BNUMBER:  B-274629
DATE:  December 19, 1996
TITLE:  Data Transformation Corporation

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DOCUMENT FOR PUBLIC RELEASE
A protected decision was issued on the date below and was subject to a 
GAO Protective Order.  This version has been redacted or approved by 
the parties involved for public release.
Matter of:Data Transformation Corporation

File:     B-274629

Date:December 19, 1996

Michael R. Lemov, Esq., and Eric J. Marcotte, Esq., Winston & Strawn, 
for the protester.
Evelyn S. Tang, Esq., Department of Justice, for the agency.
Andrew T. Pogany, Esq., and Michael R. Golden, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

1.  In determining whether a task order under a contract was issued 
properly, the General Accounting Office (GAO) will look to whether 
there is a material difference between the contract, as modified by 
the task order, and the original contract.  In determining the 
materiality of a modification, the GAO considers factors such as the 
extent of any changes in the type of work, performance period and 
costs between the contract as awarded and as modified, as well as 
whether the original contract solicitation adequately advised offerors 
of the potential for the type of task order issued. 

2.  The General Accounting Office will consider whether the agency 
itself has historically procured allegedly "beyond-the-scope" task 
order services under a separate and independent contract, and whether 
the agency has previously awarded the requirement on a basis of a 
different statement of work, such that it appears that the agency 
itself has viewed the task order services as separable and essentially 
different in nature from the contract under which the task order was 
issued. 

DECISION

Data Transformation Corporation (DTC) protests the Department of 
Justice's (DOJ) decision to issue a task order to CACI, Inc. under 
contract No. 3C-G-ENR-0051, for services to operate DOJ's Nationwide 
Central Intake Facility (NCIF).  DTC, which had been operating the 
NCIF for DOJ since November 1993, contends that the task order is 
beyond the scope of CACI's contract and that DOJ should have conducted 
a competition for the acquisition.

We sustain the protest.

THE DTC CONTRACT

Request for proposals (RFP) No. JHJMD-92-R-0059 was issued on August 
31, 1992 and awarded to DTC on November 18, 1993.  Section C of the 
RFP, entitled "Nationwide Central Intake Facility Statement of Work," 
advised offerors of the historical background and objective of the 
RFP, which follows.

The RFP stated that it is the policy of the government to make every 
effort to collect debts owed to the United States.  Such debts arise 
under a myriad of federal programs, including direct, guaranteed or 
insured student loans made by the Department of Education, loans for 
veterans by the Department of Veterans Affairs, loans to farmers, 
small business loans made by the Small Business Administration, and 
many other programs.  In fact, the RFP stated that "almost every 
[f]ederal agency has some program for lending money or guaranteeing or 
insuring loans to citizens for an infinite variety of purposes."

The RFP also stated that when these loans or other types of debt go 
into default, creditor agencies, after their own efforts to collect, 
refer the debts to DOJ for litigation and judgment "pursuant to the 
Federal Debt Collection Procedures Act of 1990, 28 U.S.C.  sec.  3001 et 
seq."  Before 1986, these debts were referred directly to the United 
States Attorney's Offices (USAOs) in whose federal judicial districts 
the debtors resided.  The basic problem with this procedure was that 
all federal debts were coming to DOJ "through 94 separate 'doors'" 
(the 94 USAOs), making it very difficult for DOJ to keep accurate and 
reliable data on the number and dollar value of debts.  In 1986, the 
Congress enacted the Federal Debt Recovery Act, 31 U.S.C.  sec.  3718(b) 
(1994), which authorized DOJ to "run a pilot project of contracting 
with lawyers and law firms in the private sector to help the [USAOs] 
handle the litigation to collect delinquent debts."  The Office of 
Debt Collection Management (DCM), the organization within DOJ charged 
with implementing the pilot project, decided to require that all debts 
be referred for litigation through a single "door," a Central Intake 
Facility (CIF), which would then refer the debts to the USAOs and 
private counsel in the districts.  The concept proved so successful 
that it was expanded into the existing NCIF, which began receiving all 
civil debts being referred to all   94 USAOs and all debts in 
bankruptcy where the creditor agencies wanted to file Proofs of 
Claims.[1]  The RFP stated DOJ's objective as follows:

     "The purpose of this contract is to establish and operate a NCIF 
     to receive, process, track and provide litigative support for the 
     DOJ debt collection activities and perform other related tasks as 
     discussed herein.  In general, the DOJ requires that the NCIF 
     have as its centerpiece a computer with a data base containing 
     information about debts owed to the United States that have been 
     referred to the DOJ for litigation, with the capability to 
     communicate electronically with all  94 USAOs, the Department's 
     legal divisions, any private counsel under contract with the 
     Department to litigate Federal debts, and Justice's various 
     client agencies."[2]

The RFP required the successful contractor to provide specific staff 
positions, including NCIF Project Manager; NCIF Operations Manager; 
Computer Operations Manager; Manager of Financial Operations; Training 
Manager; Senior Systems Analyst; Programmer: Management Analyst; Data 
Entry Technician as well as other personnel.  The RFP specified the 
required qualifications for each position.  The RFP also required the 
successful contractor to produce detailed and specialized management 
reports relating to the debt collection effort.  

The contract awarded to DTC included a base period and four option 
years.  DOJ exercised options for fiscal year 1995 and 1996.  However, 
on August 16, 1996, just before the expiration of the option year for 
fiscal year 1996, DOJ notified DTC that it would not exercise the 
option for fiscal year 1997.  According to DOJ, it also informed DTC 
that the agency "was planning to conduct a full and open competition 
for operation of the NCIF within the next year."[3]  In the meantime, 
DOJ, having failed to exercise DTC's option and not having conducted a 
competitive procurement to replace DTC, issued a task order under 
CACI's contract, which contained the following "[s]cope of [w]ork":

     "The contractor shall provide all professional, technical and 
     clerical services, including supervision and labor, required to 
     perform the tasks specified herein, which shall include:  (a) 
     complete processing of all cases referred to the Department of 
     Justice (DOJ) for litigation, to include receipt, entry and 
     forwarding to the appropriate judicial districts; (b) processing 
     of any payments (e.g., cash, checks and other negotiable 
     instruments such as money orders, cashiers checks and electronic 
     fund transfers) whether received directly or through physical or 
     electronic transmission of data from a lock box facility;   (c) 
     communication of deposit information to the Debt Accounting 
     Operations Group (DOAG) for subsequent disbursement to the 
     referring agencies; (d) performing monthly quality control 
     reviews over all areas of data entry; (e) maintaining proper 
     records, including reconciliations, according to all applicable 
     Federal Government standards; (f) providing reports to the 
     government; (g) providing training and help-support for all users 
     of the NCIF system(s); and    (h) performing, on an as needed 
     basis, tasks related to DOJ's debt collection activities. . . ."

Upon learning that a task order would be issued by DOJ under CACI's 
contract, DTC filed this protest with our Office.

THE CACI CONTRACT

The RFP (No. JSNER-92-R-0027) that resulted in a contract award to 
CACI was issued on October 26, 1992 for litigation support services 
for DOJ's Environment and Natural Resources Division (ENRD).  The 
procurement was conducted within approximately the same timeframe as 
the NCIF procurement.  The RFP stated that DOJ has litigation support 
programs in three of its litigating divisions, Antitrust, Civil and 
ENRD.  The RFP stated that "[a]ll three programs consist of government 
specialists who define case/project-specific requirements and then 
manage contractor-provided case/project support using contracts 
designed for that division's unique mission."[4]  ENRD, formerly known 
as the Lands Division, was created on November 16, 1909, as the Public 
Land Division.  For the first 50 years, the Division's litigation was 
primarily concerned with federal lands, water and Indian disputes.  
ENRD's responsibilities grew to use and development of the nation's 
natural resources and public lands, wildlife protection, Indian rights 
and claims, cleanup of the nation's hazardous waste sites, and defense 
of environmental challenges to government programs and activities.  
The client agencies served by ENRD include the Departments of 
Agriculture, Commerce, Defense, Energy, the Interior, and 
Transportation, as well as the Environmental Protection Agency.  The 
RFP stated that the objective of the contract was to obtain 
nonpersonal professional and other services and products to "support 
ENRD case managers in the whole range of litigation support 
activities," such as document acquisition; database creation; database 
utilization; specialized services in support of litigation; pre-trial 
and trial support; administrative systems support; and management and 
control.  The "[s]cope of [c]ontract" was as follows:

     "This contract will be utilized to provide Litigation Support 
     Services[5] to the Department of Justice and other Federal 
     agencies on an indefinite delivery, indefinite quantity, task 
     order basis.  Individual task orders issued under this contract 
     may support any DOJ organization or Federal agency on a local 
     and/or nationwide basis.  This contract will also be utilized to 
     support case-related administrative functions."

The RFP further explained that ENRD "is organized into nine litigating 
sections, each specializing in different areas of the law and the 
environment."  In addition to the litigating divisions, "an Executive 
Officer performs administrative support functions for the Division."  
Organizational charts for ENRD were included in the RFP.  There was no 
mention in the ENRD RFP (or the ENRD Acquisition Plan) of the 
possibility or potential for providing NCIF (that is, nationwide debt 
collection) support services.

ANALYSIS

The protester argues, for a variety of reasons, that once the agency 
decided not to exercise the option, it was required to conduct a new 
procurement for the NCIF services.  In support of its actions, the 
agency argues that the task order issued to CACI was within the scope 
of its contract because the CACI RFP "[s]cope of [c]ontract" 
provision, quoted above, permitted support to "any DOJ organization or 
Federal agency on a local and/or nationwide basis."  The agency also 
notes that the general requirements under the CACI RFP provided for 
"Litigation Support Services for [ENRD], other Department of Justice 
(DOJ) components, and other Federal agencies."  The agency also argues 
that the litigation services support contract consists of "generic 
work," such as document acquisition, database creation, database 
design and manuals, data conversion, data entry, pre-trial and trial 
support, administrative systems support and management and control 
which is the same "type of work" as required under the NCIF effort.  
In other words, the agency argues that both involve "litigation and 
support functions" such as data entry and database creation.  
Additionally, the agency argues that the CACI solicitation advised 
offerors that task orders could be issued for "extremely broad range 
of project requirements."  Finally, the agency states that the task 
order is approximately $2.1 million, which is well below the maximum 
order limitation of the CACI contract.[6]  For the reasons discussed 
below, we reject the agency's arguments.

In determining whether a task order is proper, we look to whether it 
is beyond the  scope of the original contract.  Indian and Native Am. 
Employment and Training Coalition,  64 Comp. Gen. 460 (1985), 85-1 CPD  para.  
432.  We consider factors such as the extent of any changes in the 
type of work, performance period and costs between the contract as 
awarded and as modified by the task orders, as well as whether the 
original contract solicitation adequately advised offerors of the 
potential for the type of task order issued.  See Dynamac Corp., 
B-252800, July 19, 1993, 93-2 CPD  para.  37.  Additionally, we consider 
whether the agency itself has historically procured the task order 
services under a separate contract, previously awarded the requirement 
on a basis of a different statement of work, such that it appears that 
the agency itself has viewed the task order services as separable and 
essentially different in nature.  See Neil R. Gross & Co., Inc., 69 
Comp. Gen. 292 (1990), 90-1 CPD  para.  212.

In this case, our review of the ENRD litigation support services 
contract finds no mention of the possibility of performing the 
services necessary to operate the NCIF.  While, as the agency argues, 
the ENRD litigation support services contract is intended to provide a 
general range of litigation support services, we think the scope of 
those services is reasonably limited to serving the purpose for which 
the contract was awarded.  The ENRD contract defines that purpose as 
helping "attorneys acquire, screen, analyze and organize evidentiary 
and other documents to prepare for and to conduct trials" and using 
technology to ensure "litigation materials are effectively organized 
so that the litigating attorney can rapidly locate and use information 
to win lawsuits."  We do not believe that a litigation support 
contract for one specific division of DOJ, engaged generally in the 
litigation of environmental and Indian disputes, contemplated taking 
over the entire nationwide debt collection efforts of the federal 
government; certainly, there was nothing in the CACI RFP which 
reasonably advised offerors of this possibility.[7]  Our views that 
the operation of the NCIF was beyond the contemplation of offerors 
when the ENRD litigation support contract was awarded is further 
supported by the fact that DOJ conducted two separate concurrent 
procurements for the two requirements and intends to again conduct a 
separate procurement for the NCIF operation within the next 12 months.  
We conclude that the agency's issuance of the task order to CACI was 
an improper sole source award.  We therefore sustain the protest.

We recommend that the agency expeditiously conduct a competitive 
procurement to meet its requirements for the operation of the NCIF in 
the shortest practicable time.  We further recommend that upon 
selection of the successful offeror, the agency terminate the CACI 
task order.  Additionally, we recommend that the protester be 
reimbursed its costs of filing and pursuing the protest, including 
reasonable attorneys' fees.  Bid Protest Regulations,  sec.  21.8(d)(1), 61 
Fed. Reg. 39039, 39046 (1996) (to be codified at 4 C.F.R.  sec.  
21.8(d)(1)).  The protester should submit its certified claim for 
costs to the contracting agency within 60 days of receiving this 
decision.  Bid Protest Regulations, 61 Fed. Reg. 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. Debt referrals to DOJ in 1991 alone approached half a billion 
dollars with a total inventory of 50,355 pending civil debts valued at 
$1.3 billion.

2. DOJ requested a Delegation of Procurement Authority (DPA) from the 
General Services Administration (GSA) to conduct the procurement.  The 
DPA request emphasized that the sole purpose of the procurement was to 
acquire services necessary to operate the NCIF and that DOJ would 
conduct the procurement under full and open competition.

3. The agency states that the DTC contract called for implementation 
of an "off-the-shelf" automated debt tracking and litigation support 
system as proposed by DTC.  The delivery and implementation of the 
software are not a part of the task order that was issued to CACI and 
are not a part of this protest.  The agency notes that there were 
"multiple delays" in implementation of the automated systems which was 
not "off-the-shelf" as represented by DTC.  DTC delivered the software 
in May 1996 and acceptance testing is currently underway.  As the 
protester states, however, the actual operation of the NCIF, which is 
the subject of the task order issued to CACI, was the most significant 
portion of DTC's contract from a cost standpoint.

4. DOJ's Acquisition Plan noted that "each litigating component [of 
DOJ] has tailored its contract requirements to meet the specific needs 
of [that] component."

5. The agency's Acquisition Plan explained the purpose of litigation 
support as consisting of "a wide range of services and products that 
help attorneys acquire, screen, analyze and organize evidentiary and 
other documents to prepare for and to conduct trials.  Through the use 
of computer data processing, microfilming, document scanning/imaging 
and other technologies, litigation materials are effectively organized 
so that the litigating attorney can rapidly locate and use information 
to win lawsuits."

6. CACI's contract was valued at $12.1 million in fiscal year 1996 and 
$14 million in fiscal year 1995.

7. Congress recently codified authorization for the use of task and 
delivery order contracts in the Federal Acquisition Streamlining Act 
(FASA) of 1994, Pub. L. No. 103-355,  sec.  1004, 1054, 108 Stat. 3243, 
3249, 3261 (1994).  Although the CACI contract predates the effective 
date of FASA, the Senate Governmental Affairs Committee Report on FASA 
expressed concern about "indiscriminate use of task order contracts 
for broad categories of ill-defined services."  S. Rep. No. 103-258, 
103d Cong., 2d Sess. 15 (1994); see 41 U.S.C.  sec.  253h(b).