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
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[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.