TITLE:	Information Ventures, Inc.
BNUMBER:	    B-290785
DATE:		    August 26, 2002
**********************************************************************
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
    

   ------------------------

   [1] The independent government estimate for this procurement is $97,076.