B-199636.2, AUG 3, 1981

B-199636.2, AUG 3, 1981

DIGEST: 1. MERE SUBMISSION OF UNSOLICITED PROPOSAL IS NOT SUFFICIENT TO CALL INTO QUESTION SOLE SOURCE DETERMINATION WHICH HAS BEEN FOUND TO BE REASONABLE. 2. PRIOR DECISION DENYING PROTEST AGAINST SOLE-SOURCE AWARD FOR HOSPITAL ASEPTIC MANAGEMENT SERVICES AND UPHOLDING AGENCY DETERMINATION THAT ONLY INCUMBENT CONTRACTOR COULD PROVIDE UNINTERRUPTED LEVEL OF SERVICE DURING PERIOD OF HOSPITAL EXPANSION IS AFFIRMED WHERE PROTESTER HAS NOT PRESENTED ANY ADDITIONAL EVIDENCE THAT IT COULD MEET AGENCY'S NEEDS.

HARRIS SYSTEM PEST CONTROL:

HARRIS SYSTEM PEST CONTROL (HARRIS) REQUESTS RECONSIDERATION OF OUR DECISION B-199636, MAY 27, 1981, 81-1 CPD 413, DENYING ITS PROTEST AGAINST THE AIR FORCE'S AWARD OF A SOLE-SOURCE CONTRACT FOR HOSPITAL ASEPTIC MANAGEMENT SERVICES (HAMS) AT WILFORD HALL AIR FORCE MEDICAL CENTER, LACKLAND AIR FORCE BASE, TEXAS.

HAMS ARE CLEANING SERVICES WHICH INCLUDE ASEPTIC SERVICES TO PREVENT INFECTION AND THEREFORE ARE CRUCIAL TO THE HOSPITAL'S MISSION. THESE SERVICES ARE USUALLY ACQUIRED THROUGH FORMAL ADVERTISEMENT. HOWEVER, IN THIS CASE THE AIR FORCE DETERMINED TO AWARD A ONE-YEAR SOLE-SOURCE CONTRACT TO THE INCUMBENT CONTRACTOR BECAUSE THE HOSPITAL HAD RECENTLY UNDERGONE SUBSTANTIAL EXPANSION AND THE AIR FORCE CONCLUDED THAT ITS STAFF COULD NOT OVERSEE BOTH THE RELOCATION INTO THE EXPANDED FACILITIES AND A CHANGE OF HAMS CONTRACTORS WITHOUT JEOPARDIZING THE HOSPITAL'S MISSION AND THE HEALTH OF ITS PATIENTS. PAST EXPERIENCE SHOWED THAT A CHANGE OF HAMS CONTRACTORS ENTAILED A SUBSTANTIAL LEARNING OR PHASE-IN PERIOD REQUIRING CLOSE SUPERVISION BY THE AIR FORCE STAFF. THE AIR FORCE DECIDED THAT DURING THE PERIOD ITS STAFF WAS INVOLVED WITH THE RELOCATION EFFORT IT COULD NOT AFFORD A DIMUNITION IN HAMS' QUALITY, AND THAT ONLY THE INCUMBENT CONTRACTOR COULD PROVIDE AN UNINTERRUPTED LEVEL OF SERVICE.

WE HELD THAT UNDER THE CIRCUMSTANCES THE SOLE-SOURCE DETERMINATION WAS REASONABLE. HARRIS DOES NOT DIRECTLY QUESTION THIS ASPECT OF OUR DECISION.

HARRIS' OBJECTION STEMS FROM ITS HAVING SUBMITTED AN UNSOLICITED PROPOSAL WHICH THE AIR FORCE REFUSED TO CONSIDER AND RETURNED UNOPENED PRIOR TO MAKING THE AWARD. WE HELD THAT WHILE THE AGENCY GENERALLY HAS A DUTY TO CONSIDER UNSOLICITED PROPOSALS, THE AIR FORCE'S FAILURE TO DO SO IN THIS CASE DID NOT PREJUDICE THE PROTESTER BECAUSE THE SOLE-SOURCE DETERMINATION WAS REASONABLE AND HARRIS WOULD NOT HAVE RECEIVED THE AWARD IN ANY EVENT. HARRIS CONTENDS THAT ITS SUBMISSION OF AN UNSOLICITED PROPOSAL PLACED THE REASONABLENESS OF THE SOLE-SOURCE DETERMINATION IN DOUBT AND THAT THE PROPER PROCEDURE WOULD HAVE BEEN TO COMPARE ITS PROPOSAL TO THE INCUMBENT'S TO DETERMINE WHICH BEST MET THE AGENCY'S NEEDS.

THE PROTESTER CITES NUMEROUS DECISION BY THIS OFFICE FOR THE PROPOSITION THAT UNSOLICITED PROPOSALS OR RESPONSES TO A SYNOPSIS PUBLISHED IN A COMMERCE BUSINESS DAILY (CBD) MAY RENDER UNREASONABLE AN AGENCY'S SOLE SOURCE DETERMINATION BASED, AS HERE, ON THE IMPRACTICALITY OF COMPETITION. SEE, E.G., FEDERAL DATA CORPORATION, B-196221, MARCH 3, 1980, 80-1 CPD 167; CONSOLIDATED AERONAUTICS CORPORATION, B-193188, AUGUST 23, 1979, 79-2 CPD 147; B-154070, JUNE 24, 1964. THESE CASES ALL INVOLVE SITUATIONS WHERE, IN ADDITION TO THE SUBMISSION OF AN UNSOLICITED PROPOSAL OR RESPONSES TO A CBD SYNOPSIS, THE RECORD CONTAINS OTHER EVIDENCE DEMONSTRATING THAT COMPETITION WAS PRACTICAL. THESE CASES DO NOT STAND FOR THE PROPOSITION THAT THE MERE SUBMISSION OF AN UNSOLICITED PROPOSAL IS SUFFICIENT TO QUESTION A SOLE SOURCE DETERMINATION FOUND TO BE REASONABLE. ON THE CONTRARY, A PROTESTER MUST SHOW THAT COMPETITION IS FEASIBLE UNDER THE CIRCUMSTANCES, AND IN CASES WHERE NO SUCH SHOWING IS MADE THE AGENCY'S REFUSAL TO CONSIDER AN UNSOLICITED PROPOSAL WILL NOT AFFECT THE VALIDITY OF A SOLE-SOURCE AWARD. SEE NORTH ELECTRIC COMPANY, B-182248, MARCH 12, 1975, 75-1 CPD 150.

IN THIS CASE, WHILE THE PROTESTER SUGGESTS IT IS CAPABLE OF IMMEDIATELY PROVIDING THE LEVEL OF HAMS SERVICES REQUIRED BY THE AIR FORCE, IT PRESENTED NO EVIDENCE EITHER IN THE INITIAL PROTEST OR IN ITS REQUEST FOR RECONSIDERATION THAT THE AIR FORCE'S JUDGEMENT WAS NOT REASONABLE UNDER THE CIRCUMSTANCES. SINCE THE PROTESTER HAS THE BURDEN OF PROOF IN THIS REGARD, CPT CORPORATION, B-200551, DECEMBER 29, 1980, 80-2 CPD 444, AND HAS FAILED TO MEET THE BURDEN, WE HAVE NO BASIS TO REVERSE OUR ORIGINAL DECISION.

OUR PRIOR DECISION IS AFFIRMED.