B-316533, Department of Homeland Security--Transfer of Support Function for Principal Federal Officials, July 31, 2008

B-316533 Jul 31, 2008 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights In a letter dated May 22, 2008, Congress requested our opinion on whether a provision contained in the 2007 supplemental appropriations act prohibiting the Department of Homeland Security (DHS) from using appropriated funds for reorganizing the department was in effect and applicable to actions taken by DHS at the beginning of fiscal year 2008. Additionally, Congress asked whether, if the prohibition was in effect, DHS improperly used appropriated funds to carry out a transfer of the Principal Federal Officials (PFO) Support Program from the National Protection and Programs Directorate (NPPD) to the Office of Operations Coordination's (OPS) Management and Administration Program. After analyzing the applicable statutes and considering DHS's views, we conclude that the prohibition was indeed in effect on October 1, 2007, the date of the transfer. We also conclude that the transfer of the program support function constituted a transfer covered by the prohibition. The support function was previously performed by NPPD. Effective October 1, 2007, the Director of Operations Coordination was tasked with providing staff support to the PFOs, and NPPD then ceased to have a staff support role regarding PFOs. After analyzing the applicable statutes and considering DHS's views, we conclude that the prohibition was indeed in effect on October 1, 2007, the date of the transfer. We also conclude that the transfer of the program support function constituted a transfer covered by the prohibition. The support function was previously performed by NPPD. Effective October 1, 2007, the Director of Operations Coordination was tasked with providing staff support to the PFOs, and NPPD then ceased to have a staff support role regarding PFOs. View Decision B-184754, DEC 24, 1975 1. PRESENCE OF "APPROACH" EVALUATION CRITERION, COUPLED WITH FINDING THAT DETAILED METHODS OF PROVIDING SERVICES WILL NECESSARILY VARY FROM FIRM TO FIRM BECAUSE OF IMPRECISE CHARACTER OF WORK STATEMENT (NOTWITHSTANDING STATEMENT'S DETAILED OUTLINE OF WORK STRUCTURE), PREVENTS CONCLUSION THAT AGENCY HAS DEFINED ITS NEEDS SUFFICIENTLY TO PERMIT FORMAL ADVERTISING. 2. GIVEN PROPRIETY OF AGENCY'S USE OF NEGOTIATED PURCHASE METHOD, NO OBJECTION IS MADE TO RELATIVE ASSESSMENT OF OFFERORS' PROPOSALS UNDER TRADITIONAL RESPONSIBILITY FACTORS EVEN IF FACTORS HAVE PRIMARY WEIGHT IN EVALUATION PROCESS. 3. GAO CANNOT DISAGREE WITH AGENCY'S POSITIONS THAT BECAUSE OVER 60 FIRMS ATTENDED PREPROPOSAL CONFERENCE AND 20 ADDITIONAL FIRMS REQUESTED COPIES OF RFP, ADEQUATE COMPETITION FOR PROCUREMENT WILL BE HAD AND THAT PACKAGE OF ESTIMATED SERVICES REPRESENTS AGENCY'S REASONABLE NEEDS. DESIGN CONCEPTS, INC.: ON AUGUST 18, 1975, A PROTEST WAS RECEIVED FROM DESIGN CONCEPTS, INC., CONCERNING REQUEST FOR PROPOSALS (RFP) NO. 3MPE-1082 ISSUED BY THE GENERAL SERVICES ADMINISTRATION ON AUGUST 6, 1975, FOR ESTIMATED REQUIREMENTS OF INTERIOR PLANNING SERVICES DURING A 6-MONTH PERIOD IN THE WASHINGTON, D.C., AREA. AMONG OTHER GROUNDS FOR PROTEST, DESIGN CONCEPTS QUESTIONED GSA'S RIGHT TO NEGOTIATE THE PURCHASE OF THE PLANNING SERVICES GIVEN THE STATUTORY PREFERENCE (41 U.S.C. SEC. 252(C) (1970)) FOR FORMAL ADVERTISING. THE RFP WAS NEGOTIATED UNDER AUTHORITY OF 41 U.S.C. SEC. 252(C)(10) WHICH PROVIDES, IN EFFECT, THAT CONTRACTS MAY BE NEGOTIATED WHEN IT IS IMPRACTICABLE TO SECURE COMPETITION ON A FORMALLY ADVERTISED BASIS FOR THE REQUIRED SERVICES OR SUPPLIES. SPECIFICALLY, THE DETERMINATION TO NEGOTIATE HERE WAS BASED ON GSA'S FINDINGS THAT: "***ALTHOUGH THE GENERAL PROCESS AND CERTAIN MILESTONES FOR ACCOMPLISHING THE GOVERNMENT'S OBJECTIVES (FOR THE SERVICES) CAN BE LOGICALLY DESCRIBED, THE DETAILED METHOD OF PROVIDING THE SERVICES WILL VARY BETWEEN FIRMS BECAUSE OF DIFFERENCES IN UNDERSTANDING, APPROACH AND TEAM ORGANIZATION. "(CONSEQUENTLY,) IT IS IMPOSSIBLE TO DRAFT ADEQUATE SPECIFICATIONS (SUITABLE FOR FORMAL ADVERTISING) OR AN ADEQUATE DETAILED DESCRIPTION WHICH WOULD DEFINE THE SERVICES TO A DEGREE SUCH THAT ALL PROSPECTIVE CONTRACTORS WOULD DERIVE THE SAME UNDERSTANDING OF THE GOVERNMENT REQUIREMENTS." DESIGN CONCEPTS POINTS OUT, HOWEVER, THAT THE REQUIREMENTS INVOLVED WERE DEFINED IN SEVERAL PAGES OF THE RFP UNDER THE FOLLOWING HEADINGS: "SCOPE OF SERVICES" (1 PAGE); "SERVICES DEFINED" (3 PAGES); "TASKS REQUIRED" (11 PAGES); AND "ESTIMATE OF SERVICES REQUIRED" (1 PAGE). THE COMPANY CONCEDES THAT THE RFP REQUESTS OFFERORS TO DESCRIBE THEIR APPROACHES TO THE REQUIREMENTS - THEREBY INDICATING THAT GSA WAS SEEKING OFFERORS' DEFINITIONS, TO AN UNSTATED EXTENT, OF THE AGENCY'S ACTUAL REASONABLE NEEDS FOR THE SERVICES.