Gonzales-McCaulley Investment Group, Inc.
B-299936.2, Nov 5, 2007
Gonzales-McCaulley Investment Group, Inc. (GMIG) protests the decision of the Department of Health and Human Services (HHS) to cancel a solicitation for quotations for grants management courses to be taught at the Health and Human Services University (HHS-U), as authorized by the Government Employees Training Act (GETA), 41 U.S.C. 4101-4121 (2000).
We sustain the protest.
B-299936.2, Gonzales-McCaulley Investment Group, Inc., November 5, 2007
1. Agency's decision to cancel a solicitation, after a protest was filed, due to a lack of valid delegated procurement authority, was essentially pretextual when no other solicitations issued under the invalid delegation were cancelled.
2. Agency did not have a reasonable basis to rescind the selection of a vendor for providing training classes under the Government Employees Training Act based on its belief that the vendor plagiarized certain material from another vendor and included this material in its quotation, which the agency found indicated a lack of independent knowledge of the course material that rendered the quotation unacceptable, where the agency did not reasonably investigate its concerns, the record contains evidence that the vendor properly obtained this material from the agency and reasonably used it in its quotation, and the vendor's quotation contained information that was not plagiarized that was relevant to its knowledge of the course material.
Gonzales-McCaulley Investment Group, Inc. (GMIG) protests the decision of the Department of Health and Human Services (HHS) to cancel a solicitation for quotations for grants management courses to be taught at the Health and Human Services University (HHS-U), as authorized by the Government Employees Training Act (GETA), 41 U.S.C. sections 4101-4121 (2000).
HHS-U was established on
GMIG and other vendors submitted quotations prior to the May 31 closing date. Upon review of the vendors' technical capabilities and prices, HHS-U selected GMIG, as well as Management Concepts (the incumbent) and one other vendor, to provide grants management training courses at HHS-U. AR,
Prior to the start of classes, the Center Manager states that she was reviewing the Management Concepts website and noticed a striking similarity with the course descriptions, objectives, and topics in comparison to GMIG's quotation. AR,
It came to our attention today that the grants course information you included in your proposal is not your own. Therefore, I am withdrawing the offer letter from
. We will not be contracting with you for grants management training in FY08. HHS University
Initial Protest, Tab 9, Center Manager's E-mail to GMIG, at 1.
After receiving HHS-U's notice, GMIG contacted the agency and requested that HHS'U review GMIG's course book that it had previously provided HHS-U, asserting that it was readily apparent that the two vendors had different curriculums and that it had shown that it can successfully provide the required courses. GMIG also complained that comparing GMIG's quotation with another vendor's quotation was improper. Initial Protest, Tab 10, GMIG E-mail to HHS-U (
On June 29, the Center Manager responded, stating I did review your binder. However, it wasn't referenced in your proposal. My decision stands, although she invited GMIG to resubmit a proposal with information on courses that GMIG offers. We will be happy to consider it for future classes. Initial Protest, Tab 12, Center Manager's E-mail to GMIG, at 1. GMIG then protested to our Office the agency's decision to rescind the firm's selection to provide grants management courses at HHS-U.
The agency asserted that the rescission of GMIG's selection was reasonable because a comparison of the Management Concepts materials (located on its Internet site) and GMIG's submitted materials confirms that GMIG copied the Management Concepts course descriptions and learning objectives and submitted them as their own. As such, HHS-U concluded that there was an insufficient basis on which to evaluate GMIG's quotation as technically acceptable because GMIG's plagiarism inspired little confidence in regard to its independent knowledge of the course material and its ability to convey appropriate information through its course instruction. AR,
In its comments in response to the agency report on this protest, GMIG denied the claims of plagiarism with regard to this information (which GMIG states was very general by its nature), and countered by providing various examples from publicly provided federal government training catalogs, including that of HHS-U, with course descriptions and learning objectives that were also virtually identical to the course descriptions and learning objectives included in GMIG's quotation and on the Management Concepts website. Initial Protest, at 2; Protester's Comments,
Shortly after receiving GMIG's comments, HHS requested dismissal of the protest based on a discovery that the acquisition had been conducted under a delegation of GETA authority that was not effective as to HHS-U. As previously stated, on
On August 8, GMIG protested that the GETA authority was operational at the time of GMIG's selection and, alternatively, that the agency's decision to cancel the solicitation was solely for the purpose of having its protest dismissed. In response, the agency argued that its decision to cancel was reasonable because the acquisition was unauthorized as it was conducted under an invalid delegation of acquisition authority and that the reason for cancellation was not pretextual.
A contracting agency need only establish a reasonable basis to support a decision to cancel a request for quotations. SMF Sys. Tech. Corp., B-292419.3,
Here, it appears from the record that HHS is correct in its assertion that the GETA acquisition authority had not been validly delegated to HHS-U. We believe that this lack of authority would ordinarily provide a reasonable basis to cancel a solicitation. However, based on our review of HHS's actions here, we conclude that the cancellation of this solicitation was pretextual. The record shows that this was the only acquisition, out of the hundreds that had been conducted by HHS-U without properly delegated authority, that was cancelled when HHS became aware of the lack of authority, even though a number of the other HHS'U acquisitions were ongoing. See AR,
Nevertheless, even where the cancellation of a solicitation was a pretext to avoid further scrutiny and review of a protest, we will not sustain a protest of the cancellation on this basis unless the protester was prejudiced, for example, if its initial protest would have been sustained but for the cancellation. See Miller, Davis, Marter & Opper, P.C., supra, at 5.
As indicated above, HHS rescinded the selection of GMIG because it believed that GMIG had plagiarized from the Management Concepts materials in preparing its quotation and that the agency, therefore, had an insufficient basis on which to evaluate GMIG's quotation as technically acceptable, because GMIG's plagiarism inspired little confidence in regard to GMIG's independent knowledge of the course material and its ability to convey appropriate information through its course instruction.
In response, GMIG specifically denies plagiarizing this material from the Management Concepts website and provides evidence that the course descriptions and learning objectives that it used were virtually identical to those in HHS-U's catalog and the catalogs of several other federal agencies. HHS does not deny that this is the case. Indeed, the general course descriptions included by GMIG in its quotation were included in HHS-U's solicitation, so it is not surprising that a vendor offering these very courses would copy the solicitation's description and refer to the learning objectives already identified by the agency in its catalog for these courses. We also note that it has not been alleged that GMIG plagiarized the course syllabus, also included in its quotation, which contained details regarding GMIG's class instruction, or the course book that GMIG provided to HHS-U. Indeed, as indicated, the Center Manager was aware, after reviewing GMIG's course book, that the binder of materials appear[ed] to be a viable training option. AR,
Given that the agency now has the properly delegated acquisition authority, we recommend that HHS-U reinstate the solicitation and reevaluate the quotations, considering all information presented by the vendors in response to the plagiarism allegations. We also recommend that GMIG be reimbursed its costs of filing and pursuing the current protest of the cancellation, as well as its earlier protest of the rescission of its selection. Bid Protest Regulations 4 C.F.R. sect. 21.6(a)(1) (2007).  GMIG should submit its certified claim for costs, detailing the time expended and costs incurred, directly to the contracting agency within 60 days after the receipt of this decision. 4 C.F.R. sect. 21.8(f)(1).
Gary L. Kepplinger
 Originally enacted in 1957, GETA provides federal agencies with general authority for employee training and authorizes the use of non-governmental training resources to meet identified training needs. 41 U.S.C. sect. 4105.
 Our review of the record indicates that the two vendors' course descriptions and learning objectives were virtually identical.
 The agency in its report asserts that GMIG was given an opportunity to resubmit its quote. AR,
 Management Concepts asserts that there are copyright concerns regarding the use of its materials that need to be addressed with regard to this acquisition. The agency should review these concerns to ascertain their validity and take appropriate action. We also recognize that an agency's concerns about plagiarism, if justified, could affect the determination of the prospective contractor's responsibility.
 We do not recommend that GMIG be reimbursed its claimed quotation preparation costs, since it is being provided an opportunity to compete for courses under the solicitation.