BNUMBER:  B-272455
DATE:  November 5, 1996
TITLE:  Nations, Inc.

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Matter of:Nations, Inc.

File:      B-272455

Date:November 5, 1996

William H. Butterfield, Esq., Kilcullen, Wilson and Kilcullen, for the 
protester.
Nicholas P. Retson, Esq., Marvin Kent Gibbs, Esq., and Kim K. Judd, 
Esq., Department of the Army, for the agency.
Scott H. Riback, Esq., and John M. Melody, Esq., Office of the General 
Counsel, GAO, participated in the preparation of the decision.

DIGEST

Protest that solicitation covers "advisory and assistance" services, 
and thus improperly provides for award of a single requirements 
contract, is sustained; professional technical services in support of 
battlefield simulation training fall within statutory and regulatory 
definitions of advisory and assistance services, and such services 
must be procured under multiple award, indefinite delivery, indefinite 
quantity-type contracts where, as here, contract price will exceed $10 
million and contract term exceeds 3 years.

DECISION

Nations, Inc. protests the terms of request for proposals (RFP) No. 
DABT65-96-R-0001, issued by the Department of the Army for services in 
support of various computer simulation training facilities.  Nations 
principally maintains that the RFP improperly contemplates the award 
of a single requirements type contract rather than multiple indefinite 
delivery, indefinite quantity (IDIQ) type contracts.

We sustain the protest.

As part of their training, Army officers participate in interactive, 
"event driven" computer simulation exercises employing scenarios that 
realistically model the capabilities of the Army, allied forces and 
selected opposing forces.  These exercises are conducted at numerous 
facilities throughout the United States by the Army's Training and 
Doctrine Command (TRADOC) .  The RFP calls for contractor personnel to 
provide an array of support services in connection with TRADOC's 
simulation training program.  These services include technical 
preparation for and assistance in executing the exercises (loading the 
appropriate data or scenarios into the simulation computers, 
participating as "interactors" and providing data during post-exercise 
review sessions conducted by the agency's personnel), evaluation of 
government-supplied enhancements to the simulators, drafting 
descriptive software change requests generated by the agency, and 
recommending computer hardware for system upgrades.

The RFP contemplates the award of a single task order contract--a 
combination fixed-price, lump-sum (for performance of work at Fort 
Leavenworth, Kansas), and requirements contract (for performance of 
additional work at Fort Leavenworth, and at numerous other Army 
schools).  The RFP provides for a phase-in period, a base year and 
three 1-year options.  If all of the estimated requirements quantities 
are ordered, the value of the contract will exceed $10 million.

The protester maintains that the services under the requirements 
portion of the RFP are "advisory and assistance" services, and that 
Federal Acquisition Regulation (FAR)  sec.  16.503(d) (FAC 90-41) precludes 
the use of a requirements type contract for the purchase of such 
services where, as here, the agency has not made a written 
determination that the services in question are so unique or highly 
specialized that it is not practicable to make multiple IDIQ contract 
awards.  Nations concludes that the RFP should be amended accordingly.

The agency does not dispute that the contract will exceed the duration 
and dollar value thresholds, but maintains that the services in 
question do not fall within the definition of advisory and assistance 
services, and that an IDIQ contract thus is not required.  The Army 
maintains that the FAR definition of advisory and assistance services 
encompasses only management-type advice and assistance, and asserts 
that this solicitation is outside that definition because it is only 
for the acquisition of training support services.  According to the 
Army, the contractor's employees will not provide advice and 
assistance to the agency in terms of how to manage this training 
program, will not participate in any management-level decision making, 
and will not otherwise assist the agency in meeting its policy 
development or program management responsibilities relating to the 
computer simulation training program.

The Federal Acquisition Streamlining Act of 1994 (FASA), 10 U.S.C.  sec.  
2304b(e) (1994), provides that, in obtaining advisory and assistance 
services using task order type contracts (where the anticipated value 
is more than $10 million and the duration is more than 3 years), the 
solicitation must specifically provide for multiple awards unless the 
head of the agency concerned determines in writing that the services 
in question are so unique or highly specialized that it is not 
practicable to award more than one contract.   This provision 
essentially requires that agencies award multiple task order contracts 
for advisory and assistance services for high value, long term 
contracts  unless the determination relating to the nature of the 
services has been executed.  FAR  sec.  16.503(d); see also  S. Rep. No. 
103-258, 103d Cong., 2d Sess. 15-16 (1994).[1]  

FASA, 31 U.S.C.  sec.  1105(g)(1) (1994), defines advisory and assistance 
services  in terms of three categories:

     ". . . the term 'advisory and assistance services' means the 
     following services:
     (i)  Management and professional support services.
     (ii) Studies, analyses and evaluations.
     (iii)  Engineering and technical services."[2]

FAR  sec.  37.201 (FAC 90-41) further defines advisory and assistance 
services as including services to support or improve organizational 
policy development, decision making, management and administration, 
program and/or project management and administration, or research and 
development activities; it further  states that outputs may include 
training and the day-to-day aid of support personnel needed for the 
successful support of ongoing federal operations.  In addition, FAR  sec.  
37.201 provides three definitional subdivisions that mirror the 
statutory definition, namely, Management and Professional Support 
Services,  Studies, Analyses and Evaluations, and Engineering and 
Technical Services.  For purposes of this protest, the description of 
Management and Professional Support services is relevant; it provides: 

        "Management and professional support services, i.e., 
        contractual services that provide assistance, advice or 
        training for the efficient and effective management and 
        operation of organizations, activities (including management 
        and support services for [research and development] 
        activities) or systems.  These services are normally closely 
        related to the basic responsibilities or mission of the agency 
        originating the requirement for the acquisition of services by 
        contract.  Included are efforts that support or contribute to 
        improved organization of program management, logistics 
        management, project monitoring and reporting, data collection, 
        budgeting, accounting, performance auditing, and 
        administrative/technical support for conferences and training 
        programs."  (Emphasis supplied.)

It is clear that, insofar as training services are concerned, the 
statutory and regulatory definitions include administrative or 
technical services of a professional nature that support the agency's 
training personnel in discharging their central mission-related 
obligations.  The services at issue here provide critical, 
professional support to TRADOC's training personnel that enables them 
to effectively discharge their central mission of training brigade and 
battalion level officers.  The contractor employees are required to be 
highly-skilled professionals--specifically, former Army officers with 
brigade and battalion level warfighting experience--and the services 
they provide--operation of the simulators, acting as 'interactors' for 
the trainees, and providing post-exercise data used by TRADOC's 
personnel in their critique of the exercise--are necessary for 
TRADOC's personnel to effectively perform their mission. 

We are unpersuaded by the Army's position that contracts for 
management-related services are the only type contemplated by the 
statutory and FAR definitions of advisory and assistance services, or 
that training support services of the type being acquired here are 
outside of the applicable definitions.  While the Army's position 
appears generally correct under the earlier version of this 
regulation, see FAR part 37.2 (FAC 90-16), the current FAR definition 
of advisory and assistance services  describes management and 
professional support services and engineering and technical services 
in a manner somewhat broader than only management-related services.  
As quoted above, the last sentence of that portion of the advisory and 
assistance services definition that describes management and 
professional support services includes ". . . efforts that support or 
contribute to improved . . . administrative/technical support for 
conferences and training programs."  FAR,  sec.  37.201(a) (FAC 90-41).  
This category of services--administrative/technical support for 
conferences and training--was not included in the earlier definition 
of management and professional support services.  FAR  sec.  37.203(c)(2) 
(FAC 90-16).

We note that the prior definition of advisory and assistance services 
found in the FAR specifically excluded training necessary to maintain 
skills necessary for normal operations, FAR  sec.  37.203 (FAC 90-16), and 
this exclusion does not appear in the current FAR definition.  When 
read together with the revised FAR description of management and 
professional support services, the elimination of this exception 
supports the conclusion that services in support of training necessary 
to maintain skills for normal operations, such as the training 
contemplated under this RFP, are now included within the revised 
definition of advisory and assistance services.[3] 

Finally, the umbrella-type task order contract to be awarded under 
this RFP appears to be the kind of contract targeted by Congress under 
FASA; the solicitation contemplates the award of a single contract for 
virtually all of the Army's requirements for support of computer 
simulation training at a large number of facilities throughout the 
United States.  The Senate report regarding the relevant statutory 
provisions expressed a concern that:

         ". . . the indiscriminate use of task order contracts for 
        broad categories of ill-defined services necessarily 
        diminishes competition and results in the waste of taxpayer 
        dollars.  In many cases, this problem can be effectively 
        addressed . . . by awarding multiple task  order contracts for 
        the same or similar services. . . ."

S. Rep. No. 103-258, 103d. Cong., 2d Sess. 15 (1994).

We conclude that the services under the RFP are encompassed by the FAR 
definition of advisory and assistance services, and that, due to the 
duration and dollar value of the contract, the Army was required to 
execute a determination and finding before proceeding on a 
requirements contract basis.  Because it did not do so, the RFP is 
defective.[4] 

In view of the foregoing, we are recommending by separate letter of 
today to the Secretary of the Army that the agency either amend the 
solicitation to provide for the award of multiple IDIQ type contracts, 
or execute the necessary written determination that the services at 
issue are so unique or of a highly specialized nature that it is not 
practicable to make multiple awards.  We also recommend that Nations 
be paid the costs of filing and pursuing its protest, including 
reasonable attorneys' fees.  Nations should submit its certified 
claim, detailing the time 
expended and the costs incurred, directly to the Army within 60 days 
of its receipt of this decision.  4 C.F.R.  sec.  21.8(f)(1) (1996).

The protest is sustained.

Comptroller General
of the United States

1. For contracts that are below the $10 million/3-year threshold, or 
are for requirements other than advisory and assistance services, the 
FAR merely expresses a preference for multiple award task order 
contracting.  10 U.S.C.  sec.  2304a(d)(3); FAR 16.504(c)(1), (2). 

2. The definition of advisory and assistance services includes a 
number of specific exclusions that are not relevant here.

3. The Army relies on the terms of Department of Defense Directive No. 
4205.2 and Army Regulation No. 5-14 in support of its argument that 
the services at issue are not advisory and assistance services; both 
provisions specifically except from the definition of advisory and 
assistance services "training obtained for individual professional 
development."  These provisions, which were promulgated prior to the 
passage of FASA in 1994 and the issuance of the new FAR provisions in 
1995, have been superseded by the revised description of management 
and professional support services included in the current definition 
of advisory and assistance services.  

4. Nations also contends that the RFP violates the Antideficiency Act, 
31 U.S.C. sec.  1341 (1994), because the agency does not currently have 
funds appropriated for this requirement.  However, the RFP includes 
the clause at FAR  sec.  52.232-18, which is specifically designed for 
situations where an agency issues a solicitation contemplating the 
award of a contract for which funds have not yet been appropriated.  
The clause explains to offerors that funds are not yet available for 
the requirement, and that no government liability will arise for any 
payment until the contractor receives written notice from the 
contracting officer of the availability of funding.  This allegation 
therefore is without merit.