ML20236C107
| ML20236C107 | |
| Person / Time | |
|---|---|
| Issue date: | 02/18/1983 |
| 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 8707290339 | |
| Download: ML20236C107 (8) | |
Text
{{#Wiki_filter:7-l
/') IECVy#o,,
UNITED STATES ' 8 n NUCLEAR REGULATORY COMMISSION
$ WASHINGTON, D. C. 20$55
-{
# FEB 181983
..... l Seymour Efros, Esquire 1 Associate General Counsel Office of the General Counsel United States General Accounting Office Washington, D.C. 20548 Attn: Bid Protest Control Unit Michael Hordell, Esquire 1 RE: B-206070.3 Award Protest -
RFP No. RS-SECY-82-473, " Stenographic Reporting Services." Protester: Tayloe Associates
Dear Mr. Efros:
Circumstances relating to the current competitive procurement precluded our. attendance at the meeting at Mr. Horde 11's office on Friday, January 28, l 1983. Our overriding concern was the integrity of the competitive process. We were determined that Tayloe, which is involved in the current competitive ! procurement, not be given a. competitive advantage by virtue of the disclosure l of information during the conference, either directly or by implication. Tayloe Associates' comments on the NRC report, as set forth in Mr. Gallo's letter dated January 18, 1983, require the following response. . The Burden of Proof is on The Protester We disagree with'Tayloe's statement on this subject. The Comptroller General has stated on numerous occasions that the justification for sole source awards will be " closely scrutinized". Electronic Systems U.S.A., B-200947, April 22, 1981, 81-1 CPD 309, p. 2; Kent Watkins and Assoc. Inc., B-191078, May 17,1978, 78-1 CPD 377; Nash and Cibinic, Government Contracts (1977 Ed.) ,
- p. 330 footnote 9 and cases cited therein. The decision to procure on a sole source basis must be supported by adequate legal justification. Kent Watkins and Assoc. Inc., supra.
The fact that the Government's justification will be " closely scrutinized" however, does not shift the burden of proof to the agency. In the case of a sole source award, the protester has the burden of showing that the agency's determination was not reasonable. IBM, B-198094.3, September 29, 1981, 81-2 CPD 258, p. 3; The Willard Co. , B-1B705, Feb.181981, 81-1 CPD,102, p. 6.
~
8707290339 B70727E DB - 5 PDR [dM'" ~b cA
l
. t NRC's Legitimate Needs In Electronic Systems U.S.A., suara, the Comptroller General held that procurement on a noncompetitive basis is authorized when the legitimate needs of the Government so require. The decision sets forth, as examples, four situations in which the legitimate needs of Government may require noncompetitive procurement. The extension of the Alderson contract beyond November 15 was made under circumstances which fully meet the situation set forth as the second example, viz: . time is of the essence and only one known source can meet the agency's need within the required timeframe.
The NRC is faced with complex, nationwide reporting service needs. These needs include highly technical, multi-party licensing hearings, with short turnaround requirements,' meetings of the Advisory Connittee on Reactor Safeguards, Commission meetings, Atomic Safety Appeal Board arguments and a wide variety of other types of reporting needs. An interruption in the competent performance of these services would virtually close down the agency and place a severe burden on parties appearing before the agency and . on users of nuclear related services. 1 I Not only must there be no interruption; there must be no failure g the reporting service to fully and accurately report what transpires.- It is critical that the NRC receive high quality service. The NRC's mission will be significantly impaired if it does not receive such high quality service. The pending competitive process is designed to insure that the NRC selects a competent, responsible contractor. I NRC's legitimate need for uninterrupted reporting services by a responsible. l contractor was shown from work orders which were pending on November 15, ! 1982, for services to be performed at 13 meetings or hearings to be held ! during the following three weeks. These meetings were scheduled for 21' work l days in 5 cities. During the three week period additional work orders for I reporting services at 29 meetings or hearings to be held in the Washington Metropolitan Ard between November 18, and December 10, 1982, were received. These meetings anc searings could not be postponed or cancelled while a makeshift interim competitive procurement effort was made. Time was of the l essence. Alderson was the only known source which could meet the agency's needs within the required timeframe.
-1/ It should be noted that the predecessor contractor to the present incumbent was terminated for default due to technical incompetence.
NRC's mission was substantially impaired by the inadequate performance l it received and the agency has been involved in litigation for several I years over tne default termination.
, 1 On November 6,1982, Tayloe proposed that NRC award the extension beyongj November 15 to it, subject to the terms and conditions of its proposal.-
Tayloe's unsolicited proposal for a sole source award could not have been accepted by NRC under the provisions of Subpart 1-4.9 of the Federal Procurement Regu are cited above.gtions and the decisions Consequently, when theof the Comptroller agency's General needs for which reporting services beyond November 15 were considered, Tayloe's proposal was not regarded as a viable alternative. Since Tayloe made clear in its' proposal that it could only report meetings and hearings in the Washington Metropolitan Area, it was not regarded as an alternative source which could meet the agency's nationwide needs within the required timeframe. Tayloe argues that NRC had on hand a number of proposals which had been submitted pursuant to the subject RFP. While that is true, it does not demonstrate that the proposers were technically competent and responsible in relation to the work required by NRC's needs beyond Povember 15. Tayloe also argues that NRC had conducted a survey and had a qualified bidders' list. The survey referred to by Tayloe was for the purpose of determining the feasibility of setting aside the procurement for small business and was not sufficient to enable the NRC to evaluate the capability of individual firms. Contrary to Tayloe's assertion, NRC did not have a qualified bidder's list. The NRC did have a bidder's mailing list, but this list does not reflect the capability of the firms listed to perform the contract. Tayloe's-arguments, therefore, fall far short of a demonstration that there were other known sources who could meet NRC's needs within the re-quired timef rame. Tayloe has made no showing that time was not of the essence. Neither has it shown that other sources were known which could meet the agency's needs within the required timeframe. Tayloe's demonstration consists merely of l l
-2/ Tayloe's claim that the terms a'n d conditions are proprietary prevents their disclosure in this letter. It is readily apparent, however, from Tayloe's proposal that Tayloe was not a source for NRC's needs within the required timeframe,
~
3/ Tayloe now claims its request for an award was predicated on the assump-tion that the Comptroller General first determines that the combined I participation by Tayloe and Alderson satisfies the requirement for compe- l tition. No legal authorities are cited in support of such a ; determination by the Comptroller General. Could Alderson be directed ! l to provide reporting services solely outside the Washington Metropolitan Area? l I
i I ( \ l l i the unsupported opinions and conclusory statements of its advocate. Tayloe i has failed to sustain its burden of showing that the decision to extend Alderson's contract was not reasonable. _Tayloe's interim competition suggestion. The makeshift interim competition suggested by Tayloe will not provide the NRC with reasonable assurances that it would select a competent interim contractor. The NRC should not be reqsired to run an unacceptable technical ' risk for the sake of obtaining competition on an interim requirement. l Cf. Hughes Aircraf t Co. , B-179815, 53 Comp. Gen. 670 (1974), Furthermore, ) it would not procurement.4 pave been NRC did notfeasible know howtolong conduct some sortprocurement the competitive of interim competitive would take, so a contractor would have to commit itself for a short, but l indeterminate, time. Also, an interim procurement would not have given NRC an opportunity to ascertain either the technical competence or responsibility l of the interim contractor. NRC had been engaged in ". hat process with respect to the competitive procurement since September 13, 1982. Any interim competition which would assure the selection of a responsible interim contractor or group of contractors could not have been completed within the required timeframe and would have impeded the progress of the ; impending solicitation, or would develop into the same basic type of process which is currently under way. It seems unreasonable to require the NRC to conduct simultaneous, parallel competitive procurement to satisfy its needs, ' yet anything short of this would expose the NRC to the risk of selecting an unsatisfactory interim contractor. Further djscussion of Cerberonics Since the Cerberonics case is highly analagous to the present protest, a further discussion of it may be useful. In Cerberonics the Navy listed three reasons 'for extending the incumbent contractor on an interim basis: (1) the incumbent had trained and qualified personnel in place, (2) a competition for the interim period would take too much time, and (3) a new contractor would require at least a minimum training period. 82-1 CPD 345 at 2. It would seem that item (3) was not a logically necessary element in the decision because if a replacement contractor does need a training period, that will be so regardless of when the contract is awarded. Thus, extension 'of the incumbent cannot be justified on the basis that a new
~
4/ The Alderson contract contained different per page rates for 34 line items. The rates included travel costs. Quickly soliciting bids by telephone for the extension of such a contract would have required each bidder to price each line item based upon whatever estimate he could make of the quantities and travel costs that might be involved. Such a solicitation was not feasible. 9
1 contractor would need a training period. The NRC's incumbent contractor, l Alderson, satisfies item (1) as did the Navy's incumbent. The fact that the i incumbent has trained personnel in place is not, however, a reason for a noncompetitive contract extension. The real basis upon which the Navy's actions were sustained in Cerberonics was item (2). The Comptroller General basically concluded that it was not reasonable to superimpose one competition upon another. This was clearly articulated at page 3 of the decision: [T]he Navy was faced with an interim period during which it had to insure the uninterrupted continuation of 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 j new contract awarded. l Cerberonics established that it is reasonable for an agency to extend the incumbent's contract while a competitive procurement is pending. Tayloe's references to Cerberonics, Inc. , B-205063, April 14,1982, 82-1 CPD 345, are not complete without mention of one other point: the extension in l Cerberonics was for seven months plus three one-month options in case the ; competition was delayed. Tayloe, on page 5 of its comments,' asserts the l Alderson~ contract was extended on seven occasions totalling a cumulative time period in excess of 12 months. The attached chronology of events clearly demonstrates that during that period of time Tayloe filed three protests and requested documents on three occasions under the Freedom of Information Act (FOIA). Additionally, during that time, Alderson protested the decision to l make the procurement a small business set aside and requested documents pursuant to F0IA. These actions, regardless of their merits, have served to lengthen the necessary time to conduct the pending competitive procurement. Conclusion , In the final analysis, Tayloe's protest amounts merely to a complaint that the pending competitive solicitation is not progressing rapidly enough. The Comptroller General dismissed a similar protest in Information Marketing, Inc. B-205903, May 25,1982, 82-1 CPD 497, affd, sub. nom. Showcase Corporation, B-205903.3, December 7, 1982, 82-2 CPD EUE. In that case, the Defense Logistics Agency (DLA) granted a one year sole source extension to a
. microform library services incumbent contractor, during which time DLA intended to prepare and issue a competitive solicitation. The Comptroller General found that the services needed by DLA were complex and that DLA would suffer a disruption of its microform library services if the incumbent was not retained. He therefore sustained DLA's actions. The present position of the NRC is very similar. The actions of NRC in 0
- 3 8
f 1 4 textending'its incumbent. contractor pending completion of a competitive procurement are reasonable and should'be sustained as in Information Services. Sincerely,
/ - ..
Patricia G. Norry, Director ; Office of Administration d
Attachment:
. Chronology of Events-cc: ' Joseph Gallo, Esquire i Isham, Lincoln & Beale ,
1120 Connecticut Avenue, NW Suite 840 Washington, D.C. 20036 Coleman_ Bird, Esquire-Wald, Harkrader and Ross 1300 19th St., NW, Suite 705 . Washington, D.C. 20036 0 I y. e I D i 0 D. _ - _ - - - . - . - - _ . _ - - _ _ _ - - - - - _ _ _ _ _ _ _ . _ _ _ _ _ - _ - - _ . _ - . _ _ - . _ _ _ _ _ _ __ .b
( , ATTACHMENT I CHRONOLOGY OF EVENTS 12' January 1982 Tayloe sent' Protest #1 to GA0
Subject:
Lack of-info in IFB and no response from- ; NRC to his 05 January letter. ' 15 March 1982 Gallo requested documents under FOIA (Request #82-142) pertaining to NRC decisions to set-aside procurement, contractor responsibility, on possible cancellation of IF8. A second request from Gallo was also received under. ; F0IA (Request #82-143) for documents pertaining to j written communications between NRC and Alderson, j 30 March 1982 NRC response to F0IA #82-143 sent to Gallo 02 May 1982 Gallo sent request to GA0 that they direct NRC to sign the SBA Form 70. (Protest #2) l 20 May 1982 IFB cancelled. C0 signed the SBA Form 70. 1
, 07 June 1982 NRC response to F0IA # 82-142 sent to Gallo 06 August 1982 RFP issued. (RS-SECY-82-473)
D. Bucklin (Representing Alderson) requested documents I under FOIA.(Request #82-355). pertaining to six categories of records concerning the Stenographic Reporting Services solicitation. 10 September 1982 Protest to small business set-aside decision sent from Alderson. 28 September 1982 NRC response to F0IA Request #82-355 sent to Alderson 04 October 1982 Received F0IA Request #82-461 from Coleman Bird (representing Alderson) requesting documents which show the names and addresses of all persons that submittedproposalsinresponseto'RQ-SECY-82-473. 20 October 1982 NRC response to F0IA Request #82-461 forwarded
. to Mr. Bird.
28 October 1982 Alderson protest denial forwarded to Alderson. 04 November 1982 Gallo requested documents under FOIA (Request #82-531)' pertaining to all documents relating to time extensions under Alderson contract. l i i f J
-I
-(
f.- 05 November 1982 Rec'd unsolicited proposal from Tayloe Associates. 19 November 1982 NRC response to FOIA Request #82-531 sent to Gallo - 22 November 1982 Received protest from Tayloe Associates- (Protest #3). 03 January.1983 Tayloe protest denial forwarded to GA0 14 Jariuary 1983 Letter of nonacceptance of unsolicited proposal i forwarded to Tayloe Associates. 1 l I l 1 l l 1 e i
/
l 0 i 5 l l l ' l' l l
.i
._ _ _ _ . .____---}}