TITLE: B-299241, Shirlington Limousine & Transport, Inc., March 13, 2007
BNUMBER: B-299241
DATE: March 13, 2007
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B-299241, Shirlington Limousine & Transport, Inc., March 13, 2007

   Decision

   Matter of: Shirlington Limousine & Transport, Inc.

   File: B-299241

   Date: March 13, 2007

   David J. Taylor, Esq., Spriggs & Hollingsworth, for the protester.

   Rose J. Anderson, Esq., Department of Homeland Security, and Lara H.
   Hudson, Esq., Small Business Administration, for the agencies.

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

   DIGEST

   1. Protest that solicitation requirements that secured storage facility
   contain an electronic access control system, that the contractor supply
   sedans, and that all shuttle buses be equipped with wheel chair lifts are
   unduly restrictive of competition is denied where the record establishes
   that requirement was reasonably designed to ensure that the government's
   needs would be met.

   2. Protest challenging agency decision not to set aside procurement for
   Historically Underutilized Business Zone (HUBZone) small businesses is
   denied where the decision was based on sufficient facts to establish
   reasonableness of agency's conclusion that there was not a reasonable
   expectation that offers would be received from two or more HUBZone
   business concerns.

   DECISION

   Shirlington Limousine & Transport, Inc. protests the terms of request for
   proposals (RFP) No. HSHQDC-07-R-00009, issued by the Department of
   Homeland Security (DHS) for agency-wide transportation services.
   Shirlington asserts that the solicitation is unduly restrictive of
   competition because it requires the secured storage facility to be
   accessed by an electronic access control system, that the contractor
   supply sedans, and that all shuttle buses be equipped with wheelchair
   lifts. Shirlington also asserts that the solicitation, issued as a small
   business set-aside, instead should have been set aside for Historically
   Underutilized Business Zone (HUBZone) small business concerns.

   We deny the protest.

   BACKGROUND

   In June 2006, DHS decided to revise the way in which it procured
   transportation services with the goal of improving the quality of service
   and promoting the more efficient use of resources. The existing DHS
   transportation contract has a total value of $21.8 million over 5 years,
   and the agency estimate for the new solicitation is $41 million over 5
   years. Agency Report (AR), Tab 11, Affidavit of Director of the Office of
   Procurement Operations (OPO), at 2. Under the existing contract,
   Shirlington operates shuttle buses that transport agency employees between
   various agency offices and provides executive sedan service to transport
   authorized staff to and from any location in the Washington, DC
   metropolitan area. Shirlington provides the shuttle buses, and the
   government provides the sedans. From the record, it appears that the
   higher cost of the contract stems primarily from the shift of
   responsibility for the sedans and the storage facility from the government
   to the contractor.

   On June 23, the agency issued a request for information (RFI) on the
   FedBizOpps website to determine the level of interest in a DHS-wide
   transportation services contract. The RFI stated that the "[c]ontractor is
   responsible for maintaining a cleared facility for parking the sedans and
   buses." AR, Tab 3, RFI, at 1-2. Interested firms were asked to submit a
   capability package that identified the following: core services; corporate
   experience, including relevant contracts; type of business; current
   security clearance level for overnight parking of vehicles; and drivers
   with suitability determinations.

   The agency received responses from 11 small businesses, all of which were
   located in Maryland, Virginia, or Washington, DC, and four of which
   claimed to be HUBZone-certified. On October 10, the agency issued an
   amendment to the RFI informing interested parties that the agency would
   require the contractor to have a Defense Industrial Security Clearance
   Office (DISCO)-cleared facility at the time of contract award. AR, Tab 5,
   RFP amend. 1, at 1. That amendment advised offerors that it was for
   "informational purposes ONLY" and a "response to [the amendment was] NOT
   required or expected." Id.

   According to the agency, it conducted an internal review of the available
   potential offerors for the requirement to determine whether it should be
   set aside for either HUBZone firms or small businesses. The OPO Director
   and the Director of the Office of Small and Disadvantaged Business
   Utilization (OSDBU) reviewed the history of the two previous
   transportation contracts at DHS, noting that the upcoming solicitation
   would place a significantly greater burden on the contractor than did the
   prior two contracts: previously, the agency did not require security
   clearances for storage facilities because the sedans were stored at agency
   facilities; the contractor-supplied dispatching service was housed at the
   agency; and the agency provided all sedans. The OSDBU Director
   characterized the competition under the first of the previous agency
   transportation contracts as "very limited," with only one HUBZone firm,
   the incumbent contractor Shirlington, submitting an offer.[1] AR, Tab 10,
   Affidavit of OSDBU Director, at 1. Under the second contract, two HUBZone
   firms submitted proposals, one of which was rated marginal and could not
   be considered for award. The Directors concluded that the agency failed to
   receive proposals from two or more qualified HUBZone businesses in either
   of the two previous agency transportation solicitations, both of which
   contained considerably less stringent requirements than the proposed
   solicitation.

   The agency states that these two Directors also evaluated the four
   responses to the RFI that were submitted by HUBZone firms, using
   information provided by each of the firms, previous experience with two of
   the firms, and additional research conducted on the Consolidated
   Contractor Registration (CCR) database. One firm was the incumbent and
   protester, Shirlington. Another was the HUBZone firm that had submitted a
   marginal proposal under a previous transportation solicitation. The third
   firm, the agency notes, indicated "that its experience was limited to
   shuttle/bus services as a subcontractor to commercial activities and it
   did not appear to have experience providing executive sedan services." Id.
   at 2. The fourth firm was determined not to be a HUBZone-certified firm.
   Of the three actual HUBZone firms, only one had performed a contract that
   was similar to the existing requirement, and none had performed a contract
   of the scope of the new agency-wide contract that was contemplated.

   The OSDBU and OPO Directors concluded that the increased scope and breadth
   of the requirement rendered the contract too difficult and
   capital-intensive to be performed by a HUBZone firm. In the Directors'
   estimation, if the solicitation was set aside for HUBZone firms, there
   would be a high degree of risk to the government that the agency would not
   receive adequate proposals. AR, Tab 11, Affidavit of OPO Director, at 3.
   The two Directors then concluded, based on the prior procurements and the
   responses to the RFI, that small businesses were interested and could
   fulfill the requirements. As noted above, the RFP subsequently was issued
   as a small business set-aside on November 20.

   ANALYSIS

   The solicitation contained the following electronic access control
   requirement:

     The vehicle storage facility gate access will have a minimum of [two][2]
     electronic access control keypads. . . . The electronic access control
     keypad will create a history for every vehicle's entry and departure
     that can be accessed any time in the future. Electronic access control
     can also be set up strategically to create security zones within the
     vehicle storage area. . . . The electronic access control system will
     have all doors integrated into one system. . . . Program of the access
     control system will be done through a computer based system.

   AR, Tab 6, RFP attach. 4, at 1. The solicitation also required that closed
   circuit television (CCTV) cameras be mounted throughout the vehicle
   storage area "to provide a record of all activities, persons, and
   operators inside and outside the facility." Id. at 2.

   The protester asserts that the solicitation requirement that the secured
   storage facility be accessed by an electronic access control system is
   unduly restrictive of competition, "cannot be deemed necessary" to
   security, and is "superfluous." Protest at 6.

   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; solicitations may include restrictive requirements only to the
   extent they are necessary to satisfy the agency's legitimate needs. 41
   U.S.C. sect. 253a(a)(1)(A), (2)(B) (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 human safety and security, 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.

   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.

   The language of the solicitation, quoted above, identifies several
   advantages inherent in an electronic access control system. An electronic
   access control system creates a history of every vehicle's entry and exit
   from the garage, has the potential to create security zones within the
   storage area, and has the ability to have all garage doors integrated into
   one system and to have access programmed through a computer-based system.
   According to the agency, DHS's Office of Security, which has the
   responsibility to review and approve all solicitations, provided the
   specifications for the securing of the vehicles. AR, Tab 11, Affidavit of
   OPO Director, at 2. The Chief of the agency's Physical Security Division
   stated that the solicitation requirements "are drawn from recommended
   minimum security standards and security best practices for Federal
   facilities." AR, Tab 11, attach. 1, Memorandum from Chief, Physical
   Security Division, to CO, Jan. 3, 2007. The Chief states that an
   "electronic access control with an intrusion detection capability is
   required to compensate for the inherent vulnerabilities in physical lock
   and key control systems." Id. Electronic access control systems, the Chief
   asserts, enable the system operator to "track and control access,
   immediately suspend access, and maintain an audit capability for
   inspection or investigative purposes." Id.

   The protester disagrees that the solicitation requirement at issue is
   reasonable. Shirlington argues that the advantages of the electronic
   access control system cannot be achieved because there is no solicitation
   requirement that it be monitored full-time. However, Shirlington does not
   explain why an automated system requires 24-hour monitoring. The protester
   also argues that the required CCTV cameras alone are sufficient. While the
   CCTV cameras may be a partially redundant system, the record shows that
   they record valuable data the electronic access system does not, and
   likewise the electronic access system supplies information the CCTV
   cameras are unable to provide. In the interest of human safety and
   security, the agency has specified a system that produces not just
   reasonable results, but higher levels of safety and efficiency. Although
   Shirlington disagrees with the agency's judgment with respect to its
   needs, it has not shown the requirement to be unreasonable. Kastle Sys.,
   Inc., B-231990, Oct. 31, 1988, 88-2 CPD para. 415 at 8. Consequently, we
   have no basis upon which to object to the agency's inclusion of the
   electronic access control system requirement in the RFP.

   In its protest, Shirlington notes two additional "flaws" in the
   solicitation: that the contractor must supply the sedans, and that all
   shuttle buses to be supplied by the contractor must comply with the
   Americans with Disabilities Act (ADA), 42 U.S.C. sect. 12101 et seq.
   (1994). Protest at 3. With respect to the latter argument, we note first
   that the solicitation does not require compliance with the ADA, but rather
   requires that the shuttle buses accommodate wheelchairs and that
   "reasonable accommodation for official transportation in the Washington DC
   area is made for [passengers requiring assistance] on a case-by-case
   basis." AR, Tab 8, RFP amend. 2, at 6. The agency defends the requirement
   that all shuttle buses have wheelchair lifts by noting that there may be
   federal employees and other authorized riders with disabilities who do not
   have specified routes. Moreover, the shuttle bus services under the
   solicitation are made available without authorized users having to reserve
   the service in advance. We think it is reasonable for the agency to
   structure the solicitation to make shuttle bus service available at all
   times to all authorized riders with disabilities.

   With respect to the requirement that the contractor provide all the
   required vehicles (shuttle buses with wheelchair lifts and sedans), the
   protester asserts that since doing so will be very expensive for a
   contractor, the government should supply the vehicles instead. Without
   more, the allegation that a requirement is costly is not sufficient to
   show that the requirement is unduly restrictive of competition. Supreme
   Edgelight Devices, Inc., B-261667, Sept. 28, 1995, 95-2 CPD para. 153 at
   3; see Madison Servs., Inc., B-278962, Apr. 17, 1998, 98-1 CPD para. 113
   at 2-3 (solicitation may impose substantial risk on the contractor and
   minimal administrative burden on the agency).

   The protester also argues that the government could save money by leasing
   the sedans and supplying them to the contractor, rather than having the
   contractor supply the sedans. The general rule that the determination of
   the government's needs and the best method of accommodating those needs is
   primarily the concern of the contracting agency is no less applicable when
   the government is deciding who should own the equipment required for
   contract performance. See Crown Laundry and Cleaners, Inc., B-213796,
   B-213810, May 9, 1984, 84-1 CPD para. 516 at 2-3. The agency argues that
   it has structured the solicitation to obtain operational efficiencies, one
   of which is to be free of the responsibility of procuring and owning the
   sedans. The protester has not shown the requirement that the contractor
   supply the sedans to be unreasonable.

   The protester also asserts that the agency unreasonably determined not to
   set the procurement aside for HUBZone small business concerns.
   Acquisitions that exceed the simplified acquisition threshold must be set
   aside for HUBZone small businesses if the agency makes two determinations,
   only the first of which is at issue here: that there is a reasonable
   expectation that offers will be received from two or more HUBZone small
   business concerns, and that award will be made at a fair market price.
   Federal Acquisition Regulation (FAR) sect. 19.1305(a), (b). Generally, our
   Office regards a determination to set aside a procurement as a matter of
   business judgment, within the agency's discretion. See York Int'l Corp.,
   B-244748, Sept. 30, 1991, 91-2 CPD para. 282 at 6. An agency must make
   reasonable efforts to ascertain whether it will receive offers from at
   least two HUBZone small business concerns with the capability to perform
   the work, and we will review a protest to determine whether the agency has
   done so. Global Solutions Network, Inc., B-292568, Oct. 3, 2003, 2003 CPD
   para. 174 at 3. While the use of any particular method of assessing the
   availability of HUBZone small businesses is not required, and measures
   such as prior procurement history, market surveys, and advice from the
   agency's small business specialist may all constitute adequate grounds for
   a contracting officer's decision not to set aside a procurement, American
   Imaging Servs., Inc., B-246124.2, Feb. 13, 1992, 92-1 CPD para. 188 at 3,
   the assessment must be based on sufficient facts so as to establish its
   reasonableness. Rochester Optical Mfg. Co., B-292247; B-292247.2, Aug. 6,
   2003, 2003 CPD para. 138 at 5.

   Here, the record indicates that the agency employed several methods to
   ascertain whether to set aside the procurement for HUBZone firms. The
   agency's key small business official, the OSDBU Director, was integral to
   the agency's decision-making process. That official, in cooperation with
   the OPO Director, considered the responses the agency received to two
   similar, although substantially smaller in scope, solicitations, noting
   that in neither case did the agency receive two acceptable proposals from
   HUBZone firms. The agency gauged the interest from possible HUBZone firms
   by publishing an RFI and considered the responses to that RFI, discussed
   in detail above. The agency then made a determination, based on a review
   of the information provided by all of these sources, that it was unlikely
   to receive adequate proposals from two or more HUBZone firms. Given the
   record, including the protester's own apparent concerns with the
   difficulty that it would have in performing this contract, we find that
   the agency's decision not to set aside the procurement for HUBZone firms
   was reasonable.[3]

   We solicited the views of the SBA on whether the agency should have set
   aside the procurement for HUBZone firms. The SBA concluded that the agency
   should have done so, arguing that the agency offered no support for its
   assertion that the four HUBZone firms that responded to the RFI "lacked
   capacity."[4] SBA Comments at 11. On the contrary, the capability package
   requested by the RFI contained a wealth of information on each of the
   interested firms. After reviewing that data and information from other
   sources, the agency articulated clearly why the three actual HUBZone
   firms, in its business judgment, would not be able to successfully
   complete the contract.

   The SBA also argues that if the agency had conducted a search on CCR,
   using the two applicable North American Industry Classification System
   codes, the agency would have identified 33 HUBZone firms that might have
   been potential offerors. As a preliminary matter, the actual number of
   respondents is 31, because 2 firms appear in the results of both searches.
   In any event, SBA's argument is not persuasive; the raw number of HubZone
   firms generated by a CCR search reveals little about the capability of
   those firms to perform as required under the RFP. A cursory review of the
   list shows that many lack experience in the services called for; for
   example, one listed firm is described as a construction contractor located
   in Florida. Also, although all of the respondents to the RFI were local
   firms and it appears from the record that the contract would be of primary
   interest to local firms, only 5 of the 31 firms identified in the SBA's
   search are local, and 3 of them had in fact responded to the RFI. Of the
   two local firms not already identified by the agency, one delivers
   products to government agencies and the other offers no narrative of its
   capabilities. SBA simply points to the number of firms identified in the
   CCR search as evidence of likely HubZone competition without in any way
   examining whether--for the reasons set out above, among others--the firms
   are viable competitors under the RFP here.

   Finally, the protester asserts that the agency improperly assessed the
   capability of the firms who responded to the RFI to provide the required
   DISCO-cleared storage facility because the agency first informed potential
   offerors of that requirement in an amendment to the RFI but discouraged
   HUBZone firms from responding to the amendment. Comments at 7. The SBA
   shares this concern. The agency specifically requested in the capability
   package that interested firms describe their current security clearance
   level for overnight parking of vehicles, thus putting interested firms on
   notice that they should fully disclose the extent of their security
   clearances. In fact, one of the responders specifically indicated that it
   could provide a DISCO facility. Under these circumstances, we see no basis
   to question the agency's assessment of the firms' capabilities on this
   ground.

   The protest is denied.

   Gary L. Kepplinger
   General Counsel

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

   [1] While Shirlington is the incumbent on the current contract, it is not
   performing the expanded scope of work that would be required under the new
   solicitation.

   [2] The solicitation omits the minimum number of keypads required. The
   context in which the omission appears makes it clear that the minimum
   number required is two.

   [3] As part of this protest ground, the protester alleges that the OSDBU
   director failed to properly discharge his duties as required by the FAR.
   Because we conclude that the agency's decision not to set aside this
   procurement for HUBZone firms was reasonable and consistent with the FAR,
   we need not address this allegation.

   [4] In a related argument, the SBA asserts that the assessments of
   potential HUBZone offerors performed by the agency amounted to
   determinations of responsibility that should have been referred to the
   SBA. SBA Comments at 7. Once again, a determination that a particular
   procurement is to be set aside is basically a business judgment within the
   broad discretion of the contracting officer. See York Int'l Corp., supra.
   In making this determination, the contracting officer need not make
   determinations tantamount to affirmative determinations of responsibility,
   but rather need only make an informed business judgment that there is a
   reasonable expectation of receiving acceptably priced offers from eligible
   business concerns that are capable of performing the contract. See Admiral
   Towing and Barge Co., B-291849, B-291849.2, Mar. 6, 2003, 2003 CPD para.
   164 at 3. The record shows that is precisely the analysis DHS conducted.