BNUMBER:  B-270366
DATE:  March 4, 1996
TITLE:  Bosco Contracting, Inc.

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Matter of:Bosco Contracting, Inc.

File:     B-270366

Date:     March 4, 1996

Daniel A. Bellman, Esq., Porter, Wright, Morris & Arthur, for the 
protester.
Clifton M. Hasegawa, Esq., Department of Defense, for the agency.
Marie Penny Ahearn, Esq., and John M. Melody, Esq., Office of the 
General Counsel, GAO participated in the preparation of the decision.

DIGEST

Protest challenging contracting agency's failure to solicit incumbent 
contractor to perform interim services contract between the completion 
of its contract and the commencement of the services by the National 
Industries for the Severely Handicapped is sustained where the 
decision not to solicit incumbent was based on alleged poor past 
performance, which was unsupported by the record.

DECISION

Bosco Contracting Inc. protests the issuance of a purchase order to 
Specialized Services, Inc. (SSI) under a request for quotations (RFQ) 
issued by the Defense Information Systems Agency, Defense Information 
Technology Contracting Office (DITCO), Department of Defense, for 
janitorial, recycling, and snow removal services at DITCO buildings at 
Scott Air Force Base (AFB), Illinois, for a 2-month period.  Bosco, 
the incumbent contractor, alleges that the agency improperly failed to 
solicit the firm.

We sustain the protest.

The RFQ, issued on October 23, 1995, contemplated award for a 2-month 
interim period (November 1 to December 31, 1995) between the 
expiration of Bosco's incumbent 5-year contract and the expected 
inclusion of the services on a procurement list developed under the 
provisions of the Javits-Wagner-O'Day Act, 41 U.S.C.  sec.  46-48c (1994) 
(commodities or services placed on the list by the Committee for 
Purchase from the Blind and Other Severely Handicapped must be 
procured only from non-profit agencies employing persons who are blind 
or have other severe disabilities).  At the time of issuance of the 
RFQ, DITCO was in the process of negotiating a 1-year contract for the 
services with the National Industries for the Severely Handicapped 
(NISH).  SSI, the awardee here, was the NISH workshop contemplated to 
perform the services.
 
Under the RFQ for the interim services, DITCO requested quotes from 
SSI and two other vendors.  Although Bosco had expressed interest to 
the agency in competing for any follow-on procurement, DITCO decided 
not to solicit the firm because it believed "there was doubt on its 
ability to perform considering its prior record."  SSI was the only 
vendor which submitted a quote, and after determining SSI's price was 
fair and reasonable, DITCO issued a purchase order to the firm on 
October 30.  On the same day, Bosco filed this protest with our 
Office.  On the following day, the agency determined that continuing 
performance during the pendency of the protest was in the best 
interests of the United States.  See 31 U.S.C.  sec.  3553(d)(3)(C)(i)(I) 
(1994).  

Bosco argues that DITCO lacked reasonable justification for excluding 
the firm from the competition.  According to the protester, it had no 
indication of deficient past performance other than a single incident 
where two Bosco employees did not show up for work.  

Simplified acquisition procedures are excepted under the Federal 
Acquisition Streamlining Act of 1994 (FASA) from the general 
requirement that agencies obtain full and open competition through the 
use of competitive procedures when conducting procurements.  10 U.S.C.  sec.  
2304(a)(1)(A), (g)(1), and (g)(3) (1994).[1]  These simplified 
procedures are designed to promote efficiency and economy in 
contracting and to avoid unnecessary burdens for agencies and 
contractors.  To facilitate these stated objectives, FASA only 
requires that agencies obtain competition to the maximum extent 
practicable when they utilize simplified acquisition procedures.  Id.; 
41 U.S.C.  sec.  427; see Omni Elevator, B-233450.2, Mar. 7, 1989, 89-1 CPD  para.  
248.  In implementing the statutory requirement, the Federal 
Acquisition Regulation (FAR) requires contracting officers, when using 
simplified acquisition procedures, to solicit quotations from a 
reasonable number of qualified sources to promote competition to the 
maximum extent practicable and ensure that the purchase is 
advantageous to the government, based, as appropriate, on either price 
alone or price and other factors.  FAR  sec.  13.106-1(a)(1) (FAC 90-29); 
see S.C. Servs. Inc., B-221012, Mar. 18, 1986, 86-1 CPD  para.  266.[2]  
Generally, for purchases 
under $25,000, as here, a solicitation of three suppliers is 
sufficient.  FAR  sec.  13.106-1(a)(3) (FAC 90-29); Omni Elevator, supra.  
However, an agency does not satisfy its requirement to obtain 
competition to the maximum extent practicable where it fails to 
solicit other responsible sources who request the opportunity to 
compete--in those circumstances, those sources should be afforded a 
reasonable opportunity to do so.  See Gateway Cable Co., 65 Comp. Gen. 
854 (1986), 86-2 CPD  para.  333.

The agency's failure to solicit Bosco, the incumbent contractor, is 
not in itself a violation of the requirement to promote competition in 
small purchases.  J. Sledge Janitorial Serv., 70 Comp. Gen. 307 
(1991), 91-1 CPD  para.  225.  Rather, the determinative question where an 
agency has deliberately excluded a firm which expressed interest in 
competing is whether the agency acted reasonably such that it has 
satisfied the requirement to obtain competition to the maximum extent 
practicable.  Id.  

While poor past performance may support a decision not to solicit the 
incumbent contractor, the record here contains insufficient evidence 
to reasonably establish that Bosco's past performance was anything but 
acceptable.  As indicated, DITCO's justification for not soliciting 
Bosco was "performance problems" encountered with the firm "early in 
1995," which the agency contends are evidenced in the February 1995 
correspondence from the protester and its counsel (to DITCO).  
However, the cited correspondence does not reference any performance 
problems in early 1995.  Rather, it refers to DITCO's decision to 
terminate Bosco's contract for the convenience of the government in 
February 1995, based on its erroneous belief that, due to the addition 
of recycling services to the requirement, SSI (through NISH), which 
was already the maintenance contractor at Scott AFB (except for the 
DITCO buildings), was the mandatory source for new recycling services.  
The record indicates that Bosco's contract was reinstated in March 
1995, once the agency realized that these services were not required 
to be placed with NISH and that it could properly modify Bosco's 
existing contract to include the new services.  

DITCO contends that Bosco's alleged poor performance is "also 
documented in the price negotiation memorandum" for the contemplated 
1-year contract (with NISH and SSI, not at issue here).  However, 
while that memorandum does state that "[t]he current contractor's 
performance is poor," it provides no explanation or documentation of 
any performance deficiencies.  The protest record also contains a 
December 18, 1995, DITCO letter to the Committee (it was submitted in 
connection with the Committee's determination whether to add the 
services to the "handicapped set-aside" procurement list), which 
includes declarations by agency personnel citing "observed" instances 
of poor performance by Bosco.  Our Office asked the agency to furnish 
documentation showing that the deficiencies in these declarations (or 
any other deficiencies) actually occurred during the performance of 
Bosco's contract, since the cited instances are general in nature, 
undated, and the declarations are unsworn.  However, the agency has 
furnished no affidavits or other supporting documentation of the cited 
deficiencies and, significantly, has never even cited any of these 
alleged deficiencies in support of its decision not to solicit 
Bosco.[3]  Under these circumstances, the declarations are not 
entitled to significant weight in our analysis.

The record does include one instance of deficient past 
performance--the required services were not performed on 1 day in 
October 1995.  This is the deficiency to which Bosco itself referred 
in defending its performance where two employees did not show up for 
work.  However, this incident was not mentioned by the agency in 
deciding not to solicit Bosco.  Moreover, Bosco maintains that this 
was only a minor incident, and did not justify excluding Bosco from 
the competition here, since it involved only 1 day of performance out 
of a 5-year contract, the contract payment was reduced accordingly, 
and Bosco took corrective action to prevent a recurrence (the agency 
does not argue that the corrective action was inadequate).  We agree 
that, on its face, it is not apparent how this single deficiency 
during performance of a 5-year contract could support the agency's 
decision not to solicit Bosco, and the agency has not asserted or 
shown otherwise.

Given the absence of any documented deficiencies in Bosco's 
performance as the incumbent, other than the sole corrected instance 
discussed above, and the agency's failure to otherwise establish that 
Bosco experienced material performance problems, we conclude that the 
agency improperly excluded Bosco from the competition for the interim 
services. 

Because performance under the RFQ has been completed, corrective 
action is not available.  We recommend that the protester be 
reimbursed its costs of filing and pursuing its protest, including 
reasonable attorneys' fees.  Bid Protest Regulations,  sec.  21.8(d)(1), 60 
Fed. Reg. 40,737, 40,743 (Aug. 10, 1995) (to be codified at 4 C.F.R.  sec.  
21.8(d)(1)).  Bosco should submit its detailed and certified claim for 
costs directly to the agency within 90 days after receipt of this 
decision.  Bid Protest Regulations,  sec.  21.8(f)(1) supra (to be codified 
at 4 C.F.R.  sec.  21.8(f)(1)).

The protest is sustained.

Comptroller General
of the United States

1. Prior to FASA, the Competition in Contracting Act of 1984 (CICA), 
10 U.S.C.  sec.  2304(a)(1), (g)(1) (1988), similarly excepted 
procurements conducted under small purchase procedures from the full 
and open competition requirements.

2. This FAR implementation with regard to obtaining competition under 
non-Federal Acquisition Ccomputer Network procurements under 
simplified acquisition procedures is essentially identical to the 
prior FAR implementation of the CICA requirements for the conduct of 
procurements under small purchase procedures.  FAR  sec.  13.106(b)(1), 
(5).

3. Indeed, we note that DITCO included Bosco in the competition for a 
second 2-month interim contract for January and February 1996.