June 23 rd , 2016 Cyrus E. Phillips IV (757) 378-2917 Direct Line (703) 312-0415 Facsimile (703) 819-5944 Mobile [email protected]VIA ELECTRONIC MAIL Noah B. Bleicher Deputy Assistant General Counsel, Procurement Law Peter D. Verchinski Senior Attorney Office of General Counsel U.S. Government Accountability Office—PLCG 441 G. Street, N.W. Washington, D.C. 20548 Re: B-412799.2 – Second Post-Award Protest of D.H. Porter Enterprises, LLC (dba Staff- ing Etc.) Under Defense Health Agency Request for Quotations Number HT0014-16-Q- 0001 – Protester’s Response to Defense Health Agency’s Proposed “Corrective Action.” Gentlemen: This is the Response by D.H. Porter Enterprises, LLC (dba Staffing Etc.) (Staffing Etc.) to the Defense Health Agency’s proposed “Corrective Action” as it was announced yesterday. This Response is submitted with the permission of your Office. THE PROPOSED CORRECTIVE ACTION Defense Health Agency’s proposed “Corrective Action” is cryptic: Please be advised that the Defense Health Agency intends to take corrective ac- tion in this case. The Agency’s corrective action will include conducting discussions
Transcript
June 23rd, 2016
Cyrus E. Phillips IV (757) 378-2917 Direct Line (703) 312-0415 Facsimile (703) 819-5944 Mobile [email protected]
VIA ELECTRONIC MAIL Noah B. Bleicher Deputy Assistant General Counsel, Procurement Law Peter D. Verchinski Senior Attorney Office of General Counsel U.S. Government Accountability Office—PLCG 441 G. Street, N.W. Washington, D.C. 20548 Re: B-412799.2 – Second Post-Award Protest of D.H. Porter Enterprises, LLC (dba Staff-ing Etc.) Under Defense Health Agency Request for Quotations Number HT0014-16-Q-0001 – Protester’s Response to Defense Health Agency’s Proposed “Corrective Action.” Gentlemen: This is the Response by D.H. Porter Enterprises, LLC (dba Staffing Etc.) (Staffing Etc.) to the Defense Health Agency’s proposed “Corrective Action” as it was announced yesterday. This Response is submitted with the permission of your Office.
THE PROPOSED CORRECTIVE ACTION Defense Health Agency’s proposed “Corrective Action” is cryptic:
Please be advised that the Defense Health Agency intends to take corrective ac-tion in this case. The Agency’s corrective action will include conducting discussions
regarding the technical factor and the price with offerors in the competitive range, permitting offerors to submit final proposal revisions (FPRs) limited to the tech-nical factor and the price, reevaluating the offerors’ quotes in the technical factor and the price, and making a new source selection decision. The Agency expects to execute this corrective action immediately.
B-412799.2 – Post-Award Protest of D.H. Porter Enterprises LLC (dba Staffing Etc.) Under Defense Health Agency Request for Quotations Number HT0014-16-Q-0001, Electronic Mail Message, 2:19 PM, Wednesday, June 22nd, 2016.
THE CHANGED STATUS OF THE AWARDEE Defense Health Agency does not recognize in its “Corrective Action” submission the changed status of the Awardee, The Royster Group, although Defense Health Agency’s writ-ten response of February 29th, 2016 to an Agency Protest filed by Staffing Etc. clarifies this. This written response is Attachment 1 to this Response. Attachment 2 to this Response is The Royster Group’s “SBA Profile.” And Attachment 3 to this Response is the General Ser-vice Administration’s e-Library Profile of Federal Supply Schedule Contract Number V797P-7311, a Federal Supply Schedule Contract which expired on March 15th, 2016. An Offer to re-open Discussions with Offerors within the Competitive Range does not address the changed status of the Awardee, a status change which precludes its continued participation in this Acquisition.
THE CONCERN PROMPTING THE PROPOSED “CORRECTIVE ACTION” This Post-Award Protest is about Defense Health Agency’s inappropriate use of the Of-feror’s Federal Supply Schedules. Specifically, Request for Quotations Number HT0014-16-Q-0001 creates subcategories of Anesthesiologist positions that exist in none of the Offeror’s Federal Supply Schedule Contracts. These include a “General Anesthesiologist,” a “Pain An-esthesiologist,” a “Neuro Anesthesiologist,” a “Cardio-Thoracic Anesthesiologist,” a Re-gional Pain Anesthesiologist,” and a “Pediatric Anesthesiologist”. The qualifications and du-ties/tasks for these subcategories of Anesthesiologist positions are set out in Request for Quo-tations Number HT0014-16-Q-0001. The qualifications and duties/tasks for these subcate-gories of Anesthesiologist positions likewise exist in none of the Offeror’s Federal Supply Schedule Contracts.
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An Offer to re-open Discussions with Offerors within the Competitive Range does not address the Defense Health Agency’s inappropriate use of the Offeror’s Federal Supply Schedules.
THE LAW
Corrective Action must remedy the concern which prompts Agency action: As a general rule, agencies have broad discretion to take corrective action where the agency has determined that such action is necessary to ensure fair and impartial competition. Greentree Transp. Co., Inc., B-403556.2, Dec. 10, 2010, 2010 CPD ¶ 293 at *2. The details of implementing the corrective action are within the sound discre-tion and judgment of the contracting agency, and we will not object to any partic-ular corrective action, so long as it is appropriate to remedy the concern that caused the agency to take corrective action. Partnership for Response and Recovery, B-298443.4, Dec. 18, 2006, 2007 CPD ¶ 3 at *3. Additionally, we have recognized that the possibility that a contract may not have been awarded based on a fair deter-mination of the most advantageous proposal has a more harmful effect on the in-tegrity of the competitive procurement system than does the possibility that the original awardee will be at a disadvantage in a reopened procurement because its price has been exposed. Id. at 4.
Northrop Grumman Information Technology, Inc., B-404263.3, March 1st, 2011, 2011 U.S. Comp. Gen. LEXIS 40, *4-*5 (Emphasis added). Corrective Action must be rational, appropriate, and must reflect the lapse in time since the Acquisition commenced:
On this record, we have no basis to question the agency’s limited corrective ac-tion. The record establishes that the scope of the corrective action is rationally re-lated to the perceived defect that the agency seeks to correct. In this regard, SMC’s original IGE, and its use as an evaluation tool without regard to the offerors’ unique approaches, raised serious concerns to the agency. Accordingly, as the CO explained during the hearing, the corrective action is tailored to fix this perceived “defect,” and the “defect lies in domain expertise.” See Hearing Tr. at 139. Given that the
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apparent impropriety in the evaluation of offeror’s staffing and skill mix brought into question the integrity of the procurement process as a general matter, we see nothing objectionable in the agency's decision to reevaluate this area and assign pro-posals new domain expertise ratings. See generally MayaTech Corp., B-400491.4, B-400491.5, Feb. 25, 2009, 2009 Comp. Gen. Proc. Dec. ¶ 55 at 2. Likewise, the agency’s limitation on proposal revisions also is unobjectionable. In this respect, the offerors’ staffing and skill mixes are outlined in the BOE portion of cost/price proposals, and not in the technical proposals. Because the staffing pro-files are the primary area being reevaluated, it is reasonable for the agency to limit proposal revisions to the cost/price volume. Moreover, the record shows that the agency considered whether additional proposal revisions were warranted in light of the lapse in time since the RFP was issued. See AR, Tab 23, Revised Corrective Action Memorandum, at 13-14. As discussed in detail above, the agency reasonably concluded that its requirements had not changed and that broader proposal revi-sions were not necessary. Id.; see also Tab 37, GPS SE&I Schedule Impact Slides, at 1-42.
Leidos, Inc., B-409214.4, February 6th, 2015, 2015 U.S. Comp. Gen. LEXIS 52, *46-*47 (Em-phasis added); See also American Systems Corporation, B-412501.2, B-412501.3, March 18th, 2016, 2016 U.S. Comp. Gen. LEXIS 77, *11 (“[O]ur review is generally limited to whether the agency’s corrective action is appropriate to remedy the flaw which the agency believes exists in its procurement process . . ..”).
DEFENSE HEALTH AGENCY HAS UNDULY FAILED TO TAKE ACTION Defense Health Agency says nothing about payment of Attorney Fees allowed when an Agency takes Corrective Action:
If the agency decides to take corrective action in response to a protest, GAO may recommend that the agency pay the protester the reasonable costs of filing and pur-suing the protest, including attorneys’ fees and consultant and expert witness fees. The protester shall file any request that GAO recommend that costs be paid within 15 days of the date on which the protester learned (or should have learned, if that is earlier) that GAO had closed the protest based on the agency’s decision to take cor-rective action. The protester shall furnish a copy of its request to the agency, which
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may file a response within 15 days after receipt of the request, with a copy furnished to the protester.
4 C.F.R. § 21.8(e), 4 CFR Ch.1 (1-1-16 Edition). Defense Health Agency is proposing Corrective Action at the very end of these proceed-ings, and Staffing Etc. may now recover the costs of pursuing this matter:
Our Regulations provide that a protester may be entitled to reimbursement of its costs of filing and pursuing a protest where the contracting agency decides to take corrective action in response to a protest. 4 C.F.R. § 21.6(e). This does not mean that costs are due in every case in which an agency takes corrective action; rather, we will find an entitlement to costs only where an agency unduly delayed taking corrective action in the face of a clearly meritorious protest. Network Software Assocs., Inc.--Request for Declaration of Entitlement to Costs, B-250030.4, Jan. 15, 1993, 93-1 Comp. Gen. Proc. Dec. ¶ 46.
Diez Management Systems, Inc.—Entitlement to Costs, B-250831.3, April 13th, 1993, 1993 U.S. Comp. Gen. LEXIS 377, *2-*3 (Emphasis added). Kind regards, ALBO & OBLON, L.L.P. /s/ Cyrus E. Phillips IV Cyrus E. Phillips IV Virginia State Bar Number 03135
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Cc: Meagan K. Guerzon Attorney-Advisor U.S. Small Business Administration 409 Third Street, S.W., 5th Floor Washington, D.C. 20416 Phone: (202) 619-1799 Electronic Mail: [email protected] (Via electronic mail) Bridget E. Lyons Associate General Counsel Defense Health Agency 7700 Arlington Boulevard, Suite 5101 Falls Church, Virginia 22042-5101 Phone: (703) 325-0616 Electronic Mail: [email protected] (Via electronic mail)
OFFICE OF THE ASSISTANT SECRETARY OF DEFENSE HEALTH AFFAIRS
7700 ARLINGTON BOULEVARD, SUITE 5101 FALLS CHURCH, VIRGINIA 22042-5101
David A. Porter Vice President Staffing Etc. 9410 Annapolis Road, Suite 200 Lanham, Maryland 20706 Dear Mr. Porter: This letter responds both to your agency-level protest filed in the form of an email message on 26 February 2016 and to your letter, dated 27 February 2016, regarding the award to The Royster Group (TRG) under RFQ # HT0014-16-Q-0001 (the RFQ). Your 27 February 2016 letter characterizes your complaint as a Size Status Protest, alleging TRG exited the 8(a) Program and is, therefore, ineligible for this award. Your 26 February 2016 protest makes substantially the same allegation, while also noting Staffing Etc. quoted an overall price $4,132,896.83 less than TRG. The RFQ expressed the government’s intent to issue a competitive 8(a) FSS task order under FAR Subpart 8.4 on a low-price technically-acceptable basis. The government issued an award to TRG as the vendor quoting the lowest price whose technical submission was determined technically-acceptable. Staffing Etc.’s technical submission was not determined technically-acceptable, rendering Staffing Etc.’s quote ineligible for award at any price. You note that per the SBA website TRG exited the 8(a) program on 30 January 2013. TRG’s VA FSS Contract V797P-7311A, under which this task order is being issued, expires 14 March 2016 per the GSA e-Library. Per FAR 19.804-6(a), SBA's acceptance of the original FSS contract is valid for the term of the contract, and TRGs’ FSS Contract has not expired. Further, FAR 19.804-6(c) states:
An 8(a) concern may continue to accept new orders under a multiple award, Federal Supply Schedule (FSS), multi-agency contract or Governmentwide acquisition contract even after a concern's program term expires, the concern otherwise exits the 8(a) Program, or the concern becomes other than small for the NAICS code assigned under the contract.
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TRG’s exit date is therefore irrelevant where TRG’s FSS Contract remains open. FAR 19.804-6(c) explicitly validates the award to TRG. TRG is clearly eligible for this FSS award. While this discusses the substance of your complaint, your protest of TRG’s eligibility is not valid. FAR19.805-2(d) states that: the eligibility of an 8(a) firm for a competitive 8(a) award may not be challenged or protested by another 8(a) firm or any other party as part of a solicitation or proposed contract award. 13 CFR § 124.517(a) states similarly that: the eligibility of a Participant for a sole source or competitive 8(a) requirement may not be challenged by another Participant or any other party, either to SBA or any administrative forum as part of a bid or other contract protest. To the extent TRG’s eligibility is the object of your agency-level protest, such protest is not valid. With no other issues presented as part of your agency-level protest, I, therefore, dismiss your agency-level protest. You have also characterized your complaint as a “Size Status Protest” under 13 CFR § 124.517(b) and 13 CFR § 121.1001(a)(2)(i). The latter, however, does not permit a size protest under these facts. 13 CFR § 121.1001(a)(2)(i) permits a size protest of a 8(a) competitive award by an offeror “whom the contracting officer has not eliminated for reasons unrelated to size.” Staffing Etc. does not fit this criterion, because your proposal was eliminated for reasons unrelated to size, i.e., technical unacceptability. 13 CFR § 121.1001(a)(2) does not permit Staffing Etc.’s size protest. Therefore, I will take no further action on it. Martin Rios Contracting Officer
ATTACHMENT 2
Privacy Statement
Identification, Location & Contacts
This profile was last updated:
02/22/2016
Status: Active
User ID: P0260608Name of Firm: ROYSTER GROUP, INC., THETrade Name ("Doing Business As ..."):DUNS Number: 114091684Parent DUNS Number:Address, line 1: 934 GLENWOOD AVE SE STE 280Address, line 2:City: ATLANTAState: GAZip: 30316-1876Phone Number: 770-507-3353 x205 Fax Number: 770-507-4034E-mail Address: [email protected] Page: http://www.roystergroup.comE-Commerce Website: http://www.roystergroup.comContact Person: KEN R TAUNTONCounty Code (3 digit): 121Congressional District: 05Metropolitan Statistical Area: 0520CAGE Code: 3B9T9Year Established: 2001Accepts Government Credit Card?:
The Royster Group is a talent acquisition firm known for staffing health care and executives professionals in the federal sector. We are known for Seamless Execution, Excellent Service, and a Commitment to Diversity.
1 Yes 561320 Temporary Help Services Yes2 541330 Engineering Services
General $14.00m Small Business Size Standard: [Yes]Special $35.50m Military and Aerospace Equipment and Military Weapons: [Yes]Special $35.50m Contracts and Subcontracts for Engineering Services Awarded Under the National Energy Policy Act of 1992: [Yes]Special $35.50m Marine Engineering and Naval Architecture: [Yes] (4)
Yes
3 541511 Custom Computer Programming Services
Yes
4 541611 Administrative Management and General Management Consulting Services
Yes
5 541612 Human Resources Consulting Services Yes6 541614 Process, Physical Distribution and
Logistics Consulting ServicesYes
7 541618 Other Management Consulting Services Yes8 541990 All Other Professional, Scientific and
(1) By entering Yes for "Buy Green", the firm asserts that it obeys EPA guidelines for environmental friendliness for this NAICS code. Note, EPA guidelines do not exist for every NAICS code. (2) If Yes, the firm's revenues/number of employees do not exceed the NAICS code's small business size standard. (4) As seen above, the size standard can depend on subcategories within a NAICS code.
11 561311 Employment Placement Agencies Yes12 561312 Executive Search Services Yes13 561330 Professional Employer Organizations Yes14 561492 Court Reporting and Stenotype Services Yes15 611430 Professional and Management
Development TrainingYes
16 621111 Offices of Physicians (except Mental Health Specialists)
Yes
17 621112 Offices of Physicians, Mental Health Specialists
Yes
18 621210 Offices of Dentists No19 621310 Offices of Chiropractors No20 621330 Offices of Mental Health Practitioners
(except Physicians)No
21 621340 Offices of Physical, Occupational and Speech Therapists and Audiologists
No
22 621399 Offices of All Other Miscellaneous Health Practitioners
No
23 621420 Outpatient Mental Health and Substance Abuse Centers
Yes
24 621493 Freestanding Ambulatory Surgical and Emergency Centers
Yes
25 621498 All Other Outpatient Care Centers Yes26 621512 Diagnostic Imaging Centers Yes27 621610 Home Health Care Services Yes28 621999 All Other Miscellaneous Ambulatory
Health Care ServicesYes
29 622110 General Medical and Surgical Hospitals Yes30 622210 Psychiatric and Substance Abuse
HospitalsYes
31 622310 Specialty (except Psychiatric and Substance Abuse) Hospitals
Yes
32 624190 Other Individual and Family Services Yes(1) By entering Yes for "Buy Green", the firm asserts that it obeys EPA guidelines for environmental friendliness for this NAICS code. Note, EPA guidelines do not exist for every NAICS code. (2) If Yes, the firm's revenues/number of employees do not exceed the NAICS code's small business size standard. (4) As seen above, the size standard can depend on subcategories within a NAICS code.
Keywords:
Executive Search, Medical Staffing, Employment Services, Permanent Placement, Recruiting, SES Recruiting, GS Recruiting, Staffing, Training, Development, Recruitment, SES, GS
Miscellaneous:
Quality Assurance Standards:
(none given)
Electronic Data Interchange capable?:
[ ] Yes [ ] No
Export Profile (Trade Mission Online)
Exporter?: [ ] Yes [ ] No [X] Wants To BeExport Business Activities: Service(s), ConsultantExporting to: Aruba; Algeria; Argentina; Anguilla; Brazil; Costa Rica;
Value: 1,000,000Contact: Available Upon RequestPhone: 404-601-7004
Name: Internal Revenue ServiceContract: Law LibraryStart: 05/15/2007End: 05/14/2009Value: 50,000Contact: Available Upon RequestPhone: 202-874-1603
Name: Southern Regional HospitalContract: Medical StaffingStart: 07/31/2001End: 12/31/2012Value: 200,000Contact: Available Upon RequestPhone: 770-996-1200
Name: Grady HospitalContract: Executive RecruitingStart: 10/15/2004End: 10/14/2012Value: 50,000Contact: Available Upon RequestPhone: 404-616-3343
Name: National Park ServicesContract: ServicesStart: 10/01/2010End: 01/30/2011Value: 200,000Contact: Laurie ChestnutPhone: 404-507-5745
Name: ArmyContract: SERCOStart: 07/14/2008End: 07/13/2009Value: 3,500,000Contact: Available Upon RequestPhone: 706-787-0293
Value: 1,000,000Contact: Available Upon RequestPhone: 256-847-2158
Name: Atlanta Public SchoolsContract: Recruiting & ITStart: 01/01/2006End: 12/31/2012Value: 2,000,000Contact: Available Upon RequestPhone: 404-802-2322
The structure of this page was last updated 02/01/2013, as part of SBSS 8.1.1.
ATTACHMENT 3
Department of Veterans Affairs Federal Supply Service
Authorized Federal Supply Schedule Price List
Effective Date: 3/15/11
On-‐line access to contract ordering information, terms and conditions, up-‐to-‐date pricing, and the option to create an electronic delivery order are available through GSA Advantage!, a
menu-‐driven database system. The Internet address for GSA Advantage! is: www.GSAAdvantage.gov
Federal Supply Schedule (FSS) 621 I Professional & Allied Healthcare Staffing
Services
Product Service Code Q Contract #: V797P-‐7311A
For more information on ordering from Federal Supply Schedules click on the FSS
Schedules at http://www.fss.gsa.gov
Contract Period: 03/15/2011 through 3/15/2016
Contractor Name: THE ROYSTER GROUP, INC
Company Address: 934 GLENWOOD AVENUE – SUITE 280 ATLANTA, GA 30316
2. Maximum order: $1,000,000 per order. 3. Minimum order: A minimum of 40 hours per week and a minimum of one week per order.
No permanent Placement Fees or lead times. 4. Geographic coverage (service area): Geographic coverage (service area): The Royster
Group are offered in Alabama, Alaska, California, District of Columbia, Florida, Georgia, Hawaii, Kentucky, Maryland, Mississippi, New York, North Carolina, Texas, Virginia, and Washington.
5. Prompt Payment Terms: Net 30 days 6. Government Commercial Credit Card: Government Purchase Cards are accepted up to or
above the micro purchase threshold with no additional discount.
Ordering address: The Royster Group, Inc. -‐ ATTN: Ken Taunton, 934 Glenwood Avenue – Suite 280 -‐ Atlanta, GA 30316
7. To obtain technical and/or ordering assistance, ordering agencies may call (866) 507-‐
3353 X 205 (Ken Taunton) or X 202 (LaToyin Rollins).
The Royster Group
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Payment address:
The Royster Group, Inc. 934 Glenwood Avenue – Suite 280
Atlanta, GA 30316 8. Prices shown herein are “net” ceiling prices-‐not to exceed rates. The net ceiling rates include
malpractice insurance for non-‐personal service’s task-‐orders and exclude travel and lodging.
9. Personal Services task-‐orders will also be accepted. 10. Minimum Qualifications of Professionals: See Page 6 -‐ 7 11. Medical Liability Insurance Limits: $1 million per occurrence; $3 million aggregate. 12. For services, the ordering procedures and information on Blanket Purchase Agreements (BPA’s)
are found in the Federal Acquisition Regulation (FAR) 8.405-‐3. The Royster Group is participating in the Disaster Recovery Purchasing Program. (P.L. 109-‐364 John Warner National Defense Authorization Act).
13. The Royster Group, Inc. Not to Exceed Hourly Rates -‐ Contract #: V797P-‐7311A
a) Shift Differentials: None b) On-Call/Call Back: None c) Holiday Pay Rate (for all Federal Government Holidays): Hourly pay rate will be the same for
all holidays recognized by the Federal Government that are worked within a 40 hour work week, in accordance with state and labor laws (for non- personal providers only).
d) Work Week: Sunday – Saturday e) Background Investigations: Standard background investigation are conducted at local, state and
national levels for each candidate and include but are limited to: verification of educational and clinical credentials, work history, criminal history, sex offender investigations, SSN verification, OIG report, malpractice claims history.
f) Overtime: For Allied Healthcare Providers the hourly rate will be billed in accordance with all
federal, state, and local labor laws (for non-physician providers only) g) No overtime –the normal hourly rate applies. h) For Physicians: No overtime - physician receives the normal hourly rate. i) Prices awarded are based on commercial non-catalog pricing and are subject to clause I-FSS_969
Economic Price Adjustment/Price Reduction, The Base Index or Factor (BIF) for determining price adjustments annually is identified as 330.508, representing the Co9nsumer Price Index – All Urban Consumers (CPI-U), not seasonally adjusted, U.S. City Average, U.S. Department of Labor Series ID CUUR0000SEMC / CUUS0000SEMC for NOV 2010.
j) Weeknight On-Call Rate: Weeknight is a one time flat charge for a 15-hour period when a
physician is required to be available by phone or pager and be able to provide phone consultation. The weeknight period is generally 4:30 pm- 8:00 am. Physician must be within 30 miles or 30-minute radius from the facility.
k) Weekend On-Call Rate: Weekend will be standard rate agreement for on call in a 24-hour
period on Saturday and Sunday when a physician is required to be available by phone or pager and be able to provide phone consultation. Physician must be within 30 miles or 30-minute radiuses from the facility.
l) Call Back Rate: If the physician must report to the facility and see patients, the normal hourly
rate applies when physically onsite for all hours worked. m) Following accounting data is to fund the guaranteed minimum of $2500.00 as stated in Contract
