BNUMBER: B-279924
DATE: August 7, 1998
TITLE: Information Ventures, Inc., B-279924, August 7, 1998
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Matter of:Information Ventures, Inc.
File: B-279924
Date:August 7, 1998
Bruce H. Kleinstein for the protester.
Thomas A. Darner, Esq., and Maria Kavouras, Esq., Environmental
Protection Agency, for the agency.
Glenn G. Wolcott, Esq., and Paul Lieberman, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Protest that request for proposals should have been set aside for
exclusive small business participation is denied where the
solicitation requirements called for particular technical expertise,
the contracting officer conducted a market survey from which she
reasonably concluded that the agency could not expect to receive
proposals from two small business offerors capable of performing the
solicitation requirements, and the representative of the agency's
Office of Small and Disadvantaged Business Utilization concurred with
the decision not to set aside the procurement.
DECISION
Information Ventures, Inc. (IVI) protests the Environmental Protection
Agency's (EPA) decision to issue request for proposals (RFP) No.
PR-CI-98-10345, for safe drinking water hotline services on an
unrestricted basis. IVI contends that the procurement should be set
aside for exclusive small business participation.
We deny the protest.
The solicitation was issued on an unrestricted basis on April 2, 1998
seeking proposals to provide continued operation of a hotline to
support various programs authorized by the Safe Drinking Water Act, 42
U.S.C. sec. 300f to 300j-26 (1994). Among other things, the
solicitation contemplates the performance of research and information
retrieval responding to an estimated 4,000 to 6,000 inquiries per
month. Section I of the solicitation statement of work (SOW) notes
that the technical difficulty of the responses will vary widely and
requires that the contractor "shall ensure that all responses are
based on up-to-date and appropriate EPA-approved material."
The contracting officer states that she received the procurement
request from EPA's Office of Ground Water and Drinking Water in
January, 1998 and, following routine procedures, forwarded the request
to EPA's Office of Small & Disadvantaged Business Utilization (OSDBU)
for input regarding whether the procurement should be set aside for
small businesses. The OSDBU representative requested that additional
information be sought regarding potential small business sources
capable of performing the requirements. Contracting Officer's
Statement, May 26, 1998, at 1.
Thereafter, the contracting officer engaged in various research
activities in order to determine whether the agency was likely to
receive proposals from two or more small business sources capable of
performing the contract requirements. First, the contracting officer
considered the past procurement history related to this requirement
for which the current contract had been awarded only 2 years
previously, and ascertained that only two technically acceptable
proposals had been received, neither of which was from a small
business. The contracting officer also considered a similar
procurement that had been conducted by EPA for a wetlands hotline in
January 1997 and again found that no proposals had been received from
small businesses. The contracting officer next conducted market
research using several Internet search tools, including "i-Mart," "GSA
Advantage," and the "Thomas Register."[1] The contracting officer's
Internet search identified some small businesses that operate
hotlines, but none which appeared to have the specific expertise
necessary to perform the contemplated contract requirements. Id. at
2.
The contracting officer then met with the OSDBU representative,
described her research activities to him, and advised that she did not
believe the agency was likely to receive proposals from two small
businesses that were technically qualified to perform the contract
requirements. The OSDBU representative agreed with the contracting
officer's assessment and, on February 20, formally recommended that
the procurement be conducted on an unrestricted basis. Id.; EPA
Record of Procurement Request Review, Feb. 20, 1998.
Thereupon, on February 20, EPA published a synopsis of the procurement
requirements in the Commerce Business Daily (CBD), describing the
services that would be required and inviting inquiries. Some 6 weeks
later, the RFP was issued requesting that proposals be submitted by
April 30. No small business sources contacted EPA from the time the
CBD synopsis was issued until April 17, when IVI first contacted EPA
to assert that the solicitation should be set aside for small
businesses. This protest was filed on April 29.
IVI primarily argues that because there currently are small businesses
operating other government hotlines, it was unreasonable for the
agency not to set aside this procurement for small businesses, and
maintains that the contracting officer failed to make a reasonable
effort to identify potential small business sources. We disagree.
Contracting officers are generally required to set aside for exclusive
small business participation any procurement exceeding $100,000 where
there is a reasonable expectation of receiving fair market price
offers from at least two small businesses capable of performing the
contract requirements, FAR sec. 19.502-2(b). A contracting officer must
make reasonable efforts to ascertain whether it is likely that offers
from two such offerors will be received. Mortara Instrument, Inc.,
B-272461, Oct. 18, 1996, 96-2 CPD para. 212 at 3. There is no requirement
that a contracting officer use any particular method to perform this
assessment, and the required inquiry goes not only to the existence of
small businesses that might submit proposals, but also to small
businesses' capabilities to perform the contract requirements. Id. at
3-4; FKW Inc., B-249189, Oct. 22, 1992, 92-2 CPD para. 270 at 2-4. The
determination of whether to set aside a particular procurement
basically involves a business decision within the broad discretion of
contracting officials, and our review is generally limited to
assessing whether that discretion has been abused. CardioMetrix,
B-271012, May 15, 1996, 96-1 CPD para. 227 at 2.
Here, the record reflects the contracting officer's memorandum
assessment that the type of "technical scientific expertise" required
under this solicitation was "very different" from the skills required
to operate various other government hotlines, and her conclusion that
"there are not two small business sources that are technically
qualified to do the work required." Contracting Officer's Memorandum,
Feb. 18, 1998. The contracting officer's assessment and conclusion
are supported by the solicitation requirements. Among other things,
the SOW required that:
The Contractor shall, without prompting from EPA staff, be aware
of and be able to provide information contained in:
--The Code of Federal Regulations Parts 141, 142, 143 & 149
--The preamble and regulatory sections of relevant Federal
Register Notices
--Current guidance documents and policy memorandums
--Bi-monthly and Weekly Hotline Reports (1988 to present)
--Other relevant EPA policy memorandum and directives
--EPA approved questions and answers and fact sheets on
specific topics
--EPA approved Hotline training materials (See Exhibit 3)
--The Health Advisory Tables, EPA Health Advisories and
guidance
--EPA's Public Internet Home Page and the Office of Ground
Water and Drinking Water Home Page, as well as other relevant
EPA Home Pages such as the Envirofacts Home Page, the Surf
Your Watershed Home Page, and the Index of Watershed
Indicators
--Other documents relevant to EPA's drinking water and source
water protection programs and policies provided by EPA.
RFP, Attachment 1, SOW sec. IV.A, at 1-8.
In short, the contractor is required to possess specialized knowledge
regarding laws, regulations, and EPA policy which cannot reasonably be
expected to fall within the capabilities of firms operating other
types of government hotlines. Accordingly, we see no basis to
question the contracting officer's distinguishing of the requirements
sought here from those performed by other hotline operators, and her
conclusion that the existence of small business hotline operators in
different substantive areas did not establish there were two
technically qualified small business sources that could be expected to
compete here.
As noted above, the contracting officer also reviewed the procurement
history related to this requirement, as well as that of another,
similar EPA procurement, both of which were conducted within the last
2 years, and found that no technically acceptable proposals were
submitted for either procurement by small business concerns. Further,
the contracting officer conducted market research using several
Internet search tools, and that search failed to reveal technically
qualified small business sources.[2] Finally, the contracting officer
received the concurrence of the OSDBU representative that restricting
competition to small business concerns was not appropriate here.[3]
In sum, in view of the contracting officer's consideration of the past
history of this and a similar procurement, along with the market
research she performed, and the concurrence of EPA's OSDBU
representative that this procurement should not be set aside, there is
no basis to conclude that the contracting officer abused her
discretion in determining to issue the solicitation on an unrestricted
basis.
The protest is denied.
Comptroller General
of the United States
1."i-Mart" is a search tool developed by the Department of Defense to
assist procurement personnel in performing market research. "GSA
Advantage" is an Internet-based tool created by the General Services
Administration through which federal agencies can review existing
schedule contracts for various services. The "Thomas Register" is an
Internet web site which lists over 150,000 companies in the United
States and Canada.
2. IVI asserts that Internet search methodology other than that used
by the contracting officer would have been more appropriate. We have
reviewed the record in this regard and do not find the contracting
officer's approach unreasonable. See FKW Inc., supra, at 2 (there is
no particular required method for performing market research to assess
small business availability).
3. We note that no other small business have, to this date, expressed
any interest in performing the solicited requirements which were
synopsized in the CBD in February of this year.