TITLE: B-297534.4, CHE Consulting, Inc., May 17, 2006
BNUMBER: B-297534.4
DATE: May 17, 2006
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B-297534.4, CHE Consulting, Inc., May 17, 2006

   DOCUMENT FOR PUBLIC RELEASE
   
   The decision issued on the date below was subject to a GAO Protective Order. 
   No party requested redactions; we are therefore releasing the decision in 
   its entirety.

   Decision

   Matter of: CHE Consulting, Inc.

   File: B-297534.4

   Date: May 17, 2006

   Steven E. Kellogg, Esq., The Kellogg Law Firm, PC, for the protester.

   David S. Cohen, Esq., and John J. O'Brien, Esq., Cohen Mohr LLP, and
   Charles W. Steese, Esq., Steese & Evans, P.C. for Storage Technology
   Corporation, an intervenor.

   Robert R. Goff, Esq., and James W. DeBose, Esq., Defense Information
   Systems Agency, 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

   Protest is denied where agency record provides reasonable basis for
   requirement in solicitation for critical maintenance services that each
   vendor demonstrate in its quotation how it would obtain support from the
   original equipment manufacturer in the event that the vendor's remedial
   maintenance efforts for a malfunctioning unit were not successful within
   the service standard specified in the solicitation.

   DECISION

   CHE Consulting, Inc. protests the terms of a request for quotations[1]
   (RFQ) issued by the Defense Information Security Agency (DISA) to several
   firms holding Federal Supply Schedule (FSS) contracts seeking quotations
   to perform on-site predictive, remedial and preventive hardware
   maintenance service for StorageTek equipment located at various agency
   locations. CHE argues that the RFQ overstates DISA's needs by requiring
   vendors to have a relationship with the original equipment manufacturer
   (OEM), StorageTek.

   We deny the protest.

   DISA distributed the RFQ at issue on February 6, 2006, seeking quotations
   to provide services for a base year and one annual option period, as well
   as hourly rates for certain other services. RFQ at 6. The work to be
   performed under the RFQ involves maintaining "over 1,100 pieces of
   [StorageTek] equipment." AR, Tab 4, E-mail from DISA Program Analyst to
   Contracting Officer (Jan. 18, 2006), at 1.[2]

   The RFQ terms challenged by the protester require each vendor to provide
   support from the original equipment manufacturer (i.e., StorageTek) when
   the contractor is unable to return equipment to service within 4 hours by
   the contractor's own efforts, and to include in each quotation information
   explaining how the vendor would engage StorageTek without government
   intervention. RFQ at 8 (remedial maintenance statement of work); RFQ
   amend. 1, at 5 (instructions for preparation of quotation). Essentially,
   the requirement anticipates that the vendor will show that it has a
   service agreement in place to obtain assistance from StorageTek when
   needed. AR, Tab 11, Letter from Contracting Officer to Legal Counsel for
   CHE (Feb. 13, 2006). The requirement presents a problem for CHE, however,
   primarily because CHE does not have such an agreement and is either unable
   or unwilling to obtain one.[3] CHE objects to the requirement as
   overstating the agency's needs.

   While a contracting agency has the discretion to determine its needs and
   the best method to accommodate them, Mark Dunning Indus., Inc., B-289378,
   Feb. 27, 2002, 2002 CPD para. 46 at 3-4, those needs must be specified in
   a manner designed to achieve full and open competition; solicitations may
   include restrictive requirements only to the extent they are necessary to
   satisfy the agency's legitimate needs. 10 U.S.C. sect. 2305(a)(1)(A)(i),
   (B)(ii) (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 the agency's 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.,
   B-279621.2, Aug. 17, 1998, 98-2 CPD para. 44 at 3. A protester's mere
   disagreement with the agency's judgment concerning the agency's needs and
   how to accommodate them does not show that the agency's judgment is
   unreasonable. USA Fabrics, Inc., B-295737, B-295737.2, Apr. 19, 2005, 2005
   CPD para. 82 at 5.

   CHE objects to the solicitation, referencing CHE's prior experience to
   show that assistance from StorageTek is rarely needed, and contends that
   DISA has the ability to use other contracting mechanisms--either existing
   ordering vehicles or issuance of purchase orders--to handle those
   situations where a vendor is unable to complete maintenance on a unit and
   lacks a relationship with StorageTek. DISA explains that failures of this
   equipment would jeopardize the missions of the military departments.[4]
   Further, DISA contends that requiring, in effect, a single point of
   responsibility will avoid finger-pointing and blame-shifting, while
   providing assurance that the critical remedial maintenance is performed in
   a timely manner. Accordingly, DISA determined that the alternatives CHE
   had suggested in response to the RFQ, which would oblige DISA to use other
   contracting vehicles or urgent contracting procedures to obtain services
   from StorageTek, do not meet DISA's requirements to obtain critical
   maintenance--with the assistance of StorageTek itself when needed--quickly
   and efficiently. Agency Memorandum of Law at 11; AR, Tab 4, E-mail from
   DISA Program Analyst to Contracting Officer (Jan. 18, 2006), at 1.

   Since DISA's procurement officials are the ones most familiar with the
   conditions under which the services have been provided in the past, our
   Office will not question an agency's determination of its minimum
   needs--or the best method to meet them--unless there is a clear showing
   that the determination has no reasonable basis. Mid-South Dredging Co.,
   B-256219, B-256219.2, May 25, 1994, 94-1 CPD para. 324 at 5. While an
   agency's assertion of a risk of finger-pointing or blame-shifting does not
   automatically justify restrictive terms in a solicitation, e.g., National
   Customer Eng'g, B-251135, Mar. 11, 1993, 93-1 CPD para. 225 at 8, DISA's
   requirement for vendors to show their own ability to obtain support from
   the original equipment manufacturer is reasonable in the circumstances
   here.[5] Carahsoft Tech. Corp., B-297112, Nov. 21, 2005, 2005 CPD
   para. 208 at 5 (agency reasonably required single contractor where record
   supported agency's concern of finger-pointing among multiple contractors).

   The protest is denied.[6]

   Anthony H. Gamboa

   General Counsel

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

   [1] The RFQ apparently is not identified by number, and is variously
   identified by the parties as the "Level 1 StorageCentric Recompete," or
   "Level 1 StorageCentric Hardware Maintenance," or similar phrasing. The
   use of the term "recompete" is an apparent recognition by DISA that,
   during the course of an earlier series of protests regarding this
   requirement filed with our Office by Storage Technology Corporation
   (StorageTek) challenging the issuance of an order to CHE, DISA voluntarily
   took corrective action by canceling that order and issuing the revised
   RFQ, which CHE now challenges.

   [2] In its comments on the agency report, CHE argues that some of the
   1,100 units are non-critical or will be taken out of service, and that the
   correct number of units to be maintained is 634. Protester's Comments,
   exh. C, Affidavit of CHE President, at 9. We do not view this difference
   as significant to our resolution of the protest.

   [3] Although our Office is aware that CHE and StorageTek are apparently
   engaged in litigation in other forums in which they make a variety of
   charges and counter-charges, the ultimate resolution of any of those
   disputes is unrelated to this protest.

   [4] DISA emphasizes remedial maintenance as the "most critical" aspect of
   the contract, and that in certain circumstances a "[f]ailure to provide
   remedial maintenance [of the StorageTek equipment] in a timely fashion can
   result in warfighter casualties and loss of lives." Contracting Officer's
   Statement at 2 (the agency report combined the contracting officer's
   signed statement with the memorandum of law). Although CHE argues that
   DISA has not convincingly demonstrated how the delay in a critical repair
   will truly jeopardize lives, CHE's mere disagreement with DISA in this
   respect does not render DISA's judgment unreasonable. We also note that in
   a previous protest by CHE, of a very similar maintenance requirement
   issued by DISA, our Office concluded that

     In view of the critical nature of the work performed at the [work sites]
     on the equipment to be maintained, the potential detriment to defense
     missions from extended outages of that equipment, and the agency's own
     experience using contracts without OEM support, we believe the agency
     reasonably determined that OEM agreements represent an actual and
     legitimate need.

   CHE Consulting, Inc.; Digital Techs., Inc., B-284110 et al., Feb. 18,
   2000, 2000 CPD para. 51 at 4.

   [5] The protester argues that DISA successfully contracted with the
   protester to perform these services at another facility in the past
   without the protested requirement. DISA points out, however, that the
   earlier contract involved a much smaller quantity of critical equipment,
   all of which was downgraded to a lesser criticality level approximately 1
   year into performance. AR, Tab 11, Letter from DISA to Counsel for CHE
   (Feb. 13, 2006). Furthermore, even if there were not these significant
   distinctions between the two contracts, DISA has provided a basis for the
   requirement for original equipment manufacturer support under this RFQ,
   and the government is not bound by its contrary actions in a prior
   procurement. Welcon, B-247032.2, May 8, 1992, 92-1 CPD para. 429 at 4.

   [6] CHE also protested that, while the pricing in its earlier quotation
   was released when DISA initially selected CHE, DISA has not subsequently
   released the pricing of the several unsuccessful competing vendors.
   Protest at 9. DISA argued that CHE was not competitively prejudiced by the
   agency's decision to release limited information about CHE's pricing,
   which the agency did following the issuance of the order to CHE under the
   earlier version of the RFQ. Agency Memorandum of Law at 10. In its
   comments, CHE failed to respond to the agency's argument, so we view this
   ground of protest to be abandoned. See Symplicity Corp., B-297060, Nov. 8,
   2005, 2005 CPD para. 203 at 5 n.6.