TITLE: Information Ventures, Inc.
BNUMBER: B-290785
DATE: August 26, 2002
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Information Ventures, Inc., B-290785, August 26, 2002
Decision
Matter of: Information Ventures, Inc.
File: B-290785
Date: August 26, 2002
Bruce H. Kleinstein for the protester.
Mike Colvin, Department of Health and Human Services, 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
Protest that contracting agency improperly failed to investigate whether
competition existed to perform requirements prior to awarding a
sole-source contract to perform such requirements is denied where the
procurement was under simplified acquisition procedures and where the
record showed that the contracting officer reasonably determined that,
under the circumstances of the contract action, only one source was
reasonably available.
DECISION
Information Ventures, Inc. protests the decision by the Department of
Health and Human Services (HHS), Substance Abuse and Mental Health
Services Administration (SAMHSA), to award a sole-source contract under
solicitation No. 02m009110 to the National Association of Social Workers
(NASW) for the services of a clinical social worker to provide assistance
related to the National Child Traumatic Stress Initiative and various
suicide prevention activities. Information Ventures argues that the
agency improperly failed to investigate whether competition exists to
perform the requirement.
We deny the protest.
On June 13, 2002, HHS, on behalf of SAMHSA, published a notice on the
Federal Business Opportunities (FedBizOpps) website (www.fedbizopps.gov)
expressing its intent to make a sole-source award, using simplified
acquisition procedures, to the NASW in connection with the National Child
Traumatic Stress Initiative. Among other things, the National Child
Traumatic Stress Initiative, administered by SAMHSA's Center for Mental
Health Services (CMHS), seeks to improve the quality, effectiveness, and
availability of therapeutic services to all children and their families
who experience traumatic events. National Child Traumatic Stress
Initiative website,
. The notice
indicated that the objective of this procurement, which has a 12-month
period of performance, is to review, research and analyze literature in
content areas relevant to the National Child Traumatic Stress Initiative;
to investigate and document details of relevant events occurring
worldwide; and to maintain the literature database. The notice stated
that the sole-source determination was based upon the NASW's experience
and expertise in child welfare, children's mental health, and trauma and
terrorism issues, and established a closing date of June 28 for firms to
provide information to be considered for the purposes of determining
whether to conduct a competitive procurement.
Information Ventures subsequently contacted the contracting officer to
assert that numerous small businesses could readily perform the tasks of
literature identification, acquisition of documents, abstracting/analysis
of documents, and keyboarding/entering information into a database, and
suggested that it could provide the needed services by subcontracting with
a social worker.
On June 21, the contracting officer published an amendment to the original
synopsis on FedBizOpps to clarify that the services required were
primarily those of a clinical social worker. The amendment stated that
the National Child Traumatic Stress Initiative required the services of a
clinical social worker to assist SAMHSA in identifying information for the
program related to child trauma in the context of social work and to
assist in the development of training programs targeted to key gatekeepers
and other mental health professionals in the areas of post-traumatic
stress, disaster mental health, and suicide prevention. The notice stated
that it was both cost-effective and in the government's best interest to
award the acquisition to the NASW, the world's largest organization of
professional social workers, which serves as the ongoing professional
resource following crisis intervention.
On June 26, Information Ventures filed the instant protest arguing that
the agency improperly failed to investigate whether competition exists to
perform the requirement. Award has been withheld pending resolution of
the protest.
Under the Federal Acquisition Streamlining Act of 1994 (FASA), simplified
acquisitions--used to purchase supplies and services, including
construction, research and development, and commercial items, the
aggregate amount of which does not exceed $100,000 (Federal Acquisition
Regulation (FAR) S:S: 2.101, 13.000, 13.003(a))--are excepted from the
general requirement that agencies obtain full and open competition through
the use of competitive procedures when conducting procurements.[1] See 41
U.S.C. S:S: 253(a)(1)(A), (g)(1), and (g)(4) (2000).
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. S: 427(c); FAR S: 13.104;
Bosco Contracting, Inc.,
B-270366, Mar. 4, 1996, 96-1 CPD P: 140 at 2.
Consistent with the maximum-extent-practicable standard, an agency may
solicit from a single source if the contracting officer determines that,
under the circumstances of the contract action, only one source is
reasonably available.
FAR S: 13.106-1(b)(1). 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. Aleman & Assocs., Inc., B-287275, May 17, 2001, 2001
CPD P: 93 at 3; see also Ion Exchange Prods., Inc., B-218578, B-218579,
July 15, 1985, 85-2 CPD P: 52 at 4. We have reviewed the record here and
find the agency's actions unobjectionable.
The focus of this requirement is to help government project officers
identify gaps of unmet needs in order to improve the quality,
effectiveness, provision and availability of therapeutic services
delivered to all children and adolescents who experience traumatic
events. Statement of Work (SOW) at 3; Contracting Officer's Statement
at 1. The contracting officer's determination that, under the
circumstances of this contract action, only one source was reasonably
available--the NASW--rests on two intertwined factors.
First, the contracting officer states that the clinical training and
working knowledge of an experienced social worker is required to
adequately provide the relevant information. Such a person will be able
to help maintain and update the SAMHSA database under specific topics with
pertinent information relevant to program needs and social work and to
identify weaknesses in service areas and make recommendations for future
programmatic activities and interventions; one would need a thorough
knowledge of the available facilities and expected outcomes in order to
identify deficiencies in treatment and provision of services. The
contracting officer explains that data input is but an incidental task
comprising approximately
1 percent of the effort, and that an information scientist would lack the
clinical experience to adequately perform a thorough needs assessment.
Second, and more important, the contracting officer states that it is
necessary to
the contract to have access to the NASW membership list for the purposes
of communicating with experts in various fields. The NASW has a
membership of
more than 150,000 national and international social workers, NASW website,
, and membership lists, which include contact information,
are proprietary and not routinely made available to persons outside of the
organization. Clinically trained social workers are the largest group of
professionals providing mental health services and are often the only
providers in medically underserved areas, and access to the NASW
membership lists not only gives the agency the ability to communicate and
obtain information directly from the NASW, but also provides a means of
dissemination to people with a vested interest in the field. As a result,
contracting directly with any otherwise-qualified social worker, as
Information Ventures proposes, would not meet the government's needs
because those needs include access to the NASW membership.
Information Ventures' argument that the NASW Register of Clinical Social
Workers
is publicly available misses the point. As the agency explains, this
register is not
the membership list to which it requires access. The register is a
resource of approximately 7,000 registered social workers who want their
qualifications to be made public, while the NASW membership list contains
more than 150,000 names and is not available to the public, except in
limited and exceptional circumstances that require the approval of the
NASW board. In this regard, the project officer states that it is
possible to rent the list for only very limited requests, such as
NASW-approved research projects and the distribution of information
related to professional continuing education courses. While the protester
argues that the register contains sufficient contact information to
perform the contract, it is obvious that the membership lists will afford
the agency a far more extensive source of information.
The protester's argument that access to the NASW membership list is not
necessary to perform the work because the SOW does not mention its use is
unpersuasive. Among other things, the SOW's requirement to assist the
government project officer in identifying unmet information needs as they
relate to child trauma in the context of social work includes the use of
interviews with NASW staff and through information available from the
NASW. SOW at 3. Moreover, it is clear from the record that the agency
requires the ability to leverage the resources of the NASW to reap the
benefits of its knowledge and skills. As the project officer explains, it
is essential to be in touch with the NASW membership in order to elicit
information about their activities and knowledge base and to provide them
with information. The contract also relies on access to the NASW
leadership to provide guidance in the development and implementation of
specific activities outlined within the contract, and to lend credibility
to the effort. The agency believes the NASW is the only organization with
the resources necessary to affect the profession of social work and the
field of mental heath and the constituencies critical to the success of
the program, and that its standing in the field allows its findings and
recommendations to receive immediate acceptance by its members and
audiences, which will be critical to the agency's mission.
Information Ventures has given us no basis to question the agency's
expressed needs, no basis to find that the agency should have conducted
more extensive market research under the circumstances, no basis to
conclude that it could have met the government's needs, and no basis to
conclude that the agency acted without a reasonable basis in awarding this
sole-source contract. See Litton Computer Servs., B-256225.4, B-256225.5,
July 21, 1994, 94-2 CPD P: 36 at 6 (proposed
sole-source award was unobjectionable where protester's responses to
notices consisted of minimal information and failed to establish that the
firm could met the agency's requirements; as a result, the agency
reasonably determined that only one firm could met the requirements).
Finally, Information Ventures argues that the SOW improperly contemplates
the award of a personal services contract. A personal services contract
is one that, by its express terms or as administered, makes the contractor
personnel appear to be, in effect, government employees. See FAR S:S:
37.101, 37.104. The government is normally required to obtain its
employees by direct hire under competitive appointment or other procedures
required by the civil service laws. FAR S: 37.104(a). Obtaining personal
services by contract, rather than by direct hire, circumvents those laws
unless Congress has specifically authorized acquisition of the services by
contract. Id. Agencies may not award personal services contracts unless
specifically authorized by statute to do so. FAR S: 37.104(b).
Whether a solicitation would result in a personal services contract must
be judged in the light of its particular circumstances, with the key
question being whether the government will exercise relatively continuous
supervision and control over the contractor personnel performing the
contract. FAR S: 37.104(c)(2); Carr's Wild Horse Ctr., B-285833, Oct. 3,
2000, 2000 CPD P: 210 at 7.
We do not believe the requirements of this contract will create an
employer-employee relationship between the government and the contractor's
personnel. There is no indication from the solicitation that the
government will exercise relatively continuous supervision and control
over the contractor personnel. While the government project officer will
monitor all work under the project, the solicitation clearly provides that
the contractor shall *[i]ndependently, and not as an agent of the
Government,* exert its best efforts and furnish the necessary personnel to
perform the work. SOW at 3. Contrary to the protester's suggestion, that
the work will be performed on-site is merely indicative of the fact that
it would be expensive and burdensome for the agency to make essential
confidential documents available outside of its offices and to modify the
agency's computer system to permit off-site access to a database system.
We agree with the agency that the contractor will have ultimate control in
determining how best to fulfill its contractual obligations, and that this
protest ground is without merit. Carr's Wild Horse Ctr., supra.
The protest is denied.
Anthony H. Gamboa
General Counsel
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[1] The independent government estimate for this procurement is $97,076.