TITLE:	CMS Information Services, Inc.
BNUMBER:	    B-290541
DATE:		    August 7, 2002
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CMS Information Services, Inc. , B-290541, August 7, 2002

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Decision


Matter of:   CMS Information Services, Inc.

File:            B-290541

Date:              August 7, 2002

Richard L. Moorhouse, Esq., and James L. D'Agostino, Esq., Reed Smith, for
the protester.
Raymond M. Saunders, Esq., Department of the Army, and Jean H. Lewis, Esq.,
Missile Defense Agency, for the agency.
John W. Klein, Esq., and Kenneth Dodds, Esq., for the Small Business
Administration.
Thedlus L. Thompson, Esq., for the General Services Administration.
Scott H. Riback, Esq., and John M. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.

DIGEST

Where a competitive request for quotations issued under the Federal Supply
Schedule limits competition to small business vendors, procuring agency
properly may require firms to certify as to their small business size status
as of the time they submit their quotations.

DECISION

CMS Information Services, Inc. protests the terms of request for quotations
(RFQ) No. HQ0006-02-Q-0012, issued by the Missile Defense Agency (MDA) to
acquire automated information systems support services.  CMS asserts that
the RFQ improperly requires vendors to certify their small business status
as of the time they submit their quotations.

We deny the protest.

The RFQ contemplates the award of a task order under the successful vendor's
preexisting Federal Supply Schedule (FSS) contract, and specifically states
that MDA is conducting a streamlined competitive procurement among small
business sources.  RFQ at 20.  The RFQ requires vendors to self-certify as
small businesses as of the date of quotation submission.  RFQ at 18.[1]

This protest relates solely to the small business certification
requirement.  Specifically, CMS asserts that it is improper for the agency
to require it to certify its small business size status as of the time it
submits its quotation.  According to the protester, it certified its small
size status in 1997, at the time it submitted its initial offer to the
General Services Administration (GSA) for award of its FSS contract; it
maintains that its small business status for purposes of receiving task
order awards was established by this certification, and that it should
remain in effect for the duration of its FSS contract.[2]  CMS maintains
that the Small Business Administration's (SBA) regulations at 13 C.F.R. ï¿½
121.404 (2002) support its position by establishing the date of initial
offer submission as the time when SBA will determine a firm's size status.
CMS concludes that, if it is required to recertify its status as of the time
it submits its quote, it will in essence be improperly excluded from
participation in the acquisition because it cannot currently represent
itself as small.

We find nothing improper in the challenged requirement.  The purpose of the
Small Business Act as it relates to government acquisitions is to ensure
that a fair proportion of all government contracts be placed with small
business concerns.  15 U.S.C. ï¿½ 644 (2000).  Implicit in this is the notion
that the work under the contract will actually be performed by a small
business.  Toward this end, the Federal Acquisition Regulation (FAR) is
designed, for example, to ensure that small businesses perform a majority of
the work under a set-aside contract.  FAR ï¿½ 52.219?14.  The
self?certification requirement in the RFQ is consistent with these
purposes.[3]

The SBA regulation relied on by CMS does not establish that the requirement
is improper.  That provision states as follows:  ?Generally, SBA determines
the size status of a concern (including its affiliates) as of the date the
concern submits a written self-certification that it is small to the
procuring agency as part of its initial offer including price.?  13 C.F.R. ï¿½
121.404.  CMS concludes that its FSS contract self?certification is the
self?certification ?as part of its initial offer? referenced in this
language, and thus is the proper basis for determining its small business
status for purposes of the RFQ.  We disagree.  This provision, by its plain
terms, applies only where a firm is submitting an offer; it does not go the
next step and provide that small business status can be established only in
connection with the submission of an offer (as opposed to a quotation) or,
conversely, that agencies are not permitted to consider small business
status, as here, at the time of the submission of a quotation in response to
an FSS RFQ.  Rather, neither this, nor any other SBA regulation, squarely
addresses the question.[4]  We conclude that, in light of the purpose of the
Act and the absence of any specific statutory or regulatory prohibition,
there is nothing objectionable in an agency's requiring that FSS vendors
responding to a task order RFQ be small as of the date quotations are due,
instead of relying on the original FSS self-certification, which may not
reflect a vendor's current small business status.[5]

Our view is consistent with that of SBA, the agency responsible for
administering the Small Business Act (we solicited SBA's views in connection
with this protest).[6]  SBA acknowledges that its regulations do not
specifically cover the situation here, and that the Office of Hearings and
Appeals (OHA) also has not addressed these specific circumstances.  However,
SBA cites several cases decided by OHA as collectively supporting the view
that an agency may properly require prospective vendors to recertify in
these circumstances.[7]  In particular, in Size Appeals of:  SETA Corp.,
Fed. Emergency Mgmt. Admin., SBA No. SIZ-4477 (2002), OHA considered the
question of whether an agency should use a firm's original certification
tendered when it entered into its FSS contract, or a subsequent
certification tendered in response to a competitive RFQ issued by a
requiring activity.  OHA found:

Here, while there is no renewal of the contract [such as through the
exercise of an option], there is instead an RFQ which required a
self?certification as a small business.  FEMA [the requiring activity]
undertook a procurement as a small business set-aside.  SETA [the appellant]
certified that it was not a small business when it submitted its response to
the RFQ.  Under [a prior OHA decision], it is this later certification that
is applicable to the procurement, and which controls.
Id. at 11.

We also solicited GSA's views on the matter, since GSA administers the FSS
program.  In its submission, GSA argues that the appropriate time to
determine whether a small business set-aside is warranted is prior to
issuance of the solicitation for the multiple FSS contracts, not at the time
an ordering agency issues a specific task or delivery order.  Letter from
GSA to GAO at 3.  GSA then goes on, however, to agree that FSS procedures
allow agencies ordering under certain schedules, such as MDA here, to limit
consideration for a specific task or delivery order to small businesses.
Id. at 4.  The issue before us is not whether MDA's action should be viewed
as a set-aside (which GSA contends would be improper) or an order limited to
small businesses (which GSA apparently agrees would be proper); the issue is
whether, in an order limited to small businesses, MDA is permitted to
require vendors to certify to their current size status.  On that issue,
GSA's submission is silent.

Since there is nothing in the contract or applicable statutes and
regulations setting the time at which small business status must be
established, we conclude that MDA
properly may require competing vendors to establish their size status as of
the date when quotations are submitted.

The protest is denied.

Anthony H. Gamboa
General Counsel

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[1] MDA limited the competition to small business vendors consistent with
the supplemental instructions pertaining to acquisitions for services under
GSA's FSS for this particular special item number (SIN 132-51).  In this
respect, the supplemental instructions provide:  ?When buying IT
professional services under SIN 132-51 ONLY, the ordering office, at its
discretion, may limit consideration to those schedule contractors that are
small business concerns.?  GSA FSS Contract No. FCIS-JB-980001B at 115-16.
[2] CMS states in its protest that its FSS contract was awarded on February
17, 1997 and extends through February 18, 2003, with three 5-year options.
Accordingly, the contract has a potential duration of 21 years.
[3] The RFQ incorporated by reference, but did not include a copy of, FAR ï¿½
52.212-3, which requires vendors to, among other things, certify their small
business size status.  CMS argues that the agency's failure to attach a copy
of the clause to the RFQ is a ?fatal defect? in the RFQ because vendors do
not have the actual document to submit with their quotes.  We fail to see
the import of this alleged defect, since the protester obviously is on
sufficient notice of the self-certification requirement, and it does not
assert that other vendors will be misled so as to prejudice CMS.
[4] While there are no SBA regulations on point, our interpretation is
consistent with SBA's regulations relating to the time for filing size
status protests, which recognize the fundamentally different nature of
multiple award schedule contracts.  While size protests must ordinarily be
filed within 5 days of award, 13 C.F.R. ï¿½ 121.1004(a)(1), (2), such a
protest is timely if filed any time during the life of a multiple-award
schedule contract, or any renewal thereof.  13 C.F.R. ï¿½ 121.1004(a)(3).
[5] We think requiring competing vendors to update their certifications is
particularly reasonable considering that FSS contracts may be of an
extremely long duration-as noted above, CMS indicates that its contract has
a potential duration of 21 years--increasing the likelihood that work will
be performed by a vendor that is not a small business at the time of
performance.
[6] We note that, as a general rule, our Office will defer to SBA's judgment
in matters such as this, which fall squarely within its responsibility for
administering the Small Business Act.  See SCS Eng'rs, B-210166, Sept. 29,
1983, 83-2 CPD ï¿½ 388.
[7] We point out that OHA's cases appear to distinguish between RFQs that
result in the award of a blanket purchase agreement (BPA) and RFQs that
result in the award of a task order.  See NAICS Appeal of:  SCI Consulting,
Inc., SBA No. NAICS-4488 (2002).  We see no basis for this distinction
since, in both cases, the acquiring activity is ultimately placing orders
against a firm's FSS contract.