Information Ventures, Inc. protests the proposed
award of a sole-source contract to the National Council on Aging (NCOA)
under purchase request No. 04M000050, issued by the Department of Health and
Human Services (HHS), for educating health and social service providers on
the "Get Connected Toolkit." Information Ventures challenges the propriety
of the agency’s synopsis of the procurement.
We sustain the protest.
On December 16, 2003, HHS published a notice on the Federal Business
Opportunities website (www.fedbizopps.gov) expressing its intent to award a
sole-source contract to NCOA to educate health and social services providers
on the Get Connected Toolkit using simplified acquisition procedures. The
notice stated, in relevant part:
The specific objective of this procurement is to plan and convene a
conference aimed at the increasing aging services providers’ knowledge
around substance abuse and mental health issues facing older adults, and
to teach them how to apply the “Get Connected Toolkit” in real life settings.
The toolkit provides strategies to link providers with substance abuse and
mental health experts/ organizations in their area. Sole source
determination is based upon the contractor’s experience and expertise in
working with aging services providers and providing vital services to
geriatric populations. The contractor has over 50 years as a strong leader
of the aging services network throughout the U.S. The contractor is a key
to insuring that the toolkit will be accepted and used widely by the aging
services network. The contractor has the relationships with its
constituency to provide a conference for over 4,000 participants and the
required training. The proposed simplified acquisition is for services
for which the government intends to solicit and negotiate with only one
source under the authority of FAR 6.302. No solicitation is available. For
further information, please contact [the agency]. Agency Report (AR),
Tab E, at 1-2 (emphasis added; original in all upper-case letters). The
notice further provided that the period of performance was for 5 months from
the date of award, and established December 30 as the closing date for
HHS explains that the Get Connected Toolkit was developed under a
partnership with HHS’s Administration on Aging, the Substance Abuse and
Mental Health Services Administration (SAMHSA), and NCOA. The kit is a
resource tool, which includes fact sheets, videos, consumer brochures,
training guides and curricula and a services resource guide. The kit is
intended to help service providers for older adults identify, educate, and
screen the elderly for potential emotional and substance abuse problems by
promoting new links between the aging community, service providers, and the
substance abuse and mental health communities.
Following publication of the notice, Information Ventures filed this protest
on December 18, arguing that the notice failed to adequately describe the
contract tasks; that it did not request any specific information from
potential contractors; and that it did not describe the basis upon which
responses would be evaluated by HHS. The initial protest also asked for the
statement of work.
Under the Federal Acquisition Streamlining Act of 1994 (FASA), simplified
acquisitions--used to purchase supplies and services, including
construction, research and development, and commercial items, the aggregate
amount of which does not exceed $100,000 (Federal Acquisition Regulation
(FAR) §§ 2.101, 13.000, 13.003(a))--are excepted from the general
requirement that agencies obtain full and open competition through the use
of competitive procedures when conducting procurements.
See 41 U.S.C. §§ 253(a)(1)(A), (g)(1), and (g)(4) (2000). Part 13 of
the FAR prescribes procedures for simplified acquisitions, which are
designed to promote efficiency and economy in contracting, and to avoid
unnecessary burdens for agencies and contractors. To facilitate these
objectives, FASA only requires that agencies obtain competition to the
maximum extent practicable. 41 U.S.C. § 427(c); FAR § 13.104; see
Information Ventures, Inc., B-290785, Aug. 26, 2002, 2002 CPD ¶152 at
2-3. Consistent with the maximum-extent-practicable standard, an agency may
solicit from a single source if the contracting officer determines that,
under the circumstances of the contract action, only one source is
reasonably available. FAR § 13.106-1(b)(1); see also
Information Ventures, Inc., supra, at 3.
Although the HHS synopsis notice here advised that the agency was proceeding
pursuant to Subpart 6.3 of the FAR, which provides the authority for
contracting without providing for full and open competition, simplified
acquisitions (including those conducted on a sole-source basis) are governed
by the simplified procedures in Part 13 of the FAR, not FAR § 6.302. See
FAR §§ 6.001(a), 13.003(a). These procedures require synopsis of simplified
procurements in excess of $25,000 in accordance with the Small Business Act,
15 U.S.C. § 637(e), and the Office of Federal Procurement Policy Act, 41
U.S.C. § 416, unless the procurement fits one of the exceptions to the
synopsis requirement set forth in the regulations, none of which are
applicable here (and none of which have been asserted as applicable by the
agency). See FAR §§ 13.105, 5.101(a)(1), 5.202.
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. 15 U.S.C. § 637(f); FAR § 5.207(c); see
also Pacific Sky Supply, Inc. B-225420, Feb 24, 1987, 87-1 CPD
¶ 206 at 4-5 (GAO sustained protest 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, 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 ¶170 at 6-7 (protest
challenging sole-source award sustained where both the justification and
approval (J&A) for the award, 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 competition.
Pacific Sky Supply, Inc., supra.
Our review of the record leads us to conclude that this synopsis did not
accurately describe the agency’s requirements. As set forth above, the
notice, while not entirely clear, indicates a need for a contractor to “plan
and convene a conference” (described later in the notice as involving over
4,000 participants), and to provide training for conference participants on
the Get Connected Toolkit. However, the requisition,
including the scope of work, dated November 20, 2003, which presumably
served as the basis for the notice, provides a markedly different
description of the work here. Specifically, the requisition shows that the
agency actually wanted a contractor to provide a geriatrics specialist and a
conference coordinator to prepare a one-day training course in using the Get
Connected Toolkit. This training course was to be offered during the course
of the American Society of Aging (ASA)/NCOA conference on April 14, 2004,
and the agency anticipated providing training to up to 60 individuals.
See AR, Tab D, Statement of Work at 2-10. In our view, the agency’s
actual requirements are significantly different than “planning and convening
a conference” for 4,000 people, as the notice advised.
In light of the misleading notice used here, Information Ventures, as well
as other potential contractors, was denied any realistic opportunity to
compete for the agency’s requirements. In this regard, Information Ventures
advises that it has extensive experience in planning conferences for HHS in
the subject areas relevant to the procurement, including graphics and design
expertise; that it, too, has the ability to identify experts and
consultants; and that it would have competed for the contract had the agency
accurately described its needs. Without providing an accurate notice of its
sole-source procurement, HHS failed to ensure that its actions provided
competition to the maximum extent practicable, as required by FAR § 13.104
for simplified acquisitions. See id. at 6.
Moreover, HHS compounded the shortcomings of this particular notice by
including the statement that no solicitation was available, when the record
shows that both a requisition, and a statement of work accurately describing
this requirement, had already been prepared at the time of the notice. AR,
Tab D (providing the requisition and statement of work, dated November 20,
2003). HHS did not provide Information Ventures with this information in
response to the protest, instead choosing to proceed with the sole-source to
NCOA. Accordingly, we find that the award here was improper.
During the course of this protest, HHS notified our Office, and the
protester, that it had decided to proceed with award on the basis that
continued performance would be in the best interest of the government.
In this regard, the record shows that HHS needs to make this training
available during the April 14 conference to take advantage of the
opportunity to market the Toolkit, or the opportunity will be lost. In
addition, the record shows that the steps needed to provide this training
(identifying and hiring a geriatrics specialist to prepare the training
materials, and preparing the materials) have been largely completed. In
light of these circumstances, we do not recommend disturbing the award.
See Stevens Tech. Servs., B-250515.2 et al., May 17, 1993,
93-1 CPD ¶ 385 at 12-13. However, HHS’s future requirements for these
services should be properly synopsized, such that potential contractors such
as Information Ventures are afforded a realistic opportunity to compete.
We recommend that the agency reimburse Information Ventures the reasonable
costs associated with filing and pursuing this protest, including reasonable
attorneys’ fees. 4 C.F.R. § 21.8(d)(1). Information Ventures’ certified
claim for costs, detailing the time spent and the costs incurred, must be
submitted to the agency within 60 days of receiving this decision. 4 C.F.R.
The protest is sustained.
Anthony H. Gamboa
 The government estimate for the cost
of the procurement is $99,000.
 The record also indicates that NCOA, in
partnership with ASA, sponsors this national conference, which approximately
4,000 persons associated with the aging service providers community attend,
and indicates that HHS agreed to purchase time at the conference to conduct
this training. See AR, Tab A, Contracting Officer’s Statement at 3.
 Again, the situation here is
similar to the situation in Sabreliner Corp., supra. In Sabreliner, the
agency knew its J&A and synopsis notice were incorrect, and made no effort
to correct the inaccuracy even during the course of the protest. Id. at 7.
Here, the synopsis expressly indicated that no solicitation was
available--which, while technically accurate, glosses over the fact that a
statement of work existed almost a month prior to the publication of the
synopsis. Providing this statement of work to Information Ventures in
response to the express request for it included in the initial protest filed
with our Office on December 18--prior to the closing date for responses to
the synopsis--might have avoided this dispute, and might have done so while
meaningful relief remained possible.
 The agency’s decision to proceed
with award on the basis of the government’s best interest was inconsistent
with 31 U.S.C. § 3553(c)(2), which authorizes agencies to proceed with an
award in the face of a protest only where the agency makes a written finding
that urgent and compelling circumstances which significantly affect the
interests of the United States will not permit waiting for the decision.
Compare 31 U.S.C. § 3553(c) (override of preaward stay permitted only on
basis of urgency) with 31 U.S.C. § 3553(d)(3)(C) (override of post-award
stay permitted on either of two bases: urgency, or that proceeding with
performance is in the best interest of the government).
 Since we conclude that the
sole-source award to NCOA was improper, we need not address the protester’s
allegations regarding organizational conflicts of interest, and small
business participation issues.