B-200055(1), MAR 2, 1981

B-200055(1): Mar 2, 1981

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DIGEST: PROPOSED SOLE-SOURCE PROCUREMENT FOR REPORT ON "PRIVACY IN WORKPLACE" IS QUESTIONED SINCE: (1) PROTESTING CONCERN APPARENTLY ALREADY HAS SOME OF QUALIFICATIONS NEEDED TO PERFORM CONTRACT AND IT IS QUITE POSSIBLE. THAT PROTESTER MAY HAVE. (2) THERE ARE "MANY EXPERTS INCLUDING SCHOLARS. THE PURPOSE OF THE CONTRACT IS TO PREPARE A COMPREHENSIVE REPORT INCLUDING A SUMMARY AND ANALYSIS OF NATIONWIDE HEARINGS CONDUCTED IN EARLY 1980 ON "PRIVACY IN THE WORKPLACE.". WHILE LABOR WAS CONSIDERING THE SCOPE. " THE SOLICITOR'S OFFICE OF THE DEPARTMENT DETERMINED THAT THE FUND "IS THE ONLY ONE WHO CAN PERFORM THE WORK WITH DESIRED QUALITY *** IN AN EXPEDITIOUS MANNER.". COHEN'S PROTEST IS BASED ON THE ALLEGATIONS THAT LABOR KNEW OF ITS INTEREST IN PERFORMING THE CONTRACT.

B-200055(1), MAR 2, 1981

DIGEST: PROPOSED SOLE-SOURCE PROCUREMENT FOR REPORT ON "PRIVACY IN WORKPLACE" IS QUESTIONED SINCE: (1) PROTESTING CONCERN APPARENTLY ALREADY HAS SOME OF QUALIFICATIONS NEEDED TO PERFORM CONTRACT AND IT IS QUITE POSSIBLE, GIVEN PROCUREMENT DELAYS, THAT PROTESTER MAY HAVE, OR BE ABLE TO OBTAIN, OTHER NEEDED EXPERTISE; (2) THERE ARE "MANY EXPERTS INCLUDING SCHOLARS, PROFESSIONAL ASSOCIATIONS AND PUBLIC INTEREST GROUPS" INTERESTED IN SUBJECT OF REPORT AND WHO MAY, THEREFORE, BE QUALIFIED TO PREPARE REPORT; AND (3) NEED FOR EXPEDITED REPORT, WHICH SUPPORTED SOLE-SOURCE RATIONALE, APPEARS QUESTIONABLE GIVEN PROCUREMENT DELAYS.

COHEN ASSOCIATES:

COHEN ASSOCIATES (COHEN) HAS PROTESTED THE PROPOSED SOLE-SOURCE AWARD OF A CONTRACT BY THE DEPARTMENT OF LABOR (LABOR) TO THE EDUCATIONAL FUND FOR INDIVIDUAL RIGHTS (FUND). BASED ON OUR REVIEW, WE SUSTAIN THE PROTEST.

THE PURPOSE OF THE CONTRACT IS TO PREPARE A COMPREHENSIVE REPORT INCLUDING A SUMMARY AND ANALYSIS OF NATIONWIDE HEARINGS CONDUCTED IN EARLY 1980 ON "PRIVACY IN THE WORKPLACE." THE HEARINGS GENERATED 2,500 PAGES OF TRANSCRIPTS AND 2,500 PAGES OF STATEMENTS AND EXHIBITS OF HEARING WITNESSES, IN ADDITION TO 1,000 PAGES OF STATEMENTS SUBMITTED BY THOSE INDIVIDUALS WHO DID NOT TESTIFY IN PERSON.

WHILE LABOR WAS CONSIDERING THE SCOPE, CONTENT AND FORMAT OF THE REPORT, DR. ALAN WESTIN, PRESIDENT OF THE FUND, EXPRESSED AN INTEREST TO LABOR OFFICIALS IN PREPARING THE REPORT. AFTER CONSIDERING THE QUALIFICATIONS OF DR. WESTIN AND "REVIEWING THE EXISTING LITERATURE AND TALKING TO MANY EXPERTS IN THE AREA OF WORKPLACE PRIVACY," THE SOLICITOR'S OFFICE OF THE DEPARTMENT DETERMINED THAT THE FUND "IS THE ONLY ONE WHO CAN PERFORM THE WORK WITH DESIRED QUALITY *** IN AN EXPEDITIOUS MANNER." THEREAFTER, LABOR'S PROCUREMENT REVIEW BOARD GRANTED APPROVAL FOR A NONCOMPETITIVE AWARD TO THE FUND ON JULY 2, 1980.

COHEN'S PROTEST IS BASED ON THE ALLEGATIONS THAT LABOR KNEW OF ITS INTEREST IN PERFORMING THE CONTRACT, THAT IT IS A QUALIFIED OFFEROR IN THE AREA OF WORKPLACE PRIVACY, AND THAT IT SHOULD HAVE BEEN PERMITTED TO COMPETE FOR THE AWARD.

OUR OFFICE HAS OFTEN SANCTIONED SOLE-SOURCE AWARDS WHERE IT IS CLEAR THAT THE PROPERTY OR SERVICES COULD BE OBTAINED FROM ONLY ONE PERSON OR FIRM. SEE, E.G., AMDAHL CORPORATION, B-191133, OCTOBER 18, 1978, 78-2 CPD 284. HOWEVER, DUE TO THE GENERAL REQUIREMENT THAT PROCUREMENTS MUST BE COMPETITIVE TO THE MAXIMUM DEGREE PRACTICABLE, AGENCIES MUST ADEQUATELY JUSTIFY DETERMINATIONS TO PROCURE ON A SOLE-SOURCE BASIS. PRECISION DYNAMICS CORPORATION, 54 COMP.GEN. 1114 (1975), 75-1 CPD 402. AS A GENERAL RULE, WE WILL NOT DISTURB A DECISION TO PROCURE ON A SOLE-SOURCE BASIS WHERE THE DETERMINATION TO NEGOTIATE ON THAT BASIS IS SUPPORTED BY A RECORD SUFFICIENTLY ESTABLISHING THAT THE AWARDEE WAS THE ONLY KNOWN SOURCE WITH THE CAPABILITY TO SATISFY THE PROCURING ACTIVITY'S REQUIREMENTS. MEMOREX CORPORATION, 57 COMP.GEN. 865 (1978), 78-2 CPD 236. WE WILL ONLY QUESTION SUCH DETERMINATIONS IF IT IS SHOWN THAT THE AGENCY ACTED UNREASONABLY. NORTHWEST MARINE TECHNOLOGY, INC., B-191511, JULY 13, 1978, 78-2 CPD 33.

LABOR CONTENDS THAT A NONCOMPETITIVE AWARD TO THE FUND IS JUSTIFIED BECAUSE OF THE RANGE OF TASKS REQUIRED AND THE UNIQUE ABILITY OF DR. WESTIN AND THE FUND TO PERFORM THESE TASKS.

THE STATEMENT OF WORK REQUIRES VARIOUS TYPES OF EVIDENCE PRESENTED AT THE HEARINGS BE ANALYZED AND EVALUATED IN THE REPORT. THIS EVIDENCE INCLUDES CURRENT EMPLOYER PRIVACY PRACTICES, VARIOUS SURVEY DATA, STATE LAWS RELATING TO WORKPLACE PRIVACY, TRUTH VERIFICATION DEVICES, EMPLOYEE COUNSELING PROGRAMS, OCCUPATIONAL HEALTH MATTER AND VARIOUS LABOR RELATIONS ISSUES.

LABOR ARGUES THAT BECAUSE OF DR. WESTIN'S AND THE FUND'S EXPERIENCE, THE REPORT WILL REACH THE DEGREE OF SOPHISTICATION NECESSARY TO BE OF BENEFIT TO THE REPORT'S USERS WHO HAVE AN IN-DEPTH KNOWLEDGE OF THIS AREA. DR. WESTIN'S EXPERIENCE AND EXPERTISE WILL PERMIT ANALYSIS OF THE INFORMATION CONTAINED IN THE HEARINGS BASED UPON IMPORTANCE RATHER THAN FREQUENCY OF APPEARANCE IN THE TESTIMONY. BESIDES REPORTING THE RESULTS OF THE SURVEYS, DR. WESTIN, BECAUSE OF HIS PRACTICAL EXPERIENCE IN THE SURVEY DATA AREA, WILL BE ABLE TO INTERRELATE THE SURVEYS AND EXPLAIN ANY DIFFERENCES IN METHODOLOGIES UTILIZED.

BECAUSE OF THE VARIOUS AREAS TO BE COVERED IN THE REPORT, A "MULTI DISCIPLINARY" PERSPECTIVE IS NEEDED WHICH IS POSSESSED BY DR. WESTIN WHOSE BACKGROUND INCLUDES LAW, POLITICAL SCIENCE, SURVEY RESEARCH, STATE PRIVACY COMMISSION SERVICE AND CONSULTING FOR EMPLOYEES AND GOVERNMENT IN THE AREA OF WORKPLACE PRIVACY. THIS BACKGROUND WILL BE SUPPLEMENTED BY THE STAFF OF THE FUND WITH LEGAL AND SOCIAL SCIENCE EXPERTISE.

LABOR ALSO STATES THAT IT KNEW THAT COHEN MAY HAVE AN INTEREST IN PERFORMING THIS REQUIREMENT AND THAT, BEFORE DECIDING ON THE SOLE SOURCE PROCUREMENT TO THE FUND, LABOR FULLY CONSIDERED THE QUALIFICATIONS AND CAPABILITIES OF COHEN AS WELL AS CONSIDERING "WHETHER THERE WERE ANY OTHER QUALIFIED BIDDERS."

LABOR STATES THAT COHEN'S STATEMENT THAT IT IS A QUALIFIED OFFEROR IS BASED ON THE FACT THAT COHEN HAD PERFORMED AN EARLIER CONTRACT FOR LABOR IN THE AREA OF WORKPLACE PRIVACY. THIS CONTRACT WAS FOR THE PREPARATION OF A BACKGROUND PAPER AND BRIEFING DOCUMENT, INCLUDING POTENTIAL QUESTIONS, FOR HEARING PARTICIPANTS. LABOR'S DISCUSSION OF COHEN'S QUALIFICATIONS AND CAPABILITIES ALL RELATE TO THE PERFORMANCE OF THE PRIOR CONTRACT. WHILE LABOR APPEARS TO HAVE HAD NO PROBLEMS WITH THE PRIOR WORK PRODUCT OF COHEN, COHEN'S QUALIFICATIONS IN CERTAIN AREAS ARE FOUND TO BE LACKING BECAUSE THE NEW REPORT WILL COVER SUBJECTS AND AREAS NOT DEALT WITH IN THE EARLIER CONTRACT.

LABOR CONTENDS, IN ITS RESPONSE TO THE PROTEST:

"IN SHORT, THE EARLIER REPORT WAS DESIGNED TO FULFILL A SPECIFIC NEED OF THE DEPARTMENT AT THE TIME IT WAS PREPARED - TO ASSIST THE FEDERAL PANEL MEMBERS WHO INITIALLY HAD LIMITED BACKGROUND IN THE PRIVACY AREA IN DEVELOPING PROMPTLY SUFFICIENT FAMILIARITY WITH PRIVACY ISSUES TO EVOKE USEFUL RESPONSES FROM HEARING PARTICIPANTS. THE NEW CONTRACT IS AIMED AT AN IN-DEPTH ANALYSIS OF THE EXTENSIVE MATERIALS RECEIVED. THESE MATERIALS INCLUDED IMPORTANT ISSUES WHICH HAD NOT BEEN ANTICIPATED PRIOR TO THE HEARINGS. MOREOVER, THE RECORD PRODUCED COMPLEX INFORMATION AND VIEWS CONCERNING A FULL PANOPLY OF WORKPLACE PRIVACY ISSUES.

"IN ORDER FOR THE REPORT TO ACHIEVE ITS INTENDED PURPOSES, IT IS ESSENTIAL THAT IN-DEPTH AND MULTIFACETED EXPERTISE BE BROUGHT TO BEAR ON THE ISSUES WITH WHICH IT WILL DEAL. SUCH EXPERTISE IS NECESSARY TO ASSURE THAT THE REPORT WILL BE CREDIBLE AND USEFUL TO THOSE MEMBERS OF THE PUBLIC INVOLVED IN WORKPLACE PRIVACY ISSUES. THE SKILLS REQUIRED, THE SCOPE AND THE SOURCE MATERIALS FOR THE TWO REPORTS ARE QUITE DIFFERENT. BECAUSE OF THESE DIFFERENCES, THE DEPARTMENT DOES NOT BELIEVE THAT THE EARLIER CONTRACT IS RELEVANT IN DETERMINING MR. COHEN'S QUALIFICATIONS FOR THE NEW CONTRACT."

WHILE LABOR CONTENDS THAT BECAUSE OF THE DIFFERENCES IN THE TWO REPORTS, THE EARLIER CONTRACT SHOULD NOT BE CONSIDERED IN DETERMINING COHEN'S QUALIFICATIONS FOR THIS CONTRACT, IN ACTUALITY, LABOR DID JUST THAT. LABOR CONCLUDED THAT COHEN DOES NOT POSSESS CERTAIN QUALIFICATIONS AND EXPERTISE BASED ON THE LACK OF SUCH EXPERTISE BEING REQUIRED IN THE EARLIER REPORT.

WE FIND IT IMPROPER TO PENALIZE A PROSPECTIVE OFFEROR BECAUSE THE SCOPE OF AN EARLIER CONTRACT DID NOT INCLUDE ALL AREAS REQUIRED UNDER THE NEW CONTRACT. MOREOVER, THE "JUSTIFICATION" FOR THE EARLIER SOLE SOURCE CONTRACT AWARDED TO COHEN SUGGESTS THAT, AT A MINIMUM, THE COMPANY ALREADY HAD SOME OF THE QUALIFICATIONS NEEDED TO PERFORM THE CONTRACT. AS STATED IN THE "JUSTIFICATION:"

"MR. COHEN IS A PUBLICATION SPECIALIST WHO HAS HAD CONSIDERABLE EXPERIENCE AND DEMONSTRABLE EXPERTISE IN WRITING AND EDITING. HE IS FAMILIAR WITH MANY OF THE PRIVACY-IN-EMPLOYMENT ISSUES TARGETED FOR THE HEARINGS, INCLUDING THE USE OF CRIMINAL JUSTICE RECORDS AND COMPUTERS."

FURTHER, IT IS QUITE POSSIBLE, GIVEN THE PASSAGE OF TIME, THAT COHEN NOW HAS, OR MAY BE ABLE TO OBTAIN, REQUIRED EXPERTISE IN ALL OTHER NEEDED AREAS.

FINALLY, THE LABOR REPORT CONTAINS STATEMENTS THAT THERE ARE "MANY EXPERTS IN THE AREA OF WORKPLACE PRIVACY" AND THAT THERE ARE "MANY *** PROFESSIONAL ASSOCIATIONS, SCHOLARS, PUBLIC INTEREST GROUPS, AND OTHERS INTERESTED IN THE AREA OF WORKPLACE PRIVACY." WHILE WE AGREE THAT DR. WESTIN AND THE FUND POSSESS IMPRESSIVE QUALIFICATIONS, THIS DOES NOT NECESSARILY LEAD TO THE CONCLUSION THAT NO OTHER OFFEROR COULD PERFORM THE CONTRACT TO JUSTIFY A NONCOMPETITIVE AWARD ESPECIALLY GIVEN THE MANY "EXPERTS" AND WIDESPREAD INTEREST IN THE AREA, WHICH SUGGESTS THE EXISTENCE OF OTHER POSSIBLE QUALIFIED SOURCES. THE EVALUATION OF PROPOSALS, SUBMITTED IN RESPONSE TO A STATEMENT OF WORK CONTAINED IN A SOLICITATION, IS GENERALLY THE PREFERRED METHOD TO DETERMINE WHICH OFFEROR CAN BEST PERFORM THE CONTRACT FOR THE GOVERNMENT.

REGARDING THE ARGUMENT OF LABOR THAT IT REQUIRES THE REPORT IN AN EXPEDITIOUS FASHION, THEREBY FURTHER SUPPORTING THE PROPOSED AWARD TO THE FUND, THE STRENGTH OF THIS ARGUMENT IS DILUTED BY THE FACT IT TOOK LABOR 5 MONTHS TO RESPOND TO THE PROTEST OF COHEN AND NO AWARD HAS BEEN MADE BASED ON URGENCY; MOREOVER, THE RECORD CONTAINS A LABOR STATEMENT THAT THE REQUIRED REPORT "DOES NOT HAVE ANY FORMAL REPORTING DEADLINE." IF LABOR NEEDS A SHORT DELIVERY DATE FOR THE REPORT, THE SOLICITATION SHOULD CONTAIN THE REQUIRED SCHEDULE AND OFFERORS CAN EITHER PROPOSE TO MEET THE SCHEDULE OR PROPOSE AN ALTERNATE DELIVERY DATE FOR THE FINAL PRODUCT.

ANOTHER REASON ADVANCED BY LABOR FOR AN EXPEDITIOUS AWARD AND PERFORMANCE WAS THAT DR. WESTIN AND THE FUND WOULD ONLY BE AVAILABLE DURING THE SUMMER MONTHS OF 1980 AND THAT IF "THERE WERE TO BE A POSTPONEMENT IN AWARDING THIS CONTRACT *** DR. WESTIN MIGHT NOT BE ABLE TO COMPETE." SINCE THE PASSAGE OF TIME HAS RENDERED ACADEMIC THIS CONSIDERATION FOR THE SOLE- SOURCE AWARD, WE FURTHER QUESTION THE PROPOSED AWARD.

ACCORDINGLY, WE DO NOT FIND THAT LABOR HAD A REASONABLE BASIS FOR CONCLUDING THAT ONLY THE FUND COULD PERFORM THE REQUIREMENT AND RECOMMEND THAT A COMPETITIVE SOLICITATION BE ISSUED FOR THE REQUIREMENT.