Health & Human Services Group, B-294703, December 15, 2004

B-294703 Dec 15, 2004 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights Health and Human Services Group (HHSG) protests the terms of request for proposals (RFP) No. HSBP1004R0079, issued by the Department of Homeland Security, Bureau of Customs and Border Protection, to acquire services in connection with the agencys Employee Assistance Program (EAP) and Drug Free Workplace Program (DFWP). The protester asserts that the RFP impermissibly bundles these two requirements together in a manner that precludes performance of the requirement by a small business in contravention of the requirements of the Small Business Act, and in a manner that raises what the protester describes as ethical concerns. HHSG also maintains that other aspects of the RFP are improper. We deny the protest. View Decision B-294703, Health & Human Services Group, December 15, 2004 Decision Matter of: Health & Human Services Group File: B-294703 Date: December 15, 2004 Michael B. Pons for the protester. Michael I. Goulding, Esq., Department of Homeland Security, Bureau of Customs & Border Protection, for the agency. Scott H. Riback, Esq., and John M. Melody, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST Protest that combination of two requirements under single solicitation constituted improper bundling under Small Business Act is denied where the requirement was set aside for award to a small business, there was expression of interest by small businesses, and the agency in fact made award of the contract to a small business. DECISION Health and Human Services Group (HHSG) protests the terms of request for proposals (RFP) No. HSBP1004R0079, issued by the Department of Homeland Security, Bureau of Customs and Border Protection, to acquire services in connection with the agencys Employee Assistance Program (EAP) and Drug Free Workplace Program (DFWP). The protester asserts that the RFP impermissibly bundles these two requirements together in a manner that precludes performance of the requirement by a small business in contravention of the requirements of the Small Business Act, and in a manner that raises what the protester describes as ethical concerns. HHSG also maintains that other aspects of the RFP are improper. We deny the protest. The RFP, a 100-percent small business set-aside, seeks proposals to perform, on a time-and-materials basis, a contract for EAP and DFWP services. The EAP services include a wide range of counseling and training type services for employees experiencing personal problems and productivity issues that may adversely affect their workplace performance; such services include problem identification and assessment, referral, short-term counseling, problem resolution, and follow-up services. The RFP also contemplates the development and delivery of training and education awareness on a wide array of EAP topics, as well as the provision of organizational development interventions, and individual and group debriefings for employees involved in traumatic or critical incidents. The DFWP services include the provision of alcohol and drug testing program site coordinators who will provide oversight for the agencys specimen collection activities (primarily to ensure that specimen collection is performed in accordance with applicable departmental rules and in a manner designed to ensure the quality of the results) as well as occasionally performing specimen collection activities. HHSG principally asserts that combining EAP and DFWP activities under a single contract constitutes a bundling of two requirements in a manner that inhibits small business competition, which is to be avoided under the Small Business Act, 15 U.S.C. 631(j) (2000). [1] We find that there is no improper bundling here. Where there is a consolidation of two or more agency requirements, the Small Business Act, as amended, requires that agencies avoid bundling them together where the result would be a single contract that is likely to be unsuitable for award to a small business concern. 15 U.S.C. 632(o)(2). On the other hand, where, as here, the record shows that the agency has reserved its requirement for small businesses, and there is an expression of interest in the requirement by legitimate small businesses, there is no basis to conclude that the consolidated requirement is unsuitable for award to a small business within the meaning of the Small Business Act. Phoenix Scientific Corp. , supra , at 9. Here, the agency proceeded with the acquisition notwithstanding the protest, and on October1, 2004, made award of a contract for the consolidated requirement to a small business concern. Under the circumstances, we have no basis to conclude that the agencys consolidation of these requirements into a single contract was improper or inconsistent with the Small Business Act. HHSG also asserts that combining the two requirements presents an ethical concern.