TITLE: B-297225, Information Ventures, Inc., December 1, 2005
BNUMBER: B-297225
DATE: December 1, 2005
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B-297225, Information Ventures, Inc., December 1, 2005

   Decision

   Matter of: Information Ventures, Inc.

   File: B-297225

   Date: December 1, 2005

   Bruce H. Kleinstein for the protester.

   Margaret H. Whittaker for ToxServices LLC, an intervenor.

   Davis Young, Esq., Department of the Navy, for the agency.

   Paul N. Wengert, Esq., and Michael R. Golden, Esq., Office of the General
   Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Where record shows that agency overstated its needs by requiring vendors
   to submit multiple examples of toxicology reports because agency report
   only justifies need to review one sample report, protest is nonetheless
   denied where protester has failed to show that it could have met
   requirement for even one sample report, and thus the overstated
   requirement did not result in competitive prejudice to the protester.

   DECISION

   Information Ventures, Inc. (IVI), a small business, protests the terms of
   the synopsis and request for quotations issued by the Department of the
   Navy, Naval Supply Systems Command, for toxicology research and support
   services for the Navy Environmental Health Center (NEHC) under request for
   quotations (RFQ) No. N00189-05-T-0534. IVI objects that the synopsis was
   defective, that the RFQ overstated the Navy's needs by requiring vendors
   to submit nine sample toxicology reports for evaluation, and that the RFQ
   improperly classified the required services as a commercial item.

   We deny the protest.

   The Navy issued the RFQ on September 7, 2005. The RFQ sought quotations to
   provide toxicology services for a base period and 4 additional years on a
   fixed-price basis.[1] The vendor would provide various services, such as
   conducting "rigorous scientific research/review of the literature and
   other information to identify specific toxicological data needed to make a
   scientifically sound determination and provide timely and accurate
   comments." As deliverables, the RFQ specified toxicological profiles for
   40 chemicals, and responses to regulatory comments regarding the
   development of toxicological profiles. RFQ at 9-11.

   The RFQ provided that the agency would evaluate technical capability on a
   pass/fail basis, and would select the successful vendor (from among those
   that had received a "pass" on the technical factor) on the basis of a
   tradeoff between past performance and price. The technical evaluation was
   to consist of six technical subfactors, with a rating of "fail" on any one
   subfactor resulting in an overall technical rating of "fail." RFQ at 6-7.
   For example, the first of the technical subfactors was described as:

     a. Proficient Development of Human Health Risk Assessment Reports
     following EPA [the Environmental Protection Agency]'s Risk Assessment
     Guidance for Superfund (RAGS)-The provider shall be regularly engaged in
     writing the toxicological aspects of Human Health Risk Assessment
     Reports following RAGS. Experience documentation must include at least 3
     risk assessment documents showing completed toxicity assessments. DoD
     [Department of Defense] reports are preferred.

   RFQ at 7 (emphasis in original).[2]

   On September 13, prior to the due date for submission of quotations, IVI
   filed its protest with our Office.

   In its agency report, the Navy submitted a statement from an environmental
   engineer responsible for the requirement. As background, the environmental
   engineer observed that the Navy is responsible for the clean-up of
   hazardous chemicals at multiple sites around the world. She explained that
   establishing the toxicity profiles for emerging contaminants is a "crucial
   step in the Navy's pollution prevention program and environmental
   restoration program at contaminated sites." Agency Report (AR), Tab C,
   Statement of Environmental Engineer, at 2.

   In her declaration, the environmental engineer explained that "[w]hile the
   Environmental Protection Agency has established toxicity profiles for many
   hazardous chemicals, there are many hazardous chemicals that do not have a
   toxicity profile, or the established toxicity profile for a chemical has
   become obsolete due to new scientific research and findings." She further
   explained that toxicological profiles prepared under the order would be
   used by the Navy to determine the exposure levels deemed safe for human
   health. AR, Tab C, Statement of Environmental Engineer, at 2. Her
   statement supports the conclusion that performance of these services will
   affect the Navy's judgments on the consequences of human exposure to
   hazardous chemicals.

   In explaining the justification for the challenged requirement for sample
   reports in the RFQ, the environmental engineer states that

     I also drafted the requirements in the solicitation's Technical
     Capability factor for the contracting officer. . . . The technical
     factors serve to show that the interested offeror is knowledgeable of
     the concepts, science, and analysis techniques well known to
     toxicologists and human health risk assessment professionals. To that
     end, the solicitation asks interested offerors to submit as few as at
     least one report, a writing sample if you will, to demonstrate their
     proficiency with a series of standard human health risk assessment and
     toxicology reports, such as "predicting chemical toxicity." The types of
     reports the solicitation required interested offerors to submit are the
     standard work product of professionals in the field.

   AR, Tab C, Statement of Environmental Engineer, at 3.

   An agency may reasonably restrict competition through the use of specific
   solicitation requirements so long as those requirements are needed to meet
   the agency's needs. JT Constr. Co., B-244404.2, Jan. 2, 1992, 92-1 CPD
   para. 1 at 4. Where a procurement involves matters of human life and
   safety, an agency has greater discretion to establish requirements that
   achieve the highest possible level of reliability and effectiveness. See,
   e.g., Marine Transp. Lines, Inc., B-224480.5, July 27, 1987, 87-2 CPD
   para. 91 at 4; American Airlines Training Corp., B-217421, Sept. 30, 1985,
   85-2 CPD para. 365 at 6.

   IVI argues that the agency requirement for sample reports did not ensure
   that the personnel involved in writing the sample reports would perform
   the services for the Navy, that the Navy could have met its needs through
   other means, and that "appropriate personnel qualification factors" would
   have met the Navy's needs. Protester's Comments at 10. Here, in light of
   the environmental engineer's statement indicating the importance of
   demonstrated vendor competence to provide reports that will support
   judgments affecting human health, we conclude that the Navy could
   reasonably require vendors to submit "experience documentation" in the
   form of "at least one report." However, in light of the environmental
   engineer's apparent satisfaction with a single report, the record before
   our Office does not support the requirement in the RFQ for multiple
   reports.

   Our Office requested a supplemental agency report reconciling the
   environmental engineer's statement that "as few as at least one report"
   was sufficient, with the RFQ requirement for multiple reports. The
   supplemental agency report included an additional statement from the
   environmental engineer, in which she noted that a vendor could "satisfy
   the RFQ's Technical Capability Factor with as few as 3 reports." However,
   she once again failed to justify the reason for requiring more than one
   report:

     In evaluating the interested contractor's technical proposal materials,
     I was only interested in their demonstrating sufficient proficiency and
     experience with the capabilities stated in the RFQ. I was not concerned
     about obtaining a particular number of reports.

   Supplemental AR, Tab 1, Supplemental Statement of Environmental Engineer,
   at 2.

   Upon receipt of the supplemental agency report, our Office asked the
   protester to describe in its comments to the supplemental agency report
   "the presence or absence of prejudice to the protester from the alleged
   errors in the context of the supplemental agency report," including how
   the protester had been impaired from competing (or otherwise competitively
   prejudiced) by the RFQ requirement for multiple sample reports, "as
   contrasted with the situation if only 1 report had been required." Fax
   from GAO to Parties (Nov. 16, 2005).

   In response, IVI did not argue that it could have met the requirement for
   a single report, regardless of the time available,[3] but instead argued
   that

     IVI was not a `commercial source' for the required services. It did not
     regularly offer and sell the services being sought . . . Its ability to
     compete was impaired by the requirement to prepare a submission in 13
     days that required it to submit "at least" three reports for each of two
     Technical Criteria sub-factor areas and "at least" one report for three
     Technical Criteria sub-factor areas. As a result, the RFQ's document
     submission requirement unduly and unreasonably restricted competition.

   Protester's Supplemental Comments at 10.

   We will deny a protest where, notwithstanding that a solicitation
   overstated an agency's requirements, the protester has not shown
   competitive prejudice; that is, unless the protester demonstrates that,
   but for the agency's actions, it would have had a substantial chance of
   receiving the award (or, in these circumstances, submitting an acceptable
   quotation).[4] McDonald-Bradley, B-270126, Feb. 8, 1996, 96-1 CPD para. 54
   at 3; see Statistica, Inc. v. Christopher, 102 F.3d 1577, 1581 (Fed. Cir.
   1996). Here, the Navy has only supported a requirement for a single sample
   report, not the multiple sample reports specified in the RFQ.
   Nevertheless, and even after our Office identified the issue, IVI has made
   no attempt to show that it could have met the agency's requirement for a
   single report, regardless of the time provided. As such, IVI has not been
   competitively prejudiced by the requirement for multiple reports in the
   RFQ.

   The protest is denied.[5]

   Anthony H. Gamboa
   General Counsel

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

   [1] As initially issued, the RFQ indicated that it was unrestricted. RFQ
   at 1. However, on September 12, the Navy issued an amendment to state
   "that this is a 100% Small Business Set-aside requirement." RFQ amend. 1.

   [2] Subfactor "a" (as quoted above) specified submission of "at least 3
   risk assessment documents," and subfactor "d" required "at least 3
   reports," to determine the technical capability of a firm, while
   subfactors "b," "c," and "e" each specified "at least 1 risk assessment
   document" or "at least 1 report." The final subfactor did not specify
   submission of a sample report. RFQ at 7. The protester argues that the six
   subfactors together required nine separate sample reports, Protest at 3-4;
   Protester's Comments at 5, while the Navy argues that a vendor could meet
   the RFQ requirement with "as few as 3 written reports because a single
   report submission could satisfy one or more of the Technical Capability
   subfactors." Supplemental Legal Memorandum at 9. For purposes of this
   decision, it is sufficient that neither party disputes that the RFQ
   required submission of multiple reports to establish a firm's technical
   capability in performing this work.

   [3] The protester did not submit a quotation under the RFQ by the closing
   date. Contracting Officer's Statement at 4. The protester argues that the
   closing date was improperly shortened by the unjustified use of commercial
   item procedures. Protest at 3.

   [4] The Navy explains that each of the five vendors that submitted a
   quotation, furnished at least nine sample reports. Supplemental
   Contracting Officer's Statement at 4. There is no evidence in the record
   to suggest that any firms--other than the protester--were excluded from
   the competition by the requirement for multiple sample reports. Nor is
   there any indication that the content or pricing of any of the quotations
   that were submitted would have been different if the requirement had not
   been included. See Ktech Corp.; Physical Research, Inc., B-241808,
   B-241808.2, Mar. 1, 1991, 91-1 CPD para. 237 at 6 (protest denied where
   waiver of requirement was not competitively prejudicial to competitors).
   Thus the protester has not shown that any actual or potential vendor was
   prejudiced by the requirement for multiple sample reports, as opposed to a
   single sample report.

   [5] Because the agency has justified a requirement that IVI has not shown
   that it could meet, we conclude that IVI is not an interested party to
   challenge other aspects of the procurement. See Vertol Sys. Co.,
   B-293644.6 et al., July 29, 2004, 2004 CPD para. 173 at 8.