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

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

   [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.