TITLE: B-298277, MadahCom, Inc., August 7, 2006
BNUMBER: B-298277
DATE: August 7, 2006
****************************************
B-298277, MadahCom, Inc., August 7, 2006

   DOCUMENT FOR PUBLIC RELEASE
   The decision issued on the date below was subject to a GAO Protective
   Order. This redacted version has been approved for public release.

   Decision

   Matter of: MadahCom, Inc.

   File: B-298277

   Date: August 7, 2006

   Joel Singer, Esq., Sidley Austin LLP, for the protester.

   Rod McCracken, Esq., and Amy Pereira, Esq., Army Corps of Engineers, 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

   Solicitation requirements requiring compliance with specific radio
   frequency standard and minimum transmission range for equipment are unduly
   restrictive of competition where agency fails to provide reasonable basis
   for their inclusion in the solicitation.

   DECISION

   MadahCom, Inc. protests the terms of request for proposals (RFP) No.
   W912GB-06-R-0019, issued by the Army Corps of Engineers for provision and
   installation of mass notification systems (MNSes). The protester contends
   that various technical requirements of the RFP are unduly restrictive of
   competition because they are not reasonably related to the agency's needs
   for an MNS.

   We sustain the protest.

   BACKGROUND

   An MNS is a system designed to transmit alert messages and related
   information to personnel in or near buildings during emergency situations.
   An MNS can be provided for a single building or for multiple buildings in,
   for example, a military base-wide system. Alert messages are triggered by
   an individual user authorized to use the MNS. In the case of a
   single-building MNS, the user triggers an alert message through the
   autonomous control unit (ACU) in the building. In the case of a base-wide
   MNS, the user triggers an alert message from the primary control center
   for the base, which in turns sends the alert message to the ACU in each
   building. Once an ACU receives the alert message, it is sent to various
   devices, such as indoor and outdoor speakers and visual displays, that
   relay the alert to personnel.

   The Department of Defense (DoD) requires that buildings provide "timely
   means to notify occupants of threats and instruct them what to do in
   response to those threats." Unified Facilities Criteria (UFC) 4-010-01,
   DoD Minimum Antiterrorism Standards for Buildings, para. B-4.7. A separate
   UFC provides specific guidance for when an MNS is required in a DoD
   building, as well as design and operation requirements:

     Beginning with the fiscal year 2004 construction program, mass
     notification is required in all new inhabited buildings, including new
     primary gathering buildings and new billeting. Mass notification is
     required in existing primary gathering buildings and existing billeting
     when implementing a project exceeding the replacement cost threshold
     specified in UFC 4-010-01. Mass notification is recommended in other
     existing inhabited buildings when implementing a project exceeding the
     replacement cost threshold. Mass notification is required for leased
     buildings, building additions, and expeditionary and temporary
     structures (see UFC 4-010-01).

   UFC 4-021-01, Design and O&M: Mass Notification Systems, para. 1-6.1.

   As discussed below, DoD has sought to procure MNSes for its bases in
   Europe under several different types and versions of solicitations. The
   current RFP seeks proposals to provide MNSes at U.S Army Europe (USAREUR)
   facilities in Germany. The RFP anticipates a fixed-price contract to
   install an MNS at Landstuhl; subject to availability of funds, the awardee
   may also be instructed to install MNSes at Camp Vilseck, Camp Grafenwoehr,
   and Kleber Kaserne. RFP at 3. Offerors are required to propose

     all necessary personnel, materials, equipment, tools, supervision and
     other items and services to furnish, install, test and provide a custom
     emergency mass notification System (MNS), comprising of all hardware,
     software, controllers, speakers, wiring, and all other components of
     this system in a fully operational and operable condition inside of key
     installation buildings, administrative areas, and community areas to
     facilitate emergency notifications.

   RFP, Specifications for Mass Notification System, at 4.

   The USAREUR originally issued a solicitation for MNS requirements at 17
   bases in Europe in December 2003. Contracting Officer's Statement para. 1.
   The procurement of these requirements was subsequently assigned to the
   Corps in December 2004. Decl. of USAREUR Consequence Management Program
   Manager at 1. The Corps received the USAREUR's statement of requirements
   (SOW) and issued a new solicitation based on those requirements in July
   2005. Contracting Officer's Statement para. 6. The RFP anticipated award
   of an indefinite-delivery/ indefinite-quantity (ID/IQ) contract, and
   included requirements that the MNS equipment be "Motorola, system ASTRO
   25, repeater site trunking system or equal." Id. para. 8. MadahCom engaged
   in discussions with the Corps regarding various requirements, including
   the Motorola-based specifications and the ID/IQ contract type, arguing
   that they were unduly restrictive of competition. Id. para. 10. The Corps
   subsequently suspended the RFP "until further notice" on July 29, 2005.
   Id. para. 11.

   In September 2005, the Corps sought to procure the MNS requirements
   through a competition for task orders open only to those firms that had
   earlier been awarded a multiple-award task order contract (MATOC) for
   construction of family housing. Id. para. 12. MadahCom, which did not have
   one of the MATOCs, filed a protest with our Office challenging the
   solicitation on grounds that the anticipated task orders exceeded the
   scope of the underlying contracts. MadahCom Protest, Sept. 20, 2005, at 2.
   During the course of the protest, the agency advised our Office that the
   task-order proposals submitted by the MATOC holders had expired, and that
   the agency would not seek to obtain new or extended proposals. The agency
   stated that it would instead reissue the July 2005 version of the RFP.
   Contracting Officer's Statement para. 14. The agency requested that our
   Office dismiss the protest based on the decision to take corrective
   action; we did so on February 3, 2006.

   The agency reissued the July 2005 version of the RFP on February 3, 2006.
   On February 17, 2006, MadahCom filed a protest of this solicitation,
   arguing that numerous provisions were unduly restrictive of competition.
   MadahCom Protest, Feb. 17, 2006, at 2. The agency and protester's counsel
   engaged in discussions regarding the protest counts, and appeared to have
   reached an agreement regarding corrective action that would amend the
   solicitation. Protest, exh. 18, MadahCom Protest Withdrawal, Mar. 14,
   2006. The agency then advised our Office that it intended to issue a
   revised solicitation, and MadahCom withdrew its protest. Id.

   The agency issued a revised solicitation on March 30, 2006. Although many
   of the issues raised in MadahCom's prior protest had been resolved, the
   firm believed that the RFP still contained unduly restrictive provisions
   and submitted a series of questions to the agency. Contracting Officer's
   Statement paras. 23-26. The agency addressed these questions in a
   solicitation amendment dated April 25, 2006. Following the issuance of the
   amendment, MadahCom filed the current protest on May 5, 2006, again
   alleging that several requirements of the solicitation were unduly
   restrictive of competition or ambiguous, and also alleging that the agency
   had failed to take adequate corrective action in response to its prior
   protest.

   DISCUSSION

   In preparing a solicitation, a contracting agency is generally required to
   specify its 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. 305(a)(1)(A)(i), (B)(i) (2000). A solicitation
   may include restrictive provisions or conditions only to the extent
   necessary to satisfy the agency's needs or as authorized by law. 10 U.S.C.
   sect. 2305(a)(1)(B)(ii). Where a solicitation provision is challenged as
   unduly restrictive of competition, the procuring agency has the
   responsibility of establishing that the specification is reasonably
   necessary to meet its needs. ViON Corp., B-256363, June 15, 1994, 94-1 CPD
   para. 373 at 4-5. Our Office reviews the adequacy of the agency's
   justification by examining whether it is reasonable, that is, whether the
   explanation can withstand logical scrutiny. Chadwick-Helmuth Co., Inc.,
   B-279621.2,
   Aug. 17, 1998, 98-2 CPD para. 44 at 3.

   As discussed below, we believe the agency has not demonstrated that
   solicitation requirements for (1) compliance with the Association of
   Public-Safety Communications Officials International Project 25 (APCO 25)
   standard for radio transmissions, and (2) a 10-kilometer range for
   transmission and receiving stations are reasonably related to the agency's
   needs for an MNS.[1] We also believe that the protester's challenges to
   three solicitation provisions that the agency has now addressed through
   proposed corrective action in response to the protest are clearly
   meritorious and, therefore, warrant reimbursement of the protester's costs
   of pursuing the protest.

   (1) APCO 25 STANDARD

   The RFP requires that the wireless transmissions and equipment for
   offerors' proposed MNSes comply with the APCO 25 Statement of Requirements
   for land mobile radios (LMRs). An LMR is a handheld or vehicle-mounted
   non-tactical radio device operating within a specific frequency range that
   allows its user to communicate with another LMR user. Decl. of Agency
   Engineer, exh. 2, Army Supplement to DOD Policy for LMR Systems para. 3.a.
   As explained below, the RFP requires two field radios, a general category
   of radio which may include LMRs. RFP, Specifications for Mass Notification
   System, at 6.

   APCO is an association of public safety organizations that publishes
   standards for communications technologies and advocates that governmental
   agencies adopt those standards. See APCO website, available at:
   http://www.apcointl.org. APCO 25 is a set of standards for digital radios
   for use by public safety agencies intended to enable them to procure and
   operate compatible LMRs. See Project 25 Statement of Requirements,
   available at:
   http://www.apco911.org/frequency/documents/03-20-06-PublishFinalVersionofReformattedP25SoR.pdf.

   The RFP identified the following requirement for the MNS: "For the radio
   transmission of the alarm to the MNS in the buildings and any loudspeaker
   systems, a radio network shall be established with digital signal
   transmission according to APCO 25 standard." RFP, Specifications for Mass
   Notification System, at 24; see also id. at 25-26. Although the APCO 25
   standard applies specifically to LMRs, the agency explained that the APCO
   25 standard for purposes of this solicitation applies to all wireless
   communications in the MNS, such as those from the base's primary control
   center to each building's ACU, and not just LMR transmissions:

     GAO: Where is an APCO 25 compliant radio used in an MNS?

     PROGRAM MANAGER: The entire system is APCO 25 compliant. . . . This is
     mostly dealing with the wireless communications portion of it so this
     would be getting the communications from the control station to the
     building itself. But when it's transmitted in the building, it goes over
     a hard wire into speakers.

     GAO: As a global requirement, under the solicitation, does every
     wireless transmission need to be APCO 25 compliant?

     PROGRAM MANAGER: Yes.

   Hearing Transcript (Tr.) at 19:14-20:4.

   The protester contends that the APCO 25 requirement is unduly restrictive
   of competition because it is not required by UFC 4-021-01 and is not
   necessary to meet the agency's general requirements for an MNS. The
   protester further contends that it is prejudiced by the requirement
   because its MNS does not comply with the APCO 25 standard, and MadahCom is
   thus effectively precluded from competing for the contract award. Protest
   at 15-16. The agency cites three primary rationales in support of the APCO
   25 compliance requirement, which we discuss below.

     (a) UFC 4-021-01 Requirements

   The agency initially argued that APCO 25 compliance was required under DoD
   policy regarding MNSes: "UFC 4-021-01, which governs the solicitation,
   designates
   APCO 25 compliance for wireless MNS, as an advanced technology, which will
   increase functionality, reliability, and security." Agency Memorandum of
   Law at 4. In its supplemental report, however, the agency conceded that
   the UFC did not require the APCO 25 standard. Supplemental Agency
   Memorandum of Law at 2.

   During a telephone hearing conducted by our office, an agency engineer
   testified that she was the individual responsible for adding the APCO 25
   compliance requirement to the RFP. Tr. at 25:3-8.[2] Despite the agency's
   prior acknowledgment that UFC 4-021-01 does not require compliance with
   the APCO 25 standard, the agency engineer explained that APCO 25
   compliance had been included in the solicitation because the standard was
   required under the UFC:

     GAO: [D]o you know who introduced the APCO 25 standard? Was it the Army
     Corps or was it USAREUR? . . .

     AGENCY ENGINEER: We set our specifications based on the UFC. In the
     appendix B, in specific, B 1, it actually speaks of the APCO 25 as being
     required.

   Tr. at 24:3-13.

   UFC 4-021-01, however, does not require use of the APCO 25 standard for an
   MNS. The only reference to APCO 25 in the UFC is found in a table of
   "Expected Near-term Mass Notification System Improvements," at the section
   cited by the agency engineer in her testimony above:

   +------------------------------------------------------------------------+
   |Function     |Current Capability              |Expected Improvement     |
   |-------------+--------------------------------+-------------------------|
   |Wireless     |Many of the mass notification   |Adoption of the encrypted|
   |Communication|system radios available today   |Association of Public    |
   |             |are transmitting analog voice   |Safety Communications    |
   |             |and frequency-shift keying (FSK)|Officials (APCO) Project |
   |             |telemetry. Manufacturers have   |25 Protocol (when fully  |
   |             |developed mechanisms for adding |deployed and more broadly|
   |             |security that significantly     |available) will further  |
   |             |reduces the chance of           |reduce the chances of    |
   |             |unauthorized commands being     |unauthorized commands    |
   |             |accepted. However, a person with|being accepted and will  |
   |             |a receiver tuned to the correct |make interception of     |
   |             |frequency can listen to the     |messages and commands    |
   |             |analog voice transmissions, and |very difficult.          |
   |             |once voice communications are   |                         |
   |             |enabled, nearby unauthorized    |                         |
   |             |transmitters could be used to   |                         |
   |             |distort or override messages.   |                         |
   +------------------------------------------------------------------------+

   Protest, exh. 1, UFC 4-021-01, at B-1.

   As shown above, the UFC provision cited by the agency engineer neither
   requires nor recommends APCO 25 compliance for an MNS. Rather, the UFC
   identifies APCO 25 as a possible future improvement.[3] On this record, it
   is clear that UFC 4-021-01 does not require inclusion of the APCO 25
   standard in a solicitation for an MNS. Further, we believe that the record
   shows that the agency engineer incorrectly believed that the APCO 25
   standard was required by the UFC at the time she added this requirement to
   the RFP.

     (b) Interoperability

   The agency next contends that the APCO 25 standard requirement ensures
   that an MNS purchased by the agency under the contract will not commit the
   agency to proprietary technology for its MNS needs, and, therefore, the
   MNS procured under the solicitation will be interoperable with other MNSes
   and related communications systems. This argument, however, was first
   raised in the agency's memorandum of law, and was not supported by any
   statements by contracting officials or citations to written requirements
   or policy statements. See Agency Memorandum of Law at 3-4. During the
   hearing, we requested that the agency explain the basis for its position
   that APCO 25 compliance would achieve "interoperability." The agency
   program manager responded as follows:

     The push for mass notification in facilities came in 2004 when it was
     mandated all new designs and buildings under current design were
     required to have mass notification. With that stated, USAREUR went
     forward with soliciting for a EUCOMM-wide mass notification contract.
     They could not get it to go forward and they turned it over to the Corps
     of Engineers in December 2004 for further action and then the research
     and everything ensued based on their requirements. The push was for
     USAREUR to get homogenous systems USAREUR-wide. Before then, individual
     facilities, even military components on those facilities were installing
     their own brand or type or favorite systems and many of them were not
     adherent to the UFC but we also know that the systems we are about to
     install or want to install will not be compatible with every system on
     all these facilities. It is future upgradable to when those systems are
     replaced that they will communicate with . . . each facilit[y's] central
     control station.

   Tr. at 36:12-37:9.

   During the hearing, we noted that the record to date had not addressed or
   supported the Corps's claim that its client, the USAREUR, had requested
   interoperability as a requirement for the MNS procurement or that the UFC
   requires the compatibility described by the agency. We requested that the
   Corps supplement the record in its post-hearing comments with
   documentation of any policies or guidance that supported the agency's
   position. Tr. at 37:10-38:4. In its response, the agency cited the
   USAREUR's initial MNS SOW that was provided to the agency when the Corps
   assumed responsibility for procuring the USAREUR's MNS needs. Decl. of
   Agency Engineer at 2. The USAREUR SOW provision cited by the agency,
   however, merely states that the MNS must "support expansion, be easily
   expandable, and modular." SOW for USAREUR MNS (Dec. 2, 2003), at 44. This
   SOW requirement does not clearly relate to the type of interoperability
   cited by the agency as its rationale for APCO 25 compliance, i.e.,
   ensuring compatibility with other systems and avoiding use of proprietary
   technology.

   The agency has also not identified any requirements or policy statements
   that showed that APCO 25 had been adopted or will be adopted in the future
   for MNS requirements so as to provide for interoperability in the manner
   argued by the agency. [4] Conversely, the agency has not demonstrated that
   use of non-APCO 25 standards for MNSes binds the agency to proprietary
   technology in a manner that would preclude the interoperability described
   by the agency. On this record, we believe that the agency's rationale
   regarding interoperability does not reasonably support the inclusion of
   the APCO 25 standard in the solicitation.

     (c)  Land Mobile Radios

   The agency finally argues that because APCO 25 is a standard for land
   mobile radios (LMRs), requiring the entire MNS to comply with that
   standard will allow for potential benefits to be realized from the use of
   LMRs as part of an MNS. Supplemental Memorandum of Law at 3. In this
   regard, the agency suggests that, in the future, use of LMRs could allow
   individuals to trigger MNS alerts remotely, as opposed to relying on a
   central command station to issue an alert. Id. The agency's argument
   regarding LMRs reverses somewhat the assumptions of its previous two
   rationales, namely, that the APCO 25 standard is a general requirement for
   an MNS. Here, by contrast, the agency's argument presupposes a need for an
   LMR that complies with APCO 25, and then asserts that the entire MNS,
   i.e., the wireless transmission equipment which relays alert messages
   throughout the system, must comply with APCO 25 in order to accommodate
   the LMRs.

   The RFP, however, does not require an APCO 25 compliant LMR. During the
   hearing, the agency program manager acknowledged that the RFP does not
   require LMRs that comply with APCO 25, but rather requires only two "field
   radios" requested by the client: "Our solicitation doesn't require the use
   of [APCO 25 compliant LMRs] but we do have the offeror providing two field
   radios under our solicitation which is applicable to APCO 25 standards."
   Tr. at 18:2-5.

   The agency further acknowledged that the future capability for remote
   triggering of alarms through the use of LMRs was not specifically
   requested by its client, the USAREUR, and is not required by the RFP. In
   fact, the agency does not know how the field radios will be used as part
   of the MNS; instead, individual base commands will determine such use:

     GAO: . . . [W]hat would the present use of those two mobile radios be in
     the MNS?

     AGENCY PROGRAM MANAGER: We don't have the specific answer to that other
     than these radios are to be turned over to the -- who is it? No, it's
     the installations communication officer. And the use of these others is
     per their discretion.

     GAO: . . . [Y]ou don't have a specific use for these mobile radios
     anticipated?

     AGENCY PROGRAM MANAGER: Negative. These systems are going to be turned
     over to the installation communications officers per installation. They
     are the ones responsible for the mass notification and emergency
     notification systems at each installation. Our task was to provide the
     base mass notification systems with the equipment that they requested
     and what they do with it and how they implement it is purely up to their
     coordination and SOPs.

   Tr. 21:8-22:5

   On this record, given that the RFP did not require the field radios to be
   APCO 25 compliant LMRs, and that the agency does not know how the
   requested field radios will be used by installations that receive an MNS
   under the contract, we believe that the agency's rationale for requiring
   an APCO 25 compliant MNS lacks a reasonable basis.[5]

   In sum, we agree with the protester that all three of the agency's
   rationales fail to establish that the APCO 25 standard is reasonably
   necessary to meet its needs for an MNS, and we sustain the protest because
   the requirement is unduly restrictive of competition.

   (2) 10-Kilometer Range

   The protester next contends that the RFP requirement for a 10-kilometer
   range for the required radio transmitting and receiving station is unduly
   restrictive of competition because it excludes an MNS that could achieve
   the required coverage with multiple stations, each of which may have a
   range of less than 10 kilometers. The RFP requirements for radio
   transmission ranges are as follows:

     Basis station consisting of transmitting and receiving station for a
     function radius of at least 10 km, consisting of antenna and supply unit
     with all required switch and control elements, transmitting units such
     as a transmitter, receiver, etc., UPS and power supply should be
     furnished, installed and put into operation.

   RFP, Specifications for Mass Notification System, at 30.

   The protester argues that the MNS transmitting and receiving station range
   requirement should be stated in terms of coverage for the individual
   installations at which an MNS will be provided. The protester contends
   that the agency has not demonstrated why an overlapping system of smaller
   transmitting and receiving stations could not achieve the same
   functionality as a single station with a
   10-kilometer range. MadahCom argues, for example, that the station used in
   its own MNS provides a 5-kilometer range, but that multiple stations with
   overlapping ranges can be configured to achieve whatever coverage is
   required for an MNS at each installation. Tr. at 104:22-105:7.

   The agency first argued that a 10-kilometer range "allows future
   integration of other sites or buildings into the base-wide MNS," and
   "keeps the system flexible and allows future integration of other
   buildings." Supplemental Agency Memorandum of Law
   at 5. The protester responded that its proposed MNS could achieve such
   coverage, if the single-station 10-kilometer range were abandoned in favor
   of a more general requirement to provide coverage for the installation.

   During the hearing, the agency argued that the protester's suggestion that
   system of multiple, overlapping stations could provide the same benefits
   as a single station with a 10-kilometer range was not a feasible solution,
   due to technical and regulatory barriers. The agency was unable, however,
   to fully articulate its rationale for its position during the hearing in
   response to questions from our Office. See Tr.
   at 100:1-108:8. We requested that the agency clarify its position in its
   post-hearing comments. See Tr. at 109:20-110:20. In its comments, however,
   the agency did not address its argument that technical difficulties would
   result from overlapping signal ranges, but instead the agency engineer
   provided a new justification for the
   10-kilometer range that pertained to the use of the field radios:[6]

     [I]f there are to be field radios that can connect to the network, a
     large radius gives them a great benefit. The larger radius allows the
     field radios to have a connection to the system from a larger area,
     including off-base. If an emergency occurs and someone in charge such as
     the provost marshall is not on base at the time, that person can still
     utilize the MNS directly from where he is off-base. I had to choose a
     distance for this, and ten kilometers is a good range. The greater the
     range beyond ten kilometers, the greater the cost to the Government, so
     I needed to balance utility with cost. Ten kilometers seemed a very cost
     effective range that would leave all bidders on equal footing.

   Decl. of Agency Engineer at 2.

   The agency engineer's statement therefore explains that the 10-kilometer
   range was selected as a compromise between a larger and smaller potential
   range. We agree with the protester that the agency's rationale does not
   reasonably explain why other technical solutions that could also achieve a
   10-kilometer range, or could otherwise provide coverage for the actual
   size of an installation, fail to meet the agency's needs. In this regard,
   the agency has not demonstrated that alternatives, such as those raised by
   the protester, could not meet the agency's needs.

   On this record, we believe that the agency has not demonstrated that a
   single transmission and receiving station with a 10-kilometer range is
   necessary to meet the agency's needs, and sustain the protest on this
   ground.

   (3) Corrective Action Regarding Other Issues

   In addition to the two requirements discussed above, the protester also
   challenged three other solicitation provisions as unduly restrictive of
   competition or ambiguous: restrictions on the frequency ranges allowed for
   radio transmissions, requirements to provide optical radios and a wireless
   local area network (WLAN), and a requirement for "remote amplifiers."
   During the hearing, the agency stated that it would take corrective action
   to address these three issues, and the agency issued a proposed amendment
   to the solicitation in its comments on the hearing. Based on the agency's
   statement that it would take corrective action with regard to these three
   issues, we consider them to have been rendered academic. Since it is not
   our practice to consider academic questions, the protest is dismissed with
   regard to these three issues. Dyna-Air Eng'g Corp., B-278037,
   Nov. 7, 1997, 97-2 CPD para. 132.

   Although we consider the merits of these issues academic, the protester
   has also requested that we recommend that it be reimbursed its protest
   costs regarding the issues. As a general rule, we recommend reimbursement
   of a protester's costs incurred with respect to all issues pursued, not
   merely those upon which it prevails. Honeywell Tech. Solutions,
   Inc.-Costs, B-296860.3, Dec. 27, 2005, 2005 CPD para. 226
   at 3-4. In appropriate cases we have limited the recommended reimbursement
   of protest costs where a part of the costs is allocable to an issue on
   which the protester did not prevail and which is so clearly severable as
   to essentially constitute a separate protest. Id. Here, although the
   agency agreed to take corrective action, it does not concede that any of
   the provisions were unduly restrictive of competition or ambiguous and
   thus argues, in effect, that we should treat these issues as severable for
   purposes of determining whether the protester should be reimbursed its
   protest costs.

   We need not determine whether these three issues are severable from the
   issues as to which we sustain the protest, discussed above, because we
   believe that the protester's challenges to the three issues here are
   clearly meritorious and would each have provided an independent basis to
   sustain the protest, had the agency not taken corrective action. In this
   regard, our Bid Protest Regulations provide that, where the contracting
   agency decides to take corrective action in response to a protest, we may
   recommend that the protester be reimbursed the costs of filing and
   pursuing its protest, including reasonable attorneys' fees. 4 C.F.R. sect.
   21.8(e) (2006). Our Office will recommend reimbursement only where an
   agency unduly delayed its decision to take corrective action in the face
   of a clearly meritorious protest, that is, where a reasonable agency
   inquiry into the protester's allegations would reveal facts showing the
   absence of a defensible legal position. Department of the Army--Recon.,
   B-270860.5, July 18, 1996, 96-2 CPD para. 23 at 3. As discussed below, we
   believe that the protester's allegations clearly identified flaws or
   ambiguities in the solicitation, and the agency failed to take prompt
   corrective action.[7]

     (a) Frequency range

   The protester first argued that the RFP prohibited the use of certain
   radio frequencies that MadahCom intends to use in its MNS, namely those in
   the 2.4 GHz range. The RFP explained the radio frequencies restrictions as
   follows:

     2. An infrastructure shall be set up which enables wireless networking
     between the central control stations in the Emergency Operations Center
     (EOC) of the individual buildings, the outdoor loudspeaker system and
     the central control stations (EOC Office, MP stations or Fire
     Department). The radio network shall be operated preferably with the
     approved radio frequency authorized in the host nation and facility. If
     the frequency band is not available for the respected facility another
     charge-free frequency shall be used. Only frequencies shall be used that
     are released by the respective frequency coordinator and provided
     free-of-charge by the national regulatory authority.

     3. If in exceptional cases no usable frequency is available, frequencies
     in the 2.4 GHz range and in the 5 GHz range may be used, these ranges
     are released for general use IAW [in accordance with] international
     standards. This would correspond to the wireless LAN standard IAW
     802.11.

   RFP, Specifications for Mass Notification System, at 14-15.

   The protester argues that the plain language of the solicitation must be
   interpreted to state that: (1) the radio network shall operate with a
   host-nation-approved frequency, (2) if that frequency is not available,
   another charge-free frequency shall be used, and (3) if in "exceptional
   cases" no usable frequency is available, then a 2.4 or 5 GHz frequency may
   be used. Under this interpretation, a 2.5 or 5 GHz frequency may not be
   used unless other frequencies are unavailable.

   The agency argues that the protester misreads the RFP, and that offerors
   are allowed to use the 2.5 or 5 GHz frequencies. The agency also states
   that, even if the RFP "was not worded as well as it should have been," the
   agency did not intend to limit use of these frequencies to only
   "exceptional cases" where other frequencies are not available.
   Supplemental Agency Memorandum of Law at 4. During the hearing, the agency
   stated that it would revise the solicitation to better reflect the
   agency's understanding of the frequency requirements. The agency's
   proposed amendment to the RFP clarifies the provision, as follows:

     2. An infrastructure shall be set up which enables wireless networking
     between the central control stations in the Emergency Operations Center
     (EOC) of the individual buildings, the outdoor loudspeaker system and
     the central control stations (EOC Office, MP stations or Fire
     Department). The radio network shall be operated with an approved radio
     frequency authorized in the host nation and city. If the frequency band
     is not available for the respected facility another charge-free
     frequency shall be used. Only frequencies shall be used that are
     free-of-charge.

     3. Frequencies in the 2.4 GHz range and in the 5 GHz range may be used,
     these ranges are released for general use IAW international standards.
     This would correspond to the wireless LAN standard IAW 802.11.

   Agency Hearing Comments, exh. 8, Proposed Amended Specifications for Mass
   Notification System (emphasis added to denote changes).

   We agree with the protester that the plain language of the RFP was, at
   best, ambiguous to the extent that a reasonable offer could conclude that
   the RFP did not permit use of the 2.4 GHz range except in "extraordinary
   circumstances." See C. Lawrence Constr. Co., Inc., B-290709, Sept. 20,
   2002, 2002 CPD para. 165. Additionally, the agency's explanations prior to
   the protest and prior to the hearing did not clearly resolve this issue.
   On this record, we believe that the protester's challenge to this
   requirement was clearly meritorious.

     (b) Optical Radio and Wireless Local Area Network

   The protester next argued that the RFP did not contain adequate
   information regarding two types of equipment, an optical radio and a
   wireless local area network (WLAN). See RFP, Specifications for Mass
   Notification System, at 33-34. The protester contended that while the RFP
   provided detailed requirements for each type of equipment, it failed to
   explain how each was intended to be used or incorporated into an MNS
   during contract performance.

   In response to questions posed by MadahCom prior to the protest, the
   agency generally restated the definition for an optical radio and WLAN,
   but did not explain how they were to be used in an MNS. See RFP amend. 1,
   at 5-6. In its report on the protest, the agency argued that the
   requirements were clearly stated in the RFP and responses to questions in
   Amendment 1 to the RFP. Memorandum of Law at 6-7. In its supplemental
   report on the protest, however, the agency for the first time clarified
   that "W-LAN, optical radio . . . are not specifically listed as necessary
   items.
   . . . They do not need to be used; the contractor is to decide what items
   are needed at each location." Supplemental Agency Memorandum of Law at 5.
   During the hearing, the agency affirmed that the optical radio and WLAN
   were optional elements that could be proposed by offerors. Tr. at
   111:7-112:3.

   The agency's proposed amendment to the RFP clarifies the requirements
   regarding the optical radio and WLAN, as follows: "When required by the
   contractor's scope and in accordance with MNS requirements listed in
   previous sections, the specifications for specific items in this section
   will be complied with." Agency Hearing Comments, exh. 8, Proposed Amended
   Specifications for Mass Notification System. Thus, the requirements now
   clearly state that offerors must provide an optical radio or WLAN that
   complies with the specifications only in the event that the offeror's
   proposed MNS relies on such equipment.

   We agree with the protester that the RFP was unclear prior to the agency's
   corrective action as to whether offerors were required to propose these
   two types of equipment. For example, the description of the WLAN stated
   that "[t]he system shall be set up as [a] point-to-point and
   point-to-multipoint system." RFP, Specifications for Mass Notification
   System, at 32. The responses by the agency in Amendment 1 to the RFP were
   similarly unclear in that they referred to the RFP requirements but did
   not also explain the agency's subsequent position that the two types of
   equipment were not required, but rather were optional approaches. We
   therefore agree with the protester that a reasonable offeror could
   conclude that the RFP did not clearly explain how these types of equipment
   would be used under the requirements. See C. Lawrence Constr., supra.
   Additionally, the agency's explanations prior to the hearing did not
   clearly resolve this issue. On this record, we believe that the
   protester's challenge to these requirements was clearly meritorious.

     (c) Remote Amplifiers

   The protester finally argued that the solicitation's requirement that
   offerors provide "remote amplifiers" for speakers that broadcast MNS
   messages was unduly restrictive of competition, and not justified as
   compared to other types of equipment, such as internal amplifiers, which
   MadahCom uses in its MNS. Protest at 23. The RFP stated that offerors were
   required to "provide remote amplifiers, as required, for the MNS." RFP,
   Specifications for Mass Notification System, at 9. MadahCom submitted the
   following questions to the agency following the issuance of the revised
   RFP on March 30, 2006, which the agency addressed in amendment 1 to the
   RFP on April 25, 2006:

     Question: What is the purpose of the "Remote Amplifiers?"

     Answer: See Specifications bullet 3 of Section 1.9 for the purpose of
     Remote Amplifiers.

     Question: Would a system be acceptable if it can provide the necessary
     coverage throughout the covered areas and do so with intelligible sound
     but without needing "Remote Amplifiers."

     Answer: No. A remote amplifier is requested.

   RFP amend. 1, at 4.

   In its agency report, the Corps stated that the RFP reasonably explained
   that offerors must propose "an amplifier that must operate away from the
   main unit." Memorandum of Law at 8. During the hearing, however, the
   agency engineer responsible for drafting the MNS specifications clarified
   that the term "remote" had been used as the result of a mistranslation
   from German to English, and that the intended term was a "backup"
   amplifier. See Tr. at 84:22-85:22. In its proposed amendment to the
   solicitation, the agency deletes the requirement for "remote" amplifiers,
   and clarifies that offerors are required to provide independent amplifiers
   that are "redundant." Agency's Hearing Comments, exh. 8, Proposed Amended
   Specifications for Mass Notification System. We thus believe that the
   protester's challenge to this requirement was clearly meritorious.

   In sum, because the clarification of these three issues was first made
   during the hearing, after the filing of the protest, the production of the
   agency report and supplemental agency report, two rounds of comments by
   the protester, and discussion of the merits of the issues during the
   hearing, we believe that the agency did not take prompt corrective action.
   We conclude that the challenges raised to these three solicitation
   provisions were clearly meritorious and we recommend that the protester be
   reimbursed its reasonable protest costs for all three of the issues
   discussed above.

   RECOMMENDATION

   We recommend that the agency amend the solicitation to delete the APCO 25
   compliance requirements and the 10-kilometer range requirement. We further
   recommend that the agency reimburse the protester the reasonable costs of
   pursuing its protest regarding the APCO 25 and 10-kilometer range issues,
   and the three areas for which the agency has taken corrective action
   discussed above. The protester's 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. sect. 21.8(f)(1).

   The protest is sustained.

   Gary L. Kepplinger

   General Counsel

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

   [1] The agency contends that it should be afforded additional deference
   here in our review of the manner in which it has solicited its needs,
   noting our decisions that have recognized that an agency may "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 5. As discussed in the
   decision, however, the agency here has failed to provide any reasonable
   basis for its restrictive requirements, and did not demonstrate that the
   APCO 25 or 10-kilometer range requirements related to actual requirements,
   much less requirements pertaining to heightened levels of reliability and
   effectiveness.

   [2] All of the agency engineer's testimony herein has been translated from
   German. A translator participated in the hearing for the purpose of
   translating questions and responses for the engineer.

   [3] The protester notes that several proposed revisions to UFC 4-021-01
   delete any reference to APCO 25. Protester's Comments at 8-9. These
   versions, however, have not received final approval from DoD and thus only
   the version discussed above, dated December 2002, is current. See
   Supplemental Agency Memorandum of Law at 2-3. As relevant here, DoD has
   not issued a revision to this document that adopts
   APCO 25 as a required or recommended standard.

   [4] The agency also cites a February 2002 Army memorandum that states that
   Army LMRs are anticipated to achieve greater interoperability with other
   systems when the radios support the APCO 25 standard. Decl. of Agency
   Engineer, exh. 1, Army Plan for Narrowband Systems Operating in the Land
   Mobile Radio (LMR) Service, at 1. This memorandum, however, does not
   address MNS requirements and, as discussed below, the agency has not
   demonstrated that APCO 25 compliant LMRs are required for an MNS.

   [5] Additionally, the agency acknowledged during the hearing that a
   non-APCO 25 compliant radio could allow authorized users to remotely
   trigger MNS alerts.
   Tr. 62:25-64:4. That is, there is nothing in the APCO 25 standard that
   makes it uniquely suitable for remote triggering of alerts, nor is there
   any barrier to a non-APCO 25 compliant radios doing the same.

   [6] The agency engineer also noted in her declaration that the
   10-kilometer range was included "for several reasons, some of which are no
   longer relevant." Decl. of Agency Engineer at 1.

   [7] The protester also argues that it should be reimbursed its costs
   associated with its February 17, 2006 protest. MadahCom advised our Office
   on March 14, 2006 that it was withdrawing that protest based on an
   agreement with the agency regarding corrective action. The agency
   subsequently issued an amendment to the solicitation on March 30, 2006. We
   do not believe that this time frame represents an undue delay in
   implementing corrective action that warrants the reimbursement of protest
   costs. Additionally, the current protest does not clearly relate back to
   issues raised in the February 17 protest. With regard to the current
   protest of the APCO 25 standard, the prior protest challenged the
   Motorola-based specifications and trunking requirements. The protester now
   contends that the agency's deletion of the Motorola and trunking
   specifications, while retaining the APCO 25 requirement, resulted in
   incomplete and non-meaningful corrective action because APCO 25 is
   synonymous with the other two specifications. The protester, however, did
   not specifically challenge the APCO 25 requirement in its February 17
   protest, nor did it argue that the Motorola-or-equal and trunking
   requirements were synonymous with the APCO 25 standard. Under these
   circumstances, we do not recommend that the protester be reimbursed the
   costs of its February 17 protest.