TITLE: B-298682, Global Solutions Network, Inc., November 27, 2006
BNUMBER: B-298682
DATE: November 27, 2006
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B-298682, Global Solutions Network, Inc., November 27, 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: Global Solutions Network, Inc.
File: B-298682
Date: November 27, 2006
Gerald H. Werfel, Esq., Pompan, Murray & Werfel, PLC, for the protester.
Peter F. Pontzer, Esq., and Lt. Col. Brian J. Godard, Department of the
Army, for the agency.
Paul N. Wengert, Esq., and Glenn Wolcott, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
Protest that agency is improperly conducting procurement under commercial
item procedures is denied where protester has not shown that use of those
procedures will cause it competitive prejudice.
DECISION
Global Solutions Network, Inc. (GSN), a small business, protests the
conduct of a procurement by the Department of the Army under request for
proposals (RFP) No. W91QV1-06-R-0033 for task order management and
financial support for the "HRsolutions" program office.[1] The protest
contends that a named Army official in the [deleted] office is biased
against the protester, that the procurement is being conducted under
commercial item procedures, and that the government estimate and workload
data in the solicitation are incorrect and misleading.
We deny the protest.
The Army issued the RFP on July 29, 2006, as a set-aside for historically
underutilized business zone (HUBZone) small businesses, seeking firm
fixed-price proposals to provide services for a 1-year base period and
four 1-year option periods. The RFP also provides "reimbursement at cost"
of both other direct costs (described as including "supplies not otherwise
provided"), and travel (described as covering "long distance travel for
approved business meetings, conference support, and marketing calls"), up
to specified annual ceiling amounts. RFP at 5-6.
The RFP was issued as a commercial item procurement under the procedures
in Part 12 of the Federal Acquisition Regulation (FAR). The RFP specified
that proposals will be evaluated on the basis of technical approach,
personnel resumes, past performance information, and a price proposal. RFP
at 26. The technical approach, personnel, and past performance factors are
to be equal to each other in importance, and when combined, are to be
significantly more important than price in selecting an awardee. RFP
at 27.
First, GSN objects that a named Army official who may be involved in the
procurement process is biased against GSN. According to GSN, if the
official participates in the procurement, she will irreparably taint the
selection process. Our Bid Protest Regulations, 4 C.F.R. sections
21.1(c)(4) and (f) (2006), require that a protest include a detailed
statement of the legal and factual grounds for protest, and that the
grounds stated be legally sufficient. Here, the protester's claims that
the named official might be involved in the procurement, and thus might
taint the procurement, merely anticipate improper agency action, and thus,
are speculative and premature. We will not question agency action on the
basis of such speculation.[2] See Ervin & Assocs., Inc., B-279161 et al.,
Apr. 20, 1998, 98-1 CPD para. 115 at 5; VSE Corp.--Recon. & Entitlement to
Costs, B-258204.3, B-258204.4, Dec. 28, 1994, 94-2 CPD para. 260 at 2.
Next, GSN argues that the use of commercial item procedures in the
procurement is improper because the tasks to be performed under the
contract do not require the type of services that are or could be "sold
competitively in substantial quantities in the commercial marketplace
based on established catalog or market prices," and therefore, the
services do not qualify as a commercial item under the "commercial item"
definition in FAR sect. 2.101.[3] Protest at 8-9.
While asserting that it properly determined the services met the
definition of a commercial item,[4] the Army also argues that GSN has
failed to show how it is competitively prejudiced by the Army's allegedly
improper use of commercial item procedures for the procurement.
GSN counters by arguing that, if it is not selected for award, the Army
allegedly will not be required to provide GSN with a debriefing, to which
GSN maintains it would otherwise be entitled, pursuant to 10 U.S.C.
sect. 2305(b)(5)(A), if the procurement were conducted under FAR Part 15
competitive negotiation procedures. GSN further maintains that, absent the
statutory requirement for a debriefing, its ability to trigger a statutory
stay of award or performance will apply only if it can file a protest
within 10 days after award. GSN concludes that either of these results
provides sufficient competitive prejudice for our Office to sustain this
ground of protest.
Our Office will not sustain a protest unless the protester demonstrates a
reasonable possibility that it was prejudiced by the agency's actions,
that is, unless the protester demonstrates that, but for the agency's
actions, it would have had a substantial chance of receiving the award.
McDonald-Bradley, B-270126, Feb. 8, 1996, 96-1 CPD para. 54 at 3; see
Statistica, Inc. v. Christopher, 102 F.3d 1577, 1581 (Fed. Cir. 1996). In
the context of a protest challenging the terms of a solicitation,
competitive prejudice occurs where the challenged terms place the
protester at a competitive disadvantage or otherwise affect the
protester's ability to compete. Crane & Co., B-297398, Jan. 18, 2005, 2006
CPD para. 22 at 9; Carr's Wild Horse Ctr., B-285833, Oct. 3, 2000, 2000
CPD para. 210 at 5. However, with respect to procurement of services that
allegedly did not meet the definition of a commercial item, our Office
denied a protest where the protester did not claim that any of the
provisions or procedures unique to commercial item procurements put it at
a competitive disadvantage, and did not show that the use of commercial
item procedures otherwise prejudiced the protester's competitive position.
Johnson Controls World Servs., Inc., B-285144, July 6, 2000, 2000 CPD
para. 108 at 3. Here, according to GSN, the only competitive prejudice it
faces will occur after conclusion of the competition. On this record, GSN
has not shown how the challenged approach will affect GSN's ability to
compete, and thus, has not shown that GSN will be competitively prejudiced
by the allegedly improper use of commercial item procedures.
Finally, GSN argues that certain workload data in the RFP are inaccurate
because they reflect the same level of effort for each year of the
contract, rather than reflecting an increasing workload, which the
solicitation elsewhere contemplates.
The agency responds that, although the estimated workload data to which
GSN refers shows a static level of effort throughout the contract
performance period, offerors were clearly advised in amendment 1 to the
RFP that proposals for increasing levels of effort were both permitted and
contemplated. Specifically, the following exchange was incorporated into
the RFP:
Question: [P]age 64, Technical Exhibit 3, establishes a uniform level of
effort of 15,360 hrs, which is then unchanged for all option years. This
is inconsistent with statement at PWS [Performance Work Statement] 1.2
(RFP, page 47) that "both the level and the mix of HRsolutions support
staff are expected to change from time to time to reflect changing goals
and the customer base" and the statement (PWS 5.1) that "the program is
entering a period of rapid growth" and the 10% minimum growth required
as a performance standard under Technical Exhibit 2. Offerors should
have opportunity to propose a different level of effort for option
years. Does the Government have a different estimated LOE for the option
years?
Answer: Technical Exhibit 3 provides only an estimated level of effort
to perform the work. Offerors are expected to propose an effective
organizational structure to perform the work requirements and a work
force appropriate to the proposed technical approach. There is no
requirement to propose the same level of effort for all years of the
contract. The Government does not have a different estimated LOE for the
option years.
RFP amend. 1; Contracting Officer's Statement at 4.
In this regard, the agency maintains that offerors were reasonably
informed that the workload data was provided "for informational purposes
only," and reflected historical information that was currently in the
government's possession. The agency further maintains that the
solicitation's incorporation of a performance-based work statement made
each contractor responsible for determining the degree of effort required,
based on its own approach. Contracting Officer's Statement at 3-4.
In response, GSN does not meaningfully challenge the Army's position, but
argues that in spite of the Army's express statements that the static
workload estimates are not controlling with regard to proposed staffing
levels, "GSN as well as its competitors will . . . no doubt place some
reliance upon that information." Protester's Comments at 7. Since the Army
has clearly warned offerors to develop their prices based on their own
approach to the performance work statement, GSN's speculation that
offerors will behave otherwise does not demonstrate a defect in the
solicitation.
The protest is denied.
Gary L. Kepplinger
General Counsel
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[1] According to the Army's HRsolutions website, "HRsolutions was created
. . . to streamline the acquisition of human resource (HR) services and
support for the Army HR community, including family members. HRsolutions
offers a dedicated staff of contract specialists to facilitate the use of
contracting services to meet agency needs quickly using
competitively-awarded contracts under its management." About Army
HRsolutions, https://www.hrsolutions.army.mil/abou.asp (last visited
November 21, 2006).
[2] In any event, it is our understanding, based on representations made
by the Army, that the person of whom GSN complains will not be involved in
this procurement.
[3] GSN argues that the required services involve preparing government
cost estimates, guiding the government's use of its Military
Interdepartmental Purchase Request (MIPR) procedures, tracking MIPRs, and
supporting government source selection panels, all using knowledge of Army
or government-wide regulations and procedures. GSN argues that the
services thus have no commercial analog with established catalog or market
pricing, making use of a commercial item solicitation improper. Id.
[4] The contracting officer describes the work to be performed as
following up on marketing leads and inquiries to the interactive web site,
assisting users with development of performance work statements and
independent government cost estimates, facilitating the preparation of
government funding documents, other administrative details of processing
contracting work, conducting task order competitions, recommending awards
to the contracting officer's representative, and performing routing
business planning, financial management, and related business support for
the program office. Contracting Officer's Statement at 2. The contracting
officer further maintains that responses to a sources sought notice
identified multiple firms that provide similar financial management
services in the commercial marketplace. Id. at 3.