TITLE: Information Ventures, Inc., B-293743, May 20, 2004
BNUMBER: B-293743
DATE: May 20, 2004
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Information Ventures, Inc., B-293743, May 20, 2004
Decision
Matter of: Information Ventures, Inc.
File: B-293743
Date: May 20, 2004
Bruce H. Kleinstein for the protester.
Karen M. Reilley, Esq., National Aeronautics and Space Administration, and
Thedlus L. Thompson, Esq., General Services Administration, for the
agencies.
Edward Goldstein, Esq., and Christine S. Melody, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Agency*s issuance of solicitation to procure services using Federal Supply
Schedule procedures was improper where the services were not within the
scope of the chosen schedule.
DECISION
Information Ventures, Inc. protests the National Aeronautics and Space
Administration*s (NASA) decision to procure SPACELINE database
bibliographic services under request for offer (RFO) No. 04-HAD-001,
issued to vendors holding a current Federal Supply Schedule (FSS) contract
with the General Services Administration (GSA) under Schedule 70, Special
Item Number (SIN) 132-51.
We sustain the protest.
The SPACELINE database was established through an agreement between NASA
and the National Institutes of Health*s National Library of Medicine (NLM)
in order to *collect, organize, and make available to the scientific and
educational communities and to the public, electronic references to the
scientific literature of the space life sciences.* Contracting Officer*s
(CO) Statement at 1. Currently, the SPACELINE database is maintained by
NLM, and NASA is responsible for identifying the bibliographic references
for inclusion in the database.
On March 15, 2004, NASA issued the subject RFO for SPACELINE bibliographic
services, for a period of performance through December 31, 2004, to four
vendors identified under GSA*s list of FSS contractors for Schedule 70,
*General Purpose Commercial Information Technology Equipment, Software,
and Services,* SIN 132-51, *Information Technology Services.* [1] As
described in the RFO, the services to be provided are: monitoring the
literature of the space life sciences and selecting publications for
inclusion in NLM databases; creating new records for publications; adding
unique data required by NASA to database records; working with NLM staff
to ensure continued technical development and quality control of the
bibliographic data; and conducting outreach activities to foster database
usage. RFO, Statement of Work, at 1. The contracting officer decided to
use the FSS procedures to procure the SPACELINE requirements after
reviewing the various schedules and determining that the SPACELINE
requirements, as identified in the RFO*s statement of work, were within
Schedule 70, SIN 132-51, the scope of which is described as follows:[2]
Information Technology Services -- SUBJECT TO COOPERATIVE PURCHASING[.]
Includes resources and facilities management, database planning and
design, systems analysis and design, network services, programming,
millennium conversion services, conversion and implementation support,
network services project management, data/records management,
subscriptions/publications (electronic media), and other services.
Agency Report, Tab 7, GSA Schedule Descriptions.
In its protest, Information Ventures maintains that using FSS procedures
to procure the SPACELINE services described above was improper because
they are outside the scope of the schedule and SIN identified by the
agency. As explained below, we agree.
As a general rule, contracting agencies are required to obtain full and
open competition in the procurement of supplies and services. 41 U.S.C.
S: 253(a)(1)(A) (2000); Federal Acquisition Regulation (FAR) S: 6.101.
The FSS program, directed and managed by GSA, provides agencies with a
simplified process for obtaining commonly used commercial supplies and
services. FAR S: 8.401(a). The procedures established for the FSS
program satisfy the requirement for full and open competition. 41 U.S.C.
S: 259(b)(3); FAR S: 6.102(d)(3); OMNIPLEX World Servs. Corp., B-291105,
Nov. 6, 2002, 2002 CPD P: 199 at 4. Non-FSS products and services,
however, may not be purchased using FSS procedures; instead, their
purchase requires compliance with the applicable procurement laws and
regulations, including those requiring the use of competitive procedures.
See FAR S: 8.401(d); OMNIPLEX World Servs. Corp., supra.
NASA maintains that the services at issue here fall within *the broadly
written* description of services under Schedule 70, SIN 132-51. NASA
Response to Questions for the Record at 6. Specifically, according to
NASA the services called for in the RFO--planning, managing, and
maintaining the bibliographic database and the records compiled in the
database--are within the *data/records management and database planning
and design scope of SIN 132-51* as well as the *facilities management* and
the *other services* categories listed in SIN 132-51. [3] Memorandum of
Law at 3; NASA*s Response to Questions for the Record at 3-6.
We recognize that NASA*s SPACELINE requirements require technical skill in
connection with entering information in the SPACELINE database and in some
instances obtaining the scientific and medical journals via the Internet.
We also recognize that the selected contractor may have some role in
working with NLM with regard to improving and/or changing the SPACELINE
database itself. It is equally clear, however, that the services required
under the statement of work go well beyond the types of information
technology services contemplated by Schedule 70, SIN 132-51, and that the
fundamental nature of the services required does not simply involve the
design of a database, the maintenance of data/records, facilities
management, or other information technology services, as NASA
contends.[4] On the contrary, a review of the statement of work reveals
that the first service listed is specialized subject matter research;
specifically, the contractor is required to perform searches of scientific
and medical literature in order to identify articles that are relevant to
the field of space medicine so that the articles, ultimately, can be
included in the SPACELINE database.[5] This type of work simply does not
constitute the type of technical services reasonably contemplated for
purchase under FSS, Schedule 70, SIN 132-51.
The statement of work further reveals that the contractor will be
responsible for a variety of additional services that clearly do not
qualify as information technology services, such as: creating promotional
materials; preparing Space Life Sciences Research Highlights; performing
in-depth literature searches; updating, maintaining, and retaining the
repository of space life sciences literature in an office library or
files; and validating bibliographic entries in Office of Biological and
Physical Research reports. RFO, Statement of Work, P:P: 7-11, at 3-4.
While it may be true, as GSA contends, that NASA might save time, expense,
and manpower if the work were obtained from *qualified [information
technology] personnel,* these considerations do not provide a valid basis
for using Schedule 70 to purchase services that are not reasonably
contemplated under the schedule. Accepting such a notion would negate the
fundamental concept that when an agency obtains non-FSS items it must
comply with the applicable procurement laws and regulations, including
those requiring the use of competitive procedures.
We recommend that NASA cancel the RFO and that this requirement be
procured in accordance with the statutory and regulatory competition
requirements. We also recommend that the protester be reimbursed the
reasonable cost of filing and pursuing its protest, including attorneys*
fees. 4 C.F.R. S: 21.8(d)(1) (2004). The protester should submit its
certified claim for such costs, detailing the time expended and the costs
incurred, directly to the contracting agency within 60 days of receiving
this decision.
The protest is sustained.
Anthony H. Gamboa
General Counsel
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[1] NASA initially attempted to procure the SPACELINE services by issuing
a task order for the services to Global Science and Technology, Inc. under
an indefinite-delivery/indefinite-quantity (ID/IQ) contract, NASW-00017.
Information Ventures protested issuance of the task order on the ground
that it was outside the scope of Global*s ID/IQ contract and our Office
ultimately dismissed the protest based on the agency*s stated intent to
take corrective action by reprocuring the work on a competitive basis.
[2] The contracting officer maintains that she called a GSA contract
specialist for Schedule 70 seeking an independent determination of the
appropriate schedule and SIN for the SPACELINE requirements and that the
specialist independently indicated that SIN 132-51 was appropriate. CO
Statement at 2. Our Office asked both NASA and GSA to identify the
specific information that NASA provided to the GSA specialist regarding
the SPACELINE requirement for the purposes of his analysis. See Questions
for the Record, Apr. 15, 2004, at 2. The contracting officer contends
that she provided the specialist with a summary of the statement of work.
NASA*s Response to Questions for the Record at 2. The GSA contract
specialist indicated, however, that while he may have spoken with the
contracting officer, he had no recollection or record of the cited
conversation. GSA Business Development Specialist, FSS IT Marketing
Division, e-Mail, Apr. 27, 2004.
[3] In order to further develop the record in this case, our Office
submitted questions to both NASA and GSA; we sought *GSA*s position,
supported by facts and legal argument, addressing whether NASA*s SPACELINE
requirements are within the scope of SIN 132-51.* Questions for the
Record at 2. Rather than responding to the specific questions posed by
our Office or explaining its position regarding whether the SPACELINE
requirements are within the scope of SIN 132-51, GSA instead submitted an
e-mail message from a GSA business development specialist in which he
responds to two general questions posed by counsel for GSA. One question
elicited a general description of the types of services contemplated under
SIN 132-51, without relating them to the services called for under the
RFO. In response to the second question, which asked *whether it would be
expected that NASA*s SPACELINE requirements . . . could be met by
utilizing SIN 132-51,* the specialist stated that the RFO *literature
retrieval* called for by the RFO *would be available on the Internet*;
that the services required personnel with the skills called for by
Schedule 70; and that *[b]y having this program set up, operated, and
maintained by qualified [information technology] personnel, vast amounts
of time, expense, and manpower would be saved.* GSA Response to Questions
for the Record, Attachment.
[4] The agency maintains that SIN 132-51 is intended to *encompass a wide
range of general information technology services, even including undefined
*other services.** NASA Response to Questions for the Record at 6. As
the agency implicitly recognizes, however, these *undefined other
services,* to use the agency*s words, are limited to information
technology services as contemplated under Schedule 70 of the FSS. As a
consequence, the *other services* catch-all cannot reasonably be
understood to encompass the various non-information-technology services
clearly identified in the RFO*s statement of work.
[5] In relevant part, the statement of work provides as follows:
The contractor shall manage and be responsible for providing information
as described in the following items:
1. Identifying new literature to be added.
Approximately 500-1,000 bibliographic citations will be acquired and
reviewed each week to identify publications relevant to the space life
science. . . . This will be performed on a daily and ongoing basis
throughout the year.
RFO, Statement of Work, P: 1, at 1-2.