BNUMBER:  B-279347 
DATE:  June 3, 1998
TITLE: Jack Faucett Associates, Inc., B-279347, June 3, 1998
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Matter of:Jack Faucett Associates, Inc.

File:     B-279347

Date:June 3, 1998

Jack G. Faucett for the protester.
Michael Colvin, Department of Health and Human Services, for the 
agency.
Jennifer Westfall-McGrail, Esq., and Christine S. Melody, Esq., Office 
of the General Counsel, GAO, participated in the preparation of the 
decision.

DIGEST

In acquisition conducted using simplified acquisition procedures via 
Federal Acquisition Computer Network (FACNET), agency failed to give 
interested vendors a reasonable opportunity to respond to a notice of 
intent to award on a sole-source basis where sole-source purchase 
order was issued only 1 day after FACNET notice of intent was issued.

DECISION

Jack Faucett Associates, Inc. protests the National Institutes of 
Health's (NIH) issuance on a sole-source basis of a purchase order to 
Social and Scientific Systems, Inc. (SSSI) under request for 
quotations (RFQ) No. QJC-80273, to support the participation of NIH's 
Office of Loan Repayment and Scholarship (OLRS) at meetings of the 
American Medical Students Association (AMSA).  The protester contends 
that companies other than SSSI, including itself, could have furnished 
the services sought, but were not given a reasonable opportunity to 
respond to the RFQ.

We sustain the protest.

NIH issued the RFQ through the Federal Acquisition Computer Network 
(FACNET) on February 18, 1998.[1]  The acquisition was conducted using 
the simplified acquisition procedures set forth in FAR part 13.  The 
FACNET notice stated that the agency intended to procure the services 
on a sole-source basis from SSSI, and that quotations were due by 5 
p.m. on February 20.  An accompanying statement of work described the 
particular tasks to be performed; these included making reservations 
(for hotel rooms, an exhibit booth, airline tickets, and buses), 
arranging equipment rentals, acquiring prize ribbons and signs, and 
assisting the Director of OLRS in staffing an exhibit booth at the 
AMSA meetings.  On February 19 (i.e., 1 day after issuance of the RFQ 
and prior to the stated closing date for receipt of quotations), the 
agency issued a purchase order in the amount of $67,080 to SSSI.

Jack Faucett protested to our Office on February 24, arguing that NIH 
had failed to afford interested vendors a reasonable opportunity to 
respond to the RFQ, as required by FAR  sec.  13.003(i)(2).[2]  Jack 
Faucett also argued that the solicitation of only one source was not 
justified since the services sought, which are routine and 
administrative in nature, are available from a large number of firms 
or individuals.  See FAR  sec.  13.106-1(b)(1) (authorizing soliciting from 
one source if the contracting officer determines that, in the 
circumstances of the contract action, only one source is reasonably 
available).

The agency asserts that it reasonably determined that only SSSI was 
capable of satisfying its needs.  In this regard, the contracting 
officer determined that SSSI was the only firm whose staffers were 
sufficiently familiar with OLRS programs to enable them to assist the 
Director of OLRS in staffing the OLRS exhibit booth at the AMSA 
meetings.  Further, in the agency's view, given that it reasonably 
determined that only SSSI could meet its needs, the 1-day period 
between issuance of the FACNET notice and issuance of the sole-source 
purchase order satisfied the requirement to furnish potential vendors 
an opportunity to respond to the notice of intent to award on a 
sole-source basis.

Generally, agencies are required to provide public notice of proposed 
contract actions for amounts above $25,000 in the Commerce Business 
Daily (CBD) and to give potential sources a reasonable opportunity to 
respond.  41 U.S.C.A.  sec.  416(a) (West Supp. 1998); FAR  sec.   5.101, 
5.203(b).  This requirement extends to proposed sole-source awards 
using simplified acquisition procedures (i.e., for amounts between 
$25,000 and $100,000).  FAR  sec.  13.003(i)(2), 13.105(a).  Although 
certain contract actions using FACNET are exempt from the CBD notice 
and response time requirements, see 41 U.S.C.A.  sec.  416(c)(1)(A) and 
(B); FAR  sec.  5.202(a)(13) and (14), 13.105(a)(1), this does not mean 
that public notice and an opportunity to respond are not required 
where FACNET is used; instead, it means that when an acquisition is 
conducted via FACNET, public notice may be furnished via FACNET rather 
than via the CBD.  In fact, 41 U.S.C.A.  sec.  426(c), governing notice and 
solicitation regulations for FACNET, provides in pertinent part:

     Each minimum period specified for a notification of solicitation 
     and each deadline for the submission of offers under a 
     solicitation shall afford potential offerors a reasonable 
     opportunity to respond.

Accordingly, before proceeding with any contract action conducted via 
FACNET, for an amount estimated to be between $25,000 and $100,000, 
the contracting officer must provide public notice and afford 
potential offerors a reasonable opportunity to respond.  41 U.S.C.A.  sec.  
426(c); FAR  sec.   5.203(b), 13.003(i)(2).  What constitutes a reasonable 
opportunity to respond will depend on the circumstances of the 
particular acquisition, and contracting officers are to consider 
factors such as the complexity, commerciality, availability, and 
urgency of the acquisition when establishing a response time.  FAR  sec.  
5.203(b).

Here, NIH issued a purchase order to SSSI the day after it issued the 
RFQ via FACNET.  NIH asserts without explanation that it considers 1 
day to be reasonable under the circumstances here; we do not agree.  
The fact that the agency believed that only one source could meet its 
needs, and did not expect to receive acceptable responses to its 
FACNET notice, does not remove the requirement to furnish a reasonable 
time for potential vendors to respond.  While a short response time 
could be appropriate depending on the product or services being 
acquired, we cannot conclude that the 1 day provided here was 
reasonable for potential vendors to formulate a response to the 
statement of work.  To be able to respond intelligently to the notice, 
offerors should have been given more than 1 day to calculate their 
pricing and devise their approach to meeting the agency's needs.  
Moreover, the agency has provided no explanation for its urgency in 
obtaining these apparently fairly routine and predictable services; 
the protester argues that the urgency could have arisen only due to a 
lack of advance planning on the agency's part.  In these 
circumstances, we find that NIH violated 41 U.S.C.A.  sec.  426(c), as 
implemented by FAR  sec.  5.203(b), by failing to furnish potential 
offerors a reasonable opportunity to respond to the agency's notice of 
intent to award to SSSI on a sole-source basis.[3]  

To the extent that the agency is arguing that the protester was not 
prejudiced by the contracting officer's failure to afford it a 
reasonable opportunity to respond because it could not have furnished 
an acceptable quotation due to its lack of familiarity with OLRS 
programs, we do not think that the record demonstrates a lack of 
prejudice.  The statement of work plainly emphasizes the 
administrative functions related to supporting the agency's 
participation in the planned meetings (for example, reserving hotel 
rooms, preparing prize ribbons, and setting up exhibit booths).  While 
the SOW says that the contractor must have "strong knowledge" of NIH 
in general and of OLRS programs specifically in order to support the 
Director of OLRS at the exhibit booth,[4] there simply is no basis in 
the record here to conclude that no other offeror could have hired 
individuals with the requisite level of familiarity with OLRS or that 
such familiarity could not be obtained in the 3-week interval between 
issuance of the RFQ and the initiation of performance.  Moreover, had 
this acquisition been initiated at a reasonable time prior to when the 
services were needed, it is likely that other firms would have been in 
a position to compete for the work.

Since the services at issue have now been substantially performed, we 
do not recommend cancellation of the purchase order to SSSI.  Instead, 
we recommend that the protester be reimbursed for the expenses it 
incurred in filing and pursuing its protest.  Bid Protest Regulations, 
4 C.F.R.  sec.  21.8(d)(1) (1998).  In accordance with section 21.8(f)(1) 
of our Regulations, Jack Faucett's certified claim for such costs, 
detailing the time expended and the cost incurred, must be submitted 
directly to the agency within 60 days after receipt of the decision.

The protest is sustained.

Comptroller General 
of the United States

1. FACNET, a government-wide electronic data interchange systems 
architecture, was designed to provide for electronic data interchange 
of acquisition information between the government and the private 
sector, employ nationally and internationally recognized data formats, 
and provide universal user access.  See 41 U.S.C.A.  sec.  426(a), (b)(3) 
(West Supp. 1998); Federal Acquisition Regulation (FAR)  sec.  4.501.  It 
was intended to create an electronic marketplace for procuring 
supplies and services in which agencies can post notices of and 
receive responses to solicitations, post notices of contract awards, 
and issue orders where practicable; and private sector users could 
access notice of solicitations, receive orders, and access information 
on contract awards.  See 41 U.S.C.A.  sec.  426(b)(1), (2).  We note that 
the statute was amended recently to substitute the term "electronic 
commerce" for the term FACNET and to make other changes not relevant 
here.  See Pub. L. No. 105-85,  sec.  850, 111 Stat. 1847, 1850 (1997).

2. FAR  sec.  13.003(i)(2) provides that contracting officers shall 
"[e]stablish deadlines for the submission of responses to 
solicitations that afford suppliers a reasonable opportunity to 
respond (see [FAR  sec. ] 5.203)." 

3. Jack Faucett also argued that the procurement should have been set 
aside for small business concerns pursuant to FAR  sec.  13.003(b)(1).  The 
agency's response is that a set-aside is not required where there is 
only one source that can perform the work and that source is a large 
business.  Given that we sustain the protest based on the agency's 
failure to provide reasonable notice, and, as explained below, the 
services at issue have been performed, we need not address the 
set-aside issue.

4. Specifically, the statement of work states that the contractor is 
to "[h]ave two contractor staff attend the conference to support the 
Director, OLRS, with set-up and staffing of the exhibit booth, 
arrangements for the poster session, assistance to NIH judges 
attending the conference, and other general support."