Operational Support & Services
B-299660.2, Sep 24, 2007
Operational Support & Services (OSS) protests the award of Department of the Army, United States Special Operations Command (USSOCOM), contract No. H92222-07-D-0021, to Shee Atika Languages (SAL), for comprehensive foreign language interpretation, transcription, reporting and translation services. OSS asserts that the USSOCOM acted in bad faith and in violation of applicable regulations in making the award to SAL on a sole-source basis under the Small Business Administration's (SBA) section 8(a) program.
We deny the protest.
B-299660.2, Operational Support & Services, September 24, 2007
DOCUMENT FOR PUBLIC RELEASE
The decision issued on the date below was subject to a GAO Protective Order. This redacted version has been approved for public release.
Operational Support & Services (OSS) protests the award of Department of the Army, United States Special Operations Command (USSOCOM), contract No. H92222-07-D-0021, to Shee Atika Languages (SAL), for comprehensive foreign language interpretation, transcription, reporting and translation services.
On December 28, 2006, USSOCOM issued a presolicitation notice on the Federal Business Opportunities (FedBizOps) website announcing its intention to issue, within 30 days, a solicitation for comprehensive foreign language interpretation, transcription, reporting and translation services in support of Special Operations Forces (SOF) operational requirements worldwide. At the time of the notice, Worldwide Language Resources, Inc. was providing the services to be procured under the contemplated solicitation. The FedBizOps notice advised that the solicitation would provide for multiple awards of indefinite-delivery/indefinite-quantity contracts, with one award to be reserved for a small business concern and one to be made on an unrestricted basis.
On December 29, SAL, which is certified as an Alaskan Native Corporation (ANC) under the SBA 8(a) program, responded to the FedBizOps notice with an e-mail to the agency advising of its interest in the procurement, its status as a section 8(a) ANC, and the fact that it had assembled a team whose partners have extensive experience with Special Operations, including current support of SOF in Afghanistan. SAL E-mail to USSOCOM Contract Specialist,
On February 9, two other companies filed agency-level protests questioning SAL's qualifications to perform the contemplated work, asserting that the determination to abandon a competitive procurement was the result of a conflict of interest, and that SAL was affiliated with Worldwide''whose owner held a 49 percent ownership interest in SAL''so as to render SAL other than a small business concern. On February 15, USSOCOM requested that SBA make a formal size determination with respect to SAL. However, SBA dismissed the matter on the bases that (1) it was premature because there had been no formal solicitation and no response to a solicitation from the protesters, and (2) the protesters were not interested parties because they were not 8(a) concerns. SBA Decision, Case 1-SD-2007-30,
As a result of the above delays in its effort to award a successor contract, when the incumbent contract with Worldwide expired on March 29, USSOCOM awarded Worldwide a bridge contract. On April 5,
In the interim, on April 18, in response to a further request from USSOCOM regarding the alleged affiliation of SAL and Worldwide, SBA informed the agency that it found no evidence of affiliation. Thereafter, on April 23, USSOCOM offered the foreign language services requirement to SBA for award to SAL under the 8(a) program on a sole-source basis. SBA Comments,
Section 8(a) of the Small Business Act, 15 U.S.C. sect. 637(a) (2000), authorizes SBA to enter into contracts with government agencies and to arrange for performance through subcontracts with socially and economically disadvantaged small business concerns. Federal Acquisition Regulation (FAR) sect. 19.800. The Act affords SBA and contracting agencies broad discretion in selecting procurements for the 8(a) program; accordingly, we will not consider a protest challenging a decision to procure under the 8(a) program absent a showing of possible bad faith on the part of government officials or that regulations may have been violated. 4 C.F.R. sect. 21.5(b)(3) (2007); Rothe Computer Solutions, LLC d/b/a Rohmann J.V., B-299452,
We have considered all of
The record does show that the agency was aware that SAL had a prior business relationship with Worldwide, and that Worldwide's participation as a subcontractor was a significant factor in its decision to make award to SAL. E-mail from USSOCOM Contracting Officer to USSOCOM Contract Specialist,
However, the agency's consideration of Worldwide's participation in performance of the contract was not improper. In this regard, there is no applicable statute or regulation that prohibits section 8(a) firms from entering into subcontracting arrangements for purposes of competing for an 8(a) award. In fact, SBA's regulations actually contemplate that 8(a) participants will subcontract (but specifically provide that an 8(a) firm must comply with the limitation on subcontracting requirements). See 13 C.F.R. sections 124.510(a) and 125.6; Myers Investigative and Sec. Servs., Inc., B-286971.2, B-286971.3,
LIMITATION ON SUBCONTRACTING
OSS asserts that SAL's proposal evidenced an intention to violate the requirement that a concern awarded an 8(a) contract agree to perform at least 50 percent of the personnel cost under the contract with its own employees, reflecting its plan to have Worldwide continue performing the work. 13 C.F.R. sect. 125.6(a); FAR sect. 19.811(3)(e); see FAR sect. 52.219-14, Limitations on Subcontracting, incorporated into SAL Contract at 52.
We have recognized that, where a proposal indicates that an offeror could not and would not comply with the subcontracting limitation, the proposal is unacceptable and may not form the basis for an award under the section 8(a) program. See generally Ecompex, Inc., B-292865.4 et al.,
Here, it is clear from the record that SAL expressly committed to complying with the limitation on subcontracting requirements in performing the contemplated contract. In this regard, SAL stated in its proposal to USSOCOM that:
[SAL] will provide the program management staff and all leadership roles for this contract. As positions are tasked, SAL will fill linguist slots as required in order to insure that at all times 51% of the labor cost will be performed by SAL direct (ie., W-2) employees.
To the greatest extent possible consistent with the requirement that SAL perform 51% of the labor cost, SAL intends to use Worldwide Language Resources as a subcontractor to provide linguists in those arenas where Worldwide has previously been USSOCOM's contractor. Obviously, if USSOCOM provides SAL sufficient total positions throughout the world, then SAL will use Worldwide Language Resources as its subcontractor for all the positions where Worldwide Language Resources was the incumbent.
SAL Management Proposal,
I have talked to [Worldwide] and, if the worst case scenario occurs and the only task order we get is for their customer, SAL will simply impose our management and hire away enough [Worldwide] linguists to insure that we have at least 51% of the work. [Worldwide] has reluctantly agreed to this.
E-mail from SAL CEO to USSOCOM Contracting Officer,
Likewise, the record indicates that USSOCOM emphasized the necessity for complying with the limitation on subcontracting requirements, with SAL's stated approach to complying being a response to USSOCOM's request that SAL: readdress [its] plan on how [it] will achieve the 51% of labor dollars with Shee Atika employees''this plan needs to address timeliness in obtaining the proper skill sets, etc.
H.2. PRIME CONTRACTOR PREDOMINANCE OF SUPPORT NOTICE. [SAL] as the prime Contractor, is required to perform 51% of ALL labor as measured by total labor dollars under this contract. This requirement does not apply to each task order. However, it is required that the balance be maintained at any point in time and must be in compliance at the end of the contract. Actual compliance shall be monitored through the monthly manning report submitted by the Contractor to the USSOCOM Contracting Officer.
SAL Contract, sect. H.2. We conclude that there was, and is, no indication that SAL did not intend to comply with the limitation on subcontracting; in fact, the record shows that the agency took steps to ensure that SAL understood its obligation and would not violate the limitation during contract performance.
FAIR MARKET PRICE
The fair market price determination here was unobjectionable. The record indicates that the agency considered extensive data regarding current pricing for linguist services similar, or generally similar, to those required here. Specifically, the contracting officer considered: (1) pricing data from 22 separate General Services Administration schedule contracts, with an emphasis on the pricing of linguists used in support of Operation Enduring Freedom and Operation Iraqi Freedom (because such services are similar to the linguist services in support of special operations forces required here); (2) cost and pricing data furnished by SAL; (3) the Defense Contract Audit Agency's (DCAA) review of SAL's direct and indirect rates; and (4) market research into linguist salaries, as listed on employment websites. USSOCOM Business Clearance Memorandum, Aug. 15, 2007; Contracting Officer's Supplemental Statement of Facts, Aug. 27, 2007, at 1-37, and attachments 51-105.
The protester questions various aspects of the agency's approach, but we find its methodology reasonable. For example,
The protest is denied.
Gary L. Kepplinger
 The record indicates that, in its July 9 report to the agency, SAL stated that it was performing the contract in compliance with the limitation on subcontracting clause; [DELETED] SAL employees and [DELETED] Worldwide employees were working under the contract. SAL E-mail to USSOCOM Contract Specialist,