United Communications Systems, Inc., B-279383, June 2, 1998

B-279383 Jun 02, 1998 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights DIGEST General Accounting Office will not exercise its discretion to waive timeliness requirements with respect to untimely protest of ordering provisions under General Services Administration multiple-award schedule contract for information technology where protester has received orders and accepted benefits under the ordering provisions. Was awarded a MAS contract on January 6. DIS was awarded MAS contract No. 4513G under solicitation No. DEA is procuring the information technology technical services as part of Phase II of its Firebird Project. UCS argues that DEA's issuance of the order to DIS without first synopsizing its requirement and competing it among interested potential offerors is inconsistent with the requirement in 41 U.S.C. View Decision Matter of: United Communications Systems, Inc. File: B-279383 Date: June 2, 1998 DIGEST Attorneys DECISION United Communications Systems, Inc. (UCS) protests the Drug Enforcement Administration's (DEA) issuance of an order for information technology technical services to Datatrac Information Services, Inc. (DIS) under DIS's multiple-award schedule (MAS) contract (No. GS-35F-4513G) (hereafter, No. 4513G) with the General Services Administration (GSA). UCS argues that DEA improperly failed to synopsize its requirement in the Commerce Business Daily (CBD) and compete it among interested potential offerors. UCS specifically challenges DEA's reliance on the provisions of Federal Acquisition Regulation (FAR) Sec. 8.404 as authority for not synopsizing the agency's requirement. We dismiss the protest as untimely filed. On August 16, 1995, GSA issued solicitation No. FCI-96-DL0001B (hereafter, No. DL0001B), for offers for the award of contracts under GSA's Federal Information Processing (FIP) MAS program, group 70, part I, sections B and C, for commercial automatic data processing (ADP) equipment, software, service and maintenance. On July 8, 1996, GSA published in the Federal Register a notice and interim rule--41 C.F.R. Sec. 201-39.801-1--providing that GSA's FIP MAS program would be part of the Federal Supply Schedule program and that FIP MAS schedule contracts therefore would be governed by FAR Subpart 8.4, Federal Supply Schedules. 61 Fed. Reg. 35,635 (1996). In addition, on November 12, 1996, GSA issued amendment No. 4 to solicitation No. DL0001B, which added a clause that referenced FAR Sec. 8.404 in connection with use of the schedules, and specifically provided that "[a] delivery order for quantities that exceed the maximum order may be placed with the contractor selected in accordance with FAR 8.404." In this regard, FAR Sec. 8.404(a) (June 1997) provided that "[w]hen placing orders under a Federal Supply Schedule, ordering activities need not seek further competition [or] synopsize the requirement . . . ." Meanwhile, on June 26, 1996, UCS submitted an offer in response to solicitation No. DL0001B. UCS acknowledged amendment No. 4 on December 4, and was awarded a MAS contract on January 6, 1997. Thereafter, on February 24, DIS was awarded MAS contract No. 4513G under solicitation No. DL0001B. DEA is procuring the information technology technical services as part of Phase II of its Firebird Project, which involves an upgrade of DEA's ADP infrastructure--as it relates to office automation, text processing, image processing and enhanced communications systems--to an open system architecture. DEA established blanket purchase agreements (BPA) with DIS on January 6, 1998, and with UCS on January 28, under their GSA MAS contracts. (UCS had been furnishing technical services to DEA in connection with Phase I of the Firebird Project under a Small Business Administration 8(a) contract with DEA.) On February 24, DEA requested a quotation from DIS under its BPA; on February 26, the agency issued an order to DIS under the BPA in the amount of $1,732,308.48. UCS argues that DEA's issuance of the order to DIS without first synopsizing its requirement and competing it among interested potential offerors is inconsistent with the requirement in 41 U.S.C. Sec. 416(a)(1)(A) (1994) and 15 U.S.C. Sec. 637(e)(1)(A) (1994) that agencies synopsize requirements where they intend to "(i) solicit bids or proposals for a contract for property or services for a price expected to exceed $25,000; or (ii) place an order, expected to exceed $25,000, under a basic agreement, basic ordering agreement, or similar arrangement . . . ." In addition, UCS notes that 41 U.S.C. Sec. 259(b)(3) (1994) provides that the procedures established for GSA's MAS program satisfy the general requirement in 41 U.S.C. Sec. 253(a)(1) (1994) for use of competitive procedures, "if--(A) participation in the program has been open to all responsible sources; and (B) orders and contracts under such procedures result in the lowest overall cost alternative to meet the needs of the Government." 41 U.S.C. Sec. 259(b)(3).