TITLE:  OMNIPLEX World Services Corp., B-295698; B-295698.2, March 18, 2005
BNUMBER:  B-295698; B-295698.2
DATE:  March 18, 2005
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   Decision

   Matter of:   OMNIPLEX World Services Corp.

   File:            B-295698; B-295698.2

   Date:              March 18, 2005

   Katherine S. Nucci, Esq., and Timothy Sullivan, Esq., Thompson Coburn, for
the protester.

   Dennis J. Gallagher, Esq., Department of State, for the agency.

   Sharon L. Larkin, Esq., and James A. Spangenberg, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Protest challenging solicitation provisions in
indefinite-delivery/indefinite-quantity contract as unreasonably shifting
risk to contractors is denied, where solicitation's assignment of risk was
not shown to be unreasonable.

   DECISION

   OMNIPLEX World Services Corp. protests the terms of request for proposals
(RFP) No. SALMEC-05-R-0002, issued by the Department of State (DOS) for
construction security monitoring services at overseas and domestic DOS
construction sites and storage areas.  OMNIPLEX contends that the RFP
contains certain provisions that unreasonably shift risk to contractors.

   We deny the protest.

   The RFP contemplated award of multiple
indefinite-delivery/indefinite-quantity (ID/IQ) contracts for a base year
with 4 option years.  The minimum quantity for each year was stated to be
$50,000, with a maximum quantity of $250,000,000 over the 5a**year
contract period.  Award was to be made on a best-value basis, considering
(in descending order of importance) program management plan, experience,
technical qualification and key personnel, and past performance.  The RFP
stated that the agency would also perform a cost and/or price analysis to
determine whether the negotiated price was fair and reasonable.       

   The RFP required that offerors provide "Site Security Personnel" for each
site location consisting of Cleared American Guards (CAG) to staff guard
posts and control access to site locations, Construction Surveillance
Technicians (CST) to monitor persons associated with construction
activities, Site Security Coordinators (SSC) to supervise the security
activities and ensure that the security concerns were fully integrated
with the construction plans and security programs, and Team Leaders to
serve as the contractor's on-site representative at each work site.  The
RFP, as amended, required that each offeror submit in its response to the
solicitation resumes for its key personnel, to include at a minimum
resumes for its proposed program manager as well as for SSCs and Team
Leaders "that it reasonably expects to perform on individual task
orders."  For designated SSCs and Team Leaders, the RFP also provided for
the submission of resumes either with task order proposals or within
10A days of task order award if these particular resumes had not already
been submitted.  Resumes for CAGs and CSTs to be used on particular task
orders were required to be submitted only upon the agency's request.  RFP
S L.7; amend. 4, SSA G.5.1, H.10.

   With regard to Section B pricing, offerors were to provide two sets of
labor rates for each category of personnel--one for domestic and one for
overseas locations--and an estimate of other direct costs (ODC) for
domestic locations.[1]  These labor rates were ceilings for task orders
issued under the contract.  The RFP specified that actual travel costs
(which included transportation, lodging, meals, and incidental expenses)
would be reimbursed in accordance with Federal Acquisition Regulation
(FAR) SA 31.205-46, but that such costs were "not to exceed . . .
[s]pecific limits on reimbursements for subsistence expenses [that] will
be established in delivery order proposal requests consistent with local
conditions."  InA this regard, the RFP referred the offerors to Federal
Travel Regulations and domestic and overseas per diem rates that are
available on the General Services Administration website.  RFP amend. 4,
SA B.6.2.4. 

   Housing for contractor personnel was to be obtained in accordance with
Section H of the solicitation, which provided that the contractor was to
obtain "best value" housing, in coordination with Post personnel.  If the
contractor was unable to find housing, it would beA provided by the Post. 
In addition, the RFP specified that "[t]he Government reserves the right
to direct contractor to specific housing or may provide government
owned/leased housing to the contractor."  RFP amend. 4, SA H.11.9.   

   The RFP required that all ID/IQ contract awardees be considered for award
of each task order to be issued under the ID/IQ contracts.  The
solicitation permitted each contractor to submit a proposal in response to
a task order proposal request in which the firm could "propose rates lower
than those established in Section B of [its ID/IQ] contract, but not
higher."  RFP amend. 4, S G.5.  The solicitation stated that the agency
would "select a contractor to receive the task/delivery order on a best
value basis considering the estimated price, any technical aspects such as
more responsive delivery schedules, and past performance [on] previous
orders."  If a contractor failed to submit a proposal in response to a
task order proposal request, the RFP stated that the agency "reserves the
right to issue task orders unilaterally to a selected contractor and may
do so using an estimate of the cost of the project using the contractor's
rates established in SectionA B and considering of the contractor's past
performance," and "will calculate the estimated price of the task using
the contractor's labor rates as established in Section B and the
Government's estimate [of] other costs."  RFP amend. 4, S G.7.    

   OMNIPLEX protests the solicitation provision that allows the government to
unilaterally issue task orders where an awardee does not respond to a task
order proposal request, and also protests the provisions providing for
travel reimbursement, housing assignments, and resumes.  ItA contends that
these provisions unreasonably shift risk to the contractor and are
inconsistent with the Federal Acquisition Regulation (FAR). 

   The mere presence of risk in a solicitation does not make the solicitation
inappropriate or improper, as it is within the agency's discretion to
compete a proposed contract that imposes maximum risks upon the selected
contractor and minimum burdens upon the agency.  AFB Freight Sys., Inc.,
et al., B-291185, Nov.A 8,A 2002, 2002, CPD P 201 at 6. 

   With regard to the government's right to unilaterally issue task orders,
the agency explains that the provision is necessary to ensure the
availability of security services in undesirable locations where
contractors may not want to perform.  It explains that the site security
services are essential to providing the physical and technical security of
critical locations (e.g., diplomatic facilities) and its personnel, and
that it is imperative that construction efforts in these areas not be
delayed because security is not available.  We find that this explanation
provides a reasonable basis to shift the risk of performance to the
contractor in all areas covered by the contract, and that the risk is not
unreasonable, given that the contractor can adjust its Schedule B
pricing--which represents the maximum amount chargeable under the
contract--to address these risks.  Contrary to the protester's arguments,
the fact that all of the ID/IQ contractors can be considered for
performance for all of the task orders to be issued under the ID/IQ
contracts, including those which the contractor is not interested in
performing and/or is not submitting a proposal, is not inconsistent with
the FAR provisions governing ID/IQ contracts.  These provisions require
that an ID/IQ contract holder "must furnish any additional quantities
[over and above the minimum stated quantity] not to exceed the stated
maximum."  FAR SA 16.504(a)(1).  Thus, so long as the orders do not exceed
the maximum quantity, ID/IQ contract holders can be potentially required
to perform on all task orders where it is found to be the best value.[2]

   OMNIPLEX nevertheless complains that allowing the agency to price the
proposal of a contractor that does not submit a proposal for a particular
task order may bind this contractor to a task order price to its
prejudice, or may allow the agency to manipulate the ODCs to provide for a
particular task order award.  However, the RFP makes clear that
contractors who do not submit proposals will be evaluated based on their
Schedule B labor-hour pricing, which is the maximum price established by
the contractor in its ID/IQ contract, and the government is not permitted
to unilaterally reduce this price.  As indicated, the contractor can take
into account in its price proposal the possibility that it may be issued
task orders that it may not otherwise be interested in performing.  With
regard to ODCs, the RFP provides that the government's evaluation of a
contractor who does not submit a proposal will be based on the
government's estimate of ODCs, but the reimbursement of such costs is not
constrained by these estimates; as the agency explains, contractors will
be fully reimbursed, subject only to limitations stated elsewhere in the
solicitation.  Also, we find no basis to presume, as is suggested by the
protester's arguments, that the agency will create an artificial or
differing ODC estimate for a contractor that does not submit a proposal
for a task order in order to make an otherwise unwarranted award. 

   OMNIPLEX also challenges the provision providing for travel and per diem
reimbursement.  It contends that the provision stating that "[s]pecific
limits on reimbursements for subsistence expenses will be established in
delivery order proposal requests consistent with local conditions" places
an unreasonable risk on the contractor that the government will
arbitrarily reduce subsistence expenses, and complains that it is unable
to calculate risk because it does not know what these limits will be. 
However, as the agency explains, the limits on subsistence expenses for
differing "local conditions" are set forth in the Federal Travel
Regulations and the Standardized Regulations (Government Civilian, Foreign
Areas), which are referenced in the RFP and in FAR S 31.205-46, which is
incorporated into the RFP and which governs and limits subsistence
reimbursements.  Since the RFP's limitation on reimbursements is
consistent with the language of the FAR, and the limits are readily
obtainable by the contractor via published regulations, we find no basis
to conclude that the provision is unreasonable.[3]   

   OMNIPLEX asserts that the RFP's housing assignment provision is too
onerous because it allows the government to dictate where contractors will
be housed if it disagrees with the contractor's "best value" determination
as to housing.  As the agency explains, it may be necessary in some parts
of the world for the agency to arrange housing to ensure the safety and
security of the contractor's personnel.  Given that the agency will
reimburse the contractor for its employee housing in performing each task
order, regardless of whether it is contractor- or government- furnished,
the protester has not shown that the risk caused by the agency's right to
designate contractor housing is unreasonable. 

   OMNIPLEX finally contends that the resume provisions and qualification
requirements for the Team Leader and SSC are unclear, and that the RFP
does not provide "objective criteria" for how key personnel positions will
be evaluated.  We again disagree.  As the RFP stated, the resumes of key
personnel are to be submitted with the offerors' proposals in response to
the RFP if those individuals are known; if the Team Leaders or SSCs for
particular task orders are different, their resumes are to be submitted as
part of its task order proposal requests or within 10 days after award of
the task order.  RFP S L.7; amend. 4, SSA G.5.1, H.10.  With regard to the
qualifications of the key personnel, while it is true that separate
qualifications are not listed for Team Leaders and SSCs, the RFP does
describe their roles in contract performance, see, e.g., RFP SS C.2.4,
C.6, and the agency explained in the response to offerors' questions on
the solicitation that these positions were to be filled with CAGs or CSTs
with the most experience.  RFP Questions & Answers Nos. 4, 67.  The RFP
provides that the criteria against which the qualifications and experience
will be evaluated are whether the offeror's approach "demonstrates a high
probability of successfully performing all assigned tasks, and
identif[ies] potential problem areas and solutions."  RFP amend. 4, S
M.4.3.  Based on this information, we conclude that the offerors were
provided with adequate information on which to develop a proposal.

   The protest is denied.

   Anthony H. Gamboa

   General Counsel

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

   [1] ODCs for overseas locations were "TBD," that is, "to be determined." 

   [2] Although OMNIPLEX also complains that the RFP provision violates the
Office of Federal Procurement Policy's 1997 interim "best practices"
guidance, we do not agree that the guidance cited by the protester
prohibits the agency from requiring ID/IQ contractors to perform under
their contracts.  Nor is this interim guidance, even if applicable, a
binding rule or regulation that DOS is required to follow.  In any case,
such guidance does not have the force and effect of law, and thus
compliance with this guidance is not subject to our Office's review.  See
E. F. Felt Co., Inc., Ba**289295, Feb. 6, 2002, 2002 CPD P 37 at 4.

   [3] To the extent that OMNIPLEX complains that the RFP does not identify
each and every possible location where work may be performed, we do not
find any risk caused by this failure to be unreasonable, given that the
contractor will be reimbursed its subsistence expenses on a
time-and-material basis to the extent authorized by the FAR.