ML20236C029
| ML20236C029 | |
| Person / Time | |
|---|---|
| Issue date: | 01/03/1983 |
| From: | Norry P NRC OFFICE OF ADMINISTRATION (ADM) |
| To: | Efros S, Hordell M GENERAL ACCOUNTING OFFICE |
| Shared Package | |
| ML20236B994 | List:
|
| References | |
| FOIA-85-675 NUDOCS 8707290319 | |
| Download: ML20236C029 (6) | |
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.JAN 3 1963 i
l Seymour Efros, Esquire j
' Associate General Counsel i
Office of the General Counsel United States General Accounting Office Washington, D.C.
20548 ATTN:
Bid Protest Control Unit l
Michael Hordeli. Esquire j
RE: B-206070.3, Award Protest -
]
RFP Ho. RS-SECY-82-473,
" Stenographic Reporting Services" Protester: Tayloe Associates 1
Dear Mr. Efros:
Your letter dated November 26,1982,(B-206070.3) to Mr. John F. Aheai.,e, Acting Chairman, wat referred to me for reply. You requested l
that a documented report responsive to the protest be furnished to your office with a copy to the protester and other interested parties. The documented report follows. Copies of this report are being furnished to the y
protester and other interested parties pursuant to your request.
i The Protest On November 22, 1982, Tayloe Associatcs (TA) protested the furthor extension on a sole-source basis for an additional 30 days (beyond November 15,1982) of the Nuclear Regulatory Commission's (NRC) existing contract fog stenographic reporting services with Alderson Reporting Services.
TA requested GA0 to determine that the extension was not reasonably based and was therefore illegal.
It also requested GA0 to direct NRC'to terminate for convenience that portion of the work covered by the Alderson extension j
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By Modification 12, the contract with Alderson was extended to December 15, 1982, with an option to extend it for an additional y ' 30 days in two week increments.
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~2-that was priced lower in an unsolicited proposal dated November 6,1982,2/
which was submitted by TA and to award said work to TA.
The Agency's Needs The Comission is required by 6189 of the Atomic Energy Act of 1954 (42 USC 5 2239) to hold public hearings regarding its licensing activities at the request of any interested person.
This duty extends to Comission activities in licensing the construction and operation of nuclear power plants, medical and research activities, and a variety of other critical functions. Boards composed of three administrative law judges perform the Commission's hearing function and render decisions on licensing and enforce-ment matters.
The boards constitute the Commission's principal public forum where individuals and organizations may voice their interest in a particular licensing or enforcement issue before an independent tribunal. The ACRS, a statutory body of technical advisors to' the Comission, holds full committee meetings, which nonnally last for 3 days, each month in Washington, D.C..
During the first 11 months of 1982, ACRS subcommittees had 108 meetings in Washington, D.C. and elsewhere in the United States.
Meetings of the Comission are public meetings under the Sunshine Act and are usually held at the Comission's meeting room in Washington, D.C. for 2 hours2.314815e-5 days <br />5.555556e-4 hours <br />3.306878e-6 weeks <br />7.61e-7 months <br /> or less.
An interruption of the reporting services which must be provided for all of these meetings and hearings would prevent NRC from discharging its statutory duties.
For these reasons, NRC had to insure the uninterrupted continuation of stenographic reporting services after November 15, 1982.
The Relief Requested Should Be Denied A.
The interim extension was lawful.
TA requested GA0 to c'etermine that the extension of the Alderson contract beyond November 15, on a non-competitive sole-source basis, was not reasonably based and, therefore, was illegal.
It requested also that GA0 direct NRC to terminate for convenience that portion of the work covered by the Alderson contnict extension that was priced lower in the TA November 6 proposal, and award said work to TA.
Presumably to TA would be made on a non-competitive sole-source basis.dhe award The sole-source award to the incumbent contractor was, however, reasonably based and was made in accordance with prior dec'.sions of the Comptroller General.
2/
This proposal (Exhibit A to Protest) only covered stenographic
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reporting services that could be performed in the Washington Metropolitan Area.
3f If so, Tayloe seeks to be placed in the same sole-source position which it asserts -is not~ supportable with respect to the incumbent contractor.
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2
' One of the more recent relevant decisions is Cerberonics Inc., B-205063
( April 14,1982), 82-1 CPD 1345.
That case involved the protest of a sole-source contract extension under which the incumbent contractor would i
provide engineering and technical services to the Navy until a competition for a ne. antract could be completed. The Navy stated the competitive process and award would take approximately six months. To insure uninterrupted services, the incumbent contractor was awarded a contract for seven montns plus three one-month options in case the competition was delayed. The basis for the sole-source award was the Navy's view that the incumbent contractor was the only finn that could meet the Navy's need for the critical services in the required time frame.
The incumbent contractor had all necessary qualified and trained personnel in place; a competition for the interim period, even if possible and accelerated, would take too much time; and a new contractor would require at least a minimum training period.
Cerberonics, however, contended that it could have met all of the Navy's needs, or at least part of those needs with the incumbent meeting the remainder, during the interim period.
The Comptroller General said, in relation to those facts, As a general matter, Government procurement must be conducted on a competitive basis to the maximum extent practicable.
Defense Acquisition Regulation 63-210(1976ed.). A sole-source acquisition may be authorized, however, where the procuring agency's minimum needs can be met only by items or services that are unique; time is of the essence and only one known source can meet the agency's needs within the required time frame; a sole-source award is necessary to insure compatibility between the procured item and existing equipment; or an award to other than the proposed sole-source contractor would pose unacceptable technical risks.
Internatiorni tusiness Machines Corporation B-198C94.3, September 29, 1961, 01-2 CPD 258.
STnce the t
contracting agency logically is in the best position to determine what its minimum needs are and how best to meet them, our Office will not object to a sole-source award where an agency proffers a reason such as one of those' listed to support the sole-source decision, unless the party protesting shows that the decision lacks a reasonable basis. See Qarris_ Systems Pest Control, Inc., B-199636, May 27,1981, 81-1 CPD 413.
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We recognize that the Navy's predicament arose because of the agency's initial erroneous assessment, and that it was Cerberonics' protest in response to the Comerce Business Daily announcement that a sole-source contract was contemplated that prompted the Navy to rethink and reverse its position. Nonetheless, at that point the Navy was faced with an interim period during which it had to insure the uninterrupted continuation of the services. We see nothing unreasonable in an agency in effect extending an incumbent's contract in that situation where the services are needed until a new competition can be conducted and a new contract awarded. Research, Analysi_s & Manaaement Corporation,,
o mer ).
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, B-203786, November 2, 1981, 81-2 CPD 372. Moreover,'the' fact that the Navy's own actions contributed to.the situation that ultimately required a sole-source interim award to EMT does.not preclude the Navy from using 1
the sole-source authority when necessary to relieve the critical situation. See R&E Cablevision, B-199592, February 19, 1981, 81-1 CPD 110.
Under the circumstances, we will not. object to the interim sole-source award to EMT.
(82-1CPD1345atpp.2,3) l Or. November 15, 1982 NRC was faced with an interim period during which it
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had no~ alternative but to extend the Alderson contract. Alderson's reporters were familiar with NRC hearing procedures, NRC staff, members of the.
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i Comrnission, and ACRS members.
It had the necessary qualified personnel to respond to work orders for reporting services.at meetirgs and hearings Area)ghout the United States (not just those in the-Washington Metropolitan throu NRC therefore extended Alderson's contract a sufficient' time to permit the pending competitive solicitation to be completed.
Its action-was fully supportable under the decisions referred to above.
B.
Part'of the work should not Se awarde'd to Tayloe on an ' Interim Basis.
TA protests that it should be awarded that portion of the work that is priced lower in its November._6 proposal.
Its proposal was limited to work in the Washington Metropolitan Area. The work orders which were pending i
l Ncvember 15, 1982, and those which were received during the following 3 weeks, show NRC needed a contractor who could provide reporting services 1
l throughout the United States.
Wh,en the contract extension was made on November 15, 1982, work orders were 1
pending for services to be performed at 13 meetings or hearings to be held I
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during the following three weeks as follows:
1 No. of Work Est. Length Organization Orders of Hearings and Place 7
8 days ACRS, Washington.D.C.
1 2 days ACRS, San Jose, Calif f
1 3 hrs.
Advisory Panel, Harrisburg, Pa.
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4 days NRC, Milwaukee, Wis.-
1 7 days NRC, Midland, Mich.
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- 6. days NRC, Bethesda, Md.
i 6 days mo.,,- netnesaa,
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i Between November 15 and December 3,1982, work orders were received for reporting services at 29 meetings or hearings to be held in the Washington i
Metropolitan Area between November 18 and December 10, 1982.
The total f
estimated length of these meetings or hearings was 14 days.
IntoisticalSupportInc.,B-200030,B-200051,B-200052(May5,1981)81-1 CPD the Comptroller General stated.
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We have recognized that the determination of the Government's needs and t
the best methods of accommodating those needs is primarily the responsibility of the Government contracting agencies.
will not question an agency's determination of what its actual minimumConseque needs are unless there is a clear showing that the determination has no reasonable basis.
East Bay Auto Supply, Inc., 8-195325, October 23,,
1979,. 79-2 CPD 281."~Tiirther, there is no requirement that an agency procure at a lower price without intelligent reference to the particular j
1 needs to be served.
See Manufacturing Data Systems Incorporated.
l B-180608, June 28,197C 74-1 CPD 348; Maremont Corporation, 55 Comp. Gen. ~ 1362(1976),76-2CPD181.
j TA has failed to show in 15s protest that NRC's determination that it needed i
reporting services on a continuing, nation-wide basis had no reasonable j
basis.
Its concerns seem to be, rather, that the incumbent contractor has
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been providing " lucrative stenographic reporting services" for 11 months i
during which NRC's near-term page requirements have been depleted, (Exhibits A, 0, and F to Protest), that the prior extensions have been for the benefit of the incumbent contractor (Exhibit D), that this supposed 1
inequity should not be pennitted to continue (Exhibit F), and that TA should l
be awarded the work in the Washington Metropolitan Area because it can't j
assume the finan'cial risk of mobilizing its organization unless it is awarded i
thecontract(ExhibitA). None of these concerns contribute to a clear 1
showing that NRC's determination with respect to its needs on November 15, i
1982, had no reasonable basis.
The analysis of the work orders which were pending on November 15 and those which were received shortly thereafter clearly show that NRC needed uninterrupted and continuous stenographical reporting services on a national basis.
Its action in extendin contract of the incumbent contractor was therefore reasonable. g the The fact that TA offered to perform part of the reporting services at a lower price is not determinative.
Logistical Support, Inc., supra, and cases cited therein.
C.
Other requests for relief should be denied.
TA requested GA0 to direct NRC to seek competition for any further contract extensions, assuming the extension beyond November 30 was for a finite period, e.g., 30 days. The extension beyond November 15 was for 30 days with an option for an additional 30 days in increments of 2 weeks, if necessary.
NRC has been ne petitive range.gotiating with offerors whose proposals placed them in the com-The technical negotiations with the protester were held on omert sumuse >..................
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. December 21, 1982. A detennination by GA0 that NRC should compete a further extension would only impose the burden of a fresh competitive solicitation on top of one that is near completion. This would only impede' the ultimate award of a contract under RFP No. RS-SECY-82-473.
Since TA is not able to supply all of NRC's reporting needs on an interim basis and partitioning the requirement on a geographic basis is not considered feasible, it does not appear that TA would be eligible to participate in such a competition in any event. Other requests for relief are dependent upon GA0's disposition of the requests which have been discussed and require no further comments.
Conclusion l
In accordance with the above discussion, the NRC respectfully requests that the protest be denied.
Copies of the documents described below are attached pursuant to the provisions of Section 1-2.407-8(a) of the Federal Procurement Regulations.
Sincerely, Original Signed by l
Patricia Norry w Patricia G. Norry, Director Office of Administration Attachments:
1.
Tayloe Associates protest I
to GAD dated Nov. 22, 1982 2.
Request for Proposal DISTRIBUTION No. PS-SECY-82-473 EDO dated Aug. 6, 1982 PBrandenburg (#12556) 3.
Modification 12 to NRC SECY 82-1190 (3)
Contract No. 17-80-448-0 EHalman v' MMattia I
EMil es cc: w/ attachments:
PSmith
- Joseph Gallo, Esquire i
Isham, t.incoln & Beale PNorry L
1120 Connecticut Avenue.,, N.W.
MSpringer Suite 840 GCunningham RAvery Washington, D.C.
20036 0 Clarke L
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