TITLE:  Health & Human Services Group, B-294703, December 15, 2004
BNUMBER:  B-294703
DATE:  December 15, 2004

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   Decision

   Matter of:   Health & Human Services Group

   File:            B-294703

   Date:              December 15, 2004

   Michael B. Pons for the protester.

   Michael I. Goulding, Esq., Department of Homeland Security, Bureau of
Customs & Border Protection, for the agency.

   Scott H. Riback, Esq., and John M. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Protest that combination of two requirements under single solicitation
constituted improper bundling under Small Business Act is denied where the
requirement was set aside for award to a small business, there was
expression of interest by small businesses, and the agency in fact made
award of the contract to a small business. 

   DECISION

   Health and Human Services Group (HHSG) protests the terms of request for
proposals (RFP) No. HSBP1004R0079, issued by the Department of Homeland
Security, Bureau of Customs and Border Protection, to acquire services in
connection with the agency's Employee Assistance Program (EAP) and Drug
Free Workplace Program (DFWP).  The protester asserts that the RFP
impermissibly bundles these two requirements together in a manner that
precludes performance of the requirement by a small business in
contravention of the requirements of the Small Business Act, and in a
manner that raises what the protester describes as ethical concerns.  HHSG
also maintains that other aspects of the RFP are improper.

   We deny the protest.

   The RFP, a 100-percent small business set-aside, seeks proposals to
perform, on a time-and-materials basis, a contract for EAP and DFWP
services.  The EAP services include a wide range of counseling and
training type services for employees experiencing personal problems and
productivity issues that may adversely affect their workplace performance;
such services include problem identification and assessment, referral,
short-term counseling, problem resolution, and follow-up services.  The
RFP also contemplates the development and delivery of training and
education awareness on a wide array of EAP topics, as well as the
provision of organizational development interventions, and individual and
group debriefings for employees involved in traumatic or critical
incidents.  The DFWP services include the provision of alcohol and drug
testing program site coordinators who will provide oversight for the
agency's specimen collection activities (primarily to ensure that specimen
collection is performed in accordance with applicable departmental rules
and in a manner designed to ensure the quality of the results) as well as
occasionally performing specimen collection activities.

   HHSG principally asserts that combining EAP and DFWP activities under a
single contract constitutes a bundling of two requirements in a manner
that inhibits small business competition, which is to be avoided under the
Small Business Act, 15 U.S.C.

   S 631(j) (2000).[1] 

   We find that there is no improper bundling here.  Where there is a
consolidation of two or more agency requirements, the Small Business Act,
as amended, requires that agencies avoid bundling them together where the
result would be a single contract that is likely to be unsuitable for
award to a small business concern.  15 U.S.C.

   S 632(o)(2).  On the other hand, where, as here, the record shows that the
agency has reserved its requirement for small businesses, and there is an
expression of interest in the requirement by legitimate small businesses,
there is no basis to conclude that the consolidated requirement is
``unsuitable for award to a small business'' within the meaning of the Small
Business Act.  Phoenix Scientific Corp., supra, at 9.  Here, the agency
proceeded with the acquisition notwithstanding the protest, and on
October 1, 2004, made award of a contract for the consolidated
requirement to a small business concern.  Under the circumstances, we have
no basis to conclude that the agency's consolidation of these requirements
into a single contract was improper or inconsistent with the Small
Business Act. 

   HHSG also asserts that combining the two requirements presents an ethical
concern.  According to the protester, the concern arises from the fact
that, while the EAP services require the contractor to provide beneficial
services to employees in personal matters, and thus require that
employees' information be kept confidential, the DFWP services require the
contractor to provide the agency with confidential employee drug or
alcohol testing information.  HHSG concludes that there is an inherent
conflict between the two roles.

   This argument is without merit.  The agency explains that it is aware of
the need to maintain confidentiality regarding employee information, and
that safeguards have been built into the solicitation toward this end,
including the following:  the contractor's DFWP personnel will occupy
different office space than its EAP personnel (RFP at 8, 17); DFWP
personnel will not have access to EAP records (RFPA at 15); EAP
information will be discussed only in accordance with strict
confidentiality requirements (RFP at 14); and EAP personnel will not have
access to DFWP personnel's travel plans for purposes of performing drug or
alcohol testing (RFP at 17), or to drug or alcohol test results (RFP at
18), except in the case of a positive test result, in which case referral
of the employee to the EAP staff is required (RFP at 9-10).  The protester
has not established that these measures are inadequate to address any
confidentiality problems that might arise under the contract.  In the
final analysis, the solicitation requires the contractor to furnish two
separate sets of personnel, one to perform EAP services that require
confidentiality, and a second to perform DFWP services that require
disclosure of testing information; the mere fact that the contractor is
providing both sets of employees does not, in and of itself, present a
potential conflict in light of the RFP's safeguards relating to the
location of these personnel and their records (as well as the EAP
personnel's confidentiality obligations).  There thus is no basis to
conclude that combining the two functions is improper. 

   HHSG raises numerous additional arguments relating to various portions of
the RFP, and also questions the agency's making award during the pendency
of this protest.  Under our Bid Protest Regulations, a protester must be
an interested party, that is, an actual or prospective bidder or offeror
whose direct economic interest would be affected by the award of a
contract or the failure to award a contract.  4 C.F.R. SA 21.0(a) (2004). 
HHSG explicitly states that it cannot and will not submit an offer in the
event that EAP and DFWP services are combined under a single
solicitation.  Specifically, it states that ``HHSG is not and has never
been even remotely in the drug testing or specimens collection monitoring
business in which the [DFWP personnel] engage . . . . HHSG cannot, for
ethical and professional reasons . . . provide such services.'' 
Protester's Comments, Oct. 25, 2004, at 6.  Elsewhere, the protester
states that `we have no capability of providing what amounts to
enforcement of mandated drug testing procedures, and administering the
almost clerical nature of the [DFWP personnel's] duties along with
providing professional, law enforcement oriented EAP counseling services.
. . . That is why we did not submit an offer.'  Id. at 7.  Given these
statements and our conclusion above that there is nothing objectionable in
combining these two services into a single contract, HHSG is not a
prospective offeror; accordingly, HHSG is not an interested party for
purposes of raising its additional arguments.

   The protest is denied.

   Anthony H. Gamboa

   General Counsel

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   [1] The protester does not assert that the alleged bundling here is
inconsistent with the requirements of the Competition in Contracting Act,
41 U.S.C. SA 253a(a)(2)(B) (2000).  Compare Phoenix Scientific Corp.,
B-286817, Feb. 22, 2001, 2001 CPD P 24 atA 5.  Accordingly, our decision
here is limited to considering whether the agency's consolidation of the
EAP and DFWP requirements is impermissible under the Small Business Act.
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