BNUMBER:  B-279794; B-279794.2; B-279794.3 
DATE:  July 23, 1998
TITLE: SEMCOR, Inc.; HJ Ford Associates, Inc., B-279794; B-279794.2;
B-279794.3, July 23, 1998
**********************************************************************

DOCUMENT FOR PUBLIC RELEASE
The decision issued on the date below was subject to a GAO Protective 
Order.  This redacted version has been approved for public release.
Matter of:SEMCOR, Inc.; HJ Ford Associates, Inc.

File:     B-279794; B-279794.2; B-279794.3

Date:July 23, 1998

Claire E. Kresse, Esq., Eun K. Chung, Esq., Jonathan D. Shaffer, Esq., 
and John S. Pachter, Esq., Smith, Pachter, McWhorter & D'Ambrosio, for 
SEMCOR, Inc., and Richard A. Maresca, Esq., Porter, Wright, Morris & 
Arthur, for HJ Ford Associates, Inc., protesters.
Ronald G. Schumann, Esq., and Marian E. Sullivan, Esq., Department of 
the Air Force, for the agency.
Tania Calhoun, Esq., and Christine S. Melody, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

While contracting agency improperly relied upon the "expert" exception 
to full and open competition to justify the award of a sole-source 
contract to an incumbent contractor for litigation support services, 
protests that the agency's sole-source award based upon that exception 
are denied where the record reasonably supports the conclusion that 
the agency's action more properly should be viewed as a procurement 
under the exception to full and open competition where there is only 
one source capable of meeting the agency's needs. 

DECISION

SEMCOR, Inc. and HJ Ford Associates, Inc. protest the decision by the 
Department of the Air Force to award a sole-source contract to 
Innovative Technologies Corporation (ITC) for litigation support 
services associated with the C-130 Gunship Program.  SEMCOR and HJ 
Ford contend that the Air Force improperly relied upon the "expert" 
exception to full and open competition to justify this sole-source 
acquisition.

We deny the protests.

BACKGROUND

Gunship Program Litigation Support

Rockwell International was awarded an Air Force contract in 1987 to 
modify C-130 aircraft to a gunship configuration.  Three years later, 
Rockwell submitted a request for equitable adjustment (REA), which was 
followed by an updated REA in 1991 and a second updated REA in 1995.  
This last updated REA, valued at $547.45 million plus interest, 
ultimately formed the basis for a complaint in the Court of Federal 
Claims.  Rockwell Int'l Corp. v. United States, No. 95-425C (Fed. Cl. 
filed June 26, 1995).  Trial is scheduled to commence on October 1, 
1999.  The Air Force is assisting with trial preparation and is 
conducting a parallel alternative dispute resolution (ADR) effort as 
well.  The services at issue here support both activities.

In late 1994, the Air Force formed a Contract Issues Resolution Team 
(CIRT) to analyze the REA.  The CIRT's government personnel were soon 
supported by employees of two firms at issue here--ITC and The 
Analytical System Corporation (TASC).  ITC was issued task orders 
under an existing contract to provide technical and cost/price 
analysis support to the CIRT.  Contract No. F33657-90-D-2248, Task 
Order Nos. 0014 and 0016, Statement of Work (SOW)  para.  3.0.  In May 1995, 
coincidental with the expiration of its should-cost contract, ITC was 
awarded a contract to provide integrated engineering and technical 
management support.  After Rockwell filed its complaint, ITC was 
issued a task order to provide engineering, manufacturing, and 
specialized cost/price analysis support to the CIRT.[1]  Contract No. 
F33657-95-D-2050, Task Order No. 0001  sec.  B.     

The court's June 1996 scheduling order required the parties to image 
most documents related to the litigation onto electronic media for 
exchange and to produce various databases associated with the 
documentation.  The period for document production was to end on 
September 30, 1997; the discovery period was to end on December 1, 
1998; and final depositions were to be taken by March 31, 1999.  
Comprehensive Stipulated Scheduling Order at 12-18, 25-29.  

ITC was issued a task order to help the government meet these 
requirements for imaging, databasing, and exchange of documentation.  
ITC was asked to identify, collect, document, and file all 
program-related documentation; perform in-depth technical analysis of 
the issues and detailed cost/price analysis of the claimed damages; 
support the development and establishment of the database systems; and 
support Department of Justice (DOJ) attorneys in litigation activities 
such as depositions, interrogatories, interviews, production of 
documents, and pre-trial activities.  Contract No. F33657-95-D-2050, 
Task Order No. 0013, SOW  para.  2.0.  Various modifications extended ITC's 
performance of this task order to May 26, 1998, the expiration date of 
its contract.  As discussed further below, ITC supports the CIRT with 
[DELETED] personnel--[DELETED] analysts and [DELETED] technical 
editors and clerical support staff.  

Omnibus Support Contracts

In July 1997 the Air Force issued a solicitation which anticipated the 
award of multiple contracts to obtain various categories of support 
services, including support for engineering, manufacturing, and 
litigation.  The record shows that the Air Force intended to procure 
the Gunship litigation support services under these contracts.  
Contracting Officer's (CO) Statement at 13; Supplemental Agency Report 
at 2.  In November, the Air Force announced its planned award of 
indefinite- delivery, indefinite-quantity (ID/IQ) omnibus support 
contracts to five firms, SEMCOR and HJ Ford among them.  

ITC was one of several disappointed offerors who filed protests of the 
Air Force's decision in our Office.  All of these protests were denied 
on March 4, 1998.  Modern Techs. Corp. et al., B-278695 et al., Mar. 
4, 1998, 98-1 CPD  para.  81.  Two days later, ITC's on-site project leader 
told the CIRT Chief that if the Air Force decided to procure the 
litigation support under the omnibus support contracts, he anticipated 
that approximately [DELETED]--later revised to [DELETED]--key support 
personnel would be offered work on other ITC contracts and would, 
therefore, be unavailable to the CIRT.  CIRT Chief's Undated 
Memorandum for the Record.  

At the same time, the Air Force knew that the omnibus contractors, 
SEMCOR in particular, were gearing up to provide these support 
services.[2]  In a March 9 letter to the CIRT Chief, SEMCOR stated 
that it had contacted [DELETED] CIRT personnel--[DELETED] had 
committed to SEMCOR if the Air Force transitioned the work to the 
omnibus contracts and most of the rest were waiting until the Air 
Force decided what to do.  This claim was supported by a written 
record of the contacts.  SEMCOR also stated that it had offered most 
of these individuals higher salaries, and had offered full-time 
benefits to certain part-time personnel.   

In a justification and approval document (J&A) drafted March 12, the 
Air Force requested permission to waive the use of the omnibus 
contract and to award a sole-source contract to ITC for these 
services.  As discussed further below, the Air Force's justification 
for the sole-source award relied upon the "expert" exception to full 
and open competition at 10 U.S.C.  sec.  2304(c)(3)(C) (Supp. II 1996), as 
implemented by Federal Acquisition Regulation (FAR)  sec.  6.302-3.  The 
(J&A) explained: 

     [ITC] personnel currently providing support to the CIRT have the 
     corporate knowledge required to enable [the government] to 
     continue the ongoing litigation effort for the upcoming trial.  
     ITC experts have analyzed Rockwell's Complaint for over 3 years.  
     They have in-depth knowledge of this highly complex claim 
     involving [DELETED] major technical issues, [DELETED] sub-issues 
     and Rockwell's 13,070 page REA upon which the claim is based. . . 
     . ITC experts [DELETED].  They have the only knowledge [DELETED].  
     ITC is the only contractor [DELETED].  No amount of training can 
     replace this knowledge which gives this contractor the unique 
     ability to quickly and accurately retrieve information required 
     to respond to discovery requests. . . .

                    .    .    .    .
     
     There is no guarantee that the critical personnel currently 
     working for ITC on the CIRT will become available for the omnibus 
     contractors to hire.  While it may be expected that many of the 
     litigation experts working for ITC could be hired by the omnibus 
     contractors the Air Force has knowledge from good authority that 
     [DELETED] to [DELETED] technical team lead analysts . . . would 
     remain with ITC and would be used on [another] contract . . . 
     that continues for five years.  Retention of seniority within ITC 
     and the security of employment for five years on the [contract] 
     are strong motivators for remaining with ITC.  It is unlikely 
     that the omnibus contractors could provide incentives to lure 
     them from ITC. . . .  Even if the majority of the personnel were 
     hired by the omnibus contractors, loss of even a few at this 
     critical stage of the discovery process would cause a major 
     impact. . . .  Any disruption at this point in discovery will 
     present grave problems for the [DOJ] strategy, defense, and 
     ability to respond to the Orders of the Court. . . .

J&A at 3, 5.

On April 2, the deputy director of the office authorized to approve 
the J&A and waiver request advised that his office had "reservations 
about the legitimacy" of considering the entire clerical staff as 
experts.  He agreed that if the Air Force had to replace the current 
clerical workforce it would experience a short disruption of service, 
but stated that the information provided by the omnibus contractors 
gave him "good reason" to believe that almost all of the clerical 
staff would remain in place and merely change employers; since they 
would gain increased benefits and wages there was little incentive for 
them to stay with ITC.  He recommended that the J&A be revised to 
include only the analysts and technical editors.

In April 6 and 7 letters, SEMCOR stated that [DELETED] of the 
[DELETED] CIRT personnel contacted had committed to SEMCOR the use of 
their resumes if the Air Force decided to use the omnibus contract and 
most of the rest were waiting for the Air Force to make a decision.  
Only five individuals indicated that they would remain with their 
current employer should work be available.  SEMCOR asserted that since 
its omnibus team could provide [DELETED] of [DELETED] incumbent 
personnel in a "seamless and transparent transition," at a savings to 
the government, a waiver did not seem to be justified.  

In its briefing to the approving authority, the CIRT stated that any 
change in contractors would cause delay and disruption with respect to 
discovery opportunities in the litigation, as well as significant risk 
to the ADR effort.  The CIRT advised that ITC's plan to retain 
[DELETED] percent of its key personnel would mean the loss of their 
experience when there was no time for a learning curve for new 
personnel.  The CIRT finally asserted that the cost of ITC's 
performance--$9.017 million--was within the range of that estimated 
for the omnibus contractors--between $8.418 and $11.157 million when 
adjusted for learning loss and overtime.  Briefing Charts at 20-37.  

On April 13, the waiver and the J&A to award ITC a 2-year, $14 million 
ID/IQ contract were approved.  SEMCOR and HJ Ford subsequently filed 
their protests.  On May 8, citing urgent and compelling circumstances, 
the Air Force executed a determination and findings to award the 
contract notwithstanding the protests.  See 31 U.S.C.  sec.  3553(c)(2) 
(1994). 

PARTIES' POSITIONS

SEMCOR and HJ Ford argue that the Air Force's sole-source award to ITC 
is improper because the agency is not acquiring the services of "an 
expert" but, rather, litigation support services akin to paralegal, 
clerical, or administrative services.  SEMCOR, in particular, further 
contends that it was not necessary to award the contract to ITC to 
obtain the services of these personnel given the existence of the 
omnibus support contracts and the evidence provided by SEMCOR of its 
ability to recruit most of ITC's personnel for an omnibus support 
contract task order.  

The Air Force contends that the ITC personnel are experts by virtue of 
the "special and current knowledge of the claim" that they have gained 
over the past 3 years which is used to assist the CIRT in the analysis 
of and defense against the claim and in the ADR effort.  The Air Force 
further contends that it could not be certain of obtaining the 
services of ITC's personnel through any means other than awarding the 
contract to ITC and could not afford the disruption caused by the loss 
of even a few of these individuals.  In its agency report on the 
initial protests, the Air Force also stated that it could have relied 
upon the exception to full and open competition authorized by 10 
U.S.C.  sec.  2304(c)(1)--i.e., that there is only one source capable of 
meeting the agency's needs.    

DISCUSSION

The overriding mandate of the Competition in Contracting Act (CICA) is 
for "full and open competition" in government procurements, which is 
obtained through the use of competitive procedures.  10 U.S.C.  sec.  
2304(a)(1)(A) (1994).  As set forth in its J&A, the Air Force's 
justification for awarding this sole-source contract relies solely 
upon the exception to full and open competition authorized by 10 
U.S.C.  sec.  2304(c)(3)(C).  This exception permits the use of 
noncompetitive procedures when:

     (3)it is necessary to award the contract to a particular source 
     or sources in order . . . (C) to procure the services of an 
     expert for use, in any litigation or dispute (including any 
     reasonably foreseeable litigation or dispute) involving the 
     Federal Government, in any trial, hearing, or proceeding before 
     any court, administrative tribunal, or agency, or to procure the 
     services of an expert . . . for use in any part of an alternative 
     dispute resolution . . . process, whether or not the expert is 
     expected to testify.

An agency may not award a contract using noncompetitive procedures 
pursuant to 10 U.S.C.  sec.  2304(c)(3) unless it has executed a written 
J&A with sufficient facts and rationale to support the use of the 
specific authority, and unless that J&A has been properly approved.  
10 U.S.C.  sec.  2304(f)(1)(A) and (B); 10 U.S.C.  sec.  2304(f)(3); FAR  sec.  
6.302-3(c), 6.303, 6.304.  Moreover, an agency may not award a 
contract using any noncompetitive procedures on the basis of a lack of 
advance planning.  10 U.S.C.  sec.  2304(f)(5)(A); FAR  sec.  6.301(c)(1).[3]     

Our review of an agency's decision to conduct a sole-source 
procurement focuses on the adequacy of the rationale and conclusions 
set forth in the J&A.  Although we closely scrutinize procurement 
actions using other than competitive procedures, decisions as to 
whether an individual is an expert and which expert to use in support 
of litigation, disputes, or ADR processes involve complex judgments 
which must be left to the discretion of the agency.  See Magnavox 
Elec. Sys. Co.; Ferranti Techs., Inc., B-247316.2, B-247316.3, May 28, 
1992, 92-1 CPD  para.  475 at 4.  As a result, an agency's decisions in this 
regard will not be questioned by our Office so long as the agency has 
substantially complied with the procedural requirements of CICA, set 
forth above, and so long as the J&A sets forth reasonable 
justifications 
for the agency's actions.  Mnemonics, Inc., B-261476.3, Nov. 14, 1995, 
96-1 CPD  para.  7 at 3; see also EMCO, Inc., B-240070.2, Sept. 19, 1990, 
90-2 CPD  para.  235 at 2. 

A plain reading of the statutory language makes it clear that an 
agency seeking to justify a sole-source award based upon the "expert" 
exception must show both that the contract is being awarded to "an 
expert" and that it is necessary to award the contract to "a 
particular source or sources" in order to procure the services of that 
expert.  The protests at hand challenge the agency's showings as to 
both of these considerations.  

The "expert" exception to full and open competition was added to CICA 
by section 1005 of the Federal Acquisition Streamlining Act of 1994 
(FASA), Pub. L. No. 103-355,  sec.  1005, 108 Stat. 3243, 3254 (1994).  
Neither the statute nor its legislative history defines the term 
"expert" or indicates any reason for the addition of the exception, 
and CICA is similarly silent.  

The FAR provisions implementing the exception are of limited 
assistance.  Section 6.302-3(a)(2)(iii) merely repeats the statutory 
instruction, and section 6.302-3(b)(3) provides that "[u]se of [this] 
authority . . . may be appropriate when it is necessary to acquire the 
services of either--

     (i)  An expert to use, in any litigation or dispute (including 
     any reasonably foreseeable litigation or dispute) involving the 
     Government in any trial, hearing, or proceeding before any court, 
     administrative tribunal, or agency, whether or not the expert is 
     expected to testify.  Examples of such services include, but are 
     not limited to:
        (A)  Assisting the Government in the analysis, presentation, 
        or defense of any claim or request for adjustment to contract 
        terms and conditions, whether asserted by a contractor or the 
        Government, which is in litigation or dispute, or is 
        anticipated to result in dispute or litigation before any 
        court, administrative tribunal, or agency; or
        (B)  Participating in any part of an alternative dispute 
        resolution process, including but not limited to evaluators, 
        fact finders, or witnesses, regardless of whether the expert 
        is expected to testify; or
     (ii)  A neutral person, e.g., mediators or arbitrators, to 
     facilitate the resolution of issues in an alternative dispute 
     resolution process.

Hence, while the applicable regulation provides a few examples of the 
services an expert might provide, neither it nor any other section of 
the FAR defines "an expert."  In the absence of a directly applicable 
definition, the parties urge us to rely on definitions from various 
sources to ascertain whether the Air Force reasonably determined that 
ITC's personnel are "experts" within the meaning of this exception.  

SEMCOR's view of the term's "well-established meaning" is "an 
individual possessing special skills or knowledge competent to offer 
opinion testimony in court."[4]  Initial Protest at 4.  HJ Ford 
proposes reliance upon Federal Rule of Evidence 702:  "If scientific, 
technical, or other specialized knowledge will assist the trier of 
fact to understand the evidence or to determine a fact in issue, a 
witness qualified as an expert by knowledge, skill, experience, 
training, or education, may testify thereto in the form of an opinion 
or otherwise."  The Air Force offers up the definition once found at 
FAR  sec.  37.203(a).[5]   The provision defined "individual experts and 
consultants" as: 

     persons possessing special, current knowledge or skill that may 
     be combined with extensive operational experience.  This enables 
     them to provide information, opinions, advice, or recommendations 
     to enhance understanding of complex issues or to improve the 
     quality and timeliness of policy development or decisionmaking.

Though our review is hindered by the absence of a directly applicable 
definition, certain common elements of the proffered definitions form 
a framework to guide our determination.  See also 31A Am. Jur. 2d at 
19-20, 61-65, Expert and Opinion Evidence,  sec.  1, 55-58.  For the 
purpose of the exception, we conclude that experts may be individuals 
who possess special skill or knowledge of a particular subject, that 
may be combined with experience, which enables them to provide 
opinions, information, advice, or recommendations to those who call 
upon them. 

The J&A's rationale for concluding that ITC's personnel are experts[6] 
is limited to the assertion that they have "in-depth knowledge" of the 
claim by virtue of the fact that they collected, organized, and 
reviewed the data over the last 3 years and developed an "intimate 
knowledge" of the litigation support database.  J&A at 2-3; see also 
Air Force Legal Memorandum at 10.  However, the mere fact that one 
gains knowledge during one's employment does not make that knowledge 
"special"; the nature of that knowledge and its associated skills must 
be examined.

Nearly [DELETED] of ITC's personnel are technical editors or clerical 
support staff [DELETED].  The record shows that their tasks are 
paralegal, clerical, and secretarial in nature.  [DELETED].  Briefing 
Charts at 13-14, 16-18.  Tasks performed by the remaining staff 
include [DELETED].  Id. at 12-19; ITC Letter of April 23, 1998, 
Unnumbered Staffing Charts at 6-14.

The J&A states that most of these tasks must be accomplished by 
technical specialists intimately familiar with the substance and 
issues in the case and specifically references four tasks, principally 
database work.  J&A Attachment No. 3 at 2.  The Air Force states that 
these are the only individuals who know the litigation support 
database [DELETED].  The Air Force claims that these abilities are 
unique because [DELETED].  Id.; Contracting Officer Statement at 12; 
Air Force Legal Memorandum at 10.

The record does not reasonably support the Air Force's assertion that 
the knowledge--or skill--gained by working with the databases for some 
time is sufficiently special to render these personnel "experts."  It 
is commonplace to use litigation support databases in large-scale 
litigation such as this, and it is reasonable to conclude that any 
competent provider of such services, including the omnibus support 
services contractors, would possess the knowledge and skill to use 
such databases.  To be sure, the organization and content of such 
databases will differ from case to case, making each database unique.  
The Air Force has not shown, however, the differences here are so 
unusual as to bestow upon the users of the databases the "special" 
skill or knowledge of a particular subject required here.  Moreover, 
we are not persuaded by the Air Force's arguments that photocopying, 
assemblying deposition books, and bibliographic indexing are skills 
requiring unique abilities and training; these are the sorts of tasks 
that can be accomplished by any competent legal support staff 
including, presumably, those of the omnibus support contractors.  We 
therefore conclude that the nearly [DELETED] of the personnel who are 
technical editors or clerical support staff do not qualify as experts 
for purpose of the CICA exception.

The remaining ITC personnel are [DELETED] engineering, manufacturing, 
and cost analysts.  Briefing Chart at 10.  Relying on ITC's staffing 
charts, SEMCOR contends that these individuals perform primarily 
paralegal tasks--the charts show that their primary activities involve 
reviewing proposed responses to interrogatories, requests for 
admissions, and requests for production of documents; ensuring that 
suspense dates are met; supporting depositions; and preparing 
chronologies.  ITC Letter of April 23, 1998, Unnumbered Staffing 
Charts at 1-5.  Intrinsic in these tasks, however, is the 
long-standing involvement of these analysts in the substantive 
analysis of the issues.  As the contracting officer states, ". . . the 
technical analysts have engineering, financial, cost or other 
technical experience in the Air Force.  These individuals have a 
thorough understanding of the acquisition process and the technical 
areas . . . at issue. . . .  A number of [them] worked the Gunship 
program previously and have unique factual backgrounds for the effort 
that is being performed."  Contracting Officer Statement at 12.

It may well be that some or all of these analysts possess "special 
skill or knowledge of a particular subject, combined with experience," 
that renders them "experts" for the purpose of the CICA exception, but 
the J&A and post-protest submissions do not set forth adequate 
justifications for so concluding.  That the analysts possess knowledge 
and skills with respect to engineering and manufacturing is not, in 
itself, evidence that these individuals are "experts."  We note that 
the omnibus support contracts were also intended to provide 
engineering and manufacturing support, and we can only assume that the 
omnibus support contractors' personnel possess such knowledge and 
skills.  The Air Force suggests that it is the combination of this 
knowledge and skill with the experience of working on the Gunship 
program that makes these individuals "experts," but the record is not 
sufficient to support this suggestion.  

Notwithstanding the inapplicability of the "experts" exception, our 
review of the record leads us to conclude that the Air Force's action 
here is more properly covered by 10 U.S.C.  sec.  2304(c)(1).  That section 
permits an award based on other than competitive procedures when the 
property or services are available from only one responsible source, 
or a limited number of sources, and no other type of property or 
services will satisfy the agency's need.[7]  While the agency did not 
specifically rely on 10 U.S.C.  sec.  2304(c)(1) to justify its award to 
ITC, the justification approved by the Air Force indicated that the 
agency was convinced that ITC was the only source that could satisfy 
the agency's critical need to meet the aggressive discovery schedule 
by retaining the entire experienced team of personnel.  See Magnavox 
Elec. Sys. Co., B-230297, June 30, 1988, 88-1 CPD  para.  618 at 5; see also 
Information Ventures, Inc., B-246605, Mar. 23, 1992, 92-1 CPD  para.  302 at 
4.

As noted above, the Air Force had a critical, time-sensitive 
requirement for litigation support due to an aggressive, court-imposed 
discovery schedule in a complex, high-dollar claim.  The discovery 
period was to end on December 1, 1998, and the Air Force viewed this 
period as a critical point in the discovery schedule.  In order to 
meet that discovery schedule, uninterrupted litigation support was 
essential.  The Air Force viewed any disruption in the litigation 
support as presenting "grave problems" and risk in its defense of the 
claim.  J&A at 5; Briefing Charts 2, 20.

While the Air Force was aware that SEMCOR, in particular, had provided 
evidence that many of ITC's personnel were at least open to the 
possibility of transitioning to an omnibus contractor, the Air Force 
was concerned about its ability to retain the services of the entire 
CIRT team to avoid the risk of delay and disruption to the discovery 
schedule.  The J&A stated that there was no guarantee that ITC's 
critical personnel would be available for the omnibus support 
contractors because the Air Force had knowledge that [DELETED] to 
[DELETED] technical team lead analysts would remain with ITC and be 
used on a particular contract that extends to 2002.  Retention of 
seniority within ITC and the security of employment for 5 years on 
that contract, as opposed to the 2 years of employment on the Gunship 
program litigation support contract, were cited as strong motivators 
for remaining with ITC.  The J&A further stated:

     While it may be reasonable to expect that some of the personnel 
     working for ITC could be hired by the omnibus contractors, the 
     disruption to the personnel caused by changing companies and the 
     potential for a break in work during the process of changing 
     contractors is unacceptable at this stage of the litigation.  
     Even if the majority of the personnel were hired by the omnibus 
     contractors, loss of even a few at this critical stage of the 
     discovery process would cause a major impact. . . . Any 
     disruption at this point in discovery will present grave problems 
     for the Department of Justice strategy, defense, and ability to 
     respond to the Orders of the Court.

J&A at 5.  We do not believe that the Air Force was required to accept 
this risk.  In view of the critical need for this entire litigation 
support services team and the experience and skill that it had 
accumulated, and in view of the fact that the Air Force could not be 
certain of retaining that entire team through a source other than ITC 
with attendant risk to meeting the court-imposed discovery schedule, 
the record supports the procurement of these services under section 10 
U.S.C.  sec.  2304(c)(1) and the sole-source award was therefore proper.

We recognize that when an agency relies on 10 U.S.C.  sec.  2304(c)(1) to 
justify the use of other than competitive procedures, the agency must 
publish a notice to permit potential competitors to challenge the 
proposed sole-source award and consider all bids or proposals received 
in response to that notice.  10 U.S.C.  sec.  2304(f)(1)(C); FAR  sec.  
6.302-1(d).  The Air Force did not comply with these requirements 
because it concluded that the sole-source award was justified based on 
10 U.S.C.  sec.  2304(c)(3)(C), an exception not subject to these 
requirements.  While normally an agency's failure to comply with 
mandatory notice requirements would require 

corrective action, see World-Wide Sec. Serv., Inc.; Philips Elec. 
Instruments, Inc., 
B-224277, B-224277.2, Jan. 8, 1987, 87-1 CPD  para.  35 at 3-4, aff'd, 
B-224277.3, Apr. 22, 1987, 87-1 CPD  para.  430, we think the Air Force's 
failure to do so here was not fatal to the procurement since it is 
clear, as discussed above, that only ITC was in a position to perform 
the contract without significant risk under the constraints of the 
court-imposed discovery schedule.  Information Ventures, Inc., supra, 
at 4 n.4;  Magnavox Elec. Sys. Co., supra, at 6.  Additionally, the 
protesters were aware of the proposed award to ITC in sufficient time 
to file these protests.  See Magnavox Elec. Sys. Co., supra.  Indeed, 
in an April 7 letter to the Air Force, SEMCOR stated that the firm was 
aware of a proposed non-competitive award to ITC and endeavored to 
persuade the Air Force that SEMCOR could satisfy the agency's 
requirements.  The purpose of the mandatory notice was thus served.  
See World-Wide Sec. Serv., Inc.; Philips Elec. Instruments, Inc., 
B-224277, B-224277.2, supra, at 3.

The protests are denied.

Comptroller General
of the United States

1. TASC became a subcontractor to ITC under this contract. 

2. As recently as February 5, 1998, the Air Force sent the omnibus 
contractors its projection for phase-in of new workload from existing 
contracts.  The contract under which ITC was providing litigation 
support was on this list. 

3. In its supplemental protest, SEMCOR alleged, for the first time, 
that the Air Force failed to engage in adequate advance planning 
because, among other things, it knew when it issued the RFP that ITC 
might not be one of the omnibus contractors.  Since SEMCOR was aware 
of this fact at the time it filed its initial protest, on April 14, 
its failure to raise the matter until its supplemental protest, on May 
29, renders the allegation untimely.  Bid Protest Regulations, 4 
C.F.R.  sec.  21.2(a)(2) (1998) (protests not based upon alleged 
solicitation improprieties must be filed within 10 days after the 
basis of protest is known or should have been known). 

4. SEMCOR does not specify the source of this "well-established 
meaning," but Black's Law Dictionary defines an expert as "[o]ne who 
is knowledgeable in [a] specialized field, that knowledge being 
obtained from either education or personal experience."  Black's Law 
Dictionary (5th Ed. 1979) at 519.

5. This provision was in effect when the applicable regulation was 
promulgated but has since been deleted for apparently unrelated 
reasons.  When asked to adopt a particular definition of the term 
expert, the FAR Council declined and stated that it had reviewed the 
definition of expert then in the FAR and believed that it met the 
intent of the law.  Secretary of the Air Force Contract Award Drafting 
Team, SAF/AQCO, Memorandum for Office of Defense Under Secretary of 
Defense for Acquisition Reform [ODUSD(AR)] regarding Contract Award 
FAR Case 94-701; Final Rule; Federal Acquisition Streamlining Act of 
1994, Public Law 103-355, Tab B at 5. 

6. While the Air Force apparently believes that the ITC CIRT team as 
an aggregate is an expert, the language of the exception specifically 
refers to "an" expert, and we have no reason to believe that this 
means anything other than an individual expert. 

7. As the Air Force points out, the requirement to show that it is 
necessary to award to contract to "a particular source or sources" in 
order to procurement the services of an expert is similar to that 
required under the exception authorized by 10 U.S.C.  sec.  2304(c)(3).