TITLE: B-296536, Computers Universal, Inc., August 18, 2005
BNUMBER: B-296536
DATE: August 18, 2005
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B-296536, Computers Universal, Inc., August 18, 2005

   Decision

   Matter of: Computers Universal, Inc.

   File: B-296536

   Date: August 18, 2005

   Peter L. Cannon for the protester.

   Michael R. Rizzo, Esq., McKenna, Long and Aldridge, LLP, for abcISP, Inc.,
   an intervenor.

   Dennis Foley, Esq., and Philip Kauffman, Esq., Department of Veterans
   Affairs, for the agency.

   Katherine I. Riback, Esq., and James A. Spangenberg, Esq., Office of the
   General Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Protest that agency's extension of a sole-source purchase order issued
   under the awardee's General Services Administration Federal Supply
   Schedule contracts is improper, is denied, where the agency established a
   reasonable basis for the limited extension until the protester's currently
   pending protest with our Office of the competitive procurement is resolved
   and award is made.

   DECISION

   Computers Universal, Inc. (CUI) protests the Department of Veterans
   Affairs' (VA) extension of a sole-source purchase order issued to abcISP,
   Inc. under that firm's General Services Administration (GSA) Federal
   Supply Schedule (FSS) contracts, for information technology services for
   the Naval Medical Center in San Diego, California.

   We deny the protest.

   On October 6, 2004, CUI was awarded a contract for these services under a
   competitive procurement. Because of a protest by abcISP, on October 7, a
   stop work order was issued under that awarded contract. While that protest
   was being resolved, VA commenced issuing a series of sole-source
   "emergency" purchase orders and extensions thereto under abcISP's GSA
   contracts to satisfy its interim requirements for these services until
   this, and several following protests, were resolved. In part because of
   the issues raised by abcISP's protest, CUI's contract was terminated for
   convenience on February 23, 2005 because the Navy was not satisfied that
   CUI would provide qualified programmers. A new solicitation for these
   services was issued on February 28, which was protested by CUI (B-296003)
   and later canceled by the agency due to administrative errors.

   On May 2, the agency issued solicitation No. RFQ 600-134-05 for these
   services. On May 25, CUI protested the terms of this solicitation before
   the proposal due date (B-296501), essentially contending that they
   exceeded the agency's needs and provided abcISP with an unfair competitive
   advantage.[1] Specifically, CUI argues in its protest that abcISP worked
   with the agency to prepare the solicitation, in particular the evaluation
   criteria, so that the requirements could only be met by abcISP's
   employees. By this time, purchase order modifications had extended
   abcISP's performance for these services under its FSS contract to April
   25, and then to May 31. Due to CUI's protest, a contract for these
   services cannot be awarded under the competitive solicitation, and a
   modification to the purchase order further extending abcISP's performance
   for a period of 30 days was issued under abcISP's FSS contract; subsequent
   30-day extensions are contemplated while the protest is being resolved and
   award made under the protested competitive solicitation.

   On June 21, the agency prepared a justification for other than full and
   open competition supporting the sole-source award to abcISP. In the
   justification, the agency stated that the emergency task orders have been
   issued to continue critical information technology support for the Navy
   Medical Center in San Diego due to the continuing solicitation protests,
   and that to change service providers for each emergency task order would
   lead to loss of productivity, increased training costs, and a probable
   failure of a computer program which assists hundreds of physicians with
   their clinical tasks on a daily basis. The justification indicated that
   abcISP had been performing these services for the past 5 years as either a
   subcontractor or contractor and "no alternate sources could be identified
   that can provide this specific critical service on an emergency interim
   basis." Agency Report, Tab 13, Justification for Other than Full and Open
   Competition.

   On June 6, CUI protested the latest extension of abcISP's purchase order
   from June 1 through June 30.[2] In its protest CUI does not dispute that
   these services are critical or argue that these interim requirements do
   not need to be provided while CUI's latest protest is resolved and award
   is made under the protested competitive solicitation. Instead, CUI's
   protest references the prior sole-source extensions of abcISP's FSS
   purchase order, which it did not protest; the events surrounding its award
   of a contract in October 2004, which was eventually terminated for
   convenience on February 23, 2005, because the agency found that CUI had
   not demonstrated it could provide qualified personnel; and its current
   protest
   (B-296501) of the competitive solicitation, in which it argues that abcISP
   has been afforded an unfair competitive advantage, to show that the agency
   is allegedly biased in favor of abcISP, and contends, without further
   elaboration, that abcISP is not the only source capable of providing these
   interim services.

   While the requirements of the Competition in Contracting Act (CICA), 10
   U.S.C. sect. 2304(c)(1) (2000), which limits obtaining goods or services
   noncompetitively unless supported by a written justification, does not
   apply to orders placed against FSS contracts, Commercial Drapery
   Contractors, Inc., B-271222 et al., June 27, 1996, 96-1 CPD para. 290 at 3
   n.1, Federal Acquisition Regulation (FAR) sect. 8.405-6 provides that
   sole-source orders from FSS contracts be supported by sole-source
   justifications that contain much of the same information required to be
   contained in justifications for sole-source contracts subject to CICA.

   Based on the record here, in particular the very limited duration of the
   contract extension, we think the agency has established a reasonable basis
   for this latest noncompetitive extension of abcISP's purchase order under
   its FSS contract until CUI's currently pending protest of the competitive
   procurement is resolved and award made under the protested solicitation.
   CUI has not shown that it is practicable for the agency to obtain a
   different contractor for these bridge contract services for this limited
   period of time. Unlike the situation in VSE Corp.; Johnson Controls World
   Services, Inc., B-290452.3 et al., May 23, 2005, 2005 CPD para. 103 (cited
   by the protester), where the agency noncompetitively extended a contract
   that had been noncompetitively awarded 4 years earlier for another 18
   months with no justification and approval for this action and the
   extension was result of a lack of advanced procurement planning, the
   protested extension here is of a purchase order under the FSS to which the
   CICA requirements (applied in the VSE case) do not apply, and, in any
   case, the extension was not the result of a lack of advanced procurement
   planning, but was caused by a series of protests, and the agency has
   supported this latest extension with an approved justification.

   The protest is denied.

   Anthony H. Gamboa
   General Counsel

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   [1] This protest is being resolved in a separate decision.

   [2] CUI did not protest the initial noncompetitive purchase order for
   these services or the prior noncompetitive extensions of this purchase
   order. Indeed, any such protests would have been untimely because CUI had
   previously been made aware that abcISP had been performing these services
   in the interim because of the prior protests. CUI is timely to protest the
   most recent modification to abcISP's purchase order because CUI filed its
   protest within 10 days of the latest modification by the agency of
   abcISP's contract extending performance from June 1 through June 30, 2005.