BNUMBER:  B-271559; B-271559.2
DATE:  July 16, 1996
TITLE:  Support Services International, Inc.

**********************************************************************

Matter of:Support Services International, Inc.

File:     B-271559; B-271559.2

Date:July 16, 1996

Joel C. Mandelman, Esq., for the protester.
Mike Colvin, Department of Health and Human Services, for the agency.
Jennifer D. Westfall-McGrail, Esq., and Christine S. Melody, Esq., 
Office of the General Counsel, GAO, participated in the preparation of 
the decision.

DIGEST

1.  Indian Health Service (IHS) did not violate the Buy Indian Act by 
failing to set aside a health care-related acquisition for 
Indian-owned companies since under the Buy Indian Act IHS has the 
discretion to set procurements aside for Indian-owned firms, but is 
not required to set aside any particular procurement.

2.  Contracting agency has not adequately justified its decision not 
to solicit the incumbent and instead to award to another company on a 
sole source basis where the record fails to demonstrate a reasonable 
basis for the agency determination that the incumbent could not be 
expected to perform the services satisfactorily.

DECISION

Support Services International, Inc. (SSI), an Indian-owned company, 
protests the award of an interim contract to McKesson Drug Company 
under request for proposals (RFP) No. 785, issued by the Phoenix Area 
Indian Health Service (IHS), Department of Health and Human Services 
(HHS), for the purchase and delivery of drugs on the Federal Supply 
Schedule (FSS) to Indian health clinics located in Arizona, Nevada, 
and Utah.  The protester complains that the award improperly was made 
on a sole source basis to a company that is not Indian-owned.

We sustain the protest.

BACKGROUND

In March 1995, the IHS awarded a contract consisting of base year plus 
two 1-year options contract to SSI under RFP No. 753, a Buy Indian Act 
set-aside for the distribution of drugs and pharmaceutical items on 
the FSS to IHS hospitals and clinics located in Arizona, Nevada, and 
Utah.  At the conclusion of the base year, the IHS decided not to 
exercise the option under SSI's contract since (as discussed more 
fully below) it was dissatisfied with SSI's performance during the 
base year and agency officials believed they could obtain the services 
at a substantially lower cost by negotiating an interagency agreement 
with the Department of Veterans Affairs (VA).[1]  Since, as of the 
date that SSI's base year was due to expire (i.e., March 31, 1996), 
the IHS was still in the process of negotiating an agreement with the 
VA and anticipated that the arrangement would take an additional 90 
days to implement in Arizona and an additional 180 days to implement 
in Nevada and Utah, the IHS awarded an interim contract for the 
services to McKesson, a pharmaceutical wholesaler which had been 
acting as a subcontractor to SSI under its contract and which was also 
the contractor servicing the VA's Arizona facilities.

On March 27, 1996, after learning that the option under its contract 
would not be exercised and that the agency instead intended to 
negotiate an agreement with the VA to have the services added to a 
contract that the VA had with McKesson, SSI protested to our Office.  
SSI argued that an award to McKesson, by means of an interagency 
agreement with the VA, would violate both the Buy Indian Act (since 
McKesson is not an Indian-owned firm) and the Competition in 
Contracting Act of 1984 (CICA) (since companies other than McKesson 
had not been permitted to compete for the award.)

By letter dated April 12, 1996, the agency notified our Office that it 
agreed with SSI that an award to McKesson, by means of an interagency 
agreement with the VA, would violate IHS's Buy Indian policy and that 
it intended to take corrective action by conducting a new procurement 
under the Buy Indian Act.  The agency further informed us that it 
expected to issue the new solicitation within the next month and that 
SSI would be given an opportunity to compete.

On April 15, SSI learned of the interim award to McKesson, which the 
agency had decided to leave in place until the recompetition had been 
concluded.  On April 19, the protester filed a supplemental protest 
with our Office objecting to the interim award.
 
ANALYSIS

SSI first argues that, as the satisfactorily performing incumbent, it 
should have been allowed to continue performing the services until the 
new competition was concluded.  We are aware of no requirement, 
however, that a procuring agency with an urgent need for interim 
services extend an incumbent's contract rather than award a new 
contract.  See Automation Management Consultants, Inc., B-243805, Aug. 
29, 1991, 91-2 CPD  para.  213.

SSI next argues that by failing to set the acquisition aside for 
Indian-owned firms, the IHS violated the Buy Indian Act.  Contrary to 
the protester's contention, the Buy Indian Act does not require that 
all contracts awarded to provide goods and services to Indian tribes 
be awarded preferentially to Indian-owned contractors.  Rather, the 
Act states simply that "[s]o far as may be practicable Indian labor 
shall be employed, and purchases of the products .  .  . of Indian 
industry may be made in open market in the discretion of the Secretary 
of the Interior."  25 U.S.C.  sec.  47 (1994).  The federal courts and our 
Office have construed this language as conferring upon the Secretary 
of the Interior--and, with regard to the maintenance and operation of 
hospitals and health facilities for Indians, the IHS[2]--broad 
discretionary authority to negotiate exclusively with Indian 
contractors; neither the courts nor our Office have construed the Act 
as requiring that every eligible procurement be set aside for 
Indian-owned companies, however.  See Lakota Contractors Ass'n. v. 
U.S. Dept. of Health and Human Servs., 882 F.2d 320 (8th Cir. 1989); 
Indian Resources Int'l, Inc., B-256671, July 18, 1994, 94-2 CPD  para.  29.  
Moreover, to the extent that the award to McKesson violated IHS's own 
internal Buy Indian policy, which provides for the award of health 
care-related contracts to non-Indian firms only if no eligible Indian 
firms are available, we do not regard an agency's internal policy as 
establishing legal rights and responsibilities such as to make actions 
contrary to the stated policy illegal and subject to objection by this 
Office.  Indian Resources Int'l, Inc., supra.

Turning to the issue of whether the IHS violated CICA by awarding the 
interim contract to McKesson on a sole source basis, CICA does permit 
noncompetitive acquisitions in specified circumstances, such as when 
the services needed are available from only one responsible source or 
when the agency's need for the services is of such an unusual and 
compelling urgency that the agency would be seriously injured unless 
permitted to limit the number of sources solicited.  41 U.S.C.  sec.  
253(c)(1), (c)(2) (1994).  When an agency uses noncompetitive 
procedures under 41 U.S.C.  sec.  253(c)(1) or (c)(2), it is required to 
execute a written justification and approval (J&A) with sufficient 
facts and rationale to support the use of the specific authority.  41 
U.S.C.  sec.  253(f)(1)(A) and (B).  Our review of the agency's decision to 
conduct a sole source procurement focuses on the adequacy of the 
rationale and conclusions set forth in the J&A.  Techno-Sciences, 
Inc., B-257686; B-257686.2, Oct. 31, 1994, 94-2 CPD  para.  164.

Here, the agency justified the sole source award to McKesson on the 
ground that McKesson was the only company that could begin to furnish 
services immediately upon expiration of SSI's contract and thus assure 
that services did not lapse.  In this regard, the contracting officer 
noted that McKesson, as a subcontractor to SSI, had been responsible 
for the delivery of medications under SSI's contract and thus already 
had in place ordering and delivery systems and payment mechanisms.  
Other wholesalers, in contrast, would require 90 to 120 days to 
implement their systems, according to the agency.  The contracting 
officer further noted that he did not regard SSI, the incumbent, as a 
viable source since its performance during the base year had been 
unsatisfactory.

We do not think that the agency has adequately justified its decision 
to exclude SSI from the competition.  While an agency may, in urgent 
circumstances, limit the competition to firms with satisfactory work 
experience which it believes can promptly and properly perform the 
services, DOD Contracts, Inc., B-250603.2, Mar. 3, 1993, 93-1 CPD  para.  
195, and is not required to solicit the incumbent if it reasonably 
doubts, based on the incumbent's prior record, that the firm can 
perform the services, Sanchez Porter's Co., 69 Comp. Gen. 426 (1990), 
90-1 CPD  para.  433, the agency's assessment of the incumbent's prior 
performance and capability to perform must be reasonable.  Here, we 
think that the IHS's assessment of SSI's prior performance and 
capability to perform was not reasonable.

The record shows that the IHS's dissatisfaction with SSI's performance 
during the base year stemmed from SSI's inability, during the initial 
months of performance, to obtain drugs from a few manufacturers at the 
FSS prices, which generally are lower than market.  As the prime 
pharmaceutical vendor for the IHS clinic pharmacies, SSI was eligible 
to purchase drugs for the clinics at FSS prices, but a few 
manufacturers were unaware of SSI's authority to do so.  Thus, the 
manufacturers in question were furnishing the drugs requested and 
billing SSI's subcontractor, McKesson, at the FSS prices, but were 
then billing McKesson for the difference between the FSS price and the 
market price.  McKesson, in turn, was billing the pharmacies for the 
difference between the two prices.  

IHS held SSI accountable for failing to obtain all requested drugs at 
the FSS prices, and viewed SSI's inability to resolve the pricing 
problems as evidence of the protester's unwillingness and inability to 
perform its contractual responsibilities.  However, our review of the 
contract and the record reveals that the agency's blame was misplaced.  
The contract clearly required the contracting officer to notify the 
drug companies of SSI's status prior to the date it commenced 
performance[3]--yet the record shows that the contracting officer did 
not do so until early October 1995 (i.e., 6 months after performance 
had begun.)  In our view, the record shows that the difficulty that 
SSI encountered in obtaining certain drugs at FSS prices was in large 
part attributable to the IHS's failure to notify the various drug 
manufacturers at the time of award that SSI would be acting as IHS's 
pharmaceutical vendor for the clinics.  To the extent that, once 
informed of SSI's status, a few manufacturers still refused to furnish 
the drugs at FSS prices because their companies, as a matter of 
general policy, refused to provide FSS pricing under prime vendor 
contracts, we fail to see how SSI, as a contractor, could have 
compelled them to do so.

We also fail to see that SSI's status as other than a drug wholesaler 
impaired its ability to perform, as the agency implies. The 
contracting specialist in fact concedes that any hesitancy that 
manufacturers may have had about dealing with SSI due to their lack of 
familiarity with the company "did not turn out to be a problem" since 
the companies were willing to deal with SSI's subcontractor, McKesson, 
which had responsibility for placing orders with, and receiving 
payment from, the drug companies.

Further, regardless of who was at fault for SSI's initial difficulties 
in obtaining FSS prices from certain manufacturers, the record shows 
that the pricing problems had largely been resolved by early 1996, as 
evidenced by the decreasing number of "re-bills" being received by IHS 
clinic pharmacists.  It thus appears that not only was SSI not 
responsible for the difficulties that IHS encountered in obtaining FSS 
pricing for drugs for its pharmacies, but further that most of the 
problems had been resolved prior to expiration of SSI's contract for 
the base year.  
IHS has not established that SSI is incapable of performing the 
interim services.  The J&A cites unsatisfactory performance and 
difficulties with the current contractor, which, as we discussed 
above, does not support such a conclusion.  Neither the J&A nor the 
rest of the record set forth any other rationale to demonstrate that 
SSI cannot perform.  We find no reasonable basis for IHS's 
determination that SSI should be excluded from the competition.  
Accordingly, we sustain the protest.

Since the agency now projects that the new solicitation will not be 
issued until July 1996, and that award will not be made until 
September, we recommend that it solicit proposals from both SSI and 
McKesson for performance of the services during the remaining interim 
period, and, if it determines that SSI's proposal is more advantageous 
than McKesson's, that it terminate the interim contract awarded to 
McKesson and make award to SSI.  We also recommend that the agency pay 
the protester the costs of filing and pursuing its protest.[4]  See 
Bid Protest Regulations, 4 C.F.R.  sec.  21.8(d)(1) (1996).  In accordance 
with section 21.8(f)(1) of our Regulations, SSI's certified claim for 
such costs, detailing the time expended and the costs incurred, must 
be submitted directly to the agency within 90 days after receipt of 
the decision.

The protest is sustained.

Comptroller General
of the United States

1. VA had in place contracts for the delivery of pharmaceuticals to VA 
facilities in the states in question, which agency officials thought 
could be modified to include deliveries for the IHS clinics. 

2. The functions of the Secretary of the Interior for the maintenance 
and operation of hospital and health facilities for Indians were 
transferred to the Secretary of HHS, who delegated HHS' authority 
under the Buy Indian Act exclusively to the IHS.  Department of Health 
and Human Servs.--Request for Advance Decision, B-232364, Oct. 5, 
1988, 88-2 CPD  para.  325.

3. Section B-1 of the contract provided as follows:

            "Contractor shall provide all drugs/pharmaceutical items 
            (comprising approximately 12,000 items) for twenty-two 
            Phoenix Area Indian Health Service, Service Unit Hospital 
            and clinic facilities located in Arizona, Nevada, and 
            Utah, [for] which the Prime Vendor has been authorized by 
            the manufacturer as a distributor:

            A. Under the Federal Supply Schedule; and

            B. Under other Government supply contracts.  It will be 
            the responsibility of the IHS Contracting Officer to 
            contact contractors for authorization for the Prime Vendor 
            to distribute products and utilize contract pricing.  Once 
            authorization is received, IHS will provide the successful 
            Prime Vendor with participating contractors and pricing 
            information."  (Emphasis added.)

4. Our recommendation regarding the payment of costs extends to the 
supplemental protest only.  We do not recommend that the protester be 
reimbursed for the costs of pursuing its initial protest since the 
agency took prompt corrective action in response to that protest.  In 
this regard, we will recommend that an agency that has taken 
corrective action pay a protester its protest costs only where the 
agency delays unduly in taking the corrective action in the face of a 
clearly meritorious protest.  CSL Birmingham Assocs.; IRS 
Partners-Birmingham--Entitlement to Costs, B-251931.4; B-251931.5, 
Aug. 29, 1994, 94-2 CPD  para.  82.