TITLE: B-299091.3, AdaRose, Inc., March 28, 2008
BNUMBER: B-299091.3
DATE: March 28, 2008
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B-299091.3, AdaRose, Inc., March 28, 2008

   Decision

   Matter of: AdaRose, Inc.

   File: B-299091.3

   Date: March 28, 2008

   George Holt for the protester.

   Vera Meza, Esq., Department of the Army, for the agency.

   Eric M. Ransom, Esq., and Christine S. Melody, Esq., Office of the General
   Counsel, GAO, participated in the preperation of this decision.

   DIGEST

   Under solicitation for armaments software engineering support, requirement
   that offerors have knowledge of and experience with agency software design
   processes is not unduly restrictive of competition where the record shows
   that the requirement is reasonably necessary to meet the agency's needs.

   DECISION

   AdaRose, Inc. protests the decision of the Department of the Army Joint
   Armaments Contracting Center to amend request for proposals (RFP) No.
   W15QKN-05-R-0229, for armaments software engineering center support, to
   enhance certain knowledge and experience requirements. AdaRose alleges
   that the enhanced knowledge and experience requirements unduly restrict
   competition. AdaRose also argues the agency's technical rating of its
   original proposal, a copy of which was provided by the agency as an aid in
   preparing a revised proposal, in fact was an improper evaluation of its
   original proposal against the amended solicitation.

   We deny the protest.

   BACKGROUND

   The protest concerns the agency's ongoing attempt to acquire indefinite-
   delivery/indefinite-quantity contracts for various software engineering,
   infrastructure, technologies, and equipment support requirements. The RFP
   represents the first time that ten functional areas representing various
   weapons system and infrastructure support requirements have been combined
   into a single solicitation.[1]

   AdaRose's original protest of the acquisition, on November 1, 2006,
   concerned the agency's award decision under the original RFP and alleged
   among numerous grounds of protest that the agency's rejection of its
   proposal was inconsistent with the published evaluation criteria, that the
   agency incorrectly rated AdaRose's past performance as neutral, and that
   the agency failed to reveal the seriousness of identified weaknesses
   during discussions. After reviewing that protest, the contracting officer
   determined that it was in the best interest of the government to take
   corrective action consisting of setting aside the source selection
   decision, amending the RFP to provide the clarity needed with regard to
   the agency's requirements, and requesting revised proposals from the
   offerors. On that basis, we dismissed the protest on November 29.

   Within a month after our Office dismissed that protest, the contracting
   officer began to detail deficiencies in the original solicitation and to
   draft amendments. More than 10 months later, however, the agency had not
   released an amended solicitation or requested revised proposals from the
   offerors. On October 15, 2007, AdaRose filed a second protest with our
   Office, alleging that the agency had unduly delayed implementation of its
   proposed corrective action based on the length of time that had elapsed
   since our Office had dismissed the original protest, the agency's failure
   to maintain communication with AdaRose, and AdaRose's view that the agency
   had demonstrated that it had no intention of allowing AdaRose to obtain
   work with the requiring activity.

   On December 10, 2007, while our Office was in the process of considering
   AdaRose's second protest, the agency released the amended solicitation in
   accordance with its proposed corrective action.[2] The agency also, on the
   same date, forwarded to each offeror a copy of the agency's technical
   rating of that offeror's original proposal, as evaluated under the
   original solicitation. The agency stated that the technical rating was
   forwarded to each offeror as an aid in submitting a revised proposal under
   the amended solicitation. Agency Report (AR), Part 1, at 1. Following the
   release of the amended solicitation, AdaRose, on December 19, filed this,
   its third protest, challenging the terms of the amended solicitation and
   the technical rating of its original proposal.

   ANALYSIS

   AdaRose first contends that the enhanced knowledge and experience
   requirements incorporated into the amended solicitation are unduly
   restrictive of competition and improperly favor incumbent contractors.
   Specifically, AdaRose takes issue with the agency changing phrases in the
   solicitation such as "extensive knowledge of the organization's policies
   and procedures is `highly desired' to `is required' and from `knowledge is
   required' to `experience is required.'"[3] Protester's Comments at 2.
   AdaRose argues that these changes have the effect of "locking out" outside
   contractors and providing substantial advantages to incumbents. Id.
   AdaRose states that it believes that the agency is changing the
   requirements to "handicap a non-incumbent like AdaRose, to justify their
   original [evaluation]," rather than "acknowledge that their original
   evaluation was grossly unfair," and that the agency's corrective action
   has not addressed the grounds of AdaRose's original protest. Id.

   >In preparing a solicitation for suppliesor services, a contracting agency
   must specify its needs and solicit offers in a manner designed to obtain
   full and open competition and may include restrictive provisions or
   conditions only to the extent that they are necessary to satisfy the
   agency's needs. 10 U.S.C. sect. 2305(a)(1) (2000). A contracting agency
   has the discretion to determine its needs and the best method to
   accommodate them. Parcel 47C, LLC, B-286324, B-286324.2, Dec. 26, 2000,
   2001 CPD para. 44 at 7. 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 its
   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.,
   Inc., B-279621.2, Aug. 17, 1998, 98-2 CPD para. 44 at 3. Where a
   requirement relates to national defense or human safety, an agency has the
   discretion to define solicitation requirements to achieve not just
   reasonable results, but the highest possible reliability and/or
   effectiveness. Vertol Sys. Co., Inc., B-293644.6 et al., July 29, 2004,
   2004 CPD para. 146 at 3. Here, we find that the amended requirements are
   not unduly restrictive.

   As a preliminary matter, to the extent that AdaRose argues that the
   revisions to the solicitation do not fulfill the agency's promise to
   address via corrective action the grounds of the original protest, the
   agency responds that AdaRose's original protest alleged that the
   solicitation language was not specific enough to warrant the weaknesses
   and deficiencies that the evaluators had attributed to AdaRose's proposal.
   AR, Part 2, at 1. Therefore, the agency argues, one principal goal of the
   proposed corrective action was to revise the solicitation's language to
   provide the clarity needed with regard to the requirements of the
   government, which the government had thought were present from the
   inception of the procurement. Id.

   Specifically, the agency decided to resolve ambiguities in the
   requirements by revising the solicitation's language, replacing the word
   "will" with "shall," and replacing phrases such as "highly desirable" with
   more accurate descriptions -- usually "required." AR, Part 1, Exhibit 2,
   Notification of Amendment, at 1. While AdaRose disagrees with this
   approach, it clearly is a reasonable response to the issues raised by the
   original protest. See ICON Consulting Group, Inc., B-310431.2, Jan. 30,
   2008, 2008 CPD para. 38.

   In its challenge to the terms of the amended solicitation as unduly
   restrictive, AdaRose focuses on specific requirements that offerors have
   knowledge and experience with certain internal agency policies,
   procedures, and software design processes. The challenged requirements
   appear in only 3 of the 10 functional areas--Mortars and Common Fire
   Control, Artillery and Tank Weapon Systems, and DOD and Army Initiatives.
   The agency argues that the software support services in these functional
   areas must be provided by a contractor with knowledge and experience with
   ASEC processes because the support relates to Army weapons systems and
   must be performed effectively and at the highest possible reliability
   level. According to the agency, offerors lacking such knowledge and
   experience will require more government oversight during performance of
   the contract, and the risk of schedule disruption and cost overruns will
   increase.

   In its comments on the agency report, AdaRose generally questions whether
   an agency can require knowledge and experience with an agency's internal
   policies and procedures as a pre-condition for award, but fails to present
   any argument as to why such requirements are unnecessary for the agency's
   particular purposes here, or respond to the agency's explanation of the
   relationship between the knowledge and experience requirements and the
   software support services to be provided. See Protester's Comments at 5-6.
   Given the breadth of the discretion granted to the agency in selecting
   solicitation criteria where the requirements relate to national defense or
   human safety, and the protester's failure to rebut the agency's rationale
   with any specificity, we see no basis to conclude that the challenged
   requirements are unduly restrictive. See Vertol Sys. Co., Inc., supra.

   Moreover, even assuming, as AdaRose argues, that the challenged
   requirements favor incumbents who, by virtue of their contract
   performance, possess the required knowledge and experience, any such
   advantage is not improper where, as here, the requirements are reasonably
   related to the agency's needs. Further, there is no requirement that an
   agency equalize or discount an advantage gained through incumbency,
   provided that it did not result from preferential treatment or other
   unfair action by the government. Navarro Research and Eng'g, Inc.,
   B-299981, B-299981.3, Sept. 28, 2007, 2007 CPD para. 195 at 4; see also
   LaQue Ctr. for Corrosion Tech., Inc., B-245296, Dec. 23, 1991, 91-2 CPD
   para. 577 at 6-7. Neither preferential treatment nor other unfair action
   is alleged or evident here.

   AdaRose also contends that the technical rating forwarded to it by the
   agency is not an evaluation based on the original solicitation, but must
   be a new evaluation based on the amended solicitation. Protester's
   Comments at 4. The agency responds that the technical rating provided to
   AdaRose was based on the original solicitation and was merely provided as
   an aid in preparing a new proposal under the amended solicitation. AR,
   Part1, at 1. The agency therefore argues that the technical rating is not
   a document related to any evaluation under the current procurement and
   does not provide a basis for protest. We agree.

   In our view, there simply is no support in the record for AdaRose's belief
   that, because the conclusions contained in the technical rating go beyond
   the evaluation language in the original solicitation, the technical rating
   must be a current evaluation document. As noted above, the agency has
   stated that it made the decision to take corrective action after reviewing
   AdaRose's original protest because it recognized that the solicitation did
   not clearly reflect the evaluation criteria that the agency actually used
   in evaluating the proposals. Specifically, the agency has acknowledged
   that it evaluated the original proposals in the mistaken belief that its
   intended knowledge and experience requirements were clearly stated in the
   solicitation. In light of that, we see no inconsistency whatsoever in the
   fact that the agency's technical rating of AdaRose's proposal under the
   original solicitation went beyond the stated evaluation criteria in
   assigning weaknesses and deficiencies. Likewise, it is reasonable that the
   clarified language of the amended solicitation would hew closely to the
   evaluation criteria actually followed in the evaluation of the original
   proposals, as it was the agency's intent to clarify the criteria that the
   agency had thought were present from the inception of the procurement. In
   sum, because the protested technical rating is not a evaluation document
   under a current procurement, any protest based on that document is of
   solely academic interest and not for further consideration here. See
   Dyna-Air Eng'g Corp., B-278037, Nov. 7, 1997, 97-2 CPD para. 132.

   The protest is denied.

   Gary L. Kepplinger
   General Counsel

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

   [1] The ten functional areas are: Chemical/Biological Defense; Munitions;
   Mortars and Common Fire Control; Virtual Trainers; Artillery and Tank
   Weapon Systems; Department of Defense (DOD) and Army Initiatives;
   Information Systems and Infrastructure Support; Configuration Management
   and Library Systems Management Support; Software Process Assurance
   Support; and ProcessMax System Support.

   [2] We subsequently issued a decision on AdaRose's second protest on
   January 14, 2008, denying that protest in part and dismissing it in part.

   [3] For example, in the Mortars and Common Fire Control functional area,
   the original solicitation stated in section 3.9 that experience in the
   Armament Software Engineering Center's (ASEC) testing process was "highly
   desired" and that extensive knowledge of the ASEC's Organizational
   Policies and Procedures was "highly desired for this effort." In
   comparison, section 3.9 of the revised solicitation states that experience
   in the ASEC's testing process "is required" and that extensive knowledge
   of the ASEC's Organizational Policies and Procedures "is required for this
   effort." Amended RFP at 19-20.