Carr's Wild Horse Center, B-285833, October 3, 2000

B-285833 Oct 03, 2000 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights Protest that minimum guaranteed quantity of 100 horses/burros for life of contract is insufficient consideration to bind parties is denied where nature of acquisition dictates possibility that government may order only this quantity. Solicitation will not result in impermissible personal services contract where under contract government will not exercise continuous supervision and control over contractor personnel performing the contract. Carr's contends that the solicitation is defective for a variety of reasons. The contractor is to provide assistance to BLM in conducting satellite adoptions. These satellite adoptions (including travel and set-up) will be 2- to 6-day events at various locations in the eastern United States. View Decision Matter of: Carr's Wild Horse Center File: B-285833 Date: October 3, 2000 DIGEST Attorneys DECISION Carr's Wild Horse Center protests the terms of request for proposals (RFP) No. NAR-00052, issued by the Department of Interior, Bureau of Land Management (BLM), for services related to the conduct of satellite (temporary) adoptions of animals under BLM's horse and burro program. Carr's contends that the solicitation is defective for a variety of reasons. We deny the protest. The RFP, issued as a small business set-aside, contemplates the award of a fixed-priced, indefinite-delivery/indefinite-quantity (ID/IQ) contract for a base year, with two 1-year options. The contractor is to provide assistance to BLM in conducting satellite adoptions. These satellite adoptions (including travel and set-up) will be 2- to 6-day events at various locations in the eastern United States. In Type I events, BLM will require only set-up and feeding services, and BLM personnel will perform wrangling duties. In Type II events, BLM will require the contractor to set up equipment, feed animals, and perform wrangling. At all satellite adoptions, BLM will process adoption applications, help potential adopters select animals, collect adoption fees, and issue maintenance and care agreements. The RFP provides for award on a best value basis, with technical merit significantly more important than price. As relevant here, the RFP provides for the evaluation of price reasonableness and, as necessary, the evaluation of the realism of proposed prices. The RFP also provides a procedure for conducting a price realism evaluation. The RFP sets forth a minimum guaranteed quantity of 100 animals for the life of the contract and a maximum quantity of 10,000 animals during the life of the contract. The solicitation also allows for the award of multiple contracts. BLM will issue individual delivery orders based upon technical approach, price, and past performance. Proposals were to be submitted by July 12, 2000. /1/ On July 3, Carr's, the incumbent contractor, filed an agency-level protest challenging numerous solicitation provisions. Prior to the agency's response, Carr's filed a timely protest with our Office on July 12. The protester contends that the solicitation should be issued as a requirements contract and not as an ID/IQ contract because the proposed ID/IQ contract lacks consideration. /2/ Specifically, the protester argues that the RFP's minimum guaranteed quantity of 100 animals is nominal and that any resulting contract would be illusory and unenforceable because it lacks consideration. It is the protester's position that a 100-animal minimum for the entire contract period is a nominal amount because based on historical data, prior year contracts involved more than 100 animals at each adoption. /3/ The agency argues that its choice of contract type was proper, appropriate, and in accordance with FAR Sec.16.504 governing use of ID/IQ contracts. The agency states that it has a recurring need for animal adoptions and that it cannot precisely determine the exact number of adoptions that it will require, since the number of adoptions varies significantly from month to month and year to year. The agency also states that its guaranteed minimum is reasonable because the average number of animals at any given adoption is approximately 100 animals. An ID/IQ contract requires the government to order and the contractor to furnish at least a stated minimum quantity of supplies or services and, if ordered, the contractor to furnish any additional quantities, not to exceed a stated maximum. FAR Sec.16.504(a)(1). In order to be binding, the minimum quantity must be more than a nominal quantity but should not exceed the amount the government is fairly certain to order. FAR Sec.16.504(a)(2). In other words, an ID/IQ contract is binding so long as the buyer agrees to purchase from the seller at least a guaranteed minimum quantity of goods and services; the stated minimum quantity forms the consideration for the contract. Sea-Land Serv., Inc., B-278404.2, Feb. 9, 1998, 98-1 CPD Para. 47 at 11.