Compugen, Ltd.

B-261769 Sep 05, 1995 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights The General Accounting Office (GAO) will no longer exercise jurisdiction over subcontract procurements "for" the government. Nor will GAO consider a sole-source subcontract award to be "by a federal agency" so as to justify taking jurisdiction over a protest of the award. Would have the primary role of designing. PRC was required to prepare a source selection handbook and acquisition plan for each planned subcontract acquisition. PTO reserved the right to have no more than two government observers attend meetings of PRC's evaluation or source selection evaluation boards. The contract provided that PTO's observers may ask questions but were not permitted to present their own evaluations or opinions. View Decision Matter of: Compugen, Ltd. File: B-261769 Date: September 5, 1995 In light of the decision in U.S. West Comms. Servs., Inc. v. United States, 940 F.2d 622 (Fed. Cir. 1991), the General Accounting Office (GAO) will no longer exercise jurisdiction over subcontract procurements "for" the government, in the absence of a request by the federal agency involved; nor will GAO consider a sole-source subcontract award to be "by a federal agency" so as to justify taking jurisdiction over a protest of the award, where the prime contractor, in evaluating the protester's proposal and determining to make a sole-source award to another firm, exercised substantial responsibility for the procurement such that the prime contractor could not be said to be a mere conduit for the agency. Attorneys DECISION Compugen, Ltd. protests the award of a sole-source subcontract to MasPar Computer Corporation by PRC, Inc. for a biotechnology sequence search computer system to be provided to the U.S. Patent and Trademark Office (PTO), Department of Commerce, under PRC's prime contract with PTO. We dismiss the protest. Since the early 1980s, PTO has sought to establish an automated patent system (APS), which would computerize all patent records and allow text retrieval. To accomplish this, PTO has established a master plan, under which an outside contractor--the systems engineering integrator--would have the primary role of designing, testing, acquiring, and maintaining the APS. In 1984, PTO awarded a cost-plus-award-fee, task order contract to PRC to be the APS systems engineering integrator. The prime contract provided that the contractor would acquire automated data processing (ADP) resources in accordance with the policies and procedures of the Federal Information Resources Management Regulation, 41 C.F.R. Part 201-39. [1] Under the prime contract, PTO would review and approve PRC's solicitation documents for APS system resources prior to release by PRC and, in this regard, PRC was required to prepare a source selection handbook and acquisition plan for each planned subcontract acquisition. PTO reserved the right to have no more than two government observers attend meetings of PRC's evaluation or source selection evaluation boards; the contract provided that PTO's observers may ask questions but were not permitted to present their own evaluations or opinions. PTO also reserved the right to approve subcontract selections. In 1994, PRC awarded a sole-source subcontract to MasPar for that firm's chemical sequencing similarity software system with associated hardware (the 1994 procurement). Prior to the award of this sole-source subcontract, PTO prepared a sole-source justification for the issuance of a task order directing PRC to synopsize PTO's requirements for the computer system, inform potential sources of an intended sole-source subcontract award to MasPar, and acquire the MasPar system. PTO's sole- source justification documented PTO's conclusion that "only MasPar Computer Corporation hardware and software provides the needed compatibility and most cost effective procurement alternative" and "that the MasPar . . . system, was the only available software and hardware currently available that can satisfy PTO's advanced sequence searching requirements." On March 17, 1994, PRC synopsized the sole-source subcontract award in the Commerce Business Daily (CBD). In May 1994, Compugen contacted PTO regarding the agency's possible requirements for a biotechnology research computer system. Compugen was informed that a MasPar computer system was being acquired by PRC for PTO under PRC's prime contract and pursuant to the March 1994 CBD announcement; Compugen was invited, however, to submit information on its system and was informed that "PTO's intent is simply to maintain an awareness of products that may be of use now or in the future." From May 1994 through March 1995, Compugen and PTO communicated regarding the capabilities of Compugen's system. On April 5, PRC synopsized in the CBD its intent to award another sole- source subcontract to MasPar for a biotechnology sequence search computer system (the 1995 procurement).