TITLE: B-299456, Lockmasters Security Institute, Inc., May 21, 2007
BNUMBER: B-299456
DATE: May 21, 2007
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B-299456, Lockmasters Security Institute, Inc., May 21, 2007

   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: Lockmasters Security Institute, Inc.

   File: B-299456

   Date: May 21, 2007

   Kevin P. Connelly, Esq., and Amanda B. Weiner, Esq., Seyfarth Shaw LLP,
   for the protester.

   Wilburt Jones, Esq., Department of Homeland Security, United States Coast
   Guard, for the agency.

   Jonathan L. Kang, Esq., and Ralph O. White, Esq., Office of the General
   Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   1. Challenge to agency's limitation of competition under a request for
   quotations (RFQ) to vendors who held a particular General Services
   Administration (GSA) Federal Supply Schedule (FSS) contract is denied
   where agency had a reasonable basis for its decision to seek quotations
   under that schedule.

   2. Agency does not unreasonably limit competition where it issues an RFQ
   under a different GSA FSS contract than the schedule under which the
   incumbent contractor had been providing the agency's requirements.

   DECISION

   Lockmasters Security Institute, Inc. (LSI) protests the terms of request
   for quotations (RFQ) No. HSCG23-07-Q-PTC006, issued by the Department of
   Homeland Security, United States Coast Guard, for technical support
   services for the agency's Office of Security Policy and Management. The
   protester argues that the agency's decision to obtain these services under
   Schedule 84 of the General Services Administration (GSA) Federal Supply
   Schedule (FSS)--as opposed to procuring them under Schedule 69, which was
   used to procure these services previously--was improper, and further
   argues that the solicitation is restrictive of competition because the
   decision to procure under Schedule 84 precludes LSI from competing for the
   work.

   We deny the protest.

   BACKGROUND

   The RFQ here seeks quotations to provide training and technical support
   for the Coast Guard's Office of Security Policy and Management. The
   contractor will be required to provide a 5-day training course for
   newly-appointed Command Security Officers (CSO) using Coast
   Guard-developed course curriculums in Personal Security, Physical
   Security, Operations Security (OPSEC), the Coast Guard's Antiterrorism
   Program, Information Security, and Security Awareness and Training. RFQ,
   Statement of Work (SOW), para. 1.1. The contractor provides six such
   courses per year for 20 students per course, develops the course schedule,
   and administers a Coast-Guard developed questionnaire. Id. The RFQ
   anticipates award of a blanket purchase agreement (BPA) with a 1-year base
   term, and four 1-year options.

   The agency had previously obtained its requirements for the training
   courses under a BPA issued to LSI in 2001. The BPA was issued under
   Schedule 69, "Training Aids & Devices, Instructor-Led Training; Course
   Development; Test Administration," special item number (SIN) 27-400 for
   "Instructor Led Training to Include General Education, Computer,
   Vocational/Trade, Health/Safety, and Business," and SIN 27-500 for "Course
   Development and Test Administration." LSI's BPA to provide these courses
   expired on September 26, 2006. Contracting Officer's (CO) Statement at 4.

   The current RFQ limits competition to vendors who hold contracts under
   Schedule 84, "Total Solutions for Law Enforcement, Security, Facilities
   Management, Fire, Rescue, Clothing, Marine Craft and Emergency/Disaster
   Response," SIN 246-52 for "Professional Security/Facility Management
   Services - Including Security Consulting, Training and Facility Management
   Consulting." RFQ at 1. Prior to issuing the RFQ, the agency determined
   that Schedule 84 would provide vendors with "skill sets that would be a
   better match for the requirements than those vendors under Schedule 69,
   and whose knowledge of the security field would be greater." CO's
   Statement at 2.

   The agency issued the RFQ through letters to four vendors, rather than
   posting the RFQ to the GSA electronic RFQ system, e-Buy. CO's Statement at
   4. Because LSI, the incumbent here, was not listed as a contractor under
   Schedule 84, the agency did not solicit LSI.[1] Id.

   In a letter, styled as an agency-level protest,[2] LSI challenged the
   agency's determination to limit the competition to Schedule 84 vendors.
   Agency Report (AR), Tab 8, Agency-Level Protest, Jan. 18, 2007, at 1. LSI
   argued that it had successfully performed the work under Schedule 69 and
   requested that it be allowed to compete. Id. at 2. In response, the agency
   stated that, in its view, Schedule 84 was the more appropriate vehicle for
   the work:

     The last solicitation for this requirement . . . was solicited under GSA
     Schedule 69. That schedule did not yield the desired level of
     competition as two bids were received and only one bid was determined to
     be technically acceptable. As is USCG's standard procedure, extensive
     market research was conducted to ensure that a schedule would be used
     that best fit the requirement and that would generate a sufficient
     number of qualified bidders. After comparing schedules and considering
     our customer's needs, it was determined that the most suitable GSA
     Schedule for this requirement is Schedule 084 SIN 246-52.

   AR, Tab 9, Letter to LSI, Jan. 31, 2007, at 1.

   Following receipt of the agency's response, LSI filed this protest.

   DISCUSSION

   The protester challenges the Coast Guard's determination to limit
   competition under the RFQ to vendors which hold contracts under Schedule
   84. Specifically, the protester argues that the agency unreasonably
   determined that Schedule 84 was more appropriate for meeting the agency's
   needs than Schedule 69, and also argues that the agency's actions
   unreasonably excluded LSI, the incumbent contractor, from the competition.
   As discussed below, we conclude that the protest lacks merit for the
   following reasons: (1) the SOW was within the scope of both Schedules 69
   and 84; (2) the agency reasonably determined that Schedule 84 was the more
   suitable schedule to meet the SOW requirements, and the Federal
   Acquisition Regulation (FAR) does not require an agency using the FSS to
   solicit vendors under all relevant schedules; and (3) the protester was
   not entitled, solely by virtue of being the incumbent vendor, to
   participate in the competition.

   The FSS program, directed and managed by GSA, gives federal agencies a
   simplified process for obtaining commonly used commercial supplies and
   services.[3] See generally FAR subpart 8.4. In FSS buys, as in other
   procurements, the determination of what the agency needs, and which
   products or services meet those needs, is within the agency's discretion;
   we will not sustain a protest in this area unless the determination lacks
   a reasonable basis. Draeger Safety, Inc., B-285366, B-285366.2, Aug. 23,
   2000, 2000 CPD para. 139, Aug. 23, 2000 at 4. Agencies may only place
   orders with a vendor whose schedule contract contains the goods or
   services required under the SOW. Altos Fed. Group, Inc., B-294120, July
   28, 2004, 2004 CPD para. 172 at 4.

   When establishing a BPA for services under the FSS that requires vendors
   to submit quotes for work based on hourly rates, agencies must develop a
   statement of work and provide the RFQ to at least three schedule
   contractors. FAR sections 8.405-2(c), 8.405-3(a). In addition to the three
   vendors, agencies seeking to obtain their requirements under a BPA must
   also provide the RFQ to additional schedule contractors, based on
   considerations such as "the complexity, scope and estimated value of the
   requirement" as well as market research; agencies may also seek price
   reductions from schedule contractors. FAR sect. 8.405-2(c)(3).

   First, we think the record here shows that this requirement is within the
   scope of both Schedules 69 and 84. SIN 246-52 of Schedule 84 clearly
   includes services for security training, whereas SINs 27-400 and 27-500 of
   Schedule 69 clearly include services for training and testing, albeit not
   specifically in the security field.[4]

   During the course of this protest, our Office solicited the views of GSA
   on this question, which advised that:

     After reviewing the Request for Quotations and Statement of Work, GSA
     believes that the security training services at issue in this
     procurement are within the scope of both Schedules 69 and 84. The
     current practice under the MAS program is for general training to be
     included under Schedule 69; however, subject-specific training is also
     offered on many individual schedules in order to supplement the
     individual schedule offerings . . . . We realize that this may result in
     some degree of overlap or potential duplication in the schedule
     offerings; however, the Federal Acquisition Service believes minor
     duplication is preferable to significant gaps in coverage.

   GSA Comments on Agency Report, at 1.

   On this record, we believe that the agency reasonably determined that the
   work was covered by Schedule 84.[5]

   Next, as to the agency's determination to seek quotations only under
   Schedule 84, but not Schedule 69, the protester argues that the agency's
   determination lacked a reasonable basis. The protester argues that
   although SIN 246-52 of Schedule 84 includes training services, SINs 27-400
   and 27-500 of Schedule 69 are more directly related to the SOW because
   they address the development and teaching of courses.

   As discussed above, agencies have broad discretion in determining how to
   meet their needs and our Office will not substitute our judgment for the
   agency's. Draeger Safety, Inc., supra. The agency here concluded that the
   more specific security aspects of Schedule 84 made that contract vehicle
   more appropriate for the agency's needs than the general instruction and
   training services provided under Schedule 69.[6] CO's Statement at 2.
   Although the protester disagrees with this assessment, we do not believe
   that the protester has provided a reasonable basis to challenge the
   agency's determination.[7]

   The protester also argues that the agency should have allowed vendors
   under both Schedules 84 and 69 to participate in the competition. The
   protester notes that GSA stated in its comments on the agency report that
   "GSA encourages our customer agencies to solicit offers from all Federal
   Supply Schedule holders offering services that are within the scope of the
   anticipated procurement as this maximizes competition."[8] GSA Comments on
   Agency Report at 1.

   The protester does not, however, identify any requirement that the agency
   solicit vendors under every schedule under which its needs might be met,
   nor does the protester identify any procedures than an agency must follow
   when there is more than one schedule under which an agency's needs could
   be met. We agree with GSA that the solicitation of all potential vendors
   promotes competition; however, such an approach is not required under the
   regulations governing the FSS. Specifically, there is no requirement that
   an agency solicit vendors from multiple schedules when it concludes that a
   single schedule meets its needs, and otherwise satisfies the requirements
   of FAR part 8.4. Under these circumstances, there is no basis to conclude
   that the agency's decision to limit the competition to Schedule 84 vendors
   was objectionable.

   Finally, the protester argues that the agency unreasonably limited the
   competition because allowing only Schedule 84 vendors to submit quotations
   meant that LSI, the incumbent contractor, would be excluded from the
   competition. As discussed above, agencies that seek to establish a BPA
   under the FSS must solicit at least three vendors, and must also consider
   whether other vendors should be solicited. FAR sect. 8.405-2(c)(3). Under
   the FSS, however, a vendor has no legal expectation or entitlement to be
   one of those vendors solicited merely because it was the incumbent.
   Allmond & Co., B-298946, Jan. 9, 2007, 2007 CPD para. 8, at 2. There is
   thus no basis for the protester to argue that, even if the agency had
   solicited vendors under Schedule 69, the agency was required to solicit
   LSI for the requirements.

   The protest is denied.[9]

   Gary L. Kepplinger
   General Counsel

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

   [1] LSI acknowledges that it does not have a contract under Schedule 84.
   Protest at 4.

   [2] The agency argues that LSI's letter did not constitute a protest
   because it lacked a sufficient legal basis for LSI's challenge to its
   exclusion from the competition. The filing of this letter had no affect on
   the timeliness of the protest to our Office, as the protest here was filed
   on February 12, 2007, prior to the time for receipt of quotations on
   February 16, 2007. In any event, we believe that LSI's agency level
   protest satisfies the requirements of FAR sect. 33.103.

   [3] The procedures established for the FSS program satisfy the requirement
   for full and open competition. 41 U.S.C. sect. 259(b)(3) (2000); FAR sect.
   6.102(d)(3); American Sys. Consulting, Inc., B-294644, Dec. 13, 2004, 2004
   CPD para. 247 at 3.

   [4] The protester does not allege that the SOW is outside the scope of
   Schedule 84; rather, the protester challenges the agency's determination
   that Schedule 84 was the more appropriate source for meeting its needs.

   [5] Prior to submitting its protest, LSI sought the views of a GSA
   contracting specialist who stated her opinion that Schedule 69, rather
   than Schedule 84, was the appropriate schedule for this requirement.
   Protest at 7-8. The record shows, however, that the Coast Guard was
   unaware of the views of the contracting specialist. CO's Statement at 6-7.
   Moreover, GSA advises that, nothwithstanding the views of the contracting
   specialist, the agency views this requirement as within the scope of both
   schedules. GSA Comments on Agency Report, at 1 n.1.

   [6] In this regard, GSA also noted that "[p]erformance of this SOW would
   require extensive experience within the security field . . . more than
   simply the ability of an instruct[or] to proctor a class," and thus the
   "overwhelming importance of the security aspect of the requirement" made
   selection of Schedule 84 appropriate for the agency's requirements. Id. at
   2.

   [7] The protester also challenges the agency's analysis and use of market
   research. In this regard, the protester argues that the agency relied on
   flawed market research to conclude that Schedule 84 would provide more
   competition than Schedule 69. We believe that this allegation is not
   relevant to the reasonableness of the agency's decision to restrict the
   competition to Schedule 84 vendors. As discussed above, the agency had a
   reasonable basis to issue the RFQ under Schedule 84 because the SOW was
   within the scope of that schedule and because the agency concluded that
   Schedule 84 better met the agency's requirements than Schedule 69.
   Moreover, the FAR does not require, as the protester suggests, that an
   agency justify its selection of one schedule contract, as opposed to
   another, with market research into which schedule will generate more
   competition; rather, as relevant here, agencies must use market research
   to determine the number of vendors solicited. See FAR sect. 8.404-2(c)(3).

   [8] LSI argues that GSA's position indicates that it is "permissible" for
   agencies to solicit vendors under more than one schedule, and that GSA
   "encourages" agencies to do so. LSI Response to GSA Comments at 2. LSI
   does not argue, however, that agencies are required to do so. See id.

   [9] The protester also alleges that the agency did not follow the
   procedures under FAR sect. 8.405-2(c)(3) for soliciting vendors. For the
   record, we see no violation of FAR requirements by the agency here. In any
   event, because the agency reasonably limited competition to vendors who
   have contracts under Schedule 84 and the protester does not have such a
   contract, LSI is not an interested party to raise this objection. Bid
   Protest Regulations, 4 C.F.R. sect. 21.1(a); Sales Res. Consultants, Inc.,
   B-284943, B-284943.2, June 9, 2000, 2000 CPD para. 102 at 5.