TITLE:  Information Ventures, Inc., B-293541, April 9, 2004
BNUMBER:  B-293541
DATE:  April 9, 2004
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Information Ventures, Inc., B-293541, April 9, 2004

   Decision
    
    
Matter of:   Information Ventures, Inc.
    
File:            B-293541
    
Date:              April 9, 2004
    
Bruce H. Kleinstein, Esq., for the protester.
Mike Colvin, Department of Health and Human Services, for the agency.
Henry J. Gorczycki, Esq., and Ralph O. White, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
    
Where agency contemplated a sole source purchase under simplified
acquisition procedures, and its December 31, 2003, announcement of the
intended award established a response period for capability statements
from potential sources of 1  1/2 business days (until January 5, 2004),
the agency did not provide potential sources with a reasonable opportunity
to respond, particularly where the record does not show a need for the
short response period and the agency knew of the requirement well in
advance of issuing the notice.
DECISION
    
Information Ventures, Inc. (IVI) protests a sole source award to
Metaworks, Inc. under request for quotations (RFQ) No. 263-04-(FQ)-0009,
issued by the Department of Health and Human Services (HHS), National
Institutes of Health (NIH), for research services associated with
developing a list of drugs requiring additional study, and providing that
list to Congress, as required by the Best Pharmaceuticals for Children Act
(BPCA), 42 U.S.C.A. S: 284m(a) (West 2003).
    

   We sustain the protest.
    
On December 15, 2003, HHS published a pre-solicitation notice--for
solicitation No. 263-04-(DR)0016--on the Federal Business Opportunities
(FBO) website, www.fedbizopps.gov.  The notice stated that, for each drug
on a list to be provided, the contractor would perform an assessment of
the relevant literature using a standardized search methodology, document
the search methodology, and identify all information about the effect of
the drug on neonates and children under the age of 18.  Agency Report
(AR), Tab 3, Pre-solicitation Notice.  The notice requested responses by
December 18.
    
On December 18, IVI contacted the agency and raised a number of concerns
about the pre-solicitation notice.  Of relevance here, IVI complained that
the notice did not include essential details about the work to be
performed, and did not allow adequate response time.  In light of IVI*s
inquiry, the agency apparently became aware that its notice had failed to
advise that the agency intended to award this contract to Metaworks on a
sole source basis, and had not advised potential offerors about how to
respond to the intended sole source procurement.  AR, Tab 1, Statement of
Facts, at 1. 
    
On December 31, in recognition of the issues raised by IVI, the agency
issued what it terms a *revised notice.*  This *revised notice* was, in
fact, an RFQ sent directly to IVI by e-mail.  There is no evidence in the
record that this RFQ was sent to any other potential offeror; nor is there
any evidence that a second notice--revised or otherwise--was published on
the FBO website.  The RFQ required responses by noon on January 5, 2004.
    
Several provisions of the RFQ are relevant here.  First, the RFQ
referenced the BPCA, which requires HHS to develop, prioritize, and
publish annually a list of drugs for which pediatric studies are needed. 
The RFQ stated that in order to begin assessing whether certain drugs
should be included on the 2005 list, the agency *requires a
state-of-the-art systematic literature review, meta-analysis and
[collaboration] with experts in pediatric research,* and requires this
review within a short time frame.  RFQ at 2-3.
    
In addition, the RFQ advised that the agency anticipated making a
sole-source award to Metaworks, *pursuant to the authority [at] 41 U.S.C.
253(c)(1) as set forth in [Federal Acquisition Regulation (FAR) S:]
6.302-1.*  Id. at 2.  In this regard, the RFQ stated that deliverables
would include monthly progress reports, a preliminary draft report, and a
final report by March 31, 2004.  Id. at 4.  Finally, the RFQ advised that
any interested source should submit information to demonstrate its ability
to perform these requirements by January 5, 2004.  Id. at 1.
    
Following its receipt of the RFQ on December 31, 2003, IVI attempted
without success to contact the contracting officer on December 31, and
again on the next business day, Friday, January 2, 2004.  When IVI was
unable to reach agency personnel, it filed this protest before close of
business on January 2.  During the course of this protest, on January 23,
NIH awarded a sole source contract to Metaworks for a total price of
$95,000.
    
The protester essentially alleges that the RFQ did not provide adequate
time or information to prepare a response, and that the agency did not
have a reasonable basis for concluding that Metaworks was the only source
able to perform the services.
    
As a preliminary matter, the RFQ and the agency*s report incorrectly
advise that the agency was proceeding pursuant to subpart 6.3 of the FAR,
which provides the authority for contracting without full and open
competition.  Although there are also instances where the agency states
that this is a simplified acquisition, its arguments here are cast under
the rules applicable to larger procurements.  In fact, this procurement is
governed by the simplified acquisition procedures at FAR part 13, not the
procedures at FAR subpart 6.3, because the agency estimates that the value
of these services will not exceed $100,000.  See FAR S:S: 6.001(a),
13.003(a).
    
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 (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.  See 41 U.S.C. S:S: 253(a)(1)(A),
(g)(1), and (g)(4) (2000).  Part 13 of the FAR establishes 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. 
    
Under the maximum-extent-practicable standard applicable to simplified
acquisitions, an agency *may solicit from one source if the contracting
officer determines that the circumstances of the contract action deem only
one source is reasonably available (e.g., urgency, exclusive licensing
agreements, or industrial mobilization).*  FAR S: 13.106-1(b)(1); see
Information Ventures, Inc., supra, at 3. 
We review protests of the sole source determinations made in these
procurements for reasonableness.  See Ultraviolet Purification Sys., Inc.,
B-226941, Sept. 10, 1987, 87-2 CPD P: 229 at 3 (sustaining protest of sole
source justification under predecessor small purchase procedures).
    
In addition, regardless of whether a simplified acquisition is competed or
reserved for only one source, the simplified acquisition procedures
require synopsis of 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 (2000).  Exceptions to this
synopsis requirement are set forth in the regulations, but none are
applicable here (nor has the agency asserted that any are applicable). 
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) (2000); FAR S: 5.207(c); see Pacific Sky Supply, Inc.,
B-225420, Feb 24, 1987, 87-1 CPD P: 206 at 4-5.
    
Finally, after synopsizing a procurement, agencies must provide potential
offerors a reasonable opportunity to respond.  41 U.S.C. S: 426(c); FAR
S:S: 5.203(b), 13.003(h)(2); see Sabreliner Corp., B-288030, B-288030.2,
Sept. 13, 2001, 2001 CPD P: 170 at 6-7.  What constitutes a reasonable
opportunity to respond will depend on *the circumstances of the particular
acquisition, such as complexity, commerciality, availability, and
urgency.*  FAR S: 5.203(b).  In short, the fundamental purpose of these
notices, including the circumstance where an agency contemplates a
sole-source award, is to enhance the possibility of competition.  Pacific
Sky Supply, Inc., supra.
    
With respect to the protester*s contention that it was not provided
sufficient time to submit a response to this RFQ, we agree.  Other than
the New Year*s Day holiday and the weekend following it, the agency
allowed a total response time here of 1  1/2 business days.  The agency
states that this brief response time was necessary in order to meet the
March 31 date mandated under the BPCA (AR at 1); however, there is no such
mandate in the BPCA.  Simply put, the BPCA does not set a March 31
deadline for any task to be performed by HHS.  Rather, the BPCA requires
that HHS issue a list of drugs each year, beginning no later than 1 year
after the BPCA was enacted (on January 4, 2002).  42 U.S.C.A.
S: 284m(a)(1).  More importantly, the present procurement is associated
with preparation of the 2005 list, not the list for the current year
2004.  Although we agree that reasonable time limits must be set for the
completion of preliminary services leading to the publication of the 2005
list, there is nothing in the record to support the agency*s contention
that these services had to be completed by March 31, 2004.
    
Moreover, we note that the need to prepare this list is a recurring
requirement, and the agency had prepared a statement of work (SOW) for
this associated research effort by October 1, 2003.  In addition, the
record shows that Metaworks had prepared a draft proposal by October 24. 
AR, Tab 2, at 8-9 (the SOW), 12 (Metaworks* Draft Proposal).  Under these
circumstances, a response time of 1  1/2 business days was not a
reasonable amount of time to require IVI to prepare a submission to
demonstrate its capabilities.  Accordingly, we sustain the protest on this
basis.  See Jack Faucett Assocs., Inc., B-279347, June 3, 1998, 98-1 CPD
P: 155 at 3‑4 (1 day response time without reasonable justification
is unreasonable).
    
The record here also discloses that the agency*s sole-source determination
may not be reasonable.  We first note in this regard that the agency has
never synopsized its intent to make a sole-source award to Metaworks. 
Although the agency points out that it received no responses (other than
the protester*s) to the December 15 pre‑solicitation notice, the
agency also acknowledges that the pre-solicitation notice was
misclassified as *medical services,* rather than as *other scientific and
technical consulting services.*  AR, Tab 1, Statement of Facts, at 4.  The
document that the agency terms a *revised notice* was, in actuality, an
RFQ apparently issued only to IVI.  Given these flaws, the agency*s
actions may have denied potential sources (other than the protester) the
opportunity to respond to a proper synopsis of the agency*s intended
sole-source.  In addition, in its justification of its sole source
determination, the agency describes Metaworks* skills and experience, and
states that Metaworks is *the leading provider* of these services.  AR,
Tab 2, at 10 (Sole Source Justification).  This description, on its face,
suggests that there are other providers of these services, and that the
agency is aware of them.  Finally, we note that the protester claims that
it, too, can provide these services.  Protester*s Comments at 5.  In
short, there is little here to support the determination that only
Metaworks could provide these services.  See Ultraviolet Purification
Sys., Inc., supra, at 4; Jack Faucett Assocs., Inc., supra, at 4. 
    
During the course of this protest, HHS proceeded with award based upon a
written finding that *contract performance will be in the best interests
of the United States.*  AR, Tab 6, Override Determination at 1.  The
finding referenced FAR S: 33.104(c)(2)(i), which sets forth regulations
for proceeding with performance during protests after award, not protests
filed before award, as here.  Thus, the override determination was
inconsistent with the Competition in Contracting Act of 1984.[1]  See 31
U.S.C. S: 3553(d)(3).  As a result of this override, performance of the
work is now complete.  Since no other meaningful relief is available, we
recommend that the agency reimburse the protester its costs of filing and
pursuing the protest.  4 C.F.R. S: 21.8(d)(1) (2004).  The protester
should submit its certified claim for costs, detailing the time expended
and costs incurred, directly to the contracting agency within 60 days of
receiving this decision.  4 C.F.R. S: 21.8(f)(1).
    
The protest is sustained.
    
Anthony H. Gamboa
General Counsel
B-293541
    
    
April 9, 2004
    
The Honorable Tommy G. Thompson
The Secretary of Health and Human Services
    
Dear Mr. Secretary:
    
This letter is to bring to your attention certain matters we have
encountered during our consideration of recent bid protests associated
with your agency*s use of its authority to proceed with the award of a
contract in the face of a protest. 
    
Under the Competition in Contracting Act of 1984 (CICA), an agency is
prohibited from proceeding with award--or if award has been made, from
proceeding with performance--without making certain written findings, and
advising our Office of those findings.  31 U.S.C. S:S: 3553(c) (2000)
(protests before award), 3553(d)(3) (protests after award).  CICA requires
different findings depending upon whether award has, or has not, been
made.  In two recent bid protest cases, HHS proceeded with award using
findings not authorized by CICA under the circumstances of the
procurement.[2]  In both cases, the inappropriate use of this limited
statutory authority denied the protester the opportunity of meaningful
relief.
    
When protests are filed before award, an agency may proceed with award
only after a written finding by the head of the procuring activity that
*urgent and compelling circumstances which significantly affect interests
of the United States will not permit waiting for [GAO*s] decision.*  31
U.S.C. S: 3553(c)(2)(A).  In contrast, when protests are filed after
award, an agency may proceed with performance after making one of two
possible written findings:  (1) *performance of the contract is in the
best interests of the United States*; or (2) *urgent and compelling
circumstances that significantly affect interests of the United States
will not permit waiting for [GAO*s] decision.*  31 U.S.C.
S: 3553(d)(3)(C).  Under CICA, when an agency proceeds with performance in
the face of a post-award protest on a *best interests* basis, our Office
is required to recommend relief without regard to cost, or disruption from
terminating, recompeting, or reawarding the contract.  31 U.S.C.
S: 3554(b)(2). 
    
Both of these recent protests, involving procurements conducted by
separate divisions of HHS--i.e., the National Council on Aging, and the
National Institutes of Health--were filed with our Office prior to award. 
In both cases, there is no dispute that HHS was aware of the protests, and
in both cases, HHS proceeded with award on the basis that proceeding was
in the best interests of the United States.  As set forth above, CICA
authorizes proceeding with award only upon a written finding of *urgent
and compelling* circumstances.  Thus, in both cases, HHS proceeded with
award in a manner inconsistent with the requirements of the statute.
    
I bring these matters to your attention for such action as you deem
appropriate.  Please advise our Office of any actions HHS takes in
response to this letter. 
    
Sincerely yours,

   Anthony H. Gamboa
General Counsel
    
Enclosures (2)
    

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

   [1] Although an agency has authority under CICA to authorize performance
of a contract during a protest filed after award with either a *best
interest* or an *urgent and compelling* finding, it does not have that
option during a protest filed before award.  Compare 31 U.S.C.
S: 3553(c)(2) (protests filed before award), with 31 U.S.C.
S: 3553(d)(3)(C) (protests filed after award).  Since this is not the
first instance we have seen of this agency proceeding with an award in the
face of a protest on the basis of a pre-award best interest determination,
see, e.g., Information Ventures, Inc., B-293518, B‑293518.2, Mar.
29, 2004, 2004 CPD P: ___ at 5 n.4, our Office, by letter dated today, is
bringing this matter to the attention of the Secretary of HHS.
[2] These protests were both brought by a company named Information
Ventures, Inc., and our decisions in B-293518, B-293518.2, and in
B-293541, were issued March 29, and April 9, 2004, respectively.  Copies
of the decisions are attached.