TITLE:  Information Ventures, Inc., B-293518; B-293518.2, March 29, 2004
BNUMBER:  B-293518; B-293518.2
DATE:  March 29, 2004
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Information Ventures, Inc., B-293518; B-293518.2, March 29, 2004

   Decision
    
    
Matter of:   Information Ventures, Inc.
    
File:            B-293518; B-293518.2
    
Date:              March 29, 2004
    
Bruce H. Kleinstein, Esq., for the protester.
Mike H. Colvin, Department of Health and Human Services, for the agency.
Charles W. Morrow, Esq., and Ralph O. White, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
    
Protest that published synopsis expressing an agency*s intent to award a
sole-source contract under simplified acquisition procedures was improper
because the synopsis lacked necessary information is sustained where the
synopsis did not accurately describe the agency*s requirements.
DECISION
    
Information Ventures, Inc. protests the proposed award of a sole-source
contract to the National Council on Aging (NCOA) under purchase request
No. 04M000050, issued by the Department of Health and Human Services
(HHS), for educating health and social service providers on the "Get
Connected Toolkit." Information Ventures challenges the propriety of the
agency*s synopsis of the procurement.
    

   We sustain the protest.
    
On December 16, 2003, HHS published a notice on the Federal Business
Opportunities website (www.fedbizopps.gov) expressing its intent to award
a sole-source contract to NCOA to educate health and social services
providers on the Get Connected Toolkit using simplified acquisition
procedures.  The notice stated, in relevant part:
    
The specific objective of this procurement is to plan and convene a
conference aimed at the increasing aging services providers* knowledge
around substance abuse and mental health issues facing older adults, and
to teach them how to apply the *Get Connected Toolkit* in real life
settings.  The toolkit provides strategies to link providers with
substance abuse and mental health experts/ organizations in their area. 
Sole source determination is based upon the contractor*s experience and
expertise in working with aging services providers and providing vital
services to geriatric populations.  The contractor has over 50 years as a
strong leader of the aging services network throughout the U.S.  The
contractor is a key to insuring that the toolkit will be accepted and used
widely by the aging services network.  The contractor has the
relationships with its constituency to provide a conference for over 4,000
participants and the required training.  The proposed simplified
acquisition is for services for which the government intends to solicit
and negotiate with only one source under the authority of FAR 6.302.  No
solicitation is available.  For further information, please contact [the
agency].
Agency Report (AR), Tab E, at 1-2 (emphasis added; original in all
upper-case letters).  The notice further provided that the period of
performance was for 5 months from the date of award, and established
December 30 as the closing date for responses.
    
HHS explains that the Get Connected Toolkit was developed under a
partnership with HHS*s Administration on Aging, the Substance Abuse and
Mental Health Services Administration (SAMHSA), and NCOA.  The kit is a
resource tool, which includes fact sheets, videos, consumer brochures,
training guides and curricula and a services resource guide.  The kit is
intended to help service providers for older adults identify, educate, and
screen the elderly for potential emotional and substance abuse problems by
promoting new links between the aging community, service providers, and
the substance abuse and mental health communities.
    
Following publication of the notice, Information Ventures filed this
protest on December 18, arguing that the notice failed to adequately
describe the contract tasks; that it did not request any specific
information from potential contractors; and that it did not describe the
basis upon which responses would be evaluated by HHS.  The initial protest
also asked for the statement of work.   
    
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).  Part 13 of the FAR
prescribes procedures for simplified acquisitions, which are designed to
promote efficiency and economy in contracting, and to avoid unnecessary
burdens for agencies and contractors.  To facilitate these objectives,
FASA only requires that agencies obtain competition to the maximum extent
practicable.  41 U.S.C. S: 427(c); FAR S: 13.104; see Information
Ventures, Inc., B-290785, Aug. 26, 2002, 2002 CPD P:152 at 2-3. 
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); see also Information
Ventures, Inc., supra, at 3.
    
Although the HHS synopsis notice here advised that the agency was
proceeding pursuant to Subpart 6.3 of the FAR, which provides the
authority for contracting without providing for full and open competition,
simplified acquisitions (including those conducted on a sole-source basis)
are governed by the simplified procedures in Part 13 of the FAR, not FAR
S: 6.302.  See FAR S:S: 6.001(a), 13.003(a).  These procedures require
synopsis of simplified procurements in excess of $25,000 in accordance
with the Small Business Act, 15 U.S.C. S: 637(e), and the Office of
Federal Procurement Policy Act, 41 U.S.C. S: 416, unless the procurement
fits one of the exceptions to the synopsis requirement set forth in the
regulations, none of which are applicable here (and none of which have
been asserted as applicable by the agency).  See FAR S:S: 13.105,
5.101(a)(1), 5.202. 
    
A synopsis must provide an *accurate description* of the property or
services to be purchased and must be sufficient to allow a prospective
contractor to make an informed business judgment as to whether to request
a copy of the solicitation.  15 U.S.C. S: 637(f); FAR S: 5.207(c); see
also Pacific Sky Supply, Inc. B-225420, Feb 24, 1987, 87-1 CPD P: 206 at
4-5 (GAO sustained protest where a sole-source synopsis identified only 2
of 15 items included in the solicitation, thereby failing to provide an
*accurate description* of the procurement, as required by the Small
Business Act).  In addition, a synopsis must provide prospective
alternative sources a meaningful opportunity to demonstrate their ability
to provide what the agency seeks to purchase.  See Sabreliner Corp.,
B‑288030; B-288030.2, Sept. 13, 2001, 2001 CPD P:170 at 6-7 (protest
challenging sole-source award sustained where both the justification and
approval (J&A) for the award, and the published synopsis, inaccurately
described the requirements to overhaul helicopter engines).  In short, the
fundamental purpose of these notices, including in the circumstance where
an agency contemplates a sole-source award, is to enhance competition. 
Pacific Sky Supply, Inc., supra. 
    
Our review of the record leads us to conclude that this synopsis did not
accurately describe the agency*s requirements.  As set forth above, the
notice, while not entirely clear, indicates a need for a contractor to
*plan and convene a conference* (described later in the notice as
involving over 4,000 participants), and to provide training for conference
participants on the Get Connected Toolkit.[2]   However, the requisition,
including the scope of work, dated November 20, 2003, which presumably
served as the basis for the notice, provides a markedly different
description of the work here.  Specifically, the requisition shows that
the agency actually wanted a contractor to provide a geriatrics specialist
and a conference coordinator to prepare a one-day training course in using
the Get Connected Toolkit.  This training course was to be offered during
the course of the American Society of Aging (ASA)/NCOA conference on April
14, 2004, and the agency anticipated providing training to up to 60
individuals.  See AR, Tab D, Statement of Work at 2-10.  In our view, the
agency*s actual requirements are significantly different than *planning
and convening a conference* for 4,000 people, as the notice advised.   
    
In light of the misleading notice used here, Information Ventures, as well
as other potential contractors, was denied any realistic opportunity to
compete for the agency*s requirements.  In this regard, Information
Ventures advises that it has extensive experience in planning conferences
for HHS in the subject areas relevant to the procurement, including
graphics and design expertise; that it, too, has the ability to identify
experts and consultants; and that it would have competed for the contract
had the agency accurately described its needs.  Without providing an
accurate notice of its sole-source procurement, HHS failed to ensure that
its actions provided competition to the maximum extent practicable, as
required by FAR S: 13.104 for simplified acquisitions.  See id. at 6.
    
Moreover, HHS compounded the shortcomings of this particular notice by
including the statement that no solicitation was available, when the
record shows that both a requisition, and a statement of work accurately
describing this requirement, had already been prepared at the time of the
notice.  AR, Tab D (providing the requisition and statement of work, dated
November 20, 2003).  HHS did not provide Information Ventures with this
information in response to the protest, instead choosing to proceed with
the sole-source to NCOA.[3]  Accordingly, we find that the award here was
improper.
    
During the course of this protest, HHS notified our Office, and the
protester, that it had decided to proceed with award on the basis that
continued performance would be in the best interest of the government.
[4]  In this regard, the record shows that HHS needs to make this training
available during the April 14 conference to take advantage of the
opportunity to market the Toolkit, or the opportunity will be lost.  In
addition, the record shows that the steps needed to provide this training
(identifying and hiring a geriatrics specialist to prepare the training
materials, and preparing the materials) have been largely completed.  In
light of these circumstances, we do not recommend disturbing the award. 
See Stevens Tech. Servs., B-250515.2 et al., May 17, 1993, 93-1 CPD P: 385
at 12-13.  However, HHS*s future requirements for these services should be
properly synopsized, such that potential contractors such as Information
Ventures are afforded a realistic opportunity to compete. 
    
We recommend that the agency reimburse Information Ventures the reasonable
costs associated with filing and pursuing this protest, including
reasonable attorneys* fees.  4 C.F.R. S: 21.8(d)(1).  Information
Ventures* certified claim for costs, detailing the time spent and the
costs incurred, must be submitted to the agency within 60 days of
receiving this decision. 4 C.F.R. S: 21.8(f)(1).
    
The protest is sustained.[5]
    
Anthony H. Gamboa
General Counsel
    

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

   [1] The government estimate for the cost of the procurement is $99,000.
[2] The record also indicates that NCOA, in partnership with ASA, sponsors
this national conference, which approximately 4,000 persons associated
with the aging service providers community attend, and indicates that HHS
agreed to purchase time at the conference to conduct this training.  See
AR, Tab A, Contracting Officer*s Statement at 3.
[3] Again, the situation here is similar to the situation in Sabreliner
Corp., supra.  In Sabreliner, the agency knew its J&A and synopsis notice
were incorrect, and made no effort to correct the inaccuracy even during
the course of the protest.  Id. at 7.    Here, the synopsis expressly
indicated that no solicitation was available--which, while technically
accurate, glosses over the fact that a statement of work existed almost a
month prior to the publication of the synopsis.  Providing this statement
of work to Information Ventures in response to the express request for it
included in the initial protest filed with our Office on December
18--prior to the closing date for responses to the synopsis--might have
avoided this dispute, and might have done so while meaningful relief
remained possible.  
[4] The agency*s decision to proceed with award on the basis of the
government*s best interest was inconsistent with 31 U.S.C. S: 3553(c)(2),
which authorizes agencies to proceed with an award in the face of a
protest only where the agency makes a written finding that urgent and
compelling circumstances which significantly affect the interests of the
United States will not permit waiting for the decision.  Compare 31 U.S.C.
S: 3553(c) (override of preaward stay permitted only on basis of urgency)
with 31 U.S.C. S: 3553(d)(3)(C) (override of post-award stay permitted on
either of two bases:  urgency, or that proceeding with performance is in
the best interest of the government).  
[5] Since we conclude that the sole-source award to NCOA was improper, we
need not address the protester*s allegations regarding organizational
conflicts of interest, and small business participation issues.