Mary Jo McDonough

Mary Jo McDonough BNUMBER: B-270530; B-270530.2 DATE: March 13, 1996 TITLE: Mary Jo McDonough ********************************************************************** DECISION FOR PUBLIC RELEASE A protected decision was issued on the date below and was subject to a GAO Protective Order. This version has been redacted or approved by the parties involved for public release. Matter of:Mary Jo McDonough File: B-270530; B-270530.2 Date:March 13, 1996 Patricia H. Wittie, Esq., Sedky, Wittie & Letsche, for the protester. Anna Chytla, Esq., U.S. Agency for International Development, for the agency. Andrew T. Pogany, Esq., and Michael R. Golden, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST In a procurement for personal services contract, the contracting agency's technical evaluation and scoring of competing applicants' resumes and qualifications has not been shown to be unreasonable where its scoring in two technical areas was reasonable and the remaining arguments and assumptions of the protester, ranked third of three applicants, would not displace the second-ranked applicant as eligible for award ahead of the protester. DECISION Mary Jo McDonough, the incumbent, protests the award of a personal services contract (PSC) to [deleted] under an unnumbered job announcement issued by the U.S. Agency for International Development (AID) for a program and communications specialist in Jakarta, Indonesia.[1] The protester principally argues that the agency violated its own hiring freeze, which, properly enforced, would have mandated a sole-source extension of the protester's contract; that the agency failed to follow the "solicitation's" evaluation criteria; that the agency applied undisclosed requirements and evaluation criteria in selecting [deleted]; and that the agency otherwise misevaluated the qualifications of the PSC applicants. We deny the protest. STATUTORY AND REGULATORY BACKGROUND Section 636(a)(3) of the Foreign Assistance Act of 1961, as amended, 22 U.S.C. sec. 2396(a)(3) (1994), authorizes AID to contract with individuals for personal services abroad. This statutory authority is generally implemented by provisions found in the AIDAR, 48 C.F.R. sec. Ch. 7, App. D. Section 5(c) of the AIDAR, App. D states: "[PSCs] are exempt from the requirements for full and open competition with two limitations that must be observed by Contracting Officers: (i) offers are to be requested from as many potential offerors as is practicable under the circumstances. . . ." While the applicable statutory and regulatory provisions envision the use of procurement contracts for the services in question,[2] and although 22 U.S.C. sec. 2396(c)(3) provides that individuals awarded personal services contracts "shall not be regarded as employees of the United States Government for the purpose of any law administered by the [Office of Personnel Management]," the regulations recognize that PSCs create essentially an employer-employee relationship, placing the individual under direct supervision of government employees. App. D, section 1(b)(1). The AIDAR, App. D, section 6 also states that "[n]egotiating a [PSC] is significantly different from negotiating a nonpersonal services contract because it establishes an employer-employee relationship; therefore, the selection procedures are more akin to the personal selection procedures." In this regard, the agency's Project Officer prepares a written statement of duties and a statement of minimum qualifications for the position. This statement is incorporated into a procurement request, which is designated as a Project Implementation Order/Technical Services (PIO/T). Additionally, the PIO/T contains, among other things, the foreign location of the job, the length of the contract, and the basic education, training, experience, and skills required for the position. The contracting officer prepares a solicitation, which contains generally SF171s and SF171As, a detailed statement of duties or a completed position description for the position, and a copy of the prescribed contract cover page, schedule, and general provisions. The job announcement is then issued by the contracting officer, and resumes are received. Award of the PSC is strictly based on technical qualifications, not price. AIDAR, App. D, section 5(c)(3). The project officer is responsible for reviewing and evaluating the applications and, if deemed appropriate, may interview the applicants before submitting his selection of the successful candidate to the contracting officer. AIDAR, App. D, section 6(a). The contracting officer subsequently negotiates a fair and reasonable salary with the successful applicant, as previously selected by the project officer, based on the applicant's salary history. AIDAR, App. D, section 6(b).