TITLE: B-311005, Strong Environmental, Inc., March 10, 2008
BNUMBER: B-311005
DATE: March 10, 2008
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B-311005, Strong Environmental, Inc., March 10, 2008

   Decision

   Matter of: Strong Environmental, Inc.

   File: B-311005

   Date: March 10, 2008

   Richard Verch for the protester.

   Emily Vartanian, Esq., Library of Congress, for the agency.

   Eric M. Ransom, Esq., and Christine S. Melody, Esq., Office of the General
   Counsel, GAO, participated in the decision.

   DIGEST

   Protest of use by Library of Congress of cooperative agreement instead of
   contract for disposal and recycling of cassette tape players is denied
   where the applicable regulations do not require use of a contract for the
   requirement.

   DECISION

   Strong Environmental, Inc. protests the decision of the Library of
   Congress to provide for the disposal and recycling of "talking book"
   cassette tape players through a Memorandum of Understanding (MOU) between
   itself and Federal Prison Industries, Inc. (UNICOR), rather than through a
   previously conducted competitive solicitation for the same requirement.
   Strong contends that the Library has improperly used the UNICOR MOU for
   the requirement and should have awarded a contract to Strong under the
   solicitation.

   We deny the protest.

   On January 31, 2007, the Library issued solicitation No. NLS20070070 for
   services to dispose of "talking book" cassette tape players for the
   Library's National Library Service for the Blind and Physically
   Handicapped (NLS) program. The solicitation was intended as a continuation
   of the Library's previous practice of disposing of NLS equipment through
   contracts arranged by NLS, rather than through the Library's Integrated
   Support Services unit.[1] Strong and another firm, North Georgia Telecom
   (NGT), responded to the solicitation by the closing date.

   On April 23, the Library and UNICOR concluded an MOU under which UNICOR
   would dispose of, recycle, and/or refurbish or reuse electronic equipment
   not needed by the Library, at no cost to the Library. The MOU was
   negotiated under Library of Congress Regulation (LCR) 2120, "Cooperative
   Agreements Without Transfer of Funds," and was signed on the Library's
   behalf by the director of the Library's Integrated Support Services unit,
   not by a contracting officer in the Library's Office of Contracts and
   Grants Management.

   On August 3, the Library's Office of Contracts and Grants Management
   awarded a contract under solicitation No. NLS20070070 to NGT for $594,250,
   for 1 base year plus 4 option years. Strong received notification of the
   award on August 6 and subsequently requested a debriefing on August 14.
   Strong received the debriefing on August 23, and filed an agency-level
   protest on August 29, alleging that NGT was ineligible for the award
   because NGT did not possess certain required certifications from the
   Environmental Protection Agency until 6 days after the solicitation's
   closing date.

   In November, the Library determined that the NLS "talking book" cassette
   tape players fell within the scope of the UNICOR MOU and could be disposed
   of by UNICOR at no cost to the government. The Library immediately met
   with UNICOR to discuss combining the NLS "talking book" players with other
   Library machines being sent to UNICOR for disposal. After this meeting
   with UNICOR, the Library decided that it would terminate the contract with
   NGT for the convenience of the government effective January 31, 2008, and
   that UNICOR would begin accepting NLS "talking book" players on February
   1. On December 5, 2007, the Library terminated NGT's contract, effective
   January 31, 2008. On December 13, the Library notified Strong that it had
   elected to terminate the contract with NGT and use the UNICOR MOU to
   provide the required disposal and recycling services at no cost to the
   government. Strong then filed this protest with our Office on December
   21.[2]

   On January 15, 2008, the Library and UNICOR agreed to an amendment to the
   UNICOR MOU to provide for the disposal of the NLS "talking book" players.

   Strong contends that the Library's UNICOR MOU was improperly executed and
   cannot be used for the disposal of the NLS "talking book" players in lieu
   of a procurement contract. Strong argues that the Library failed to
   execute a required determination and findings (D&F) prior to entering into
   the UNICOR MOU, and that the Library should not be allowed to use the MOU
   to essentially make a "sole-source award" to UNICOR. Strong misunderstands
   the applicable procurement regulations.

   The Library, as a legislative branch agency, is not subject to the Federal
   Acquisition Regulation (FAR), see 41 U.S.C. sect. 253(a)(1)(A) (2000);
   Carol Solomon & Assocs., B-271713, July 19, 1996, 96-2 CPD para. 28 at 1
   n.1, but conducts its acquisitions in accordance with the LCR. The
   Library's general procurement regulation, LCR 2110, "Procurement --
   Supplies and Services," states that it is the policy of the Library to
   follow the FAR in procurements of goods and services under LCR 2110 and
   that all deviations from the FAR under LCR 2110 must be documented by a
   D&F prepared in accordance with the FAR. However, LCR 2110 also states
   that "procurements conducted under other LCRs are not subject to the FAR
   unless specifically made subject thereto by the express terms of the
   regulation." LCR 2120, "Cooperative Agreements without Transfer of Funds,"
   is one such "other LCR;" nothing in LCR 2120 makes the FAR applicable to
   actions taken under the provision. Therefore, the FAR is not applicable to
   Library agreements made pursuant to LCR 2120, and no D&F is necessary to
   allow such an agreement, provided that the agreement in fact falls within
   the definition of "cooperative agreement" in LCR 2120.

   Section 4 of LCR 2120 defines a "cooperative agreement" as a "legal
   instrument reflecting a relationship between the Library of Congress and a
   . . . commercial organization, international organization, Federal, State,
   local or foreign government, individual, or other party, to establish a
   joint digitization or education project or other activity . . . that is
   consistent with the Library's mission and intended for the parties' mutual
   benefit." In comparison, section 4 of LCR 2110 defines a "procurement
   contract" as a "legally binding instrument that obligates a seller to
   furnish goods and/or services to the Library for the Library's direct
   benefit or use, and obligates the Library to pay for those goods and/or
   services."

   Here, the agreement between the Library and UNICOR provides that the
   Library may provide certain electronic equipment to UNICOR in lieu of
   abandonment and destruction and that UNICOR agrees to use the electronic
   equipment in meeting its mission of providing opportunities for job
   training and skills development. By the January 15, 2007 amendment to the
   MOU, UNICOR agreed to provide for the disposal of the NLS "talking book"
   players at no cost to the Library.

   Based on review of the MOU between the Library and UNICOR, we conclude
   that the MOU is a "cooperative agreement" subject to the provisions of LCR
   2120, and not a "procurement contract" subject to the provisions of LCR
   2110. Specifically, the fact that the MOU acknowledges the mutual benefit
   to the parties and the fact that the MOU does not obligate the Library to
   pay for the services provided by UNICOR indicate that LCR 2120
   controls.[3]

   We generally will not review a protest of the award, or solicitation for
   the award, of cooperative agreements because they do not involve the award
   of a "contract." See Sprint Communications Co., L.P., B-256586,
   B-256586.2, May 9, 1994, 94-1 CPD para. 300 at 3. However, we will
   consider a protest alleging that the agency is improperly using a
   cooperative agreement in lieu of a procurement contract.[4] Energy
   Conversion Devices, Inc., B-260514, June 16, 1995, 95-2 CPD para. 121 at
   2. In this case, we find nothing in LCR 2110 and 2120 to prohibit the use
   of a cooperative agreement or to mandate the use of a procurement contract
   in any particular situation in which an agreement fitting the definition
   of a "cooperative agreement" is available to fulfill a requirement. We
   therefore see no basis to conclude that the Library was required to use a
   procurement contract, or that it was improper for the Library to use the
   UNICOR MOU for the requirement here.

   To the extent that Strong is an interested party to argue that the NGT
   contract should have been rescinded as improperly awarded rather than
   terminated for convenience, this issue concerns a matter of contract
   administration over which we do not exercise jurisdiction. See 31 U.S.C.
   sect. 3552 (2000); Bid Protest Regulations, 4 C.F.R. sect. 21.5(a) (2007).
   Further, Strong's contention that it should be awarded the work remaining
   under the NGT contract is academic given the Library's decision--which we
   have found no reason to question--to use the UNICOR MOU for that work.

   The protest is denied.

   Gary L. Kepplinger
   General Counsel

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

   [1] The Integrated Support Services unit is the office within the Library
   tasked with centralizing the Library's support service needs, such as
   shipping and inventory control, and has traditionally handled disposal of
   most of the Library's excess non-collections personal property.

   [2] The Library's termination of the NGT contract rendered Strong's
   agency-level protest of the award to NGT academic for purposes of any
   subsequent protest on this ground to our Office. We only consider protests
   against specific procurement actions and will not render to a protester
   what would be, in effect, an advisory decision. Dyna-Air Eng'g Corp.,
   B-278037, Nov. 7, 1997, 97-2 CPD para. 132.

   [3] Given our conclusion that the UNICOR MOU is a cooperative agreement
   under LCR 2120, the requirement for a D&F referenced under LCR 2110 where
   a deviation from the FAR is contemplated does not apply here.

   [4] Our analysis in these cases is guided by the provisions of the Federal
   Grant and Cooperative Agreement Act, 31 U.S.C. sections 6301-08 (2000).
   For example, the Act in pertinent part states that an executive agency
   shall use a procurement contract where "the principle purpose of the
   instrument is to acquire (by purchase, lease, or barter) property or
   services for the direct benefit or use of the United States Government."
   31 U.S.C. sect. 6303. The Act, however, applies only to executive
   agencies, not the Library. See id. Our analysis in this case is therefore
   guided instead by reference to the LCR, as the applicable authority for
   the Library's acquisitions.