July 23 rd, 2015 VIA ELECTRONIC MAIL. Office of General Counsel U.S. Government Accountability Office PLCG 441 G. Street, N.W. Washington, D.C.

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1 July 23 rd, 2015 Cyrus E. Phillips IV Headquarters/Arlington Office (804) Direct Line (703) Facsimile (703) Mobile VIA ELECTRONIC MAIL Office of General Counsel U.S. Government Accountability Office PLCG 441 G. Street, N.W. Washington, D.C Re: Pre-Award Procurement Protest of Data Management Associates of Brevard, Inc. Under Office of Contracts and Grants Management, The Library of Congress, Solicitation Number LCNLS Gentlemen: This is a Pre-Award Procurement Protest filed on behalf of Data Management Associates of Brevard, Inc. (Data Management), a Florida for-profit Corporation whose Office is located at 3225 Jordan Boulevard, Malabar, Florida Data Management challenges terms and conditions announced in Solicitation Number LCNLS issued on July 13 th, 2015 by the Office of Contracts and Grant Management, The Library of Congress. The Solicitation document is Attachment 1 to this Pre- Award Procurement Protest. The Solicitation competes continuing and transitioning support services requirements of the National Library Service for the Blind and Physically Handicapped (NLS). The NLS is a free library program of braille and audio materials administered by the Library of Congress through a State-wide network of cooperating libraries. Materials are circulated by postage-free mail to eligible borrowers in the United States. ( last visited July 19 th, 2015).

2 NLS intends with the Solicitation to transition existing applications and databases into one Web-based system to be known as XPRESS, the Integrated Operations Support System (XPRESS-IOSS). XPRESS-IOSS requires the migration of three loosely-based systems: (1) Patron Information and Machine Management System (PIMMS); (2) Web-Based Reader and Enrollment Delivery System (WebREADS), and (3) Excess and Redistribution Program (XESS). ( last visited July 23 rd, 2015). Data Management recently concluded development of PIMMS and provides hosting, technical support and management of this system. PIMMS consolidates the legacy Comprehensive Mailing List System (CMLS) and the legacy Blind and Physically Handicapped Inventory Control System (BHPICS). Both CMLS and BPHICS are mission-critical mainframe-based applications which Data Management has hosted and operated for many years. Data Management also recently completed WebREADS, a Web-based application which replaces the legacy client/server based version of READS that Data Management has maintained and supported for an extended time period. XESS is a client/server application with a Web-based front end. Data Management developed XESS ten years ago, and it remains unchanged. Even though PIMMS and WebREADS have already been developed and placed into production, the legacy applications from which they have been developed must continue to be supported until at least the majority of all libraries in the cooperative network of State libraries migrate to the new XPRESS-IOSS. This process depends on other Independent Software Vendors (ISVs), and the time required to accomplish this migration is unknown. The Solicitation promises multiple-award Indefinite Delivery/Indefinite Quantity (ID- IQ) Contracts. The Library will issue firm fixed-price Task Orders under these multipleaward IDIQ Contracts. The minimum amount of the base term of each multiple-award IDIQ Contract is to be $50,000 and the maximum amount of the base term of each IDIQ Contract is to be $6,000,000. Attachment 1, page 28 of 66. Offerors are to set out firm fixed-prices for each of twenty-eight separate Contract Line Items Numbers (CLINS) for a single base year, and these twenty-eight separate CLINS are then repeated for each of four Option years. Attachment 1, pages 4 through 28 of 66. The base term of the promised multiple-award IDIQ Contracts runs September 30 th, 2015 through September 29 th, 2016; this base term is followed by four successive option years. Attachment 1, page 42 of 66. Although no clear definition or scope of the work to be performed is provided as a basis for estimating the offered Price for many of the tasks, the Solicitation requires firm fixed

3 pricing for all one-hundred forty-seven CLINS to be delivered over a five-year period. Initial Competitive Proposals are to include rates and estimated number of hours for eleven designated Labor Categories. These Labor Categories have defined roles and defined duties and qualifications. Attachment 1, page 61 of 66. Federal Acquisition Regulation (c) allows firm fixed-price Task Orders when [a]vailable cost or pricing information permits realistic estimates of the probable costs of performance. But this Solicitation, in violation of Federal Acquisition Regulation (c), provides no basis for a realistic estimate, nor could it since the XPRESS-IOSS Solicitation fails to provide a clear scope of work or the tasks to be performed, and sets out vague and conflicting references in Section B, Pricing, in Section L, Instructions to Offerors, and in Section M, Evaluation Criteria. The Library s General Procurement Regulation, LCR 2110, Procurement Supplies and Services, requires that the Library s Office of Contracts and Grants Management follow requirements of the Federal Acquisition Regulation and requires that deviations from these requirements must be specifically approved and documented in a Determination and Findings prepared under the Federal Acquisition Regulation. Strong Environmental, Inc., B , March 10 th, 2008, 2008 U.S. Comp. Gen. LEXIS 43, *5. The Solicitation announces a tradeoff analysis which will conform to Federal Acquisition Regulation , and this is to be conducted by the Library for the Awards of the multiple-award Contracts promised by Solicitation Number LCNLS There are four Evaluation Factors: Technical Approach, Management Structure, Past Performance, and Price. The Solicitation announces the importance of Price relative to the other Evaluation Factors, this as required by Federal Acquisition Regulation (b)(2), but it does not provide, in violation of Federal Acquisition Regulation (b)(1), the relative importance, one to another, of Technical Approach, Management Structure, and Past Performance. The multiple-award preference for proposed Indefinite Quantity Contracts allows only firm fixed-price Task Orders. Federal Acquisition Regulation (c)(1)(ii)(D)(1)(ii). Here there is no basis for a reasonable estimate to be used by the Library to evaluate offered firm fixed-prices for these continuing and transition services. Section B, Supplies or Services, contains numerous errors. Every CLIN refers to a POW section. There is no POW section or sections. If the reference is to the Statement of Work, then the SOW references refer to non-existent sections else they reference a section - 3 -

4 which has no relation to the CLIN. CLIN 0002, Attachment 1, page 4 of 66, is supposedly cross-referenced to Statement of Work sections C C There are no sections C C.4.2.5; the Statement of Work ends at section C.4.2., Attachment 1, pages 36 through 37 of 66. Other CLINS make other ambiguous references. Some refer to Software Development Springs. Perhaps the intended reference is to Software Development Sprints, but this is unclear. Some CLINS are repeated. CLIN 0106 is duplicated for the second Option year, Attachment 1, page 9 of 66, and then is listed three times in the third and other Option years. Section B is obviously untouched by even an unschooled reviewer. There is no basis to estimate the firm fixed-price of a Software Development Spring for the Section B schedule because no requirements are identified in the Section C Statement of Work. This obvious disconnect between the Section C Statement of Work and the Section B schedule makes it impossible to offer the firm fixed-prices which are required by the Solicitation. The Section C Statement of Work does nothing other than list requirements, providing little detail. Many boiler-plate references to security requirements, quality assurance, and development methodologies are included while components listed as key parts of the single Web-based system to be delivered, such as XESS, are identified by name and include little detail about the actual system. No architecture description, no database description, no programming language, no development environment, no size metrics, nothing which would lend itself to developing firm fixed-prices for a possible five-year period to transition, host, maintain, or support XESS, itself an application and major component of the proposed XPRESS-IOSS. Estimated quantities for many tasks are provided neither in the Section B nor in the Section C Statement of Work. As an example, CLIN 0011 in the Section B schedule asks for a firm fixed-price per thousand for BPHICS key entries, Attachment 1, page 5 of 66. Paragraph C.3.6 of the Section C Statement of Work provides no estimated quantities for continuing BPHICS key entries. Attachment 1, page 34 of 66. Without a quantity estimate, there is no context to apply any economies of scale for either unit pricing or for staffing. Offerors are left to guess whether to base their firm fixed-prices on the overhead applied to one thousand transactions per day or to some other arbitrary number of transactions

5 While paragraph C.3.6 of the Section C Statement of Work demands that each of the multiple-award Contractors provide PIMMS-related support services including label production, surveys, key entry and automated transaction processing, it fails to recognize that the BPHICS and CMLS key entry systems, label production systems, and automated processing systems are all legacy mainframe applications, part of another consolidated system called WebNet, running under the IBM z/os operating system in a specialized mainframe environment to run and support these systems the multiple-award Contractors must have a mainframe environment capable of supporting z/os else must migrate these applications to another platform. The Section C Statement of Work fails to identify WebNet, yet poses numerous requirements which can only be provided by the WebNet system until a majority of the networked State library community migrates to PIMMS. WebNet must be maintained to provide services which at their most fundamental levels include support for underlying legacy mainframe systems and databases, including CMLS and BPHICS. These legacy systems are necessary because they are vital to migrating and completing the ongoing transition to the new PIMMS system and supporting NLS operations while this transition is underway. The requirements for the Section C Statement of Work are further clouded by a document that appears within the listed downloadables in Section J, Attachments, Attachment 1, page 52 of 66. This downloadable ZIP file contains a document titled 0204 XIOSS FRD.docx, and it appears to be a second Section C Statement of Work in the process of being edited (change tracking is enabled). The content of this document was originally included in the ZIP file with the file name FRD-XPRESS-IOSS RFP FY15-RFP , and was unreferenced by the Solicitation. On July 22 nd, 2015, nine days after the Solicitation was released, the document was discretely renamed, with no notification to potential Offerors, taking the name of a previously included document, 0204 XIOSS FRD.docx. The multiple-award preference is premised on competition for Task Orders among the Awardees throughout each multiple-award Contract s period of performance. Federal Acquisition Regulation (c)(1)(ii)(A)(4). In violation of this condition for use of the multiple-award preference, this Solicitation promises an entirely different regime: While the Library reserves the right to unilaterally issue orders for work identified in the contract, the Library will generally solicit task order proposals and issue - 5 -

6 task orders bi-laterally, in which case the signature of the vendor and the contracting officer are necessary for full execution of each task order. Attachment 1, page 47 of 66 (Emphasis added). Federal Acquisition Regulation (b)(1) requires that each Awardee under a multiple-award Contract be provided a fair opportunity to be considered for each proposed Task Order exceeding $3,000. The Solicitation violates this fundamental of multiple-award Contracting; there can be no fair opportunity when the Agency has the unilateral right to select without even a limited competition the multiple-award Contractor to whom the proposed Task Order will be issued. Included with the Solicitation are three proposed Task Orders. Attachment 2. Each of these Task Orders requires delivery of support services entirely different from the other Task Orders. The first Task Order for XPRESS-IOSS requires project management, hosting, managed services, operations, customer support, technical support, and library services. The second Task Order requires development and implementation of messaging interfaces. And the third Task Order requires delivery of support services for XESS, the Excess and Redistribution Program for disposition of braille and audio materials. There is no Task Order for migrating PIMMS, WebREADS, and XESS into a single Web-based system. The multiple-award preference for proposed Indefinite Quantity Contracts may not be used if [o]nly one contractor is capable of providing performance at the level of quality required because the supplies or services are unique or highly specialized, Federal Acquisition Regulation (c)(1)(ii)(B)(1), and may not be used if [t]he projected task orders are so integrally related that only a single contractor can reasonably perform the work, Federal Acquisition Regulation (c)(1)(ii)(B)(4). This Solicitation violates both precepts. Although each of the three Task Orders requires different support services, the services required for each are unique or highly specialized only Data Management has a long history of transitioning CMLS and BPHICS into PIMMS, of supporting READS, of developing WebREADS, and of developing XESS. Only a single Contractor can reasonably perform the transition of PIMMS, WebREADS, and XESS into one Web-based system. Successful deliveries of these continuing and transition support services requirements demand a single Prime Contractor coordinating the efforts of Subcontractors with unique or highly specialized experiences. Neither the Solicitation nor the Section C Statement of - 6 -

7 Work offers a plan or authority for the Library to coordinate disparate Task Order performances. This Solicitation and its Section C Statement of Work launch a ship without a rudder. The Solicitation s scheme for evaluation of Proposals for the three proposed Task Orders is nonsensical. To be considered by the Library for Awards of the multiple-award Contracts promised by Solicitation Number LCNLS , each Offeror must submit a Proposal for at least one of the three Task Orders. But the Solicitation elsewhere provides: NOTE: Task Orders will not be evaluated as part of the initial evaluation. The Orders may be evaluated and negotiated with the Offerors remaining in the competitive Range. Attachment 1, page 65 of 66. And the Solicitation then says [t]he government reserves the right to award without discussion, ergo the Library may make Awards on the basis of its evaluation of the initial Competitive Proposals for the multiple-award Contracts but with no evaluation of Proposals for the Task Orders. In summary, the Solicitation proposes no legal Contract vessel and fails to offer potential Offerors a clear or reasonable description of the required continuing and transition services. There is no basis for a reasonable estimate to be used by the Library to evaluate offered firm fixed-prices, yet this is a prerequisite to use of the multiple-award preference. Section B has numerous problems including misspellings, syntax errors, duplications, and invalid descriptions that do not correlate to the Section C Statement of Work. The Section M evaluation schema is nonsensical because it omits evaluation by the Library of Proposals for the Task Orders. JURISDICTION Your Office has been given, under 31 U.S.C. 3552(a), Jurisdiction over Pre-Award Procurement Protests concerning Solicitations, 31 U.S.C. 3551(1)(A), which are issued by Federal Agencies, 31 U.S.C. 3551(3), and then challenged by an Interested Party, 31 U.S.C. 3551(2)(A). The term Federal Agency in 31 U.S.C. 3551(3) encompasses, per 40 U.S.C. 102(5), an establishment in the legislative or judicial branch of the Government.... The Library of Congress is one such Federal Agency. Data Management is an Interested Party already furnishing services whose continuation is competed under Solicita

8 tion Number LCNLS , and is also an Interested Party which will compete for one of the multiple-award Contracts promised by Solicitation Number LCNLS and for the Task Orders to be issued. Data Management has a direct economic interest which will be affected by Award of the multiple-award Contracts promised by Solicitation Number LCNLS and by the Task Orders to be issued. Your Office s Protest Jurisdiction extends to violations of a procurement statute or regulation. 31 U.S.C. 3552(a). Data Management here challenges violations of the Library s General Procurement Regulation, LCR 2110, Procurement Supplies and Services. TIMELINESS These are obvious violations of the Library s General Procurement Regulation, LCR 2110, Procurement Supplies and Services. This Pre-Award Procurement Protest is timely filed under 4 C.F.R. 21.2(a)(1) because it is filed before noon on Wednesday, July 29 th, 2015 when exception[s] to a particular task or condition... must be clearly identified, and because it is filed before 5:00 p.m. on Monday, August 10 th, 2015 when initial Competitive Proposals are to be electronically submitted. SUSPENSION OF AWARD While this Pre-Award Procurement Protest is pending. 31 U.S.C. 3553(c)(1), the Library of Congress may award none of the multiple-award Contracts promised by Solicitation Number LCNLS or issue any Task Orders under these multiple-award Contracts. NOTICE TO CONTRACTING OFFICER The Library of Congress Contracting Officer s name, address, telephone numbers, and electronic mail address are set out below. Under 4 C.F.R. 21.1(e) an electronic copy of this Pre-Award Procurement Protest and its Attachments, all in Adobe Acrobat Portable Document Format, is being today furnished by electronic mail to the Contracting Officer

9 REQUESTS FOR PRODUCTION OF DOCUMENTS Under 4 C.P.R. 2l.l(d)(2), Data Management requests that the Library produce, besides the documents described in 4 C.P.R. 21.3(d), all documents touching upon the Determinations and Findings supporting the deviations from the Federal Acquisition Regulation requirements which are herein identified. REQUEST FOR RELIEF Data Management requests a ruling by the Comptroller General of the United States, and Data Management requests that the Comptroller General of the United States decide that terms of Solicitation Number LCNLS are unauthorized. The Comptroller General should recommend: (1) that the Library abandon the proposed multiple-award Contracts as the vessel to obtain these continuing and transition support services requirements; (2) that the Library provide estimated quantities of its continuing requirements allowing Offerors to develop reliable firm fixed-prices and also enabling a reasonable estimate to be used by the Library to evaluate Price realism and reasonableness; and (3) that the Library obtain these continuing and transitioning support services requirements through a Competition for a single Prime Contractor who must coordinate the efforts of its Subcontractors which themselves possess required unique or highly specialized experiences. Additionally, Data Management requests a ruling it is entitled to an Award of its protest costs and attorney fees, 4 C.P.R. 21.8(d)(l), and when the Solicitation is cancelled, to an Award of the Proposal Preparation Costs which it has incurred through the date of this filing, 4 C.P.R. 21.8(d)(2). Kind regards, ALBO & OBLON, L.L.P. ~J-- ~hillipsiv Virginia State Bar Number Attachments (as stated) - 9 -

10 Cc: Mario Dizon Contracting Officer The Library of Congress Office of Contracts and Grants Management 101 Independence Avenue SE-LA325 Washington, D.C Phone: (202) Facsimile: (202) Electronic Mail: (Via electronic mail) Ann Piper Contract Specialist The Library of Congress Office of Contracts and Grants Management 101 Independence Avenue SE-LA325 Washington, D.C Phone: (202) Facsimile: (202) Electronic Mail: (Via electronic mail)