TITLE: B-297421, STR, L.L.C., December 22, 2005
BNUMBER: B-297421
DATE: December 22, 2005
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B-297421, STR, L.L.C., December 22, 2005

   DOCUMENT FOR PUBLIC RELEASE
   The decision issued on the date below was subject to a GAO Protective
   Order. This redacted version has been approved for public release.

   Decision

   Matter of: STR, L.L.C.

   File: B-297421

   Date: December 22, 2005

   Thomas A. Coulter, Esq., LeClair Ryan P.C., for the protester.

   Warren D. Leishman, Esq., and Peter E. Young, Esq., Agency for
   International Development, for the agency.

   Jennifer D. Westfall-McGrail, Esq., and Christine S. Melody, Esq., Office
   of the General Counsel, GAO, participated in the preparation of the
   decision.

   DIGEST

   Government Accountability Office will not consider protest of an award of
   a subcontract as "by" the government where the prime contractor drafted
   the portion of the solicitation pertaining to evaluation of vendor
   responses; participated substantially in the evaluation of responses and
   selection of a product for award; and will be responsible for
   administration of the subcontract.

   DECISION

   STR, L.L.C. protests the proposed award of a subcontract by SRA
   International, Inc., a government prime contractor, to Infoterra, Inc. The
   subcontract is for a grants management software program to be used by the
   Agency for International Development (AID) and the Department of State.

   We dismiss the protest.

   SRA holds a contract with the General Services Administration (GSA)
   Federal Systems Integration and Management Center pursuant to which it is
   performing a task order for information management services for AID. In
   its capacity as a government prime contractor, SRA issued a request for
   information (RFI) on August 12, 2005, seeking detailed information on
   commercially available acquisition and assistance systems capable of
   satisfying the requirements of AID and the Department of State for a Joint
   Acquisition and Assistance Management System (JAAMS). The RFI explained
   that AID and State required proven commercial off-the-shelf products based
   on mature, fully developed systems already in production in other federal
   agencies, and that vendors could offer already integrated products or
   individual products capable of being integrated by SRA to meet the
   agencies' requirements. The RFI further explained that the selected
   product vendor(s) might serve as subcontractors to SRA under its prime
   contract.

   SRA's issuance of the RFI at issue here was preceded by AID's issuance,
   and subsequent withdrawal, of an RFI seeking related information regarding
   commercially available acquisition and assistance systems. The AID RFI
   differed from the SRA RFI in several respects, one of which was that it
   notified vendors that the agencies were soliciting vendor responses for
   market research purposes only and that the RFI would not result in a
   contract award. In keeping with the foregoing, the AID RFI did not contain
   evaluation criteria, whereas the SRA solicitation did.

   STR submitted responses to both RFIs. On October 3, SRA notified STR that
   its product had not been selected; in a subsequent telephone conversation,
   SRA informed STR that the selected vendor was Infoterra.

   The protester takes issue with the selection of Infoterra, arguing that
   the firm does not have a full system in production in any federal agency,
   as required by the RFI.

   We will not consider the merits of STR's arguments because, as explained
   below, the procurement at issue was not conducted by or for a federal
   agency and thus is not subject to our jurisdiction.

   Under the Competition in Contracting Act of 1984 (CICA), our Office has
   jurisdiction to resolve bid protests concerning solicitations and contract
   awards that are issued "by a Federal agency." 31 U.S.C. sect. 3551(1)(A)
   (2000). Pursuant to our authority under CICA, we initially took
   jurisdiction over subcontract awards by prime contractors to the federal
   government where, as result of the government's involvement in the award
   process, or the contractual relationship between the prime contractor and
   the government, the subcontract in effect was awarded on behalf of--i.e.,
   "by or for"--the government, and federal procurement laws and regulations
   otherwise would apply. See, e.g., St. Mary's Hosp. and Med. Ctr. of San
   Francisco, Calif., B-243061, June 24, 1991, 91-1 CPD para. 597. However,
   in U.S. West Communications Servs., Inc. v. United States, 940 F. 2d 622
   (Fed. Cir. 1991), the court of appeals construed statutory language
   basically identical to that applicable to our Office as not conferring on
   the GSA Board of Contract Appeals jurisdiction over subcontract
   procurements conducted "for" a federal agency in the absence of a showing
   that the prime contractor was a procurement agent, as defined by the
   Supreme Court in United States v. New Mexico, 455 U.S. 720 (1982) and the
   court of appeals in United States v. Johnson Controls, Inc., 713 F. 2d
   1541 (Fed. Cir. 1983). We subsequently concluded that our jurisdiction
   generally does not extend to awards made by others but "for" the
   government, and that, accordingly, in the absence of a request by the
   federal agency concerned, we would not take jurisdiction over such
   procurements.[1] Compugen Ltd., B-261769, Sept. 5, 1995, 95-2 CPD para.
   103 at 3-4.

   We continue to take jurisdiction where the subcontract is "by" the
   government. RGB Display Corp., B-284699, May 17, 2000, 2000 CPD para. 80
   at 3. We have considered a subcontract procurement to be "by" the
   government where the agency handled substantially all the substantive
   aspects of the procurement and, in effect, "took over" the procurement,
   leaving to the prime contractor only the procedural aspects of the
   procurement, i.e., issuing the subcontract solicitation and receiving
   proposals. See St. Mary's Hosp. and Med. Ctr. of San Francisco, Calif.,
   supra, at 5-6; University of Mich.; Industrial Training Sys. Corp.,
   B-225756, B-225756.2, June 30, 1987, 87-1 CPD para.643 at 5-6. In such
   cases, the prime contractor's role in the procurement was essentially
   ministerial, such that it was merely acting as a conduit for the
   government. On the other hand, we have found subcontractor procurements
   were not "by" the government where the prime contractor handled other
   meaningful aspects of the procurement, such as preparing the subcontract
   solicitation and evaluation criteria, evaluating the offers, negotiating
   with the offerors, and selecting an awardee. See Kerr-McGee Chem.
   Corp--Recon., B-252979.2, Aug. 25, 1993, 93-2 CPD para. 120 at 4-6; ToxCo,
   Inc., B-235562, Aug. 23, 1989, 89-2 CPD para. 170 at 4-5.

   STR contends that SRA is acting merely as a conduit for the government
   here and that, accordingly, we should take jurisdiction over its
   protest.[2]

   We do not agree with the protester that the government's involvement in
   and control over the acquisition process here was so pervasive as to
   render the procurement essentially by the government. First, contrary to
   STR's contention, the RFI issued by SRA is not "nearly identical" to the
   solicitation issued by AID; as noted above, the two differ significantly
   in that the AID RFI did not include evaluation criteria, whereas the SRA
   solicitation did. Both the AID program manager and the SRA project manager
   report that SRA had primary responsibility for drafting the evaluation
   criteria.[3]

   Second, it is clear from the record that SRA personnel played a major role
   in the evaluation of proposals and selection of an awardee. In this
   connection, the evaluation team consisted of both government
   representatives and SRA employees, with the two subgroups providing
   differing types of substantive input into the evaluation/selection
   process. As explained by the AID program manager in the following excerpt:

   The government team members represented various user stakeholders of the
   COTS system to include grants officers, program officers, financial
   analyst, policy analyst, and IT analyst. These representatives focused
   primarily on the requirements and the ability of the software to meet them
   from a users' perspective, e.g., ease of use, intuitiveness, logical flow.
   Concurrently, SRA conducted in-depth technical and cost assessments and
   performed customer reference interviews. SRA analysis, from the
   integration perspective, included requirements, technical feasibility,
   implementation factors to configure the system, and the complexity of the
   integration points of the software from a risk and schedule impacts.

   Declaration of AID Program Manager, Dec. 6, 2005, at 4-5.[4] It is also
   clear from the record that the SRA team members were full participants in
   the deliberations that led to recommendation of the Infoterra product.
   While we recognize that it is apparent from the foregoing that government
   personnel, as well as SRA personnel, played major roles in the evaluation,
   government involvement in the evaluation/selection process is not enough
   to make the procurement "by" the government, Perkins-Elmer Corp.; Metco
   Div., B-237076, Dec. 24, 1989, 89-2 CPD para. 604 at 4; we consider a
   procurement to be "by" the government only where the agency controls the
   procurement process to such an extent that the contractor has no real
   input into substantive decisions, which was clearly not the case here.

   Third, it is apparent from the record that administration of the contract
   is to be handled by SRA and that privity of contract will be between the
   SRA and Infoterra and not between the government and Infoterra.
   Declaration of AID Program Manager, Dec. 6, 2005, at 5; Declaration of SRA
   Project Manager, Dec. 6, 2005, at 3.

   Because we find that the procurement here was not "by" the government, we
   conclude that we do not have jurisdiction over STR's protest. Accordingly,
   the protest is dismissed.

   Anthony H. Gamboa

   General Counsel

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

   [1] AID has not requested that we review protests of the award of
   subcontracts by its prime contractors.

   [2] In its initial protest, STR also argued that SRA meets the definition
   of procurement agent set forth in United States v. New Mexico and United
   States v. Johnson Controls, Inc., and that the procurement is therefore
   "for" the government. (These decisions hold that a prime contractor should
   be considered a procurement agent for the government where: (1) it is
   acting as a purchasing agent for the government; (2) the agency
   relationship between the government and the prime contractor is
   established by clear contractual consent; and (3) the contract states that
   the government will be directly liable to the vendors for the purchase
   price. See 455 U.S. at 742; 713 F.2d at 1551-52.) Here, the prime contract
   did not appoint SRA as the government's agent. In addition, there is no
   evidence that the government will be directly liable to Infoterra for the
   purchase price; indeed, according to both SRA's project manager and the
   manager of the JAAMS program for AID, privity of contract will be between
   SRA and Infoterra and not between the government and Infoterra.

   [3] The AID program manager stated as follows:

   The SRA team managed the second RFI process to include the drafting of the
   document . . . The contents of the RFI document, to include the
   instructions and evaluation criteria was drafted using SRA's standard
   commercial practices for recommending COTS solutions. The government
   reviewed and concurred to the final draft of the RFI prior to issuance.

   Declaration of AID Program Manager, Dec. 6, 2005, at 4. Similarly, the SRA
   project manager stated that "SRA developed the initial evaluation criteria
   and finalized the criteria taking into consideration input from the
   Government." Declaration of SRA Project Manager, Dec. 6, 2005, at 2.

   [4] Similarly, the SRA project manager stated as follows:

   SRA had full responsibility, as part of its performance based contract,
   for assessing the technical merits of the competing programs and the ease
   of integrating each program into the overall JAMS system and USAID
   architecture.

   Declaration of SRA Project Manager, Dec. 6, 2005, at 2-3.