,
B-295530, Mar. 7, 2005, 2005 CPD Paragraph 59, denying its protest of the
adequacy of the RFP's guaranteed minimum.  Under our Bid Protest
Regulations, to obtain reconsideration, the requesting party must show
that our prior decision contains errors of either fact or law, or must
present information not previously considered that warrants reversal or
modification of our decision.  4 C.F.R. Section 21.14(a) (2005).  Here,
CWGTI contends that new information provided by the agency after the
issuance of our decision indicates that the guaranteed minimum, which has
remained unchanged in the solicitation, does not meet the requirements of
Federal Acquisition Regulation (FAR) Section 16.504(b).

   An agency may use an ID/IQ contract where it cannot predetermine, above a
specified minimum, the precise quantity of supplies or services that will
be required during the contract period and where it is inadvisable for the
government to commit itself for more than a minimum quantity.  FAR Section
16.504(b); Aalco Forwarding, Inc.
et al., supra, at 6.  Because an ID/IQ contract does not specify the
precise work that will be provided and is not a requirements contract, a
specific guaranteed amount or quantity is required as consideration to
bind the parties.  Aalco Forwarding, Inc.
et al., supra, at 6.  To ensure that a contract is binding, the minimum
quantity must be more than a nominal amount, but should not exceed the
amount the agency is fairly certain to order.  FAR Section 16.504(a). 

   The RFP specifies that the guaranteed minimum for the ID/IQ contract will
be $2,500.  RFP amend. 11, at 13.  CWGTI argues that new information
provided by the agency following our decision indicates that the agency
does not intend to order actual goods or services from every awardee, and
instead will pay a $2,500 "consolation prize" to an ID/IQ contract awardee
who does not receive a task order.  As evidence, CWGTI cites a response by
the agency to a question posed by an offeror:  "The minimum guarantee
amount of $2,500 will be obligated upon contract awards.  If an awardee
does not receive a task order within the base period, this amount will be
paid to the contract awardee.  Once an awardee receives a task order
within the base period and the minimum guarantee is met, the Government
will deobligate the $2,500 from the award."  RFP amend. 8, at Q&A 8.

   The agency clarifies now that "the Government definitely intends to order
at least $2,500 of services from every vendor who receives a contract
award as a result of this acquisition."  Contracting Officer's
Supplemental Statement at 2.  Because the agency intends to place orders
for services to fulfill the $2,500 minimum obligation, we believe that
this satisfies the requirements of FAR Section 16.504(b), and thus find no
basis to change our decision in CW Gov't Travel, Inc., B-295530, Mar. 7,
2005, 2005 CPD Paragraph 59.  The request for reconsideration is denied.

   RECOMMENDATION

   From the record, it is clear that the RFP does not provide a meaningful
basis to consider offerors' proposed costs to the government. 
Accordingly, we recommend that the agency amend the solicitation
consistent with our decision.  We further recommend that the agency
reimburse the protesters the reasonable costs of pursuing their protests
of the issue sustained in this decision, including reasonable attorneys'
fees.  The protesters' certified claim for costs, detailing the time
expended and the costs incurred on this issue, must be submitted to the
agency within 60 days of receiving this decision.  4 C.F.R. Section
21.8(f)(1).

   The protests are sustained in part and denied in part, and the request for
reconsideration is denied.

   Anthony H. Gamboa

   General Counsel

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

   [1] CI Travel, The Alamo Travel Group, National Travel Service, Bay Area
Travel, and Knowledge Connections collectively filed a single protest. 
For ease of reference, we will refer to CI Travel as the protester for
this group.

   [2] We have previously acknowledged that prices or costs proposed in the
context of hypothetical sample tasks in a solicitation for an ID/IQ
contract, while somewhat artificial in nature, may permit the government
to assess the probable cost of competing offerors--provided that the
solicitation takes into account offerors' differing technical approaches
and meaningfully evaluates the costs or prices underlying their
proposals.  See, e.g., S.J. Thomas, supra, at 5; SCIENTECH, Inc.,
B-277805, B-277805.2, Jan. 20, 1998, 98-1 CPD Paragraph 33 at 7-8.  The
agency asserts that two of our decisions approve the use of non-binding
price proposals, such as those anticipated by the RFP here.  We disagree. 
The two cases relied upon by the agency to support its argument where our
Office denied challenges to agencies' price evaluations, Aalco Forwarding,
Inc. et al., B-277241, B-277241.15, Mar. 11, 1998, 98-1 CPD Paragraph 87
and High Point Schaer, B-242616, B-242616.2, May 28, 1991, 91-1 CPD
Paragraph 509, in fact involved solicitations which required binding
prices, such as labor rates or line-item prices.

   [3] Indeed, the General Services Administration "Travel Services
Solutions" schedule contract contains fixed transaction fees for many
travel agent service requirements similar to those under the RFP.  See GSA
Federal Supple Schedule Contract No. 599.  Additionally, we note that the
Army previously has solicited fixed transaction fees under ID/IQ contracts
for travel services.  See, e.g., AirTrak Travel et al., supra; Omega World
Travel, Inc.; SatoTravel, Inc., B-288861.5 et al., Aug. 21, 2002, 2002 CPD
Paragraph 149.

   [4] An agency may, of course, evaluate the realism of even non-binding
prices to determine an offeror's understanding of an RFP's technical
requirements, but that is different from the assessment of cost to the
government.  Even there, if the offerors know the prices are not binding,
the value of a realism or reasonableness analysis based on those prices
them may be limited.

   [5] The protesters challenge the worldwide scope of the proposed ID/IQ
contract, citing our Letters to the Air Force and Army concerning
Valenzuela Engineering, Inc., B-277979, Jan. 26, 1998, 98-1 CPD Paragraph
51.  The agency states that the RFP's scope is tied to the agency's need
to provide military travel to and from any point in the world, and we
conclude that this rationale is a reasonable basis for the worldwide scope
of the ID/IQ contract.

   [6] The protesters identify several other areas of the RFP that are
allegedly ambiguous.  We have reviewed these allegations and find that
they do not have merit.