TITLE: B-299624, Tennier Industries, Inc., July 12, 2007
BNUMBER: B-299624
DATE: July 12, 2007
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B-299624, Tennier Industries, Inc., July 12, 2007

   Decision

   Matter of: Tennier Industries, Inc.

   File: B-299624

   Date: July 12, 2007

   Ruth E. Ganister, Esq., Rosenthal and Ganister, for the protester.

   Maj. Walter R. Dukes, and Cathleen Perry, Esq., U.S. Army Materiel
   Command, for the agency.

   Scott H. Riback, Esq., and John M. Melody, Esq., Office of the General
   Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Protest challenging numerous aspects of solicitation as ambiguous or
   otherwise deficient is denied where solicitation, read as a whole, is
   understandable, and provides a reasonable basis for offerors to
   intelligently prepare proposals.

   DECISION

   Tennier Industries, Inc. protests the terms of request for proposals (RFP)
   No. W91CRB-07-R-0010, issued by the Department of the Army for fire
   resistant clothing. Tennier asserts that various aspects of the
   solicitation are ambiguous and need to be clarified, or are otherwise
   deficient and need to be corrected.

   We deny the protest.

   The RFP contemplates the award of one or more fixed-price
   indefinite-delivery, indefinite-quantity (ID/IQ) contracts to provide fire
   resistant equipment ensembles (FREE). A FREE is comprised of various
   clothing components, including t-shirts, boxer briefs, sports bras, base
   layer clothing, mid-weight clothing, a wind resistant jacket and pant, an
   insulated softshell jacket, pant and vest, a hardshell jacket and pant,
   socks, balaclavas, cold weather gloves and a rigger belt. RFP at 23. The
   RFP advises prospective offerors that they may either propose all
   articles--a FREE system--or one or more individual system components. Id.
   at 22. The agency will order a minimum quantity of 50 units (whether
   components or FREE systems) and a maximum quantity of 300,000 units over a
   contract period of 5 years. Id. at 6-8.

   Awards are to be made to those firms offering the "top performing"
   products considering the following factors (in descending order of
   importance): technical, management, past and present performance, and
   price. Id. at 33. The RFP envisions a "downselection" process in three
   phases. During phase 1, offerors will submit proposals and product samples
   that will be evaluated for award purposes; the agency anticipates awarding
   numerous initial contracts based on its phase 1 evaluation. (The product
   samples called for under phase 1 are to include one "set" of the proposed
   product for each size that the offeror manufactures, along with fabric
   samples that have not been fabricated into completed garments.) During
   phase 2, the government will issue delivery orders to the awardees for 50
   units of their system or components. These 50 units will be further
   evaluated for various aspects of suitability (for example, fit/sizing,
   donning and doffing ease, compatibility with mission relevant equipment,
   and burn injury prediction). At the conclusion of phase 2, the agency will
   select two FREE systems--either complete systems or components knitted
   into a system by the agency--for participation in phase 3. RFP at 32.
   During phase 3, the agency will order an additional 500 units that will be
   evaluated by prospective users to verify durability, mission compatibility
   and soldier preference. At the conclusion of phase 3, the agency will
   select a single FREE system to meet its needs over a 5-year period. RFP at
   32.

   Tennier challenges numerous terms of the RFP. As a general rule,
   solicitations must contain sufficient information to allow offerors to
   compete intelligently and on an equal basis. However, there is no legal
   requirement that a solicitation contain such detail as to completely
   eliminate all risk or remove all uncertainty from the mind of every
   prospective offeror. Braswell Servs. Group, Inc., B-276694, July 15, 1997,
   97-2 CPD para. 18 at 2-3. In interpreting solicitation terms, we will read
   the solicitation as a whole and in a manner that gives effect to all of
   its provisions. AMS Group, B-299369, Apr. 12, 2007, 2007 CPD para. 72 at
   3. We have considered each of Tennier's arguments and find that they are
   without merit. We discuss Tennier's primary arguments below.

   Tennier asserts that, since the RFP provides for multiple awards, it is
   unclear whether the minimum and maximum quantities will be ordered from
   each awardee or whether the total quantity will be split among all
   awardees. This assertion is without merit. We think it is sufficiently
   clear, as explained above, what quantities in the RFP will be ordered from
   each awardee. Initial orders of 50 units from each contractor will be used
   in the phase 2 evaluation; this quantity represents the minimum that the
   agency will order under the awardees' ID/IQ contracts. At the conclusion
   of the phase 2 evaluation, the agency will place orders for an additional
   500 units from up to two contractors, for purposes of the phase 3
   evaluation. At the conclusion of the phase 3 evaluation, the agency will
   select one contractor, from which it intends to order the remainder of the
   up to 300,000 units.

   Tenier argues that the agency has failed to limit the number of units it
   can order in a given period during contract performance, such that it is
   possible for the agency to order all 300,000 units at once. We find no
   impropriety here. An ID/IQ contract, by its very nature, is used where an
   agency is unsure of the quantities or the delivery times that it may
   ultimately require. Thus, as Tennier alleges, it is of course possible for
   the agency to order all 300,000 units within a short time, and under those
   circumstances, the contractor would be legally obligated to furnish them
   in accordance with any established delivery schedule. We are aware of
   nothing legally objectionable in an agency's proceeding in this fashion,
   since, again, ID/IQ contracts are appropriate in precisely the
   circumstances present here, namely, where the agency cannot determine at
   the outset precisely how many units it will ultimately order from each
   awardee. See Federal Acquisition Regulation (FAR) sect.16.504(b). (We note
   that the agency has specified 60,000 as the approximate number of units it
   is likely to order in each of the 5 contract years, up to the maximum
   quantity of 300,000 units.)

   Tennier argues that the minimum quantity of 50 units is inadequate if that
   is the number of production units that be will be ordered over the
   contracts' 5-year period of performance, and that the minimum therefore
   should be increased. Tennier cites no legal authority--and we are aware of
   none--for the proposition that a 50-unit minimum quantity is
   impermissible. Again, moreover, as a practical matter, it is clear that
   the solicitation contemplates that the agency will fulfill its production
   unit requirements of up to 300,000 units from the one firm receiving award
   following the evaluation under phase 3.

   Tennier asserts that it is not clear whether the agency intends to pay for
   the quantities to be ordered under phases 2 and 3 (50 and 500 units,
   respectively), and that it is unclear whether separate awards will be made
   for phases 2 and 3. Tennier's assertion is without merit. First, there
   simply is no basis to assume that the agency will not pay the contractors
   for the units ordered under phases 2 and 3. Second, the record is clear
   that the agency will make a single award of an ID/IQ contract to each
   successful offeror, and will thereafter issue the phase 2, and possibly
   phase 3, delivery orders under each of those contracts.

   Tennier argues that, since the evaluations under all phases will take more
   than 120 days (the period for which firms are required to offer their
   proposed prices), the RFP should have some provision for price adjustments
   at the conclusion of the phase 3 evaluation. However, Tennier has cited no
   legal authority, and we are aware of none, requiring that the agency
   provide for such pricing adjustments. We point out, furthermore, that the
   RFP includes a pricing table that allows firms to propose different
   pricing based on the number of units ordered, as well as different pricing
   for each phase and for each of the 5 years of the production. Amend. No.
   3, attach. 1. This will enable offerors to adjust their pricing on the
   basis of quantity as well as period of performance.

   Tennier asserts that the agency unreasonably declined to extend the due
   date for initial proposals, despite the fact that the offerors will be
   required to tender production demonstration models with their initial
   proposals. Tennier maintains that these are specialty items that require
   long lead times, and that the RFP unreasonably requires offerors to submit
   proposals in essentially 45 days. (Tennier maintains that it requires 6-8
   weeks to obtain materials plus additional time for manufacturing its
   product samples.)

   Agencies are required to afford offerors an adequate amount of time in
   which to prepare proposals; the determination of what constitutes an
   adequate amount of time for proposal preparation is a matter committed to
   the discretion of the contracting agency; we will object to that
   determination only where it is shown to be unreasonable. Lanier Worldwide,
   Inc., B-249338, Nov. 12, 1992, 92-2 CPD para. 343 at 3.

   Tennier has not shown that the time permitted for proposal preparation is
   unreasonable. The RFP was synopsized on December 21, 2006, more than 4
   months prior to the deadline for submitting proposals, and was issued
   approximately 2 months before the closing date for submitting proposals.
   There is no evidence in the record indicating that offerors generally
   would be expected to require more time, or supporting Tennier's assertion
   that it will require some 6 to 8 weeks lead time to acquire materials, and
   additional time to complete the fabrication of its product demonstration
   models. Further, as the agency notes, the RFP contemplates the furnishing
   of commercial-off-the-shelf, non-developmental (COTS/NDI) items that are
   routinely manufactured, and thus do not include materials with long lead
   times necessary for fabrication.[1] (We note that the agency proceeded
   with acceptance of proposals under the RFP, and received 20 proposals,
   which supports the view that the time permitted for proposal preparation
   is sufficient.)

   Tennier argues that the RFP is ambiguous with respect to the delivery
   times for the production units because it states only that those
   deliveries must be made in accordance with the timeframes stated in the
   delivery orders. In this regard, the RFP advises that the agency will
   establish delivery schedules when issuing production delivery orders. RFP
   at 30. There is no basis for objecting to the RFP's providing that
   delivery schedules will be established for the production items when the
   delivery orders are issued. Indeed, this is consistent with the nature of
   an ID/IQ contract, under which the delivery schedule is not established at
   the outset.

   Tennier asserts that the RFP improperly fails to include information
   relating to the sizes required by the agency; Tennier maintains that it
   needs to know the required sizes in order to intelligently prepare its
   proposal.[2] As discussed above, the RFP requires samples in all sizes an
   offeror manufactures. The agency also has made available comprehensive
   data on the Army's population. Amend. No. 2 at 5. Given that the agency is
   seeking to acquire standard sizes regularly manufactured by the offerors,
   and in light of the information provided, in our view the solicitation
   provides adequate information in this area.

   Tennier asserts that two components of the FREE system--the balaclavas and
   the rigger belt--are items that must be acquired from the National
   Industries for the Severely Handicapped, National Institute for the Blind
   (NISH/NIB) pursuant to the Javitz Wagner O'Day (JWOD) Act.[3] According to
   the protester, this potentially creates a competitive inequality because
   offerors proposing a complete FREE system may choose NISH/NIB products
   from different regional centers, and the selected products may vary as to
   price and quality. The protester also asserts that the RFP is silent
   respecting how the NISH/NIB items will be evaluated.

   There is no merit to this aspect of Tennier's protest. The RFP advises
   offerors that the balaclavas and rigger belt are listed on the NISH/NIB
   procurement list, Amend. No. 2 at 6, that NISH/NIB may submit a proposal
   and product demonstration models directly to the agency for those items,
   and that these products will be evaluated and tested in accordance with
   the RFP; to the extent that they are found technically acceptable, the
   items will be downselected for production purposes. Amend. No. 3 at 3.
   Thus, offerors other than NISH/NIB will not need to include the NISH/NIB
   items in their FREE systems; rather, those firms will propose their own
   balaclavas and rigger belts (or those of a subcontractor), which will be
   evaluated and tested in accordance with the terms of the RFP. In any case,
   even if the protester were correct that different firms may submit
   different NISH/NIB products from different regional centers, we fail to
   see how this would improperly establish an unequal competition; the
   situation would be no different from one where firms submit the products
   of different subcontractors, which, obviously, is not improper.

   Tennier protests the solicitation's requirement for past performance
   information. The RFP provides that the agency will assess the relevance of
   the past performance information, and that past contracts for the
   manufacture of fire resistant items at a rate of 5,000 units or more will
   be deemed more relevant than contracts for the manufacture of fire
   resistant items at a rate of 2,500 or more, and that contracts for the
   manufacture of other clothing at a rate of 5,000 units or more will be
   deemed still less relevant. Tennier maintains that the RFP is unclear
   because it does not specify the time period over which the units must have
   been manufactured, for example, 5,000 units per month or per year. This
   argument is without merit. The RFP provides broad guidance to the effect
   that more recent experience and the past production of greater quantities
   of fire resistant clothing items will be deemed more relevant than less
   recent experience and the manufacture of lesser quantities of fire
   resistant clothing or comparable quantities of non-fire resistant
   clothing; we think it implicit that firms demonstrating production of
   greater quantities will be given more favorable consideration than firms
   producing a lesser quantity over a given period of time. This is
   sufficient to put offerors on notice of the prior contracts that they
   should provide as the best examples of their past performance.

   The protest is denied.

   Gary L. Kepplinger
   General Counsel

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

   [1] Tennier maintains that the items being acquired are not COTS/NDI
   items. However, Tennier has submitted no evidence or information refuting
   the agency's position to the contrary.

   [2] Tennier objects to the requirement that offerors submit product
   demonstration models in every size the offeror manufactures, claiming that
   this will be unreasonably costly. However, there is no basis for
   precluding the agency from requiring samples in all sizes that potentially
   will be furnished under the contract.

   [3] The JWOD Act establishes the Committee for Purchase From People Who
   Are Blind or Severely Disabled, and authorizes it to establish and
   maintain a list of commodities and services provided by qualified
   nonprofit agencies for the blind or severely handicapped that it has
   determined are suitable for procurement by the government. 41 U.S.C.
   sections 46(a), 47(a) (2000). Once a commodity or service has been added
   to the procurement list, contracting agencies are required to procure that
   commodity or service directly from a qualified agency for the blind or
   severely handicapped if it is available within the time period required.
   41 U.S.C. sect. 48; FAR sect. 8.704; JAFIT Enters., Inc., B-266326,
   B-266327, Feb. 5, 1996, 96-1 CPD para. 39 at 2.