B-199003, OCT 16, 1980

B-199003, OCT 16, 1980

DIGEST: 1. GOVERNMENT EMPLOYEES TRAINING ACT OF 1958 DOES NOT APPLY TO PROVISION OF EDUCATIONAL IMPROVEMENT PROGRAMS FOR MILITARY PERSONNEL AND WOULD NOT, IN ANY EVENT, PRECLUDE PAYMENT TO ACCREDITED INSTITUTIONS WHICH PROVIDE SUCH PROGRAMS. 2. REQUIREMENT IN SOLICITATIONS FOR BASIC SKILLS EDUCATION PROGRAM THAT CONTRACTOR BE AN ACCREDITED INSTRUCTIONAL INSTITUTION WILL NOT BE QUESTIONED BY GAO WHERE CONTRACTING AGENCIES HAVE REASONABLE BASIS FOR REQUIREMENT IN THAT ACCREDITATION SERVES TO ASSURE PROGRAM QUALITY, MINIMIZE OVERALL EDUCATIONAL COSTS AND STIMULATE STUDENT ACHIEVEMENT.

SCHOOL FOR EDUCATIONAL ENRICHMENT:

THE SCHOOL FOR EDUCATIONAL ENRICHMENT (SEE) HAS FILED A PROTEST PRIOR TO AWARD REGARDING SOLICITATIONS ISSUED BY THE NAVAL SUPPLY CENTER, CHARLESTON, SOUTH CAROLINA (N00612-80-R-0308), AND FORT CARSON, COLORADO (DAFK06-80-B-0070). THESE SOLICITATIONS CONCERN THE PROVISION OF ON-DUTY EDUCATIONAL IMPROVEMENT PROGRAMS UNDER THE NAVY'S CAMPUS HIGH SCHOOL STUDIES PROGRAM (NCHSSP) AND THE ARMY'S BASIC SKILLS EDUCATION PROGRAM (BSEP II). SEE PROTESTS THE REQUIREMENT IN BOTH SOLICITATIONS THAT THE PROPOSED CONTRACTOR BE AN INSTITUTION THAT IS ACCREDITED BY A REGIONAL ACCREDITING ASSOCIATION. BECAUSE OF THIS REQUIREMENT, SEE, A NON- ACCREDITED INSTITUTION, HAS NOT SUBMITTED A PROPOSAL IN RESPONSE TO EITHER SOLICITATION.

SPECIFICALLY, SEE BASES ITS PROTEST ON TWO GROUNDS. FIRST, IT ASSERTS THAT THE GOVERNMENT EMPLOYEES TRAINING ACT OF 1958 PROHIBITS THE FEDERAL GOVERNMENT FROM PAYING FOR INSTRUCTION THAT CAN LEAD TO ACCREDITATION. HENCE, SEE CONCLUDES, THE REQUIREMENT OF ACCREDITATION CONTAINED IN THE SOLICITATIONS IS INVALID AS VIOLATIVE OF THE 1958 ACT.

SECONDLY, SEE PROTESTS THAT THE REQUIREMENT OF REGIONAL ACCREDITATION IS UNSUPPORTED BY A VALID RATIONALE, AND AS SUCH IT UNLAWFULLY RESTRICTS COMPETITION.

DISCUSSION

(1) DOES THE GOVERNMENT EMPLOYEES TRAINING ACT OF 1958 INVALIDATE THE REQUIREMENT THAT THE INSTITUTIONAL CONTRACTOR BE ACCREDITED?

ALTHOUGH SEE DID NOT CITE ANY PARTICULAR PROVISION OF THE GOVERNMENT EMPLOYEES TRAINING ACT OF 1958 IN SUPPORT OF ITS ALLEGATION THAT THE ACCREDITATION REQUIREMENT IS INVALID, WE PRESUME THE PROTEST REFERS TO SECTION 13 OF THE ACT OF JULY 7, 1958, PUB. L. NO. 85-507, 72 STAT. 327. SECTION 13 HAS BEEN CODIFIED AS 5 U.S.C. SEC. 4107(C) (1976) BY THE ACT OF SEPTEMBER 6, 1966, PUB. L. NO. 89-544, 80 STAT. 435. AS CODIFIED, SECTION 4107(C) PROHIBITS THE PAYMENT OR REIMBURSEMENT OF THE COSTS OF TRAINING GOVERNMENT EMPLOYEES THROUGH NON-GOVERNMENT FACILITIES FOR:

"(1)THE PURPOSE OF PROVIDING AN OPPORTUNITY TO AN EMPLOYEE TO OBTAIN AN ACADEMIC DEGREE IN ORDER TO QUALIFY FOR APPOINTMENT TO A PARTICULAR POSITION FOR WHICH THE ACADEMIC DEGREE IS A BASIC REQUIREMENT; OR (2) THE SOLE PURPOSE OF PROVIDING AN OPPORTUNITY TO AN EMPLOYEE TO OBTAIN ONE OR MORE ACADEMIC DEGREES."

SEE APPARENTLY INTERPRETS SECTION 4107(C) AS PRECLUDING PAYMENT TO ACCREDITED INSTITUTIONS.

SEE'S RELIANCE ON THE 1958 ACT IS MISPLACED. SECTION 4(A)(6) OF THE 1958 ACT, CODIFIED AT 5 U.S.C. SEC. 4102(A)(1)(C), EXPRESSLY EXEMPTS "AN INDIVIDUAL WHO IS A MEMBER OF THE UNIFORMED SERVICES DURING A PERIOD IN WHICH HE IS ENTITLED TO PAY UNDER SECTION 204 OF TITLE 37" (I.E. ON ACTIVE DUTY). CLEARLY CONGRESS MEANT THE ACT TO APPLY TO CIVILIAN EMPLOYEES ONLY, AND THIS INTENTION IS CONFIRMED UPON READING THE HOUSE REPORT. H.R. REP. NO. 1951, 85TH CONG., 2ND SESS. 17, REPRINTED IN (1958) U.S.C. CONG. & AD. NEWS 2925.

THE PROGRAM DESCRIPTIONS CONTAINED IN THE SOLICITATIONS EVIDENCE THE FACT THAT THE INSTRUCTIONAL SERVICES WERE EXCLUSIVELY FOR MILITARY PERSONNEL. PARTA)1 OF THE NAVY'S RFP SPECIFICATIONS STATES:

"THE CONTRACTOR'S PRIMARY FUNCTION WILL BE TO PROVIDE MILITARY PERSONNEL *** AN ON-DUTY BASIC/DEVELOPMENTAL EDUCATIONAL SKILLS PROGRAM WHICH WILL ENHANCE MILITARY COMPETENCY FOR MISSION ACCOMPLISHMENT."

PARAGRAPH C-3 OF THE DESCRIPTION SECTION OF THE ARMY'S IFB SIMILARLY SPECIFIES:

"THE PROGRAM WILL BE DESIGNED PRINCIPALLY AS AN ADULT EDUCATION PROGRAM TO ACCOMMODATE THE NEEDS OF SOLDIERS FROM 5TH THROUGH 9TH GRADE COMPETENCY LEVELS ***."

THUS, WE FIND THE PROVISION UPON WHICH SSI RELIES TO BE INAPPLICABLE TO THIS CASE. MOREOVER, WE BELIEVE THAT IN ANY EVENT THERE IS NO MERIT TO THE PROTESTER'S ARGUMENT; WE SEE NOTHING IN THE ACT WHICH IN ANY WAY CONCEIVABLY WOULD PRECLUDE PAYMENT TO AN INSTITUTION, ACCREDITED OR OTHERWISE, FOR THE SERVICES TO BE PROVIDED HERE.

(2) DOES THE REQUIREMENT OF INSTITUTIONAL ACCREDITATION UNLAWFULLY RESTRICT COMPETITION?

SEE'S SECOND ALLEGATION IS THAT THE REQUIREMENT OF INSTITUTIONAL ACCREDITATION UNNECESSARILY AND UNLAWFULLY RESTRICTS COMPETITION. ARGUES THAT CERTIFICATION OF THE INDIVIDUAL INSTRUCTORS, AS OPPOSED TO ACCREDITATION OF THE INSTITUTION, IS ALL THAT IS ACTUALLY NECESSARY TO SATISFY THE MINIMUM NEEDS OF THE GOVERNMENT.

THE QUESTION OF NECESSARY CONTRACTOR QUALIFICATIONS IS A MATTER OF BIDDER RESPONSIBILITY AND IS DICTATED IN LARGE PART BY THE MINIMUM NEEDS OF THE GOVERNMENT. THIS OFFICE HAS CONSISTENTLY HELD THAT THE CONTRACTING AGENCIES ARE PRIMARILY RESPONSIBLE FOR DETERMINING THE GOVERNMENT'S MINIMUM NEEDS, AS WELL AS THE METHODS OF ACCOMMODATING THOSE NEEDS. MANUFACTURING DATA SYSTEMS INCORPORATED, B-180608, JUNE 28, 1974, 74-1 CPD 348. THEY ARE IN THE BEST POSITION TO DRAFT APPROPRIATE SPECIFICATIONS SINCE THEY ARE FAMILIAR WITH THE CONDITIONS UNDER WHICH PREVIOUS PROCUREMENTS HAVE BEEN PERFORMED AND AS A RESULT, WHAT FUTURE REQUIREMENTS SHOULD BE. PARTICLE DATA, INC.; COULTER ELECTRONICS, INC., B-179762, B-178718, MAY 15, 1974, 74-1 CPD 257; MANUFACTURING DATA SYSTEM INCORPORPORATED, B-180586, B-180608, JANUARY 6, 1975, 75-1 CPD 6. ALTHOUGH REQUIREMENTS SHOULD BE LIMITED TO MAXIMIZE COMPETITION AMONG POTENTIAL OFFERORS, WE HAVE HELD THAT, WHEN COMPETITION IS REDUCED, WE WILL NOT OBJECT WHERE THE RESTRICTION IS REASONABLY DERIVED AND CANNOT BE SAID TO UNDULY RESTRICT COMPETITION. JOHNSON CONTROLS, INC., B-184416, JANUARY 2, 1976, 76-1 CPD 4. CONSEQUENTLY, WE WILL NOT QUESTION AN AGENCY'S DETERMINATION OF WHAT ITS ACTUAL MINIMUM NEEDS ARE UNLESS THERE IS A CLEAR SHOWING THAT THE DETERMINATION HAS NO REASONABLE BASIS. MAREMONT CORPORATION, 55 COMP.GEN. 1362 (1976), 76-2 CPD 181. IN THIS CONTEXT, ACCREDITATION MAY BE REQUIRED TO ACCOMMODATE THE GOVERNMENT'S NEED TO PROCURE SERVICES PROVIDING THE ACCREDITATION BEARS A REASONABLE RELATION TO THE SERVICES TO BE PERFORMED.

THIS OFFICE WAS RECENTLY CALLED ON TO APPLY THESE PRINCIPLES TO AN ACCREDITATION REQUIREMENT CONTAINED IN A SOLICITATION FOR CRANE INSPECTION SERVICES. WE HELD THAT EVEN THOUGH OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION REGULATIONS DID NOT REQUIRE ACCREDITATION IN THAT CASE THE CONTRACTING AGENT COULD IMPOSE THE ACCREDITATION REQUIREMENT AS A DEFINITIVE RESPONSIBILITY CRITERION, PROVIDING A REASONABLE RELATION EXISTED BETWEEN THE REQUIREMENT AND THE GOVERNMENT'S NEEDS. UNITED STATES CRANE CERTIFICATION BUREAU, INC., B-194066, OCTOBER 18, 1979, 79-2 CPD 269; UNITED STATES CRANE CERTIFICATION BUREAU, INC., B-197433, APRIL 2, 1980, 80-1 CPD 247.

IN AN EFFORT TO JUSTIFY THE ACCREDITATION REQUIREMENT IN THE PRESENT CASE, THE CONTRACTING AGENCIES HAVE OFFERED SEVERAL REASON TO SHOW THE RELATION BETWEEN ACCREDITATION AND THE TEACHING SERVICES TO BE PERFORMED. FOREMOST AMONG THESE IS THE DETERMINATION THAT THE SUCCESS OF THE EDUCATIONAL PROGRAM DEPENDS NOT ONLY UPON COMPETENT TEACHERS, BUT ALSO UPON AN OVERALL PROGRAM OF COORDINATED INSTRUCTION. WHILE CERTIFICATION OF INDIVIDUAL INSTRUCTORS HELPS TO ASSURE INDIVIDUAL COMPETENCE, THE AGENCIES FEEL THAT THE EDUCATIONAL INSTITUTION PROVIDING THE INSTRUCTORS MUST BE ACCREDITED AS WELL. SUCH ACCREDITATION TENDS TO INDICATE AN EFFECTIVELY COORDINATED PROGRAM WITH REGARD TO SUBJECT MATTER AND ADMINISTRATION. THE AGENCIES THUS DEEM INSTITUTIONAL ACCREDITATION TO BE FUNDAMENTAL IN IMPLEMENTING AN INSTRUCTIONAL PROGRAM OF SUFFICIENT QUALITY TO SATISFY THEIR MINIMUM NEEDS.

THE ARMY FURTHER NOTES THAT ACCREDITATION INVOLVES PERIODIC REVIEW OF AN INSTITUTION BY ITS PEERS. IN ORDER TO INSURE CONTINUED ACCREDITATION THE INSTITUTION MUST STRIVE TO MAINTAIN AND IMPROVE ITS EDUCATIONAL PROGRAMS. THIS IN TURN SERVES TO ASSURE THE CONTRACTING AGENCIES OF A CONTINUING LEVEL OF SATISFACTORY QUALITY IN THEIR EDUCATIONAL PROGRAMS.

IN FURTHER SUPPORT OF THE ACCREDITATION REQUIREMENT, THE NAVY CONTRACTING OFFICER CITES OVERALL COST SAVINGS AND IMPROVED STUDENT ACHIEVEMENT. UNDER THE NAVY'S CAMPUS HIGH SCHOOL STUDIES PROGRAM A STUDENT MAY ELECT TO ENROLL IN A FUNDED OFF-DUTY EDUCATIONAL PROGRAM TO EARN CREDIT TOWARDS A DEGREE. THE OFF-DUTY PROGRAM IS TAUGHT BY ACCREDITED INSTITUTIONS. THE STUDENT IS REQUIRED TO TAKE THE ON DUTY INSTRUCTION FROM A NON- ACCREDITED INSTITUTION, HE WILL HAVE TO REPEAT THE COURSE IN THE OFF-DUTY PROGRAM IN ORDER TO GET FORMAL CREDIT, THUS DOUBLING THE COST TO THE NAVY OF EDUCATING HIM. SECONDLY, THE CONTRACTING OFFICER NOTES THAT STUDENT ACHIEVEMENT IN THE ON-DUTY PROGRAM IS STIMULATED WHEN THE OPPORTUNITY TO EARN CREDITS TOWARD A DEGREE EXISTS, THUS ENHANCING THE EFFECTIVENESS OF THE EDUCATIONAL PROGRAM.

THE AGENCIES HAVE OFFERED SIGNIFICANT JUSTIFICATIONS TO SHOW THAT A REASONABLE RELATION EXISTS BETWEEN THE ACCREDITATION OF THE CONTRACTOR AND THE PROVISION OF AN EFFECTIVE PROGRAM OF INSTRUCTION. THESE INCLUDE THE PROMOTION OF PROGRAM QUALITY AND ITS MAINTENANCE, MINIMIZATION OF OVERALL EDUCATIONAL COSTS, AND ENHANCED STUDENT ACHIEVEMENT. THUS, WE DO NOT VIEW THE ACCREDITATION REQUIREMENT AS UNDULY RESTRICTIVE.

MOREOVER, WE NOTE THAT THE ACCREDITATION REQUIREMENT IN THESE SOLICITATIONS IS CONSISTENT WITH DOD DIRECTIVE NO. 1322.8, FEBRUARY 9, 1980, WHICH PROVIDES THAT THE EDUCATIONAL PROGRAMS OF THE MILITARY SERVICES SHALL RELY PRIMARILY ON "PROGRAMS, COURSES, AND SERVICES PROVIDED BY APPROPRIATELY ACCREDITED INSTITUTIONS AND ORGANIZATIONS ***." WE ARE AWARE OF NO LEGAL IMPEDIMENT TO SUCH A REQUIREMENT AND THE PROTESTER HAS NOT SHOWN THAT THE SECRETARY OF DEFENSE ACTED UNREASONABLY IN PROMULGATING THE REGULATION OR THAT IT WAS BEYOND THE SECRETARY'S AUTHORITY TO DO SO.

THE PROTEST IS DENIED.