TITLE: B-298715, Relm Wireless Corporation, December 4, 2006
BNUMBER: B-298715
DATE: December 4, 2006
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B-298715, Relm Wireless Corporation, December 4, 2006

   Decision

   Matter of: Relm Wireless Corporation

   File: B-298715

   Date: December 4, 2006

   William L. Walsh, Jr., Esq., J. Scott Hommer, III, Esq., Peter A. Riesen,
   Esq., and Keir X. Bancroft, Esq., Venable LLP, for the protester.

   Brian E. Toland, Esq., Department of the Army, for the agency.

   Katherine I. Riback, Esq., and James A. Spangenberg, Esq., Office of the
   General Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Protest that agency improperly obtained products outside scope of
   multiple-award indefinite-delivery/indefinite-quantity contracts is denied
   where the product was reasonably encompassed by the contracts at issue.

   DECISION

   Relm Wireless Corporation protests the decision of U.S. Army
   Communications-Electronics Command (CECOM) to issue a solicitation
   contemplating the award of a task order under a multiple-award,
   indefinite-delivery/indefinite-quantity (ID/IQ) task order contract to
   obtain commercial Land Mobile Radio (LMR) equipment for tactical,
   intra-squad communications. Relm maintains that this tactical radio is
   outside the scope of the ID/IQ contracts.

   We deny the protest.

   In 2001, the Department of the Army issued a solicitation contemplating
   the award of multiple ID/IQ contracts for base radio systems (BRS).
   Request for Proposals (RFP) No. DAAB07-01-R-H801. Under the statement of
   work, the solicitation described the scope of the contracts as follows:

     1.2. Scope. The BRS program will offer commercially available radio
     technology products and services. These will allow customers to create a
     uniquely tailored solution to meet their LMR requirements. Offerings
     include categories for [LMR] systems from full turn-key to
     customer-tailored solutions, equipment, technical support services, and
     system design and analysis.

   RFP, attach. 1, Statement of Work (SOW), at 3. The solicitation did not
   include a definition of BRS,[1] but it did include the following
   definition of a LMR:

     Land Mobile Radio (LMR). The collective term for pagers and all fixed,
     mobile and portable non-tactical two-way radios used by various base and
     tenant organizations to control activities on or off-base. This term
     also covers similar assets designated for contingency, tactical or war
     ready material purposes.

   Id. at 17. The SOW went on to specify that the BRS contractors are
   required to provide commercially available LMR equipment that meets Joint
   Tactical Radio Systems (JTRS) functional capabilities and Association of
   Public Safety Communications Officials' (APCO) 25 guidelines. Id. at 3.
   The RFP contemplated that task orders would be competed among the holders
   of the BRS multiple-award task order contracts. The solicitations
   requesting proposals from the BRS contractors for a task order are
   supported by individual Customer Requirements Statements (CRS), which are
   tailored to the customer's specific needs.

   In March, 2006, the Department of the Army was tasked to procure
   commercial off-the-shelf Tier 2 LMRs for tactical operations that were
   compliant with APCO 25 guidelines and had Advanced Encryption Standard
   encryption capabilities. On July 27, a Letter Request for Proposals and
   CRS #0446 for Radio Equipment, Logistics Support, and Training were issued
   to BRS contractors.[2] These Tier 2 LMRs are planned to be used at
   temporary bases that are set up during tactical operations and are
   relocated to new positions as the tactical missions evolve to provide
   intra-squad communications for noncritical command and control,
   administrative and logistics functions and are intended for small unit
   operations. Agency Report at 3.

   Relm basically argues that the BRS contract is limited to non-tactical
   radios, and that the agency is improperly using this contract vehicle to
   purchase tactical radios.[3] In this regard, Relm cites CRS #0446, which
   states that the Tier 2 LMRs "are not intended for use as part of a base
   radio system for CONUS or OCONUS garrison support operations nor as a
   Contingency Operation Base . . . Land Mobile Radio system." CRS #0466
   sect. 1.0.

   As a general matter, our Office is statutorily precluded from considering
   protests challenging the issuance of task or delivery orders under
   multiple-award contracts. See 10 U.S.C. sect. 2304c(d) (2000); Specialty
   Marine, Inc., B-293871; B-293871.2, June 17, 2004, 2004 CPD para. 130 at
   4. There is an exception to this prohibition, however, where a protester,
   as in this case, alleges that a task or delivery order is beyond the scope
   of the contract originally awarded. 10 U.S.C. sect. 2304c(d); Specialty
   Marine, Inc., supra. When a protester alleges that an order is outside the
   scope of the contract, we analyze the protest in essentially the same
   manner as those in which the protester argues that a contract modification
   is outside the scope of the underlying contract. The fundamental issue is
   whether issuance of the task or delivery order in effect circumvents the
   general statutory requirement under CICA that agencies "obtain full and
   open competition through the use of competitive procedures" when procuring
   their requirements. Specialty Marine, Inc., supra; see 10 U.S.C. sect.
   2304(a)(1)(A).

   In determining whether a task or delivery order (or modification) is
   outside the scope of the underlying contract, and thus falls within CICA's
   competition requirement, our Office examines whether the order is
   materially different from the original contract. Evidence of a material
   difference is found by reviewing the circumstances attending the original
   procurement; any changes in the type of work, performance period, and
   costs between the contract as awarded and the order as issued; and whether
   the original solicitation effectively advised offerors of the potential
   for the type of orders issued. Overall, the inquiry is whether the order
   is one which potential offerors would have reasonably anticipated.
   Symetrics Indus., Inc., B-289606, Apr. 8, 2002, 2002 CPD para. 65 at 5.

   As noted above, the RFP's SOW included a definition of LMRs that
   specifically stated that LMRs "cover[] similar assets designated for
   contingency, tactical or war ready material purposes." RFP, attach. 1,
   SOW, at 17 (emphasis added). The SOW goes on to specify that the BRS
   contractors will offer commercially available LMR equipment that meets
   Joint Tactical Radio Systems (JTRS) functional capabilities. Id. at 3. The
   JTRS is clearly a tactical radio used for tactical purposes. Agency Report
   at 5. We agree with the agency that the BRS SOW requires BRS contractors
   to meet JTRS functional capabilities because the BRS contracts include
   tactical radios.

   We also find the statement in CRS #0446 referenced by the protester that
   the tactical radios to be purchased are not part of a "base radio system"
   does not mean that they are outside the scope of the BRS contracts. As
   explained by the agency, the Tier 2 radios described in CRS #0446 are for
   use at tactical bases, whether they are used in a deployed setting or
   during training exercises. As tactical radios, operation of the Tier 2
   LMRs must be operationally independent of enterprise level or non-tactical
   base radio systems. Agency Report at 3. According to the agency, the
   necessity for these radios to be able to operate independently from
   non-tactical base radio systems explains why CRS #0446 states that the
   Tier 2 LMRs "are not intended for use as part of a base radio system for
   CONUS or OCONUS garrison support operations nor as a Contingency Operation
   Base . . . Land Mobile Radio system." CRS #0446 sect. 1.0; Agency Report
   at 5. The protester disputes the agency's explanation; however, it has not
   shown that the radios being purchased here are outside of the scope of the
   BRS contracts that specifically indicate that they encompass tactical
   radios. To the contrary, the record shows that Tier 2 radios are tactical
   radios that potential offerors reasonably could have anticipated would be
   covered by the BRS contract.

   The protest is denied.

   Gary L. Kepplinger

   General Counsel

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

   [1] In its report, the agency defines a BRS as a communication system that
   supports a base's mission. Agency Report at 3.

   [2] The agency describes CRS #0446 as "essentially a combination of a
   Statement of Work and Objectives . . . with the technical specifications
   for the Tier 2 LMR radio." Agency Report at 2.

   [3] The protester does not hold a BRS contract, but is an active supplier
   of analog tactical and non-tactical radios to the Army.