______________________________________________
 
                       DENIED:  October 30, 1995
            _______________________________________________
 
                         GSBCA 13356-P, 13390-P
 
 
                    WILLIAMS ELECTRIC COMPANY, INC.,
 
                                           Protester,
 
                                  and
 
                            HSQ TECHNOLOGY,
 
                                           Protester/Intervenor,
 
                                   v.
 
                        DEPARTMENT OF THE ARMY,
 
                                           Respondent,
 
                                  and
 
                     SIEBE ENVIRONMENTAL CONTROLS,
 
                                           Intervenor.
 
        Raymond Fioravanti  and Michael K. Love of  Epstein Becker &
   Green,  Washington, DC;  and  Alan Dickson  of  Epstein Becker  &
   Green, Los Angeles,  CA, counsel for Protester  Williams Electric
   Company, Inc.
 
        Donald  O. Pratt  and  Paul  H.  Sanderford  of  Canterbury,
   Stuber,  Pratt,   Elder  &   Gooch,  Dallas,   TX,  counsel   for
   Protester/Intervenor HSQ Technology.
 
        Craig R. Schmauder and Richard C. Frank, Office of the Chief
   Counsel, U.S. Army Corps of Engineers, Washington, DC; and Steven
   W.  Feldman  and   Charles  T.  Frew,  Army   Engineer  Division,
   Huntsville, AL, counsel for Respondent.
 
        Timothy  F. Brown  and Shelly  L.  Ewald of  Watt, Tieder  &
   Hoffar, McLean,  VA, counsel  for Intervenor Siebe  Environmental
   Controls.
 
   Before Board Judges DANIELS (Chairman), PARKER, and VERGILIO.
   PARKER, Board Judge.
 
 
        Protesters   Williams  Electric   Company,   Inc.  and   HSQ
   Technology  allege that the United States Army Corps of Engineers
   violated  statute  and  regulation by  issuing  certain  delivery
   orders   to  intervenor   Siebe  Environmental  Controls.     The
   protesters' main  contention  is that  the work  to be  performed
   under the protested delivery orders -- replacement of fire  alarm
   and utility  control systems --  is outside the scope  of Siebe's
   existing  contract with  the Corps  and, thus,  should have  been
   procured competitively.  Williams  and HSQ would like  to compete
   for the opportunity to perform that work.
 
        For the reasons discussed below,  we deny the protests.  The
   work to be performed pursuant to the protested delivery orders is
   within  the  scope  of Siebe's  existing  contract.   Protesters'
   various  other complaints about the purchase orders are similarly
   without merit.
 
                            Findings of Fact
 
        The protesters, Williams and HSQ, are companies which, among
   other  things, install fire  alarm systems and  energy monitoring
   and  control systems under contracts with the Federal Government.
   Transcript at 296-300, 347-49.
 
   The Terms of Siebe's Contract
 
        The protested task  orders were, or will soon  be, issued by
   the Corps of Engineers to intervenor Siebe Environmental Controls
   under Siebe's existing contract to "remediate" medical facilities
   at Army bases  throughout the United  States.  Siebe's  contract,
   awarded on September  13, 1994, is for  a term of one  year, with
   four optional  years.   Section C of  the contract  describes the
   "scope of work" as follows:
 
             OBJECTIVE.   This contract  is intended to provide
        quick response to remediation  situations relating, but
        not   limited    to,   the    mechanical,   electrical,
        instrumentation,   security   and   safety   areas   of
        Government medical  and  other  facilities  in  a  cost
        effective  manner.   This response  shall  be taken  to
        remediate  facilities  in   a  cost  effective  manner.
        Government medical  facility remediation  shall conform
        to  the   requirements  of  the  Joint   Commission  of
        Accrediation [sic] of  Health Care Organization (JCAHO)
        Life   Safety   Management   Standards.      Mechanical
        involvement will include heating, ventilation, and  air
        conditioning (HVAC)  systems and  components, transient
        tubes,   incinerators,  fuel   lines,  elevators,   and
        sterilization systems,  as  well  as  plumbing  systems
        involving  water, solid,  and hazardous  waste control,
        and  medical gas systems.   Projects in  the electrical
        area  will   involve  power   and  services   supplies,
 
        distribution,   and   utilization   systems  (including
        lighting),  power  generation and  uninterrupted  power
        supplies (UPS).  Instrumentation projects will  involve
        energy monitoring  and control systems  and fire  alarm
        systems.     Nurse  call/communications   systems  will
        involve medical  nurse call and  related communications
        systems.    Security projects  will  deal  with medical
        facility  security  systems.   Safety  remediation will
        involve review and upgrade of life  safety, inflamatory
        [sic]  gases,  medical  safety  and  hygiene  and  fire
        protection systems.  Asbestos  removal/disposal will be
        required    during    equipment/systems    remediation.
        Architectural, structural,  and civil efforts  may also
        be required.   Ancillary work necessary to  support the
        remediation project or to restore  the work area to the
        condition prior  to  the remediation  project shall  be
        included  in this  contract.   It  is anticipated  that
        approximately  20 percent of  this contract may  be for
        non-medical facility remediation.  This objective shall
        be  achieved  through  the  implementation of  delivery
        orders issued under the terms of this contract  for all
        of  the herein  described  tasks  or  additional  tasks
        described in specific task orders.
 
        2.0  DESCRIPTION.
 
             2.1  General.
 
                  2.1.1  Often Government medical installations
        and  facilities have problems that cannot be dealt with
        efficiently by  issuance of individual  acquisitions by
        the  U.S.  Army Corps  of  Engineers and  that  are too
        involved  for the  local facilities  work  force.   The
        solution  for these types of problems provide [sic] the
        basis for this contract.
 
   Protest  File, Exhibit  8  at  C-1 (emphasis  added).   Siebe  is
   responsible for:
 
             all   site   surveys,   feasibility  studies,
             calculations,    work    plans,   remediation
             actions,  equipment   startups  and   testing
             and/or  repair,  and   training  required  to
             implement   the   MFRPs   [medical   facility
             remedial  projects]  awarded,  including, but
             not limited  to labor,  equipment, materials,
             software,        applicable       engineering
             documentation, and  other necessary  services
             and/or   products   required   to  remediate,
             implement,  test  the  awarded  MFRPs and  to
             provide  a  complete  and  fully  operational
             facility  for the  duration of  the contract,
             unless  otherwise indicated  in the  delivery
             orders or directed.
   Id. at C-3.
 
 
        The  contract talks  specifically about  the replacement  of
   complete  systems.  Data Item Description (DID) forms included in
   the contract contain "requirements for contractor data submittals
   required in the SOW [statement  of work]."  Protest File, Exhibit
   8 at  C-3.   The form  for the  site survey  report requires  the
   contractor  to  "identify  the areas  where  remediations  may be
   accomplished  by repairing, modifying  or replacing  equipment or
   installing  new equipment  and facilities  . . . ."   Id. at  DID
   (Site  Surveys)   10.1  (emphasis added).    Similarly, when  the
   contractor needs to  obtain competition to purchase  equipment or
   to hire subcontractors to help perform the work, the form for the
   work  plan  requires the  contractor  to obtain  quotes  from two
   suppliers or subcontractors for "each equipment/system proposed,"
   and requires that "[w]here replaced equipment/systems  are turned
   over to the contractor for  disposal, every effort should be made
   to  obtain  credit  from the  disposal  of  this equipment/system
   towards reducing  the cost of  the contract."   Id. at  DID (Work
   Plans)   10.3 (emphasis added).
 
        The contract also provides that:
 
             The   contractor   shall   furnish   to   the
             Government, when and if ordered, the supplies
             or services set  forth in the Schedule  up to
             and  [sic] the  amount  of $5,999,999.00  per
             year  not to  exceed  $29,999,999.00 for  the
             total of five years.
 
   Protest  File, Exhibit  8  at  H-7.   The  $5,999,999 figure  was
   arrived at by  dividing the total funds budgeted  to the contract
   by  five,  the  number  of  years  of  the  contract's  duration.
   Transcript  at 186.   According to  the contracting  officer, the
   value  of the  approximately seventy  delivery  orders issued  to
   Siebe during  the first year is  about $12,000,000.  Id.  at 189.
   Documents submitted subsequent to the  hearing on the merits show
   that, as of October 12, 1995, the Army has issued purchase orders
   totaling $27,174,429, including $5,047,416 in Federal Information
   Processing resources.  Respondent's Supplemental Submission at 6-
   8 (unnumbered) (Remediation Contract Status).
 
        The  contract  contains   an  "Organizational  Conflicts  of
   Interest" clause, which provides in part as follows:
 
             Since  the   services  to  be   performed  by
             order(s)  under  this  contract  include  the
             preparation  of  a  scope  of  work  or  cost
             estimate,  it   is  understood   and  agreed,
             pursuant  to  Subpart  9.505  of the  Federal
             Acquisition Regulations [sic] that:
 
             a.   The  contractor   and  its   affiliates,
             associates, subsidiaries, subcontractors, and
 
             consultants  are hereby  prohibited from  and
             shall not submit bids or offers  or otherwise
             participate  directly  or indirectly  in  the
             preparation   of   any    response   to   any
             solicitation  issued  by  the  Government  or
             perform  any portion of a contract awarded by
             the Government, which includes or relates to,
             all or any  portion of the  scope of work  or
             estimate  prepared   by  the   contractor  by
             order(s) under this contract.
 
                  . . . .
 
             e.   This  restriction is  limited to  either
             (a) the initial solicitation(s) issued by the
             Governments [sic]  which results in  an award
             of a  contract, or (b) a period  of two years
             from  the  date  of  issuance  of  the  final
             payment  on  order(s)  under  this  contract,
             whichever occurs first.
 
   Protest File, Exhibit 8 at H-1 to -2.
 
   The Protested Delivery Orders
 
        Protested delivery order numbers 17, 30, 62, 66, 84, 88, and
   92  are for  the replacement  of  fire alarm  systems at  various
   military medical facilities.  See Protest File, Exhibits 38-39.  
 
        Protested  delivery order number 10 is  for replacement of a
   fire alarm system and removal and replacement of existing unitary
   control unit  devices (automated temperature  control devices) at
   Evans  Army Community  Hospital at  Fort Carson.   Protest  File,
   Exhibit 13.  This delivery order is the first phase of  a planned
   replacement  of  the hospital's  entire  utility  control system.
   Transcript  at 177-78.   When  the delivery  order was  issued on
   September  30,  1994, neither  the  fire  alarm system,  nor  the
   utility  control system,  was working  properly.   Protest  File,
   Exhibits 10, 12.  Lacking the time to negotiate a fixed price for
   delivery order 10, the Army ordered the work from Siebe on a time
   and materials basis,  using fiscal year 1994 funds.   The work on
   delivery  order number  10  is,  at  most,  thirty-eight  percent
   complete.  Transcript at 471-73.
 
        Protested delivery order  number 47, for replacement  of the
   entire utility control  system at Evans Army  Community Hospital,
   is the second phase of the work begun under delivery order number
   10.  Protester Williams' Exhibit 33.
 
   A Brief History of the Remediation Contract
 
        Because  of shrinking budgets and limited manpower, the U.S.
   Army Medical  Command decided  to award  several large  contracts
   under   which  the   Army  could   issue   delivery  orders   for
   "remediation" work necessary to maintain the accreditation of the
   medical facilities under  its command.  The Army's  intent was to
   create  a vehicle  through  which the  Army could  issue delivery
   orders  for  any  remediation work  that  MEDCOM's  Operation and
   Maintenance funding could legally be used for.  Transcript at 29-
   34, 73.
 
 
        The drafters of the solicitation for the medical remediation
   contract  at issue  here used  as a  model an  energy remediation
   contract  issued  in  1992  by  the  U.S.  Army  Forces  Command.
   Transcript at  29.   Although the terms  are similar,  the energy
   remediation  contract  contains  the following  sentence  in  the
   statement of work:
 
             This energy  remediation contract is  for the
             repair/replacement  of  facility  energy  and
             utility systems.
 
   Protester  Williams'  Exhibit  2  at   C-1.    According  to  the
   contracting officer, the  above-quoted sentence was  omitted from
   the medical remediation contract in order to broaden, rather than
   limit, the scope of work.  Transcript at 143-44, 247-48.
 
        On April  22, 1994,  the Corps published  a synopsis  in the
   Commerce Business Daily (CBD) announcing its intention to procure
   medical  facilities   remediation  services.    The   CBD  notice
   described a  solicitation for "[f]acilities  remediation services
   at  all Government Medical Installations" and stated that "[t]his
   remediation effort includes, but is not limited to environmental,
   logistical,   operation  and  maintenance."     The  notice  also
   indicated  that "[t]he  objective of  the  project is  to provide
   quick  response  for   the  remediation  of  failed   or  failing
   facilities in a cost effective method."  Protest File, Exhibit 4.
 
        The CBD notice was  published in section R  of the CBD,  the
   section  for   advertising  "Professional,   Administrative,  and
   Management Support  Services."   Protester  Williams' Exhibit  3.
   The   contracting  officer  considered   this  to  be   the  most
   appropriate  category,  given  the  broad  range  of requirements
   included  in  the contract.    Transcript  at  244.   Contracting
   opportunities  for the replacement of utility control systems are
   usually found  in  sections Y  or Z  of  the CBD.   Id.  at  328.
   Neither Williams  nor HSQ asked  for a copy of  the solicitation;
   neither firm  recognized the notice  as one for a  procurement in
   which it might be interested.  Id. at 332, 391.
 
        Approximately  250  firms  did   ask  for  a  copy   of  the
   solicitation,  however.  This included several firms prominent in
   the  utility controls  field.   Protest File,  Exhibit 32.   Four
   offerors submitted proposals in response to the solicitation, and
   all four were selected for contracts.   Id., Exhibits 7, 8.   All
   of the offerors recognized that replacement of facilities systems
   could be required.  For  example, John J. Kirlin, Inc.'s proposal
   contained the following statement:
 
             General requirements are  to include all work
             to   repair,  replace   or  redesign   failed
             facility systems  as required by  the Medical
             Facility  Remediation  request, in  a  timely
             manner.
 
   Respondent's  Exhibit 1.  EARTH TECH, another successful offeror,
   stated in its proposal that:
 
             The EARTH TECH Team  has provided exactly the
             type  of  health  care  remediation  services
             required.      These   include   single   and
             multidiscipline  projects  that  address  the
             upgrade  and/or  replacement   of  failed  or
             failing facilities and facilities systems.
 
   Id.   The other two  successful offerors, Syska and  Hennessy and
   Siebe,   similarly  referenced   their   experience  in   design,
   installation and replacement of various systems.  Id.
 
        When the Army  needs work done, it simply  places a delivery
   order,  without further competition,  to one of  the contractors,
   based upon criteria  developed by the  contracting officer.   The
   criteria include whether  a contractor is already  mobilized on a
   site, any unique or special  capabilities of the contractor,  and
   current  and  past  performance.    Transcript  at  178-81.   The
   contractor  is required  to  begin  work  within  one  day  after
   receiving the order.  Protest File, Exhibit 8 at H-7.
 
                               Discussion
 
        The protesters have attacked delivery orders 10, 17, 30, 47,
   62, 66,  84, 88, and  92 in several  ways.  First,  they maintain
   that the delivery  orders, which are all for  replacement of fire
   alarm systems or  utility control systems,  or both, are  outside
   the scope of Siebe's medical facility remediation contract.  With
   respect to delivery order 10,  the protesters also argue that the
   Corps violated the  Anti-Deficiency Act by funding  that delivery
   order with  fiscal year 1994  funds without first  establishing a
   bona fide need  for the work.   Next, the protesters  allege that
   the delivery orders are invalid to the extent their value exceeds
   $5,999,999, which the  protesters maintain is an  absolute yearly
   contract ceiling.  Finally, protester  HSQ argues that the  Corps
   is permitting  Siebe  to violate  the  contract's  Organizational
   Conflict of Interest clause by having Siebe prepare workplans for
   the work it will perform, and then allowing Siebe to perform that
   work.   As discussed  below, we  find no  merit to  any of  these
   grounds.
 
   Motion to Dismiss
 
        The Corps  has moved  to dismiss for  lack of  an interested
   party those parts of the  protests relating to delivery order 10.
   According  to respondent,  since  neither  Williams  nor  HSQ  is
   capable of  performing the work  covered by that  delivery order,
   the protesters are not "prospective offerors" for the competitive
   procurement which  they seek to  compel.  Moreover,  according to
   respondent, even if the protesters were capable of performing the
   work,  delivery order 10 is  sufficiently complete that the Board
   would never  order respondent  to terminate  the delivery  order.
   Thus,  respondent  argues,  the protesters  could  never  hope to
   obtain meaningful relief with respect to delivery order 10.
 
 
        We deny  respondent's motion.   The evidence adduced  at the
   hearing on the merits  clearly established that the  work covered
   by  delivery order  10  is  exactly the  type  of work  that  the
   protesters commonly perform.   Thus, they qualify  as prospective
   offerors  with a  direct economic  interest in  the award  of the
   contract.   40 U.S.C.A.   759(f)(9)(B)  (West Supp. 1995).   With
   respect  to respondent's  contention that  the  work on  delivery
   order 10 has progressed beyond the point of no return, we are not
   certain that that is the case.  The evidence showed that there is
   much work yet to be done.   If the protesters were to prevail  in
   their challenges to delivery order 10, the Board would likely ask
   the parties to suggest possible ways of dividing up the work such
   that the prevailing  parties could obtain some measure  of relief
   without   causing  the  Government  to  incur  large  amounts  of
   unnecessary expense.
 
   The Merits
 
        Scope of the Contract
 
        The  protesters' main contention  in these protests  is that
   the delivery  orders for  replacement of fire  alarm and  utility
   control  systems are  outside the  scope  of Siebe's  remediation
   contract.  Protesters  read Siebe's contract as  including within
   its  scope only  repairs of  such systems  and maintain  that the
   replacement  work covered by the protested delivery orders should
   have been procured competitively.
 
        In  determining  whether  a modification  falls  within  the
   Competition in  Contracting Act's  competition requirements,  the
   question  to be  answered is  "whether  the contract  as modified
   materially departs from  the scope of the  original procurement."
   AT&T  Communications, Inc.  v. Wiltel,  Inc., 1  F.3d 1201,  1205
   (Fed. Cir. 1993).  "The analysis thus focuses on the scope of the
   entire  original procurement  in comparison to  the scope  of the
   contract  as modified.   Thus,  a broad original  competition may
   validate  a broader range  of later modification  without further
   bid procedures."   Id.   "An important factor in  determining the
   scope  of the original  competition is 'whether  the solicitation
   for  the original  contract adequately  advised  offerors of  the
   potential  for the  type  of  changes during  the  course of  the
   contract that in fact occurred, or whether the modification is of
   a  nature   which  potential   offerors  would   reasonably  have
   anticipated.'"  Id.  at 1207  (quoting Neil  R. Gross  & Co.,  B-
   237434, 90-1 CPD   212, at 3 (Feb. 23, 1990).
 
        Although AT&T  concerned contract modifications  rather than
   delivery orders issued under a task-order type contract, we think
   the  same analysis  applies.   Both  delivery  orders and  change
   orders tell the contractor to  do something; the question in both
   cases is whether  that something is within the scope contemplated
   by the original procurement.
 
        Here,  that question  is  easily  answered.    Although  the
   solicitation did  not define what it meant by "remediation" work,
   it  did  inform  offerors  that  "instrumentation  projects  will
   involve  energy monitoring  and control  systems  and fire  alarm
   systems."   The  data  item  description forms  included  in  the
   solicitation made  clear that  the  Government was  contemplating
   "repairing, modifying or  replacing equipment  or installing  new
   equipment  and facilities."   Any prospective offeror  which read
   the  solicitation should have  realized that replacement  of fire
   alarm   or  utility  control  systems  was  contemplated  by  the
   contract.
 
        In fact, all four  offerors did realize that  replacement of
   these  types of  systems  was  contemplated;  all  four  included
   statements  in  their  proposals   about  their  experience   and
   capabilities in this area.  Thus, at least as far as the offerors
   were concerned,  replacement of  fire alarm  and utility  control
   systems could not have been unexpected.
 
        Of course,  the protesters were  not offerors and  they make
   much  of that  fact.    The protesters  maintain  that since  the
   synopsis for  the medical  remediation contract  was "hidden"  in
   section  R  of  the CBD,  they  did  not request  a  copy  of the
   solicitation.   If they  had requested a  copy, protesters argue,
   they would have read it to exclude replacement of  fire alarm and
   utility control  systems.   This argument,  in addition  to being
   farfetched, is not supported by the evidence.   Approximately 250
   firms,  including  several  companies  prominent in  the  utility
   controls  field, requested  copies  of  the  solicitation.    The
   language  of the  synopsis,  although vague,  was  enough to  put
   potential  contractors  on  notice   of  a  possible  contracting
   opportunity.  As far  as the synopsis being located  in section R
   of  the CBD, the  contracting officer determined  that section R,
   "Professional, Administrative  and Management  Support Services,"
   was   the  appropriate  category,   given  the  broad   range  of
   requirements  included in the  contract.   Although we  would not
   have put it there, protesters have not shown that the contracting
   officer's decision was unreasonable.
 
        The  protesters point  to three  additional  aspects of  the
   procurement which allegedly  show that replacement of  fire alarm
   and utility control systems was  intended to be outside the scope
   of Siebe's contract.   First, the protesters find significant the
   fact  that  the   Army  removed  language  used   in  the  energy
   remediation contract  -- the  model for  the medical  remediation
   contract  --  which explicitly  stated  that the  purpose  of the
   contract was "for  the repair/replacement of facility  energy and
   utility systems."  Protesters contend that the Corps' decision to
   omit  this sentence from  the medical remediation  contract means
   that respondent intended that replacement of these systems not be
   included within its scope.   Again, the evidence does not support
   protesters' contention.   The contracting officer  testified that
   she  omitted   the  above-quoted   language   from  the   medical
   remediation contract in order to broaden, rather  than limit, the
   scope of work.   As discussed above, the language  of the medical
   remediation  contract is broad  enough to include  replacement of
   energy  and utility  control systems,  even  without the  omitted
   sentence.  
 
 
        Second,  protesters argue that the protested delivery orders
   are outside the  scope of the contract because  their value, when
   combined with the value of other, non-protested, delivery orders,
   exceeds the $5,999,999 yearly figure included in section H of the
   contract.   We  do not  think  this number  is dispositive  here.
   First, as discussed above, the scope of work clearly contemplates
   replacement of fire  alarm and utility control  systems.  Second,
   as discussed in more  detail below, if there is a  ceiling amount
   in the contract, it is $29,999,999 -- not $5,999,999  -- and this
   amount has not  been exceeded.  Finally, the  evidence shows that
   yearly figure used in the contract was not intended to define the
   contract's scope; it was arrived  at simply by dividing the total
   funds budgeted for  the contract by five, the number  of years of
   the  contract's duration.   Given all  of the  above, protesters'
   argument that issuance of delivery orders for replacement of fire
   alarm and utility  control systems constitutes "an  alteration in
   the work so drastic  that it effectively requires  the contractor
   to perform  duties  materially different  from  those  originally
   bargained   for,"  AT&T  at  1205  (quoting  Allied  Materials  &
   Equipment Co.  v. United  States, 569 F.2d  562 (Ct.  Cl. 1978)),
   must fail.
 
        Finally,  protesters argue that  the fact that  the contract
   requires a "quick response"  from the contractor means that  only
   repairs  (as opposed  to replacements)  are  contemplated by  the
   contract.    Reading the  contract as  a whole  proves protesters
   wrong.   The  contract  requires the  contractor to  perform many
   time-consuming tasks after receiving  a delivery order, including
   surveying  the problem, submitting a  report, creating a plan for
   the work  to be done,  obtaining approval by the  Government, and
   performing the work.   The time limits contained  in the contract
   require the contractor to begin work on the survey within one day
   after  receiving  the  delivery  order.    The  "quick  response"
   referred  to in  the  contract refers  to  both the  Government's
   desire to contract for  the work quickly (i.e.,  through issuance
   of delivery  orders rather  than obtaining  competition for  each
   task) and  the  contractor's need  to  begin the  work  promptly.
   There is  no indication  that the  "quick response" language  was
   intended to  limit the  scope of the  contract to  small projects
   which could be accomplished quickly. 
 
        The Bona Fide Needs Rule
 
        Protesters  allege   that  the  Corps  violated   the  Anti-
   Deficiency Act by funding delivery order 10 with fiscal year 1994
   funds without first  establishing a bona fide need  for the work.
   We deny this ground of protest as well.
 
        Under the Anti-Deficiency Act,  appropriations are available
   to   complete  contracts  properly  made  within  the  period  of
   availability.  31 U.S.C.   1502(a) (1988).  Under the Comptroller
   General's  longstanding  interpretation  of  this statute,  "[a]n
   agency  may  obligate  a  fiscal  year  appropriation  to meet  a
   legitimate, or  bona fide,  need arising in  the fiscal  year for
   which the appropriation was made.   Consistent with this rule, we
   have held that delivery of goods or performance  of services in a
   fiscal  year  subsequent to  the  year  in  which a  contract  is
   executed does not necessarily preclude charging of earlier fiscal
   year appropriations."  Matter of:  Proper Appropriation to Charge
   for  Expenses Relating to  Nonseverable Training Course,  70 Comp
   Gen. 296, 296-97 (1991) (citations omitted).  The applicable test
   is  whether the goods or services  are intended to meet a present
   need  of  the agency,  regardless  of  when  the work  under  the
   contract   is  completed.    Matter   of:    Proper  Fiscal  Year
   Appropriation  to Charge for Contract and Contract Increase, July
   22, 1986, 65 Comp. Gen. 741 (1986).
 
        We  found  as fact  that  on  September  30, 1994,  the  day
   delivery order 10  was issued, neither the fire  alarm system nor
   the utility control  system at  Evans Army  Hospital was  working
   properly.  Thus, on that date, the  Army had a bona fide need for
   work  on  those  systems.   Protesters  maintain,  however, that,
   because delivery  order 10 was  just the first  phase of  a total
   replacement of  the hospital's  utility control  system, and  the
   rest of  the project was still in the planning stages, the Army's
   need for the work covered by delivery  order 10 was not "firm and
   complete" in fiscal year  1994.  Thus, protesters argue,  without
   completed plans for the full  replacement, there was no bona fide
   need for delivery order 10.
 
        Protesters confuse  inefficiency with illegality.   The Army
   found itself on the last day of the fiscal year with enough money
   to  fund only  part  of  the replacement  project  at Evans  Army
   Hospital.   Lacking the time  to hold a  competition, or  even to
   negotiate a fixed price for the work, the Army decided to issue a
   delivery order,  on a  time and  materials basis, to  Siebe.   We
   certainly understand the  protesters' frustration; it is  hard to
   believe that the  Army could not have  done a better job  for the
   taxpayers by waiting  until it could fund the  entire project and
   then  holding a  competition to  get  the best  price.   Managing
   resources  in an  inefficient manner,  however, is  not  the same
   thing as lacking a bona fide need for the work.  On September 30,
   1994, a clear need existed for work on the fire alarm and utility
   control  systems.   The fact  that the  work covered  by delivery
   order 10  is part  of a  bigger project  --   replacement of  the
   hospital's entire  utility control system  -- does not  mean that
   the need  to replace  the fire alarm  system and  unitary control
   devices was not  bona fide.  The evidence in this case shows that
   it was.
 
 
        Contract Ceiling
 
        Protesters'  next argument  is that  the  protested delivery
   orders are  invalid to the extent their value exceeds $5,999,999,
   which protesters maintain is an absolute yearly contract ceiling.
   We deny this ground of protest.
 
        The contract states as follows:
 
             The   contractor   shall   furnish   to   the
             Government, when and if ordered, the supplies
             or services set  forth in the Schedule  up to
             and  [sic] the  amount  of $5,999,999.00  per
             year  not to  exceed  $29,999,999.00 for  the
             total of five years.
 
   This  clause obligates the  contractor to accept  orders from the
   Government up to the amount of $5,999,999 per year.  It does not,
   as protesters  contend, set a  yearly contract ceiling  which can
   never be exceeded.   The clause simply permits  the contractor to
   decline delivery orders after the  stated amount is reached.  The
   contract  ceiling, if  there  is one,  is  $29,999,999, and  that
   amount has not been exceeded.
 
        Organizational Conflict of Interest
 
        Protester  HSQ argues that the  Corps is permitting Siebe to
   violate the contract's Organizational Conflict of Interest clause
   by having Siebe  prepare workplans for the work  it will perform,
   and  then allowing Siebe to perform that  work.  HSQ misreads the
   clause which forms the basis for this ground of protest.
 
        The Organizational Conflicts of Interest clause provides:
 
             a.   The  contractor   and  its   affiliates,
             associates, subsidiaries, subcontractors, and
             consultants  are hereby  prohibited from  and
             shall not  submit bids or offers or otherwise
             participate  directly  or indirectly  in  the
             preparation   of   any    response   to   any
             solicitation  issued  by  the  Government  or
             perform any portion of  a contract awarded by
             the Government, which includes or relates to,
             all  or any portion  of the scope  of work or
             estimate  prepared   by  the   contractor  by
             order(s) under this contract.
 
                  . . . .
 
             e.   This  restriction is  limited to  either
             (a) the initial solicitation(s) issued by the
             Governments [sic]  which results in  an award
             of a contract,  or (b) a period of  two years
             from  the  date  of  issuance  of  the  final
             payment  on  order(s)  under  this  contract,
             whichever occurs first.
 
 
   The  purpose of  this clause  is to  prevent one  contractor from
   obtaining  an unfair advantage  over other contractors  in future
   competitive procurements.  See 48 CFR 9.505-2 (1994).  The clause
   accomplishes  this  purpose by  prohibiting  the contractor  from
   bidding or working on future contracts  which use a scope of work
   or cost estimate prepared by  the contractor under this contract.
 
 
        The  Organizational  Conflicts  of  Interest  clause  has no
   applicability to the delivery orders  at issue in these protests.
   Siebe's  contract   requires   Siebe   to   propose   plans   for
   accomplishing certain  work, have  the plans  approved, and  then
   perform  the work  according to  plans.   Siebe is  not preparing
   scopes of  work or cost  estimates for use in  future competitive
   procurements; it is  merely carrying out the  requirements of the
   contract.
 
                                Decision
 
        For the reasons discussed above, the protests are DENIED.
 
                                      _________________________
                                      ROBERT W. PARKER
                                      Board Judge
 
   I concur:
   ________________________
   STEPHEN M. DANIELS
   Board Judge
 
   DANIELS, Board Judge, concurring.
 
 
        At the heart  of these protests are serious  questions about
   the  budgeting and  contracting practices  of the  Army  Corps of
   Engineers.  Does the agency manage  its money in such a way  that
   it does not know until the end  of a fiscal year how much it will
   have to spend on necessary projects?  Does the Corps on a regular
   basis  acquire goods  and  services  through the  non-competitive
   issuance  of delivery and  task orders against  vague, open-ended
   contracts, rather  than by  competitive procurements?   Does  the
   Corps'  means of acquiring  goods and services  effectively limit
   the pool of  prospective contractors with which the  agency might
   deal,  excluding firms which have specialized expertise and could
   provide it to  the Corps at prices which  are more cost-effective
   than the prices the agency is now paying?  
 
 
        Is there a link between the agency's budgeting practices and
   its  contracting  practices?    In  particular:    Is  the  Corps
   contracting in an inefficient way because bad budgeting practices
   leave  the contracting  personnel  no time  to acquire  goods and
   services more efficiently?  Is the Corps spending more money (and
   if so, how much?) by avoiding competition than it might be saving
   by  using contracting practices  which cede to  private companies
   much  of the agency's  responsibility for definition  of work and
   selection of firms to perform it?
 
        These are  extremely important questions, and  the taxpayers
   deserve answers to  all of them.   This Board is not  equipped to
   ferret  out the answers,  however; we are  administrative judges,
   not  management analysts  or  investigators.    And  the  protest
   process is not  the place for such  an inquiry to take  place; it
   calls on us to decide whether a challenged agency action violated
   statute  or  regulation,  not  whether that  action  was  wise or
   foolish.   On  the legal  issues raised  by the  protesters, this
   decision is correct.
 
                                      _________________________
                                      STEPHEN M. DANIELS
                                      Board Judge
 
   VERGILIO, Board Judge, dissenting.
 
        I  respectfully dissent from the conclusion of the majority.
   Through  the  placement  of the  protested  delivery  orders, the
   agency  is   circumventing  and   violating   the  mandates   for
   competition  found in  statute  and regulation,  as  well as  the
   conditions  of  its  procurement authority  as  delegated  by the
   General Services Administration  (GSA) and as issued  from within
   the agency.   The  agency  has placed  or  intends to  place  the
   protested  delivery  orders  without any  assurance  or  basis to
   reasonably conclude that the orders will be in the best interests
   of  the  United  States.    Orders which  may  be  expedient  for
   particular   agency  personnel   do  not   necessarily  represent
   legitimate procurements.
 
        The contentions of the agency and Siebe  regarding the broad
   scope  of  their  ordering agreement  are  inconsistent  with the
   language  of the solicitation  underlying that agreement  and the
   limits   and  requirements   of   then-existing  delegations   of
   procurement authority from the GSA and from within the agency.
 
 
                            Findings of Fact
 
   Requirements and acquisition plan
 
        1.   The agency  developed an acquisition plan, described on
   the signature page as for  the repair and maintenance of Army/Air
   Force  facilities,  and  on  the  cover  page  as  for  "facility
   remediation."     Exhibit  2.[foot #] 1     The  plan   describes
   the "objective" behind the proposed program:
 
             The  program that has  been mutually agreed  to by
        Health Services  Command and  the Air  Force is  a team
        approach to  investigate problems that  are encountered
        by the facilities.   The intent of this  contract is to
        be  able to  respond to  needs of  the facilities  in a
        timely manner.   This will be a  firm-fixed price time-
        and-materials  delivery  order contract  for  supplies,
        services, with construction where required.   U.S. Army
        Engineer  Division,  Huntsville  will  act  as  project
        managers  and perform all  contracting functions.   The
        work  for  individual  projects will  be  reflected  in
        delivery orders.
 
   Id.  at  1.    Among  the  contracting  considerations  the  plan
   describes is the following:
 
        Essentially  this is  a  service intensive  acquisition
        with  relatively minimal  supplies.   This  remediation
        effort includes, but is not limited to,  environmental,
        logistical, operation and maintenance.  . . .  The lack
        of  timely remediation  increases cost.   When problems
        are  not corrected  in a  timely  manner, they  require
        longer down  time and are  more costly to remedy.   The
        contractor  will be required  to perform  all necessary
        operations    involving    surveying    the    problem,
        recommending a solution, and remediation of the problem
        in a timely manner and shall maintain the capability to
        provide   quick   response  for   the   remediation  of
        facilities.
 
   Id. at 3.
 
   Procurement approval request
 
        2.   A document captioned "Procurement Approval Request  for
   Delegation of Procurement Authority for Facility Remediation" and
   dated 20 April 1994 describes the underlying facility remediation
   project for the subject Department of Defense facilities.
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 1 All referenced exhibits are in the protest file.
 
                   ----------- FOOTNOTE ENDS -----------
 
 
 
        The project will consist  of site surveys,  remediation
        audits,  feasibility  studies,   calculations,  design,
        construction,  equipment  startup  and  testing  and/or
        repaint,  and   training  required  to   implement  the
        remedial project  awarded.   The projects  include, but
        are  not  limited  to,  labor,  equipment,   materials,
        software,  applicable  engineering  documentation,  and
        other necessary  services and/or  products required  to
        design,  implement, test the  remedial projects  and to
        provide a  complete and fully operational  facility for
        the  duration   of  the   contract,  unless   otherwise
        indicated in the delivery orders or directed.
 
   Exhibit 3 at 2 (  2.b).
 
        3.   The   request   describes   the   federal   information
   processing (FIP) resources to be acquired:
 
        The FIP resources to be acquired will vary according to
        the   requirements  at  the  various  locations.    The
        replacement will  generally require  the following  FIP
        resources:
 
        a.   Power monitoring and control system to monitor the
        normal  and standby  sources  and control  transfer  of
        power from one source to the other.
 
        b.   Sensors, digital control panels, data control unit
        panels and  other equipment required for the connection
        with  the existing EMCS  (energy monitoring and control
        system).
 
   Exhibit 3 at 2 (  4).
 
        4.   The request estimates  costs over the contract  life of
   five years:
 
        $2,500,000     FIP equipment (including software)
         2,500,000     FIP maintenance services
         2,500,000     FIP support services
           485,000     FIP related supplies
       $22,015,000     TOTAL Non-FIP resources
       $30,000,000     TOTAL CONTRACT COST
 
   Exhibit 3  at 3 (  6).  The request references no data supporting
   these estimated  dollar values and  contains no reference  to the
   agency's FIP acquisition plan which might support the estimates.
 
        5.   The requirements  analysis which underlies  the request
   contains the following, with references to the FIRMR, the Federal
   Information Resources Management Regulation:
 
        (201-20.103-3) Description of Requirements.
 
             a.   The  replacement  of the  existing  equipment
        will  provide  energy  savings,  decreased  maintenance
        requirements and  higher reliability.   The performance
        of  FIP  resources  included  in  the  replacement must
        comply with the following requirements:
 
                  (1)  Be capable of monitoring and controlling
        the  normal  and  standby  power  sources  and  control
        transfer of power from one source to the other.
 
                  (2)  The  sensors,  digital  control  panels,
        data  control unit panels  and other equipment  must be
        capable of providing  the correct data to  the existing
        EMCS [energy monitoring and control system].
 
             b.   Requirements  in  Terms  of Functions  to  be
        Performed.
 
                  (1)  System Hardware/Software Functions.  The
        projects  include equipment that is monitored by remote
        sensors.  Data  from the remote sensors  is transmitted
        via  two-way radio  frequency (RF),  one-way  FM radio,
        telephone lines,  or fiber  optics lines  to a  central
        operating  station.    The  central  operating  station
        functions as an utility control system and  supervisory
        control  and   data  acquisition   system.     Software
        requirements are provided by the existing EMCS systems.
        Minor modifications to the existing software to add new
        monitoring and control points will be required.
 
                  (2)  System Environment.   The  FIP resources
        to  be acquired do not require extraordinary shelter or
        protection from its operating environment.
 
             c.   Requirements    in    Terms    of    Possible
        Competition.   The  FIP resources  to  be acquired  are
        readily  available in the  competitive open market from
        multiple sources.
 
             d.   Qualitative  and  Quantitative  Requirements.
        The  FIP resources  to be  acquired  will meet  current
        industry standards for  the specific type of  equipment
        in consideration.   The general performance and end-use
        objectives  of the FIP  resources are specified  in the
        request  for   proposal.    No  special   technical  or
        performance  requirement   outside  industry   accepted
        practices  has  been  specified   in  the  request  for
        proposal.  The quantity of FIP resources to be acquired
        will depend on the contractor proposed system designs.
 
             e.   Aggregating  Requirements.   The sensors  and
        other  information   processing  components   for  this
        acquisition are  system specific and at the  end of the
        flow of  data.   The FIP resources  to be  acquired for
 
        these projects  are not  suitable for other  aggregated
        uses at other functions or organizations.
 
   Exhibit 3, Appendix A at 7-8 (  3).
 
   Procurement authority
 
        6.   A  specific  activity  DPA  (delegation of  procurement
   authority) for CEHND-IM, dated  December 15, 1993, signed by  the
   Director  of Information Management, Department of the Army, U.S.
   Army  Corps of  Engineers, with  a  delegation reference  number,
   states, "When conducting a contracting action under this Specific
   Activity  Delegation,  the contracting  officer  should insert  a
   contract clause  in each  solicitation and  contract citing  this
   number as a 'specific agency' delegation.  (Refer to FIRMR   201-
   39.5202-3  for  details.)"    Exhibit  3,  Memorandum.    With  a
   signature  date of  May  2,  1994,  the Director  of  Information
   Management, CEHND-IM,  approved the  internal DPA  in the  above-
   referenced  (Findings 2-5)  procurement approval  request.   Id.,
   Procurement Approval Request at 5.
 
        7.   The  internal  delegation  of authority  referenced  by
   number, as  discussed in  the above  finding, specifies that  the
   contracting activity is  granted blanket authority such  that the
   activity may
 
        contract  for FIP  equipment,  software, services,  and
        support  services  when   the  dollar   value  of   any
        individual  type   resource,  including   all  optional
        quantities and periods  over the life of  the contract,
        does  not exceed  $5,000,000 ($500,000  for a  specific
        make  and  model  specification   or  for  requirements
        available from only one responsible source).
 
   Supplemental  Submission,  Memorandum:  Department  of the  Army,
   Director   of   Information   Systems   for   Command,   Control,
   Communications  & Computers to  Deputy Commander,  Directorate of
   Information Management, U.S.  Army Corps of Engineers  (Sept. 13,
   1993).
 
   Solicitation
 
        8.   On April 18 and 25,  1994, the Commerce Business  Daily
   (CBD)  contained notice of the agency's procurement of facilities
   remediation  services; the "contract will be a one-year time-and-
   materials,  service type  contract  with 4  option  years."   The
   notice  uses the  word  remediation;  it does  not  use the  word
   replacement.   The notice, which does  not mention FIP resources,
   was  not contained  or referenced  under  a FIP-related  heading.
   Exhibit 4.
 
        9.   The  agency  issued  a  request  for  proposals.    The
   solicitation, as issued and amended,  does not use the phrase FIP
   resources (or any similar term), does not contain a clause citing
   the specific agency delegation, Finding 6, and does not reference
   the FIRMR.   Exhibit 5.  However, the  solicitation identifies as
   one of several objectives: "Instrumentation projects will involve
   energy  monitoring and control  systems and fire  alarm systems,"
   id.  at  C-1 (  C.1.0),  and  does  use  the word  "software"  in
   identifying  the   contractor's  overall   responsibilities--"The
   contractor shall be  responsible for all . . . including, but not
   limited  to  labor,  equipment,  materials, software,  applicable
   engineering documentation,  and other  necessary services  and/or
   products required to remediate, implement, test the awarded MFRPs
   and to provide a com[p]lete  and fully operation facility for the
   duration  of  the  contract, unless  otherwise  indicated  in the
   delivery  orders or  directed."   Id.  at C-3  (  C.3.1.2).   The
   solicitation does not identify with particularity any requirement
   recognized by the agency in  the procurement request, Findings 2-
   5.  Id.  More specifically, the solicitation does not identify an
   agency need to replace any FIP resources, Findings 3, 5.  Exhibit
   5.  The solicitation specifies that the objective of the contract
   is "to provide quick response to remediation situations relating,
   but  not limited to, the mechanical, electrical, instrumentation,
   security  and  safety  areas  of  Government  medical  and  other
   facilities  in  a cost  effective  manner."    Exhibit 5  at  C-1
   (  C.1.0).
 
 
        10.  Among   the  special   contract  requirements   of  the
   solicitation is one on "orders":
 
             b.   .  . .  [T]he Government  shall  be under  no
        obligation to issue  any particular number or  types of
        orders, and  no liability  to the  contractor shall  be
        incurred in the event that a certain number or types of
        order  are or  are not  issued.   The  contractor shall
        furnish to  the Government,  when and  if ordered,  the
        supplies  or services set  forth in the  Schedule up to
        and [sic]  the amount of $5,999,999.00 per  year not to
        exceed $29,999,999.00 for the total of 5 years.
 
             . . . .
 
             d.   For  the   duration  of  the   contract,  the
        contractor shall maintain the capability to perform the
        orders  issued  hereunder on  a  short  reaction basis,
        which is defined as being able to meet one (1) work day
        response time, from  time of receiving the  order until
        performance commences.
 
   Exhibit 5 at H-8 (  H.15) (found in the contract, Exhibit 8 at H-
   7 (  H.14)).
 
   Contract and delivery orders
 
        11.  With  a  signature   date  of  September  7,   1994,  a
   Government estimate addresses  the replacement of the  fire alarm
   system at a given hospital.  As projected, the total cost for the
   work is $1,346,680.80 with 180 days of construction.  Exhibit 6.
 
 
        12.  With  a  signature   date  of  September  7,   1994,  a
   Government estimate  addresses repairs  to unitary  control units
   (UCUs) at a given hospital.  As projected, the total cost for the
   work is $587,430.80 with 180 days of construction.  Exhibit 6.
 
        13.  After  receiving  four  responses  to  its request  for
   proposals,  the  agency  entered into  agreements  with  all four
   companies,  including an  agreement  with the  intervenor, Siebe.
   The agreement with  Siebe has an effective date  of September 13,
   1994.   Exhibit 8.   The agreement with Siebe  establishes prices
   for  individuals at four  professional levels and  four technical
   levels, in  various zones, over  the life of the  agreement; sub-
   contracts  are  to  be  on  a  cost-reimbursable  basis,  as  are
   materials and equipment and supplies; travel is to be  reimbursed
   at cost.  Id. at B-3 to B-86.  As issued, and amended through the
   time of "award," the solicitation contained no minimum guarantee-
   -that is, the  agreement permitted the agency to  place orders or
   not.   Exhibit  5 at  B-3 (including  amendments).   However, the
   "contract"  contains a  paragraph inserted  between  lines, in  a
   different  font, without a reference  to an amendment or contract
   modification:  "The total  Minimum obligation  of the  Government
   shall  be $2,500.00  for the  basic year  and $2,500.00  for each
   option year."  Exhibit 8 at B-3 (  14).   Elsewhere, the document
   specifies the  total amount of the contract  as $0.00.  Exhibit 8
   at 1 (  15G).
 
        14.    On September  30,  1994, the  agency issued  delivery
   order 10 to Siebe,  with a not to exceed price  of $1,928,379.71,
   for Siebe to replace the fire alarm  system and repair the UCU at
   the given  hospital.  Exhibit  12.  The agency-provided  scope of
   work  attached to  the  delivery  order  identifies  various  and
   numerous  FIP resources  to be  removed,  replaced, or  provided.
   Id.,  Scope of  Work at 1-3.   The  scope of work  identifies the
   existing conditions of the two systems:
 
             2.2.1  Fire Alarm.   The current  condition of the
        fire alarm system and its interface with the mechanical
        smoke control systems  cannot be maintained.   The fire
        alarm is interconnected to the air conditioning control
        system through  a combination of software and hard-wire
        interfaces so  that  modifications to  either the  fire
        alarm or air conditioning controls become[] complicated
        and  unreliable.  The  hard-wired fire alarm  panels in
        each  smoke zone are now obsolete and replacement parts
        will be increasingly hard to find.
 
             2.1.2  Unitary Control  Unit (UCU):   The  current
        system of UCU installations in the Hospital consists of
        ASIC/1-8205(E) controllers,  interfaced to  the radiant
        heating/cooling panels through a Titus E/PT transducer.
        Space  temperatures are  measured using  Precon ST-S  E
 
        sensors.    These  controllers  produce  erratic  space
        temperature  control,  resulting in  oscillating  space
        temperatures,  unsatisfied  occupants,   and  excessive
        energy consumption due to the mixing of the chilled and
        hot water supplies  because of the rapid cycling of the
        radiant  panels from heating to cooling.  The increased
        cooling  load  has  resulted in  the  inability  of the
        chiller  plant  to  provide  adequate  cooling  to  the
        Hospital.
 
   Id. at 1.
 
        15.  The  agency has placed  or intends to  place additional
   delivery  orders with Siebe which  require the replacement of FIP
   resources, in particular fire alarm systems.
 
        Order     Date                    Amount
 
        17        9-30-94            $389,840.40
        (replace fire alarm)
 
        30        estimate           $849,180.89
        (replace fire alarm)
 
        62        estimate           $559,586.67
        (replace fire alarm)
        (initial delivery order request: site survey portion
        in amount of $26,874.50)
 
        66        estimate           $244,783.18
        (replace fire alarm)
        (initial delivery order request: site survey portion
        in amount of $15,805.56)
 
        84        estimate           $606,654.31
        (upgrade fire alarm system)
 
        88        estimate         $2,198,928.63
        (provide fire alarm system)
        (initial delivery order request: work plan portion
        in amount of $17,033)
 
        92        estimate           $249,771.46
        (replace/provide fire alarm system)
        (initial delivery order request: work plan portion
        in amount of $8,295.32)
 
   Exhibits 37, 38, 39.
 
                               Discussion
 
        The  protesters maintain  that  the  agency  has  failed  to
   properly compete  its requirements  regarding the  replacement of
   fire alarm systems and utility control systems--requirements, the
   protesters further  maintain, which do not fall  within the scope
   of the agency's agreement with Siebe.
 
        The agency has failed to abide by statute and regulation and
   conditions  of  its  procurement  authority  in   satisfying  its
   protested requirements  for FIP  resources.   This conclusion  is
   compelled  when  one   reviews  the  language  of   the  agency's
   procurement authority,  its  procurement  approval  request,  the
   dollar value  of the requirements  at issue, and the  language of
   the agency's solicitation  and agreement with  Siebe.  The  other
   allegations of impropriety need not be reached.
 
        The  agency  and Siebe  entered into  the agreement  with an
   effective  date of  September  13, 1994.    Hence, the  agreement
   cannot be a  task and delivery order contract  issued pursuant to
   statutory  changes  which  have the  earliest  effective  date of
   October 13, 1994.  10 U.S.C.A.    2304a, 2304c, 2304d (West Supp.
   1995); 41 U.S.C.A.   251 note (West Supp. 1995).
 
        The  FIRMR specifies: an acquisition "[c]onsists of a series
   of steps beginning with the requirements analysis and ending with
   the  implementation  of  the  most  advantageous  alternative  to
   satisfy  the requirement."  41 CFR  201-20.001(a)(1) (1994).  The
   "requirements  analysis"  is  "used  to  determine  and  document
   requirements for FIP resources."  Id. 201-20.101.  Agencies shall
   "[d]ocument in  the  requirements analysis  the  quantitative  or
   qualitative  requirements  that   must  be  met  and   why  those
   requirements  are  necessary to  meet  the mission  needs."   Id.
   20.103-3.
 
        At the  time the agency issued the RFP  it was aware of some
   of its requirements relating to the fire alarm system and utility
   control units.  The need for replacement should have been part of
   the  agency's  acquisition   planning  and  its  plans   for  FIP
   resources.
 
        The  estimates  in  support  of  the  procurement  authority
   request, Finding 4, are not supported in the record as reflecting
   actual,   anticipated  needs  and   requirements  of  the  agency
   projected over the life of the agreement, if the  agreement is to
   encompass the replacement of  the fire alarm systems  and utility
   control units as  now argued by the agency and Siebe.  The record
   suggests  that the agency knew or should  have known of its needs
   to replace the  systems and units over the five-year  life of the
   agreement.  The  estimates made shortly prior  to award, Findings
   11  and 12, and  the delivery  orders issued  shortly thereafter,
   Findings 13  and 14 (delivery  order 17), indicate  a need for  a
   considerable  amount of  FIP equipment.   Estimates made  for the
   replacement of other fire alarm  systems within the first year of
   contracting  indicate  a  greater  need  for  FIP  equipment  and
   services.  Finding 15.  If, as the agency  maintains, the general
   replacement of fire alarm systems and unitary control units falls
   within  the scope of the  competed remediation contract, then the
   dollar value of the FIP  resources exceeds the amounts of agency-
   internal procurement authority.
 
        Prior to  the issuance of  the solicitation, the  agency was
   aware of its particular FIP requirements involving replacement of
   particular systems,  and was or  should have been aware  of other
   FIP requirements  it now  contends fall within  the scope  of the
   protested agreement.   Although the procurement  approval request
   expressly discusses some such requirements, the solicitation does
   not  detail any  such  requirements, and  does  not mention  that
   replacement of  entire systems may  be called for under  the term
   "remediation."  Nothing  in the record  suggests the accuracy  of
   the  estimates--the dollar  value related  to a  DPA is  not what
   drives requirements, rather a review of  requirements establishes
   the need (or  not) for a specific  DPA from GSA and,  perhaps, an
   internal agency  delegation.  The  actions of the  agency suggest
   that,  intentionally or not,  the agency failed  to determine and
   reveal its  true, anticipated  requirements  before embarking  on
   this procurement.
 
        Although the  agency expressly  recognized requirements  for
   FIP resources,  it failed  to draft  a  solicitation which  would
   obtain competition to satisfy those  requirements and did not put
   potential  offerors on notice  that such requirements  were being
   competed.  The solicitation does not reference the FIRMR as being
   applicable to  the  procurement.   The  notices in  the  Commerce
   Business Daily failed to provide notice of the now-asserted scope
   of the potential contract.
 
        The  dollar values of  the contract-life estimates  found in
   the  procurement approval request,  Finding 4, indicate  that the
   agency intended this  procurement to encompass requirements  of a
   far more  modest scope  than the agency  and Siebe  now maintain.
   Moreover, inconsistent  with the  now-espoused position  of those
   parties is  the solicitation-stated objective  "to provide  quick
   response  to remediation situations relating, but not limited to,
   the mechanical, electrical, instrumentation, security and  safety
   areas  of  Government  medical  and other  facilities  in  a cost
   effective manner."   Finding 9.  The record  does not demonstrate
   that  the repair  or  replacement  of fire  alarm  systems or  of
   unitary  control   units  as   required  under   delivery  orders
   constitutes a "quick  response" remediation situation.   The size
   and scope  of the orders, Findings 11-15, reveal that more than a
   "quick   response"   is  necessary   to   satisfy  the   agency's
   requirements;  e.g., a remediation  period of 180  days involving
   $1.3 or  $.58 million  represents a  considerable expenditure  of
   time and materials.  A one-day response time, Finding 10,  is not
   linked to such undertakings.
 
 
        I agree with the protesters that the agency is utilizing its
   agreement with Siebe in a manner contrary to statute, regulation,
   and the conditions  of its procurement authority.   I would grant
   the protests and fashion appropriate relief.
 
 
 
                                           
   ________________________
                                             JOSEPH A. VERGILIO
                                             Board Judge