TITLE:  Aleman & Associates, Inc., B-287275, May 17, 2001
BNUMBER:  B-287275
DATE:  May 17, 2001
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Aleman & Associates, Inc., B-287275, May 17, 2001

Decision

Matter of: Aleman & Associates, Inc.

File: B-287275

Date: May 17, 2001

Albert T. Aleman, Jr., for the protester.

Michael K. Cameron, Esq., Department of Justice, Immigration and
Naturalization Service, for the agency.

Jeanne W. Isrin, Esq., and Jerold D. Cohen, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.

DIGEST

Protest that agency's issuance of purchase orders to maintain interim
services while competitive procurement for the same services was ongoing
violated Federal Acquisition Regulation (FAR) requirements because (1) they
were not procured using full and open competition; (2) their requirements
were not synopsized in the Commerce Business Daily (CBD); and (3) the
protester was not sent a copy of the solicitations, is denied. The purchase
orders were issued using the simplified acquisition procedures of FAR Part
13 which, under the circumstances here, do not require full and open
competition or CBD synopsis, and did not mandate distribution of the
solicitations to the protester.

DECISION

Aleman & Associates, Inc. protests the issuance of purchase order Nos.
ACD-1-P-0001, ACD-1-P-0002, ACD-1-P-0003, and LRT-1-P-0060 by the
Immigration and Naturalization Service (INS), Department of Justice, for
janitorial and grounds maintenance services at border patrol stations and
related INS facilities in the Laredo, Texas area.

We deny the protest.

The 12 facilities covered by the 4 purchase orders employ Border Patrol
agents who are responsible for apprehending illegal immigrants and
maintaining custody of them at the facilities. Contracting Officer's
Statement at 1. INS previously had procured the required janitorial and
grounds maintenance services for 11 of the facilities competitively, which
had resulted in purchase orders to 3 different contractors; one (the
precursor of ACD-1-P-0001) covered 7 facilities, another (the precursor of
ACD-1-P-0003) covered 3 facilities, and the third (the precursor of
ACD-1-P-0002) covered 1 facility. (The 12th facility, the Laredo North
Station, which is the subject of purchase order LRT-1-P-0060, was not yet
open at that time.)

Subsequently, INS decided to consolidate its requirements in the interest of
higher quality performance, efficiency in acquisition, and consistency in
services received. Id. INS issued request for quotations (RFQ) No.
ACD-8-Q-0024, set aside for small businesses, for the services to be
provided at the original 11 facilities plus the Laredo North Station, which
was scheduled to open on November 1, 2000. The RFQ provided for award on a
best value basis. RFQ at 10.

Five quotations were received on June 2, 2000. The agency evaluated them and
made a competitive range determination, which included Aleman's quotation.
Subsequently, amendments were issued, and revised quotations were received
on August 25. Due to a protracted review process and lack of personnel
resources, evaluation of revised quotations was delayed. Meanwhile, the 3
purchase orders under which the services were being performed at the 11
existing facilities were due to expire in late September. According to the
agency, because the illegal immigrants are held at the facilities for an
average period of 125 days, there is significant potential for the spread of
disease, and it therefore is imperative that the facilities be maintained in
clean condition without interruption of services. Agency's Response Brief at
2. In order to meet the interim need, purchase orders ACD-1-P-0001,
ACD-1-P-0002, and ACD-1-P-0003 were issued to the incumbent contractors,
using the simplified acquisition procedures of Federal Acquisition
Regulation (FAR) Part 13, for a 3-month period. [1]

Similarly, since the competitive procurement for the services had not been
completed and the Laredo North Station was scheduled to open on November 1,
in October INS attempted to obtain the required services for the Laredo
North Station. Pursuant to simplified acquisition procedures, the agency
solicited quotes from three businesses, but it received only one quote, and
that vendor turned out to be a large business. After other potential small
business sources were identified by the Dallas INS office, contracting
officials solicited an additional quote from Pais Janitorial Services and
Supplies, Inc. Since the quotation was determined fair and reasonable, and
contracting officials had had positive experience with the firm, purchase
order LRT-1-P-0060 was issued to Pais for 3 months for $21,749.10.

Meanwhile, further revised quotations in the "consolidated" procurement were
requested by February 20, 2001. On February 13, Aleman protested to our
Office about (1) an alleged ambiguity in the RFQ as amended; (2) the delay
in completing the competitive procurement; and (3) the issuance of purchase
orders ACD-1-P-0001, ACD-1-P-0002, ACD-1-P-0003, and LRT-1-P-0060. The
agency subsequently canceled the RFQ, rendering the protest academic as to
that solicitation and the first and second allegations above. [2]

Aleman argues that the interim purchase orders were improperly issued
because they were not procured using full and open competition; the contract
actions were not synopsized in the Commerce Business Daily (CBD); and Aleman
was not asked for quotations.

We find no improper action by the agency in issuing the interim purchase
orders.

Initially, we point out that under the Federal Acquisition Streamlining Act
of 1994 (FASA), simplified acquisitions--which must be used to purchase
supplies and services, including construction, research and development, and
commercial items, the aggregate amount of which does not exceed $100,000
(FAR sect.sect. 2.101, 13.000)--are excepted from the general requirement that
agencies obtain full and open competition through the use of competitive
procedures when conducting procurements. 41 U.S.C. sect. 253(a)(1)(A), (g)(1),
and (g)(3) (1994). These simplified procedures are designed to promote
efficiency and economy in contracting and to avoid unnecessary burdens for
agencies and contractors. To facilitate these stated objectives, FASA only
requires that agencies obtain competition to the maximum extent practicable
when they utilize simplified acquisition procedures. 41 U.S.C. sect. 427(c); FAR
sect. 13.104; Bosco Contracting, Inc., B-270366, Mar. 4, 1996, 96-1 CPD para. 140 at
2.

Sole-Source Purchase Orders ACD-1-P-0001, ACD-1-P-0002, and ACD-1-P-0003

Consistent with the maximum-extent-practicable standard, an agency may
solicit from a single source if the contracting officer determines that the
circumstances of the contract action mean that only one source is reasonably
available, for example, in the case of urgency. FAR sect. 13.106-1(b). As a
general rule, we will not object to a sole-source award unless it is shown
that the agency acted without a reasonable basis. See Ion Exchange Prods.,
Inc., B-218578, et al., July 15, 1985, 85-2 CPD para. 52 at 4.

INS's response to the protest indicates that the bases for issuing purchase
orders ACD-1-P-0001, ACD-1-P-0002, and ACD-1-P-0003 to the incumbents on a
sole-source basis were, among other things, that (1) each was of relatively
short duration--3 months--and low cost; [3] (2) it was believed that the
competitive procurement for all 12 facilities would be completed in a
relatively short time frame; (3) the incumbents' prices were considered fair
and reasonable since they did not change from the previously completed
purchase orders; and (4) the incumbent contractors had personnel with the
requisite security clearances in place, whereas a new contractor would
require approximately 1 month to gain employee security clearances.

Nothing in the record establishes that the protester could have met the
government's needs within the required time frame; Aleman, for example, does
not claim that it could have provided personnel with the requisite security
clearances. Under the circumstances, it was not unreasonable, in our view,
for contracting officials to issue the purchase order to the only known
qualified source for each contract. We have held that a sole-source award is
justified where time is of the essence and only one known source can meet
the government's needs within the required time. See Ion Exchange Prods.,
Inc., supra. [4]

Competed Purchase Order LRT-1-P-0060

When using simplified acquisition procedures, the necessary maximum
practicable competition ordinarily can be obtained by soliciting quotations
or offers from sources within the local trade area. FAR sect. 13.104(b).
Generally, for purchases under $25,000, as here, the solicitation of three
suppliers is sufficient. FAR sect.sect. 5.101, 13.104(b); Bosco Contracting, Inc.,
supra, at 2-3.

As stated above, contracting officials solicited quotes from three local
contractors, and when they received only one quote, and that from a large
business concern, they solicited yet another small business source. The
agency thus complied with the regulations applicable to the circumstances
here.

Aleman claims that because it was participating in the "consolidated"
contract, INS officials should have asked the company for a quotation. We in
fact have held that "maximum practicable competition" means that a
responsible firm that expressly requests to quote must be given an
opportunity to do so, even where three or more suppliers have already been
solicited. See Gateway Cable Co., B-223157 et al., Sept. 22, 1986, 86-2 CPD
para. 333 at 4-5. Here, however, Aleman did not ask to compete for the interim
contract, and we do not agree with Aleman's suggestion that INS was legally
obligated to infer interest on the firm's part for a short-term,
single-facility contract from Aleman's submission of a quotation on the
long-term, 12-facility one.

Finally, Aleman argues that contracting officials violated FAR requirements
because they failed to publish a synopsis of the interim procurements in the
CBD. However, to determine notice requirements for a procurement conducted
under simplified acquisition procedures, FAR sect. 13.105 refers to FAR sect. 5.101,
which provides that contract actions need be synopsized in the CBD only if
they are expected to exceed $25,000. FAR sect. 5.101(a)(1). Since none of the
four contract actions at issue was expected to exceed $25,000 (and, in fact,
none exceeded that amount), synopsizing in the CBD was not required.

The protest is denied.

Anthony H. Gamboa
General Counsel

Notes

1. The orders subsequently were extended for 2 additional months because the
"consolidated" procurement still was in process.

2. Also canceled was solicitation No. ACD-1-Q-0008, which the agency had
issued on March 1 to competitively procure its short-term requirements for
the 12 facilities while the long-term procurement was still pending. The
basis for the cancellation of both was the agency's determination that the
required services had to be procured from either the National Industries for
the Blind or the National Industries for the Severely Handicapped, pursuant
to FAR Part 8. The cancellation of both is the subject of another protest by
Aleman to our Office.

3. The orders are valued at less than $25,000 ($13,584.72, $9,896.18, and
$9,109.89, respectively).

4. The record does not explain why the agency took so long to evaluate
quotations in the "consolidated" procurement (now canceled)--INS's only
statement is that the review process was protracted and that agency lacked
personnel resources. It nevertheless appears that when INS initiated the
procurement, in April 2000, there was adequate time to complete it before
the incumbents' contracts expired, and we have no reason to believe that the
delay should have been foreseen.