United States Government Accountability Office
Washington, DC 20548 Comptroller General
of the United States
DOCUMENT FOR PUBLIC RELEASE
The decision issued on the date below was subject to a
GAO Protective Order. This redacted version has been
approved for public release. Decision
Matter of: WorldWide Language Resources, Inc.; SOS International Ltd. File: B-296984; B-296984.2; B-296984.3; B-296984.4; B-296993; B-296993.2;
B-296993.3; B-296993.4 Date: November 14, 2005 Richard D. Lieberman, Esq., McCarthy, Sweeney & Harkaway, PC, for WorldWide
Language Resources, Inc.; Alison L. Doyle, Esq. and Jeniffer M. De Jesus, Esq.,
McKenna Long & Aldridge LLP, for SOS International Ltd., the protesters.
Thomas P. Barletta, Esq., Paul R. Hurst, Esq., and Michael C. Drew, Esq., Steptoe &
Johnson LLP, for Russian and Eastern European Partnership, Inc., d/b/a Operational
Support Services, an intervenor.
Clarence D. Long, III, Esq., Paul D. Warring, Esq., and Edward N. Ramras, Esq.,
Department of the Air Force, for the agency.
Edward Goldstein, Esq., and Christine S. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
1. Protests challenging agency’s award of sole-source contract for bilingualbicultural advisors utilizing other than competitive procedures based on unusual and
compelling urgency are sustained where the agency initially attempted to place the
requirement under an environmental services contract, which, on its face, did not
include within its scope the bilingual-bicultural advisor requirement. This obvious
error constituted lack of advance planning, which compromised the agency’s ability
to obtain any meaningful competition and directly resulted in the sole-source award.
2. Justification and approval prepared in support of second sole-source award
expanding the bilingual-bicultural advisor requirement was unreasonable where
justification was premised on the conclusion that the awardee was the only
responsible source, yet the capabilities of firms other than the awardee were not in
fact considered.
3. Agency’s request for dismissal of protests as untimely on the ground that
announcement of contract award on the Department of Defense’s official website,
www.DefenseLink.mil, placed protesters on constructive notice of the award and
thus required the protesters to file their protests within 10 days of the announcement is denied since DefenseLink has not been designated by statute or regulation as the
public medium for announcement of procurement actions.
DECISION
WorldWide Language Resources, Inc. and SOS International, Ltd. (SOSi) protest the
Department of the Air Force’s award of two sole-source contracts (Nos.
FA7012-05-C-0003 and FA7012-05-C-0020) to Russian and Eastern European
Partnership, Inc. (REEP) d/b/a Operational Support Services (OSS), for individuals
performing services as bilingual-bicultural advisor/subject matter experts (BBASME) in Iraq. WorldWide and SOSi argue that: (1) the Air Force did not have the
claimed unusual and compelling urgency justifying the noncompetitive awards to
OSS; (2) to the extent there were urgent requirements, the urgency was the result of
the Air Force’s lack of advance planning; (3) the Air Force unreasonably concluded
that OSS was the only firm capable of meeting the BBA-SME requirements; and (4)
the Air Force failed to obtain competition to the maximum extent practicable as
required by statute and regulation.
We sustain the protests.
Background
The protests concern two sole-source contracts, contract No. FA7012-05-C-0003
(with an estimated value of $10.7 million) and No. FA7012-05-C-0020 (with an
estimated value of $35.5 million), awarded to OSS on December 3, 2004 and on
July 29, 2005, respectively, both of which were to support the mission of the
Multinational Forces-Iraq (MNF-I), particularly the Civil Affairs Command (CAC).
The December contract required OSS to provide 50-75 bilingual-bicultural advisorsubject matter experts (BBA-SME), who were described as follows:
Western oriented individuals of Iraqi background who speak both
English and Iraqi-dialect Arabic or Kurdish and who are committed to a
democratic Iraq to act as advisors to Iraqi units of government and
non-government organizations . . . . The advisory services required
include, but are not limited to, advising government ministers, planning
for and implementation of elections, drafting of constitutional
documents, advising neighborhood, municipal and national councils
and public services, training of security forces and details, translation
and interpretation of conversations, documents and cultural matters in
1
support of democratic objectives. 1 The original requirement for “Western oriented individuals of Iraqi background”
was changed, after contract award, to Iraqis with U.S. citizenship. See Contracting
Officer’s (CO) Statement of Facts at 3. Page 2 B-296984 et al.
B-296993 et al. Contract No. FA7012-05-C-0003, Performance Based Work Statement at 2.
The period of contract performance was 1 year, ending on December 2, 2005.
The July contract effectively increased to 200 the total number of BBA-SMEs that
OSS was required to provide through December 2005 and also extended the period
of performance through July 2006 (OSS was required to provide an additional 150
BBA-SMEs from July through the end of OSS’s December contract, which expired on
December 2, and then provide a total of 200 BBA-SMEs through July 2006).
The BBA-SME requirement had its genesis in a program established by the Office of
the Secretary of Defense (OSD) in 2003, known as the Iraqi Reconstruction and
Development Council (IRDC). The IRDC was composed of approximately 150
individuals of Iraqi heritage from the world-wide exile community who provided
assistance to the Coalition Provisional Authority with stabilizing and maintaining a
civil government in Iraq. Agency Report (AR), Tab 15, Declaration of Victor A.D.
Rostow, Special Assistant to the Under Secretary of Defense for Policy, Sept. 12,
2005, at 2. Some members of the IRDC were selected for their professional
experience (i.e., lawyers, physicians, engineers, information technology specialists),
while others were selected for family and/or social contacts with ethnic and tribal
groups. The services provided by these individuals were obtained through a contract
2
awarded to the firm Science Applications International Corporation (SAIC). Id.
When the Coalition Provisional Authority dissolved in June 2004, the IRDC program
also came to an end. In the timeframe between June and July, however, the Deputy
Secretary of Defense “determined that the success of the United States war effort
required the services of experts in reconstruction and governance in the period
leading up to the establishment of a constitutional Iraqi government,” AR, Tab 15,
supra, at 1, and sought a way to “support some 50-75 of [the IRDC] individuals who
can operate independently throughout Iraq in support of MNF-I/CAC activities.” AR,
Tab 16h, e-mail from Victor A.D. Rostow, Subject: Iraqi Contractor Help, Nov. 18,
2004. As a consequence, the Deputy Secretary of Defense tasked Mr. Victor Rostow,
Special Assistant to the Under Secretary of Defense for Policy, who had organized
and managed the IRDC program, with establishing a program to hire Iraqis of
Western orientation who were capable of assisting the Civil Affairs Command. AR,
Tab 15, supra, at 1. 2 The SAIC contract for providing the 150 members of the IRDC was a sole-source
award. The award and administration of this contract were the subject of reports by
the Office of the Inspector General of the Department of Defense and GAO. See
Contracts Awarded for the Coalition Provisional Authority by the Defense
Contracting Command-Washington (D-2004-057, Mar. 18, 2004); Rebuilding Iraq:
Fiscal Year 2003 Contract Award Procedures and Management Challenges
(GAO-04-605, June 1, 2004).
Page 3 B-296984 et al.
B-296993 et al. In a hearing held by our Office concerning the issues in this case,3 Mr. Rostow
explained that the program “was to be in place and functioning when the Iraqi
elections occurred in January [2005].” Hearing Transcript (Tr.) at 135. While the
immediate need was to address the elections, the program’s underlying purpose was
to address the needs of the Iraqi community (e.g., their medical, energy, and
agricultural needs) and thereby create “a nudge toward democracy.” Tr. at 136.
According to Mr. Rostow, OSD wanted “to get the program started” and considered it
to be “a demonstration grant” whereby OSD would fund the program for an initial
period of 1 year and the military commands, i.e., Central Command or Southern
Command, would then continue funding the program “because they’ve seen this as a
function that works in the military.” Tr. at 138-39. According to OSD, the Civil
Affairs Command mission is expected to increase as the war-fighters draw down; the
Civil Affairs Command is suffering from staffing shortages; and the BBA-SME
program is designed to augment this staffing shortage. AR, Tab 15, supra, at 5.
In mid-August 2004, Mr. Rostow began working on a statement of work for the
program and contacted the Air Force with the requirement sometime between midAugust and mid-September. The Air Force’s Center for Environmental Excellence
4
(AFCEE) initially took responsibility for the BBA-SME acquisition. Tr. at 133, 140.
After speaking with Mr. Rostow and receiving the scope of work for the BBA-SME
requirement, the AFCEE decided to compete the BBA-SME requirement among the
multiple contract holders of AFCEE’s global engineering, integration, and technical
assistance (GEITA) contract. The GEITA contract was to provide advisory and
assistance services in support of AFCEE’s “continued excellence in the world
environmental stewardship market,” including support for AFCEE’s programs
involving environmental restoration, compliance, pollution prevention, conservation
and planning, fuel facility engineering, base realignment and closure activities, and
military family housing initiatives, to include privatization and outsourcing activities.
5
See GEITA Contract, Statement of Work, at 3, 4-5.
On October 27, 2004, AFCEE issued a solicitation for the BBA-SME requirement to
the holders of the GEITA contract. AR, Tab 14, Declaration of Chief of Acquisition
for the Air Force District of Washington, at 3. However, in early November, the BBA- 3 At the hearing, our Office heard testimony from the contracting officer, the
commander of the Air Force’s 11th Contracting Squadron, and Mr. Rostow.
4 The record indicates that Mr. Rostow contacted the Air Force as a result of a
conversation with the Chief of Staff for the Deputy Secretary of Defense. Tr. at 133,
143.
5 Our Office requested a copy of the GEITA contract and the Air Force provided a
web address with a link to the requested information,
http://www.afcee.brooks.af.mil/pkv/GEITA/default.asp?CID=53&folder=GEITA.
Page 4 B-296984 et al.
B-296993 et al. SME solicitation and the plan to place the BBA-SME requirement under the GEITA
contract were canceled after the director of contracting for AFCEE, with the
concurrence of the Office of the Secretary of the Air Force, determined that the BBESME requirement was not within the scope of the GEITA contract. In an e-mail
message to the Air Force’s Deputy Assistant Secretary for Contracting, he wrote:
Evidently Mr. Rostow called a Technical Division Chief at AFCEE
directly on his cell phone and asked if they could do this. That started
the ball in motion and no one (technical or contracting) really stopped
for a sanity check on this until yesterday . . . . Bottom line -- Does not
fit within AFCEE’s charter, does not fit within scope of GEITA without
really stretching way out there, there were some over zealous AFCEE
personnel on both the technical and contracting sides that were
leaning way forward in the saddle and trying to support a customer
that called with a request for support based on AFCEE previous
success in Iraq, AFCEE is not in the habit of saying no to anyone.
AR, Tab 16.ss., Nov. 10, 2004, e-mail, Subject: RE: GEITA Services for BilingualBicultural Support to Iraq.
Unable to use the GEITA contract and with OSD expecting a contract in place by
6
mid-November, the Air Force looked to other avenues to assist OSD with the BBASME acquisition and on November 10 the Air Force’s Associate Deputy Assistant
Secretary for Contracting contacted the Commander for the 11th Contracting
Squadron, Bolling Air Force Base, Washington, to provide assistance with the
procurement.
Experiencing what it perceived to be significant pressure from OSD to quickly satisfy
7
the BBA-SME requirement, the 11th Contracting Squadron, the contracting activity,
first considered the possibility of placing the BBA-SME requirement under an
existing contract, specifically considering its two contractors for language
instruction, one of which was OSS. However, after concluding that the BBA-SME
requirement would not fit within the scope of the contracts it administered, the
contracting activity decided to pursue a sole-source contract for the BBA-SME
requirement “[b]ecause there was no way to competitively go out and get that effort
done in a way that probably wouldn’t result in a minimum four to six month slip of
the schedule, maybe longer . . . .” Tr. at 27. When the contracting activity sought a
6 See, e.g., AR, Tab 16.b., e-mail from OSD to Office of the Secretary of the Air Force,
Subject: Bilingual, Bicultural Support, Nov. 15, 2004 (stating “a mid-December
contract award is simply not soon enough”). 7 See, e.g., AR, Tab 16.e., e-mail, Subject: Bilingual, Bicultural Support, Nov. 16, 2004
(stating “OSD is putting a lot of pressure on the [Air Force] to get this done”).
Page 5 B-296984 et al.
B-296993 et al. potential contractor for its expected sole-source award, it focused exclusively on
OSS. After initial inquiries regarding OSS’s capabilities and a November 18 meeting
between OSS, OSD, and the Air Force, it was determined that the BBA-SME
requirement should be awarded on a sole-source basis to OSS.
In early December, the Air Force executed a justification and approval (J&A) for
other than full and open competition in support of the initial award to OSS. The
December J&A, which cites 10 U.S.C. § 2304(c)(2) (2000) and Federal Acquisition
Regulation (FAR) § 6.302-2 (unusual and compelling urgency) as the authority for the
award to OSS, states that “OSS is the only known contractor who is in the position to
provide deployed BBAs to Iraq in time to support the Iraqi national elections in
January 2005.” AR, Tab 1b.2, J&A, December 1, 2004, at ¶ 5. Describing OSS’s
“unique qualifications,” the J&A noted that OSS is the largest provider of foreign
language immersion training to the U.S. government; the firm’s staff features former
military specialists; OSS maintained a database of nearly [deleted] linguists, trainers,
translators, and interpreters; and OSS had staff in Iraq. Id.
Under the heading “Market Survey,” the J&A stated that “OSD could not locate an
existing contract vehicle to support [the BBA-SME] requirement” and that because
the AFCEE contracting option was cancelled, “there was not sufficient time to
compete the requirement and meet the . . . 1 December 2004 deadline for contract
award . . . .” Id. at ¶ 9. Moreover, the J&A highlighted the fact that OSS’s cost of
beginning operations in Iraq was reduced since OSS had [deleted] as well as the fact
that OSS was [deleted]. Id. The J&A further provided that the requirement was
expected to last for only 12 months and that a follow-on procurement was not
anticipated, but that if similar requirements arose in the future, market research
would be performed and the effort would be competed. Id. at ¶ 11. On December 3,
2004, the Air Force awarded contract No. FA7012-05-C-0003 to OSS.
In late January or early February 2005, after OSS had begun performance, the MNF-I
identified a requirement for approximately 275 BBA-SMEs and conveyed this
information to OSD. Tr. at 170-71. At the end of March, Mr. Rostow discussed the
possibility of expanding the BBA-SME program with the Deputy Secretary of
Defense based on positive feedback from Iraq regarding the program. Tr. at 170.
According to Mr. Rostow, during the discussion of expansion, the Deputy Secretary
of Defense requested “a paper that makes a recommendation, which I did probably
about the middle of April.” Tr. at 170. On May 2, 2005, the Deputy Secretary of
Defense formally approved expansion of the BBA-SME program to 200 individuals
and extension of the contract period through June 2006. See AR, Tab 1.d.,
Memorandum for Deputy Secretary of Defense, Subject: BBA-SME Project:
Increasing Numbers and Money, Apr. 27, 2005.
In discussions with the contracting activity regarding the option of expanding the
BBA-SME program, OSD initially sought an award date in June 2005, with the
contract running through June 2006. Tr. at 195, 244. The contracting activity
Page 6 B-296984 et al.
B-296993 et al. explained that it would not be possible to meet a June 2005 award date if the
requirement was subject to full and open competition because a competitive award
would take a minimum of 6-8 months to coordinate and conduct the source
selection. AR, Tab 12.b., e-mail, Subject: OSS-BBA Extension 4-22-05, Apr. 22, 2005.
The contracting activity explained that the only option for an expedited contract was
a sole-source award and indicated that OSD would be required to “conduct adequate
market research to certify that only one source [in accordance with [FAR §] 6.302-1
can provide the required service without significant duplication of cost and loss of
schedule.” Id.
On July 11, 2005, the Air Force approved a J&A for other than full and open
competition in support of the award of a contract to OSS with a 1-year performance
8
period, plus one 3-month option, for expansion of the BBA-SME program. While
initial discussions between OSD and the Air Force concerned justifying a sole-source
award to OSS under FAR § 6.302-1 (only one responsible source and no other
supplies or services will satisfy agency requirements), the July J&A, like the prior
one, cited 10 U.S.C. § 2304(c)(2) and FAR § 6.302-2 (unusual and compelling
urgency) as the authority for the sole-source award to OSS. The J&A explained that
the BBA-SME requirement was critical for the Civil Affairs Command and that
without the BBA-SME program “numerous CAC missions cannot be performed.” AR,
Tab 1.b.1, J&A, July 11, 2005, at ¶ 5. It stated that “OSS is the only contractor who is
capable of meeting the government’s requirement in the unusual and compelling
timeframe required.” Id. at ¶ 2. According to the J&A, the “critical need date” for the
expanded BBA-SME requirement was July 1, 2005, and the national security interests
of the government would be “seriously harmed” unless the agency was permitted to
proceed with a sole-source award of the requirement. Id. at ¶¶ 4 and 5. The J&A
further stated that OSS was
the only provider of subject matter experts with the requisite cultural
competences and linguist skills. While there are a number of other
providers of linguists (Titan Corp.) and linguists with security
clearances, none of these providers have mined the Iraqi heritage
community with a view to finding and deploying individuals with skills
required by the MNF-I CAC. . . . They are the only provider having
[deleted]. They are the only provider that can perform the contract
without significant additional start-up costs and recruitment delays.
Id. at ¶ 5. 8 The original target date of June passed due to efforts to obtain further approvals
and confirmation of funding for the requirement. Tr. at 244.
Page 7 B-296984 et al.
B-296993 et al. The J&A also indicated that the requirement was expected to last for only 15 months
and that a follow-on contract was not expected. Id. at ¶ 11. On July 29, 2005, the Air
Force awarded contract No. FA7012-05-C-0020 to OSS.
Analysis
As an initial matter the Air Force argues that the challenges relating to the
December 2004 sole-source award to OSS should be dismissed as untimely.9 The
agency maintains that the award was announced on December 6, 2004 on the official
website for the Department of Defense, referred to as DefenseLink-http://www.defenselink.mil/--and that the protesters should have challenged the
award within 10 days of this announcement, yet they waited more than 6 months to
10
file their protests. In essence, the Air Force argues that the award announcement
on DefenseLink placed the protesters on constructive notice of the sole-source
award and that the timeliness of their protests should be measured from this date.
We disagree.11
Our Bid Protest Regulations contain strict rules for the timely submission of
protests. These rules require that a protest based on other than alleged
improprieties in a solicitation be filed no later than 10 calendar days after the 9 The Air Force also sought dismissal on the basis that the protesters are not
interested parties because they are not capable of fulfilling the BBA-SME
requirement. See Bid Protest Regulations, 4 C.F.R. § 21.0(a) (2005). The Air Force’s
contention that the protesters are not interested parties is premised on its review of
the protesters’ capabilities, as described on the General Services Administration
website, after the protest was filed. In essence, the Air Force asserts that the
protesters are primarily linguist contractors and that they have not previously
provided the BBA-SME requirement, which differs from a linguist contract. This
argument is unpersuasive, given that prior to its initial sole-source award, OSS was
primarily a contractor for linguist services, and had never provided BBA-SMEs.
Moreover, both protesters have expressly indicated their interest in the requirement,
and set forth their capabilities, which appear consistent with a capability to perform
the BBA-SME requirement.
10 Aside from providing general information about the Department of Defense and
current news information, DefenseLink also announces at 5 p.m. each business day
all Department of Defense contract awards valued at $5 million or more. See
http://www.defenselink.mil/contracts/.
11 The protesters state that they learned of the December 2004 sole-source award
only after they learned of the second sole-source award in July 2005. Notice of the
July award was published on both FedBizOpps and the DefenseLink website. Page 8 B-296984 et al.
B-296993 et al. protester knew or should have known its basis for protest, whichever is earlier.
4 C.F.R. § 21.2(a)(2).
In support of its contention that the protesters were on constructive notice by virtue
of the DefenseLink posting, the Air Force points to our decisions holding that
publication in the Commerce Business Daily (CBD) or on the FedBizOpps website
(which has replaced the CBD) placed protesters on constructive notice of an
agency’s contract actions. For example, we have recognized that publication in the
CBD of an agency’s intent to enter into a sole-source contract constitutes
constructive notice of that proposed contract action. See Fraser-Volpe Corp.,
B-240499 et al., Nov. 14, 1990, 90-2 CPD ¶ 397 at 3; S.T. Research Corp., B-232751,
Oct. 11, 1988, 88-2 CPD ¶ 342 at 1. Similarly, we have held that publication on the
FedBizOpps website places prospective contractors on constructive notice of
contract awards, such that protests of the awards must be filed within 10 days of
publication. CBMC, Inc., B-295586, Jan. 6, 2005, 2005 CPD ¶ 2 at 2.
These cases, however, are inapposite. The doctrine of constructive notice creates a
presumption of notice in law that cannot be rebutted. See, e.g., Townsend v. Little
and Others, 109 U.S. 504, 511 (1883) (“constructive notice is defined to be in its
nature no more than evidence of notice, the presumption of which is so violent that
the court will not even allow of its being controverted”). By definition the doctrine
imputes knowledge to a party without regard to the party’s actual knowledge of the
matter at issue. Given the severity of such a rule, our decisions holding protesters to
constructive notice of information published in the CBD and now on FedBizOpps
have been premised on the fact that first the CBD and now FedBizOpps have been
expressly designated by statute and regulation as the official public medium for
providing notice of contracting actions by federal agencies. See Herndon &
Thompson, B-240748, Oct. 24, 1990, 90-2 CPD ¶ 327 at 3 (protesters are charged with
constructive notice of contents of procurement synopsis published in the CBD since
it is the official public medium for identifying proposed contract actions); see also
15 U.S.C. § 637(e)(2)(A) (2000); 41 U.S.C. § 416(a)(7) (2000); FAR § 2.101
(designating FedBizOpps as the governmentwide point of entry (GPE), “the sing...

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