B-311005, Strong Environmental, Inc., March 10, 2008

B-311005 Mar 10, 2008 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights Strong Environmental, Inc. protests the decision of the Library of Congress to provide for the disposal and recycling of "talking book" cassette tape players through a Memorandum of Understanding (MOU) between itself and Federal Prison Industries, Inc. (UNICOR), rather than through a previously conducted competitive solicitation for the same requirement. Strong contends that the Library has improperly used the UNICOR MOU for the requirement and should have awarded a contract to Strong under the solicitation. We deny the protest. View Decision B-311005, Strong Environmental, Inc., March 10, 2008 Decision Matter of: Strong Environmental, Inc. File: B-311005 Date: March 10, 2008 Richard Verch for the protester. Emily Vartanian, Esq., Library of Congress, for the agency. Eric M. Ransom, Esq., and Christine S. Melody, Esq., Office of the General Counsel, GAO, participated in the decision. DIGEST Protest of use by Library of Congress of cooperative agreement instead of contract for disposal and recycling of cassette tape players is denied where the applicable regulations do not require use of a contract for the requirement. DECISION Strong Environmental, Inc. protests the decision of the Library of Congress to provide for the disposal and recycling of –talking book— cassette tape players through a Memorandum of Understanding (MOU) between itself and Federal Prison Industries, Inc. (UNICOR), rather than through a previously conducted competitive solicitation for the same requirement. Strong contends that the Library has improperly used the UNICOR MOU for the requirement and should have awarded a contract to Strong under the solicitation. We deny the protest. On January 31, 2007, the Library issued solicitation No. NLS20070070 for services to dispose of –talking book— cassette tape players for the Library's National Library Service for the Blind and Physically Handicapped (NLS) program. The solicitation was intended as a continuation of the Library's previous practice of disposing of NLS equipment through contracts arranged by NLS, rather than through the Library's Integrated Support Services unit.[1] Strong and another firm, North Georgia Telecom (NGT), responded to the solicitation by the closing date. On April 23, the Library and UNICOR concluded an MOU under which UNICOR would dispose of, recycle, and/or refurbish or reuse electronic equipment not needed by the Library, at no cost to the Library. The MOU was negotiated under Library of Congress Regulation (LCR) 2120, –Cooperative Agreements Without Transfer of Funds,— and was signed on the Library's behalf by the director of the Library's Integrated Support Services unit, not by a contracting officer in the Library's Office of Contracts and Grants Management. On August 3, the Library's Office of Contracts and Grants Management awarded a contract under solicitation No. NLS20070070 to NGT for $594,250, for 1 base year plus 4 option years. Strong received notification of the award on August 6 and subsequently requested a debriefing on August 14. Strong received the debriefing on August 23, and filed an agency-level protest on August 29, alleging that NGT was ineligible for the award because NGT did not possess certain required certifications from the Environmental Protection Agency until 6 days after the solicitation's closing date. In November, the Library determined that the NLS –talking book— cassette tape players fell within the scope of the UNICOR MOU and could be disposed of by UNICOR at no cost to the government. The Library immediately met with UNICOR to discuss combining the NLS –talking book— players with other Library machines being sent to UNICOR for disposal. After this meeting with UNICOR, the Library decided that it would terminate the contract with NGT for the convenience of the government effective January 31, 2008, and that UNICOR would begin accepting NLS –talking book— players on February 1. On December 5, 2007, the Library terminated NGT's contract, effective January 31, 2008. On December 13, the Library notified Strong that it had elected to terminate the contract with NGT and use the UNICOR MOU to provide the required disposal and recycling services at no cost to the government. Strong then filed this protest with our Office on December 21.[2] On January 15, 2008, the Library and UNICOR agreed to an amendment to the UNICOR MOU to provide for the disposal of the NLS –talking book— players. Strong contends that the Library's UNICOR MOU was improperly executed and cannot be used for the disposal of the NLS –talking book— players in lieu of a procurement contract. Strong argues that the Library failed to execute a required determination and findings (D&F) prior to entering into the UNICOR MOU, and that the Library should not be allowed to use the MOU to essentially make a –sole-source award— to UNICOR.