TITLE: B-297616; B-297616.2, M.D. Thompson Consulting, LLC; PMTech, Inc., February 14, 2006
BNUMBER: B-297616; B-297616.2
DATE: February 14, 2006
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B-297616; B-297616.2, M.D. Thompson Consulting, LLC; PMTech, Inc., February 14, 2006

   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: M.D. Thompson Consulting, LLC; PMTech, Inc.

   File: B-297616; B-297616.2

   Date: February 14, 2006

   Charlotte Rothenberg Rosen, Esq., Bradley D. Wine, Esq., and Joseph R.
   Berger, Esq., Dickstein Shapiro Morin & Oshinsky LLP, and G. David
   Fensterheim, Esq., Fensterheim & Bean, P.C., for M.D. Thompson Consulting,
   LLC; Kenneth B. Weckstein, Esq., and Shlomo D. Katz, Esq., Epstein Becker
   & Green, PC, for PMTech, Inc., the protesters.

   Helaine G. Elderkin, Esq., and Carl J. Peckinpaugh, Esq., for CSC Systems
   & Solutions LLC, an intervenor.

   Laura L. Hoffman, Esq., and Joseph A. Lenhard, Esq., Department of Energy,
   and John W. Klein, Esq., and Laura Mann Eyester, Esq., Small Business
   Administration, for the agencies.

   Paul N. Wengert, Esq., and Michael R. Golden, Esq., Office of the General
   Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Protests are sustained where agency notice of intent to modify contract to
   extend performance on a sole-source basis did not comply with requirement
   for an accurate description of the services to be furnished and thus did
   not provide enough information to allow all prospective sources a
   meaningful opportunity to demonstrate the ability to meet the agency's
   requirements.

   DECISION

   M.D. Thompson Consulting, LLC and PMTech, Inc., both small business
   concerns, protest a 9-month extension of a sole-source "bridge" contract
   by the Department of Energy (DOE) for guidance development services.
   Thompson and PMTech argue that the agency failed to properly synopsize the
   requirement in order to allow them to prepare meaningful responses, thus
   rendering the sole-source contracting action improper.

   We sustain the protests.

   On November 10, 2005, DOE published a "Presolicitation Notice" on the
   Federal Business Opportunities website (www.fedbizopps.gov) expressing its
   intent to extend contract No. DE-AC01-04SO20188 with CSC Systems &
   Solutions LLC for certain unspecified services for up to 9 months (divided
   into three consecutive 3-month periods) on the basis that CSC was the only
   responsible source.[1] Under the title of "Notice of Intent to Extend the
   Period of Performance," the sole descriptive information in the synopsis
   were these statements: "CSC has the requisite number of key and non-key
   personnel possessing the required security clearances. No other firm has
   the requisite knowledge, experience, and capability to assume the
   critical, highly specialized technical and administrative support without
   interruption on December 22, 2005." AR, Tab 1, Presolicitation Notice, at
   1-2.[2]

   Thompson and PMTech filed their protests on November 18 and 21,
   respectively.[3] On November 21, DOE prepared a sole-source justification
   which, over the following 18 days, was approved by the contracting
   officer, legal counsel, and the agency competition advocate, among others.
   By December 9, the justification contained all of the required signature
   approvals. AR, Tab 3, Justification for Other than Full and Open
   Competition, at 7.

   On December 12, Thompson and PMTech each submitted a capability statement.
   Thompson AR, Tab 30, Thompson Capability Statement, at 1; PMTech AR, Tab
   30, PMTech Updated Statement of Qualifications, at 2. After review of the
   capability statements, DOE concluded that neither Thompson nor PMTech had
   shown that it could meet the agency requirements. For example, the agency
   states that

   Thompson does not specifically note that the personnel listed are actually
   available or merely prospective employees. For example, [deleted], is a
   full time employee of another company under contract to DOE. Thompson
   experience is limited to the weapons area and has no demonstrated
   experience or ability to provide technical reviews of a wide variety of
   technical and security areas. Specifically, Thompson lacks required
   experienced personnel in isotope separation technology, an area of utmost
   importance to the DOE. Isotope separation methods are of utmost importance
   to the DOE and lack of support in this area would have a serious impact to
   DOE as it handles a number of ongoing declassification proposals relating
   to uranium isotope separation.

   Thompson AR, Tab 31, Evaluation of Thompson Capability Statement, at 2.

   In the evaluation, DOE further criticized Thompson for failing to "show
   experience or ability" in its capability statement in the areas of use of
   specific language-based computer applications, materials production,
   gaseous diffusion, gas centrifuge, atomic vapor laser isotope separation,
   enrichment technologies, arms control, nonproliferation, material control
   and accountability inventories, radiological emergency response,
   radioactive disposal devices, improvised nuclear devices, international
   programs such as the "URENCO" centrifuge,[4] United Kingdom material
   transfers, North Korean nuclear activities, and space nuclear reactors.
   Thompson AR, Tab 31, Evaluation of Thompson Capability Statement, at 3.

   DOE criticized PMTech's capability statement for similar reasons. For
   example, the agency states that

   PMTech provides evidence that they have personnel with technical
   backgrounds in the weapons area, but they have no demonstrated experience
   or ability to provide technical reviews of a wide variety of technical and
   security areas. Specifically, PMTech lacks required experienced personnel
   in isotope separation technology, an area of utmost importance to the DOE.

   PMTech AR, Tab 31, Evaluation of PMTech Capability Statement, at 1.

   The protesters both argue that the synopsis did not indicate that any of
   these matters needed to be addressed in their respective responses.
   Thompson argues that "were Thompson given the chance [it] could
   demonstrate expertise in all of these topics," and, as examples, Thompson
   provides additional background about the company and its capabilities.
   Thompson Supplemental Comments at 11. Similarly, PMTech argues that "[i]f
   DOE had not concealed its needs, PMTech could have demonstrated its
   ability to meet those needs," and used illustrations to show how it would
   have addressed the subjects identified by DOE. PMTech Supplemental
   Comments at 4, 14 nn.3-4.[5]

   While the overriding mandate of the Competition in Contracting Act of 1984
   (CICA) is for full and open competition in government procurements, 41
   U.S.C. sect. 253(a)(1)(A) (2000), CICA does permit noncompetitive
   acquisitions in specified circumstances, such as when the services needed
   are available from only one responsible source. 41 U.S.C. sect. 253(c)(1).

   The Federal Acquisition Regulation (FAR) requires publication of a
   synopsis of a sole-source procurement in accordance with the Small
   Business Act, 15 U.S.C. sect. 637(e), and the Office of Federal
   Procurement Policy Act, 41 U.S.C. sect. 416, unless the procurement fits
   one of the exceptions to the synopsis requirement set forth in the
   regulations, none of which is applicable here (and none of which has been
   asserted as applicable by the agency). See FAR sections 5.101(a)(1),
   6.302-1(d)(2).

   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. 41 U.S.C. sect. 416(b); 15 U.S.C. sect.
   637(f); see also Pacific Sky Supply, Inc., B-225420, Feb. 24, 1987, 87-1
   CPD para. 206 at 4-5 (protest sustained where a sole-source synopsis
   identified only 2 of 15 items included in the solicitation, thereby
   failing to provide an "accurate description" of the procurement, as
   required by the Small Business Act). In addition, the FAR requires that
   the description of the supplies or services be "clear and concise." FAR
   sect. 5.207(c), (d). Moreover, as directly relevant here, a synopsis must
   provide prospective alternative sources a meaningful opportunity to
   demonstrate their ability to provide what the agency seeks to purchase.
   See Sabreliner Corp., B-288030, B-288030.2, Sept. 13, 2001, 2001 CPD para.
   170 at 6-7 (protest challenging sole-source award sustained where both the
   justification and the published synopsis inaccurately described the
   requirements to overhaul helicopter engines). In short, the fundamental
   purpose of these notices, including in the circumstance where an agency
   contemplates a sole-source award, is to enhance the possibility of
   competition. Information Ventures, Inc., B-293541, Apr. 9, 2004, 2004 CPD
   para. 81 at 4.

   Here, the notice, as issued, did not meaningfully describe DOE's
   requirements. As quoted above, the notice merely identifies the contract
   number that is being extended and indicates that the work involves
   "critical, highly specialized technical and administrative support," yet
   provides essentially no information about the experience and abilities
   that DOE believes potential sources need to have. Even though the agency's
   evaluation of the two capability statements identifies numerous specific
   topics as being essential to successful performance, or even "of utmost
   importance," none of these capabilities is mentioned in the synopsis. In
   our view, DOE's requirements were not adequately described in the notice,
   and the notice did not provide enough information to allow prospective
   sources a meaningful opportunity to demonstrate the ability to meet the
   agency's requirements.[6] In this regard, Thompson advises that it has
   extensive experience in managing classified information in the subject
   areas relevant to the procurement; that it has the ability to identify and
   retain additional staff with the required backgrounds and security
   clearances; and that it would have competed for the contract had the
   agency accurately described its needs. PMTech makes similar assertions.[7]

   By providing an inadequate description of its sole-source procurement in
   the synopsis, DOE restricted competition in violation of statute and
   regulation. Moreover, DOE compounded the shortcomings of this particular
   notice by providing no information on the availability of a statement of
   work[8] and by stating in the synopsis that the notice "is for
   informational purposes only and is not a request for proposals or other
   information." Cf. 41 U.S.C. sect. 416(b)(4); 15 U.S.C. sect. 637(f); FAR
   sect. 5.207(c)(15).[9] The protesters and the Small Business
   Administration (SBA) argue, and we agree, that the language of the
   synopsis discouraged, and may have been intended to discourage, responses.

   We sustain the protests.

   During the course of this protest, DOE notified our Office and the
   protesters that DOE had decided to proceed with award (i.e., modification
   of the CSC contract) on the basis that continued performance was justified
   by "urgent and compelling circumstances which significantly affect the
   interest of the United States." Letters from Contracting Officer to GAO
   (Dec. 20, 2005). On December 20, DOE and CSC executed a bilateral
   modification of the contract. AR, Tab 34, Modification A014, at 1.[10] In
   light of this determination, we recommend that DOE, as promptly as
   practicable, issue a revised synopsis that adequately communicates DOE's
   specific requirements and requests capability statements, and that DOE
   review those capability statements in conformance with the requirements
   disclosed in the synopsis.[11] Only after reviewing responses to the
   revised synopsis should DOE consider whether it has a legal basis for any
   further sole-source contract action. If DOE concludes that it does not
   have a basis for a sole-source contract, DOE should acquire these services
   on a competitive basis. We also recommend that the agency reimburse
   Thompson and PMTech the reasonable costs associated with filing and
   pursuing these protests, including reasonable attorneys' fees. 4 C.F.R.
   sect. 21.8(d)(1) (2005). The protesters' certified claims for such costs,
   detailing the time expended and the costs incurred, must be submitted
   directly to the agency within 60 days after receipt of this decision.
   4 C.F.R. sect. 21.8(f)(1).

   The protests are sustained.[12]

   Anthony H. Gamboa

   General Counsel

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

   [1] The record indicates that the CSC contract calls for guidance
   development services. This work primarily involves drafting classification
   guidance and developing classification/declassification policy in order to
   inhibit the spread of nuclear/radiological weapons, nuclear materials, and
   associated technologies through cooperative and coordinated policies with
   other agencies and nations. The contract also includes other matters, such
   as "General and Mail/File Room Support involving classified materials."
   Agency Report (AR), Tab 3, Justification for Other than Full and Open
   Competition, at 1-2.

   [2] These protests were developed separately, and DOE provided a separate
   agency report for each protest. Where the same document is found at the
   same location in both records, our decision will refer to the document by
   a generic reference: "AR." Whenever necessary to make a distinction, our
   decision will refer to an exhibit tab in the "Thompson AR" or the
   "PMTech AR."

   [3] On December 12, DOE posted a modification to the notice in order to
   extend the response time to December 13 at 9:00 a.m. Eastern Standard
   Time, and to provide instructions on how to use the e-center website
   software to submit a response.

   [4] It appears that "URENCO" is the name of a manufacturer of uranium
   enrichment technology. See  (visited Jan. 30,
   2006).

   [5] In preparing its capability statement, PMTech referred to a copy of
   the statement of work from contract No. DE-AC01-04SO20188 (CSC's
   contract), which PMTech states it obtained from an unnamed third party.
   Even though that statement of work provided some additional information
   about the services required, the record does not establish, and DOE does
   not argue, that PMTech could have understood from that statement of work
   the areas to be addressed, and the importance of certain areas.
   Nevertheless, since PMTech included a copy of the statement of work as an
   exhibit to its supplemental comments, we have reviewed it, and agree with
   PMTech that the statement of work from the CSC contract does not identify
   any of the areas that the DOE evaluation asserts needed to be addressed in
   the capability statements (including isotope separation technology, an
   area that DOE identifies as being "of utmost importance").

   [6] While these protests were pending, and after reviewing the protesters'
   responses to the synopsis, DOE prepared an addendum, approved on December
   20, confirming the original justification. AR, Tab 32, Addendum to
   Justification for Other than Full and Open Competition, at 1. Although DOE
   argues that it "finalized" its sole-source justification only after
   reviewing the protesters' capability statements, Supplemental Agency
   Report at 3, the sole-source justification was already fully approved and
   cleared by December 9, before DOE had evaluated (or even received) the
   capability statements. DOE's actions appear inconsistent with FAR
   sect. 6.302-1, which clearly contemplates that the "notices required by
   [FAR sect.] 5.201 shall have been published and any bids and proposals
   [here, capability statements] must have been considered" as a prerequisite
   to invoking FAR sect. 6.302-1.

   [7] DOE argues that it was already familiar with Thompson and PMTech as a
   result of earlier market research conducted in June through August 2005
   into the firms' respective capabilities in considering the potential for a
   small business set-aside for a larger contract that would include the work
   under the CSC contract. Supplemental Legal Memorandum at 2-4. Thus, DOE
   believes that this earlier market research supports its position that
   Thompson and PMTech are not capable of performing this contract. In our
   view, the earlier market research does not resolve the current issue
   relating to the firms' capabilities to perform this smaller contract.
   Determining capability of a source in the context of a potential small
   business set-aside (for a larger contract), which involves limitations on
   subcontracting and affiliations, is not necessarily conclusive in the
   context of an unrestricted procurement, where a small business may have
   greater flexibility with regard to subcontracting and affiliations. In
   these circumstances, we think that it was only by reviewing capability
   statements (or proposals) submitted in response to an accurate description
   of the agency's needs that DOE could evaluate the protesters as potential
   sources, and reasonably determine whether they could satisfy the agency's
   requirements.

   [8] The evaluations seem to compare the capability statements to an
   apparently newly-drafted statement of work (which appears significantly
   different from the statement of work from the CSC contract that PMTech had
   obtained, as referred to above) that DOE did not make available in
   connection with the synopsis. See Thompson AR, Tab 31, Evaluation of
   Thompson Capability Statement; PMTech AR, Tab 31, Evaluation of PMTech
   Capability Statement.

   [9] We note that, although it is no longer explicitly required to be
   included in a sole-source synopsis, see 68 Fed. Reg. 56668, 56679 (Oct. 1,
   2003), numbered note 22 provides for interested persons to identify their
   interest and capability to respond to the synopsized requirement, and
   provides that the "[i]nformation received will normally be considered
   solely for the purpose of determining whether to conduct a competitive
   procurement." See  (visited
   February 6, 2006).

   [10] The modification provides a "provisional" increase in the total
   cost-plus-fixed-fee of $500,000 for an additional 3 months, and unpriced
   options for two additional 3-month option periods. Id. at 2.

   [11] In this regard, we note that the evaluations of Thompson's and
   PMTech's capability statements make repeated references to the inability
   of the firms to provide sufficient qualified staff to perform the work and
   a lack of clarity about the role of subcontractors. Nothing in the
   synopsis suggested that detailed information about staffing and
   subcontractors was being sought in the responses. Indeed, DOE appears to
   have reviewed the capability statements as if they were proposals in
   response to a request for proposals, in which case, the solicitation would
   have been required to state the basis on which proposals would be
   evaluated. See FAR sect. 15.203(a). We need not address here the level of
   detail that can be required of a capability statement; if, however, DOE
   believes that it needs a proposal to accurately assess the capability of
   firms to provide these services, DOE should consider issuing an RFP.

   [12] Since we conclude that the sole-source contracting action extending
   CSC's contract did not conform to statute and regulation, we need not
   address the protesters' arguments that the agency's evaluation of the
   capability statements was tantamount to a nonresponsibility finding which
   had to be referred to the SBA under the Small Business Act, 15 U.S.C.
   sect. 637(b)(7). We also need not address Thompson's argument that, when
   issued, a solicitation for guidance development services should be set
   aside for small businesses.