TITLE: B-297825, Allied Protection Services, Inc., March 23, 2006
BNUMBER: B-297825
DATE: March 23, 2006
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B-297825, Allied Protection Services, Inc., March 23, 2006

   Decision

   Matter of: Allied Protection Services, Inc.

   File: B-297825

   Date: March 23, 2006

   Richard D. Lieberman, Esq., McCarthy, Sweeney & Harkaway, P.C., for the
   protester.

   Janet N. Repka, Esq., and Andrew Bramnick, Esq., Department of Defense,
   for the agency.

   Kenneth Kilgour, Esq., and Christine Melody, Esq., Office of the General
   Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Solicitation requirement that offerors have a secret facility clearance
   prior to the due date for proposals, and agency's decision that it will
   not sponsor potential offerors for the required security clearance, do not
   unduly restrict competition where the record shows that the requirement
   and the agency's decision not to sponsor are reasonably related to the
   agency's need to ensure that contract performance begins as scheduled.

   DECISION

   Allied Protection Services, Inc. (APS) protests as unduly restrictive the
   requirement that offerors have a secret facility clearance prior to the
   due date for proposals, and the refusal of the agency to sponsor potential
   offerors for that security clearance, under request for proposals (RFP)
   No. HQ0034-06-R-1005, issued by the Department of Defense (DOD),
   Washington Headquarters Services, Acquisition and Procurement Office, for
   guard services for the Pentagon Force Protection Agency (PFPA). APS argues
   that the clearance requirement effectively eliminates APS from competition
   and asserts that offerors without a clearance should be permitted to
   submit proposals, with the agency then sponsoring the awardees for the
   required clearance.

   We deny the protest.

   The RFP, issued on December 21, 2005, anticipates the award of up to five
   contracts to provide force protection, security, and law enforcement for
   DOD activities in the National Capitol Region. According to the agency,
   the RFP contains standards and security requirements more strenuous than
   those under the existing contract, reflecting the increased security needs
   at the Pentagon and other DOD facilities following the September 11, 2001
   terrorist attacks. As relevant here, the RFP provides as follows:

   The contractor shall hold, at a minimum, an interim secret facility
   clearance as granted by [the District Industrial Security Clearance Office
   (DISCO)] prior to the RFP closing date. PFPA will not sponsor offerors for
   DISCO Security Clearances.

   Agency Report (AR), Tab 11, RFP at 60. The facility clearance referred to
   is an administrative determination that a facility is eligible for access
   to classified information or award of a classified contract. See National
   Industrial Security Program Operating Manual, AR, Tab10, sect. 2-100. The
   firm seeking a facility clearance must be sponsored by the government or a
   currently cleared contractor, id. sect. 2-102; as stated in the RFP, the
   agency here will not sponsor potential offerors for the facility
   clearance. In order to implement the new, heightened security standards as
   soon as possible, the RFP provided for a 30-day transition period
   immediately after contract award, after which performance would begin. AR,
   Tab 12, RFP amend. 1, at 2. The agency received 16 offers by closing time
   on January 18, 2006.

   APS argues that the solicitation's facility clearance requirement, coupled
   with the agency's refusal to sponsor offerors, unduly restricts
   competition.[1] APS contends that the agency should permit offerors
   without an existing clearance to submit proposals and agree to sponsor the
   awardees for the required clearance. APS asserts that, given that it is
   highly unlikely that a contractor with a clearance would be willing to
   sponsor a potential competitor, the agency's refusal to sponsor potential
   awardees makes it virtually impossible to obtain a facility clearance,
   which in turn eliminates firms without existing clearances from the
   competition.

   The Competition in Contracting Act of 1984 requires that agencies specify
   their needs and solicit offers in a manner designed to achieve full and
   open competition, so that all responsible sources are permitted to
   compete. 10 U.S.C. sect. 2305(a)(1)(A)(i) (2000). The determination of a
   contracting agency's needs and the best method for accommodating them is a
   matter primarily within the agency's discretion. Tucson Mobilephone, Inc.,
   B- 250389, Jan. 29, 1993, 93-1 CPD para. 79 at 2, recon. denied,
   B-250389.2, June 21, 1993, 93-1 CPD para. 472. Where a requirement relates
   to national defense or human safety, as here, an agency has the discretion
   to define solicitation requirements to achieve not just reasonable
   results, but the highest level of reliability and effectiveness. Caswell
   Int'l Corp., B-278103, Dec. 29, 1997, 98-1 CPD para. 6 at 2; Industrial
   Maint. Servs., Inc., B-261671 et al., Oct. 3, 1995, 95-2 CPD para. 157 at
   2. Generally, the fact that a requirement may be burdensome or even
   impossible for a particular firm to meet does not make it objectionable if
   the requirement properly reflects the agency's needs. Computer Maint.
   Operations Servs., B-255530, Feb. 23, 1994, 94-1 CPD para. 170 at 2.

   In support of the RFP provision at issue here, the agency states that the
   lengthy process involved in obtaining a facility clearance, and the
   possibility of a negative outcome that would render a potential awardee
   unable to perform the contract, could make the agency vulnerable to delays
   in contract performance. Given the agency's need to implement increased
   security for the Pentagon and other facilities as soon as possible, which
   requires minimizing delays in awarding the contract and expeditiously
   completing the transition to the heightened security standards, we think
   that the record establishes that the facility clearance requirement and
   the agency's refusal to sponsor potential awardees for the facility
   clearance are reasonably related to the agency's needs. Id. Even assuming
   that the agency's plan to award multiple contracts mitigates some of the
   risk inherent in sponsoring awardees, as the protester asserts, the
   agency, in furtherance of its national security interest, has made a
   reasonable decision to optimize efficiency by ensuring that each of the
   multiple awardees is able to begin contract performance immediately upon
   contract award.

   The protester also asserts that the agency should have issued the RFP
   sooner, so that there would have been more time for firms to obtain the
   facility clearance in time for performance to begin as scheduled. We find
   this argument unpersuasive. There is no evidence that the agency unduly
   delayed issuing the RFP, nor is the agency required to assume the risk
   that firms without the security clearance that might be selected for award
   will in fact be unable to obtain the clearance in time for performance to
   begin as required.

   The protest is denied.

   Anthony H. Gamboa
   General Counsel

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   [1] APS also protested that the RFP was ambiguous because it did not
   specify the period of performance for the base or option year periods. The
   agency, by amendment, took corrective action with respect to this protest
   ground, which was then withdrawn.