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).