The Writing Company, B-284622.2, May 19, 2000

B-284622.2 May 19, 2000 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights DIGEST Agency decision not to place procurement under 8(a) program or to set procurement aside for exclusive small business participation is unobjectionable where decision was concurred with by Small Business Administration. There is no showing of bad faith on the part of government officials or that regulations may have been violated. The Writing Company protests that the RFQ was improperly issued on an unrestricted basis. Including the following: the type of contract was changed from time-and-materials to fixed-price. The process for reviewing the notices was changed from tier review to a team approach. A requirement for the contractor to have an established documentation/writing methodology was added. View Decision Matter of: The Writing Company File: B-284622.2 Date: May 19, 2000 DIGEST Attorneys DECISION The Writing Company protests certain terms of request for quotations (RFQ) No. TIRN0-00-Q-00083, issued under simplified acquisition procedures by the Department of the Treasury, Internal Revenue Service (IRS) for the redesign and rewriting of certain taxpayer notices. The Writing Company protests that the RFQ was improperly issued on an unrestricted basis, instead of being issued as a section 8(a) set-aside /1/ or as a small business set-aside. We deny the protest. On March 3, 1998, the IRS awarded a time-and-materials contract (No. TIRNO-98-W-00001) for the rewriting and redesign of certain IRS taxpayer notices to the Small Business Administration (SBA) as the prime contractor, with The Writing Company as the performing subcontractor pursuant to section 8(a) of the Small Business Act. Under that contract, the redesign process required the vendor to confer with personnel from various IRS offices, who would review the draft revisions and provide technical and legal feedback; the contractor then had to compile the reviewers' feedback under a four-tier review process, and reach agreement at all tiers before the notice could be presented to IRS executives for acceptance. The agency found that this process required the contractor to spend a disproportionate amount of time managing the project. Agency Report at 2. Because of this and other cumbersome processes and administrative problems, the contracting officer determined to terminate the contract for the convenience of the government on February 24, 1999, and notified SBA of this decision. The IRS subsequently attempted to negotiate a partial reinstatement of the contract, but could not reach agreement with The Writing Company regarding the contract's scope. Id. Thereafter, the agency sought to restructure the solicitation in a manner that better addressed its current requirements and would diminish the manageability problems it had encountered under the prior contract, and drafted the RFQ at issue here. The RFQ reflected a variety of changes in the requirement, including the following: the type of contract was changed from time-and-materials to fixed-price; the process for reviewing the notices was changed from tier review to a team approach; a requirement for the contractor to have an established documentation/writing methodology was added; the volume of the initial award was changed to 25 notices, with additional notices to be awarded as options, and with notices grouped by similarity of issues; independent testing of notices was replaced by reliance on the contractor's internal quality control system; and the government cost estimate was increased from $1.2 million to $3 million. Agency Report at 2; Contracting Officer's Statement at 2. The agency report also indicates that the IRS had initially added a requirement for the contractor to train agency personnel in the contractor's redesign methodology, but that this requirement was deleted before the RFQ was released. The contracting officer prepared a Small Business Review form proposing to issue the RFQ on an unrestricted basis, in which she cited "a change in strategy and approach to redesigning and rewriting notices" and described differences between the two procurements, and submitted it to the SBA. Because the changes were viewed as sufficiently great that this could be considered a new requirement and because the record indicated that there was no reasonable expectation that more than one small business was likely to compete for the requirement, the form was accepted and signed by the agency's Small Business Specialist and by the SBA Representative. Agency Report, Tab K, Department of the Treasury Small Business Review Form. Thereupon, the RFQ was issued on an unrestricted basis on February 1, 2000 to 33 vendors that had expressed an interest in the procurement. The RFQ called for offerors to submit past performance information by March 13, and to submit written offers by March 30. The protester and one large business submitted past performance information by the established deadline.