Link: GAO Decision
Protestor: Cygnus Corporation
Agency: National Institutes of Health
Disposition: Protest Denied in part, Dismissed in part.
- Protest that task orders for scientific, professional and technical support services were outside the scope of a requirements contract is denied where the contract’s statement of work and illustrative labor categories reasonably identified these services.
- Protest that an agency violated various small business rules and requirements by cancelling a solicitation set aside for small businesses without consulting the Small Business Administration, and by ordering the services under an existing contract without considering whether two or more small businesses could perform, is dismissed as untimely where the protester did not diligently pursue its grounds of protest.
General Counsel PC Highlight:
Cygnus Corporation protested the issuance of task orders to Kelly Services, Inc., a large business, for scientific, professional, and technical support services for the National Institute of Allergy and Infectious Diseases (NIAID), under a National Institutes of Health (NIH) requirements contract which Kelly Services held. Cygnus, a small business, objected that the agency improperly cancelled an RFP for the same services as a small business set-aside without coordinating with the SBA. LTS, another small business, had been providing temporary professional, technical and logistics support and expertise with NIAID at the time Kelly Services was awarded its requirements contract. A NIAID contracting officer initially sought to obtain the requirements previously provided by LTS as a follow-on small business set-aside, then determined that those services fell within the scope of Kelly Services’s requirements contract.
The GAO noted that in determining whether a task or delivery order is outside the scope of the underlying contract, and should therefore be subject to the competition requirements of CICA, the GAO examines whether the order is materially different from the original contract. In this case, the GAO found that the task order issued to Kelly Services was within the scope of the requirements contract, pointing out the six staffing support services areas covered by the contract along with 231 labor categories the contractor may be required to provide. The GAO disagreed with Cygnus’s assertion that the NIAID RFP required that the contractor itself actually perform the services sought, not merely provide personnel to perform identified services. The GAO dismissed the protest regarding the cancellation of the NIAID RFP as untimely, noting that both the solicitation for and award of the requirements contract were published on FedBizOpps.
Companies should regularly monitor FedBizOpps in order to learn both of potential future contracting opportunities as well as possible grounds for protest. Publication of a solicitation on the FedBizOpps website serves as constructive notice should potential offerors object to the terms of the solicitation.