Bombardier argues that the Air Force has effectively directed L3 to select Gulfstream for award of a subcontract to provide the aircraft for the Compass Call re-host. The protester contends that the Air Force's actions are improper because the agency has not complied with CICA's requirement for full and open competition in the selection of the re-host aircraft, and that the agency has not reasonably evaluated the capabilities of the Gulfstream aircraft or the aircraft that Bombardier contends could meet the Compass Call re-host requirements. The protester also contends that the RFI issued by L3 did not provide prospective subcontractors with adequate information to prepare responses. For the reasons discussed below, we conclude that the proposed contract with L3 anticipates selection of the aircraft by L3 and not the government. We therefore find no basis to sustain the protest.

Under CICA, our Office has jurisdiction to resolve bid protests concerning the solicitations and contract awards that are issued "by a Federal agency." 31 U.S.C. § 3551(1)(A). Our rules provide that we do not review procurements where a government prime contractor enters into a subcontract "for" the government. 4 C.F.R. § 21.5(h); Compugen, Ltd., B-261769, Sept. 5, 1995, 95-2 CPD ¶ 103 at 3-4; Yard USA, Inc., B-232326, Sept. 1, 1988, 88-2 CPD ¶ 207. We will take jurisdiction, however, where we find that a subcontract essentially was awarded "by" the government. The Panther Brands, LLC, B-409073, Jan. 17, 2014, 2014 CPD ¶ 54 at 4-6. In this regard, we have considered a subcontract procurement to be "by" the government where the agency handled substantially all of the substantive aspects of the procurement and, in effect, took over the procurement, leaving to the prime contractor only the procedural aspects of the procurement, i.e., issuing the subcontract solicitation and receiving proposals. Id.; St. Mary's Hosp. & Med. Ctr. of San Francisco, Cal., B-243061, June 24, 1991, 91-1 CPD ¶ 597 at 5-6. For example, in The Panther Brands, our Office concluded it had jurisdiction to review a subcontract award where the solicitation issued to prospective subcontractors advised that the government would make the selection decision, the agency evaluated the proposals of prospective subcontractors, and the agency selected the successful proposal without receiving an award recommendation from the prime contractor. The Panther Brands LLC, supra, at 6.

Here, Bombardier contends that the Air Force has selected the Gulfstream G550 aircraft for the Compass Call re-host effort, and that L3 will therefore perform only the procedural aspects of the subcontract procurement. In support of its argument, the protester points to the Air Force's correspondence with Congress on this matter, and statements in the media. See Protest (B-414380.2) at 12-18. The protester also contends that it was informed by L3 that the decision to award a contract to Gulfstream had been made as of January 2017. Protest (B-414380.2) at 3 ("Indeed, L3 informed Bombardier in January of this year--before the Air Force had even issued the solicitation for the sole source lead system integrator contract--that Gulfstream will supply the aircraft.").

The Air Force contends that this matter concerns a future determination by L3 that will be conducted under a subcontract and that, even if it were ripe for review at this time, it is a matter over which our Office does not have jurisdiction. The agency specifically represents that the decision to select the aircraft for the Compass Call re-host will be made by L3 under the terms of the SOW for the proposed subcontract. COS/MOL (B-414380.2) at 19-20; Agency Request for Dismissal (B-414380.2), June 8, 2017, at 7-8. In this regard, the protester does not cite to any provisions of the SOW or J&A that specifically direct L3 to select the Gulfstream G550 for the Compass Call re-host effort.

On this record, we find that the proposed sole-source award to L3 requires that firm to select the aircraft for the Compass Call re-host, subject to the requirements established by the Air Force. We find that neither the terms of the SOW, nor the classified J&A, demonstrate that the Air Force will handle the substantive aspects of the subcontract procurement, such that L3 would be left with only a procedural role in the selection of the aircraft. See The Panther Brands LLC, supra, at 4-6. Consequently, we conclude that the decision to select an aircraft is a matter that will occur under a proposed subcontract, and therefore the terms of the subcontract competition and the merits of the selection decision are matters that are not within the jurisdiction of our Office.  (The Boeing Company; Bombardier, Inc. B-414706, B-414380.2: Aug 25, 2017)

As an initial matter, the Army argues that GAO does not have jurisdiction over the protest because the protest involves the selection of a second-tier subcontractor. The Army primarily relies on our decision in Yard USA, Inc., B-232326, Sept. 1, 1988, 88-2 CPD ¶ 207, in support of its position that we do not consider protests of the award of a second-tier subcontract. AR at 6-7. We do not agree that this case is applicable here.

Under the Competition in Contracting Act of 1984 (CICA), our Office has jurisdiction to resolve bid protests concerning the solicitations and contract awards that are issued “by a Federal agency.” 31 U.S.C. § 3551(1)(A) (2006). In the context of subcontractor procurements, we initially interpreted CICA as authorizing our Office to review protests where, as a result of the government’s involvement in the award process or the contractual relationship between the prime contractor and the government, the subcontract in effect is awarded on behalf of the government, that is, where the subcontract is awarded “by or for the government.” See Ocean Enters., Ltd., B-221851, May 22, 1986, 86-1 CPD ¶ 479 at 2; recon. denied, B‑221851.2, June 26, 1986, 86-2 CPD ¶ 10. Pursuant to this interpretation, we traditionally reviewed subcontractor selections that were “for” the government, where the subcontract awards concerned (1) subcontracts awarded by prime contractors operating and managing certain Department of Energy, or other agency, facilities; (2) purchases of equipment for government-owned, contractor-operated plants; and (3) procurements by certain construction management prime contractors. Id.

However, the Court of Appeals for the Federal Circuit in U.S. West Commc’ns Servs., Inc. v. United States, 940 F.2d 622 (Fed. Cir. 1991) held that statutory language basically identical to that applicable to our Office did not provide the General Services Administration’s Board of Contract Appeals with jurisdiction over subcontract procurements conducted “for” a federal agency, in the absence of a showing that the prime contractor was a procurement agent, as defined by the Supreme Court in United States v. New Mexico, 455 U.S. 720 (1982) and the court of appeals in United States v. Johnson Controls, Inc., 713 F.2d 1541 (Fed. Cir. 1983). We subsequently concluded that our jurisdiction generally does not extend to awards made by others “for” the government, and that, accordingly, in the absence of a request by the federal agency concerned, we would not take jurisdiction over such procurements. Compugen, Ltd., B-261769, Sept. 5, 1995, 95‑2 CPD ¶ 103 at 3-4.

Our decision in Yard involved the award of a contract by a subcontractor for a steering control subsystem on the Navy’s AOE–6 Fast Combat Support Ship. We declined to review the award under our authority to review procurements “for” the government, because a subcontractor could not be considered a purchasing agent for the government. Yard USA, Inc., supra, at 2. As explained above, we have not taken jurisdiction over such procurements that are allegedly “for” the government since 1995. See Compugen, Ltd., supra.

We continue to take jurisdiction, however, where we find that a subcontract essentially was awarded “by” the government. See RGB Display Corp., B-284699, May 17, 2000, 2000 CPD ¶ 80 at 3. In this regard, we have considered a subcontract procurement to be “by” the government where the agency handled substantially all the substantive aspects of the procurement and, in effect, took over the procurement, leaving to the prime contractor only the procedural aspects of the procurement, i.e., issuing the subcontract solicitation and receiving proposals. Baron Servs., Inc., B-402109, Dec. 24, 2009, 2009 CPD ¶ 264 at 3; St. Mary’s Hosp. & Med. Ctr. of San Francisco, Cal., B-243061, June 24, 1991, 91-1 CPD ¶ 597 at 5-6.

Panther Brands argues, and we agree, that our decision in St. Mary’s Hosp. is applicable to the circumstances here. In that case, we agreed to consider the award of a second-tier subcontract where the government identified the need for the services, drafted the solicitation criteria, selected government officials to serve on the evaluation committee, and approved the committee’s recommendation for award. We concluded that the government controlled “every meaningful aspect of the procurement.” St. Mary’s Hosp., supra, at 6.

Here, the record shows that the Army National Guard controlled essentially every meaningful aspect of the procurement. The Army National Guard, using its own evaluation criteria, evaluated Docupak’s summaries of the proposals, assigning adjectival ratings and identifying strengths and weaknesses. See AR, Tab 17, Consensus Evaluation for Panther Brands; Tab 18, Consensus Evaluation for RLL. Moreover, the Guard’s CO selected RLL based upon the agency’s own evaluation. Although Docupak summarized proposals and obtained additional information from offerors, the record shows no evidence that Docupak substantively evaluated proposals or recommended any offeror to the Army National Guard or LM&O, the prime contractor. Indeed, the solicitation itself informed offerors that the government would make the selection decision. See AR, Tab 5, Solicitation, at 1. Accordingly, under the circumstances present here, we conclude that we have jurisdiction here, because the Corps handled substantially all the substantive aspects of the procurement, such that the procurement was “by” the government.  (The Panther Brands, LLC, B-409073: Jan 17, 2014)  (pdf)

DOE requests that we dismiss Baron’s protest because it concerns a subcontract awarded by Battelle as a DOE prime contractor and not a procurement conducted by the government. Dismissal Request.

Under the Competition in Contracting Act of 1984 (CICA), our Office has jurisdiction to resolve bid protests concerning solicitations and contract awards that are issued “by a Federal agency.” 31 U.S.C. sect. 3551(1)(A) (2006). Pursuant to our authority under CICA, we initially took jurisdiction over subcontract awards by prime contractors to the federal government where, as a result of the government’s involvement in the award process, or the contractual relationship between the prime contractor and the government, the subcontract, in effect, was awarded on behalf of‑-i.e., “by or for”--the government, and federal procurement laws and regulations otherwise would apply. See, e.g., St. Mary’s Hosp. & Med. Ctr. of San Francisco, Cal., B-243061, June 24, 1991, 91-1 CPD para. 597. However, in its decision U.S. West Commc’ns Servs., Inc. v. United States, 940 F.2d 622 (Fed. Cir. 1991), the court of appeals construed statutory language basically identical to that applicable to our Office as not conferring on the General Services Administration’s Board of Contract Appeals jurisdiction over subcontract procurements conducted “for” a federal agency, in the absence of a showing that the prime contractor was a procurement agent, as defined by the Supreme Court in United States v. New Mexico, 455 U.S. 720 (1982) and the court of appeals in United States v. Johnson Controls, Inc., 713 F.2d 1541 (Fed. Cir. 1983). We subsequently concluded that our jurisdiction generally does not extend to awards made by others “for” the government, and that, accordingly, in the absence of a request by the federal agency concerned, we would not take jurisdiction over such procurements. Compugen, Ltd., B-261769, Sept. 5, 1995, 95-2 CPD para. 103 at 3-4.

We continue to take jurisdiction, however, where we find that a subcontract essentially was awarded “by” the government. See RGB Display Corp., B-284699, May 17, 2000, 2000 CPD para. 80 at 3. In considering whether a procurement was conducted “by” the government, we assess the totality of the circumstances, including the question of which party was responsible for the preparation of the solicitation, the receipt and evaluation of proposals, the conduct of discussions, the selection of a prospective awardee and the conduct of responsibility determinations. Alatech Healthcare, LLC, B-400925, B-400925.2, Mar. 9, 2009, 2009 CPD para. 57 at 3. We have found a subcontract procurement to be “by” the government only where the agency handled substantially all substantive aspects--in effect, “took over”--the procurement, leaving to the prime contractor only the procedural aspects of the procurement, i.e., issuing the subcontract solicitation and receiving proposals. See St. Mary’s Hosp. & Med. Ctr. of San Francisco, Cal., supra, at 5-6; University of Mich.; Indus. Training Sys. Corp., B-225756, B-225756.2, June 30, 1987, 87-1 CPD para. 643 at 5‑6. In such cases, the prime contractor’s role in the procurement was essentially ministerial such that it was merely acting as a conduit for the government, Alatech Healthcare, LLC, supra, at 3. On the other hand, we have found subcontractor procurements were not “by” the government where the prime contractor handled meaningful aspects of the procurement, such as preparing the subcontract solicitation and evaluation criteria, evaluating the offers, negotiating with the offerors, and selecting the awardee. See Kerr-McGee Chem. Corp.--Recon., B‑252979.2, Aug. 25, 1993, 93‑2 CPD para. 120 at 4-6; ToxCo, Inc., B-235562, Aug. 23, 1989, 89-2 CPD para. 170 at 4-5.

Here, Baron contends that, although radars were procured under Battelle’s prime contract with DOE, the agency had a pervasive role in the procurement such that the procurement was essentially conducted by DOE. That is, Baron argues that the agency, by virtue of its review and approval of the RFP (including its “associated evaluation criteria”), retained ultimate control over the evaluation of proposals and selection of the subcontractor. Opposition to Dismissal Request at 2‑3. The protester also contends that the fact that the solicitation was posted on the FedBizOpps website, the government-wide port of entry where agency contracting officers are required to synopsize certain contract actions and solicitations under the FAR, demonstrates that the procurement was conducted by DOE. In addition, the protester believes that DOE must have been substantially involved in this procurement because the subcontract will be funded under the American Recovery and Reinvestment Act and argues that Act requires DOE to implement certain competition requirements. See id. at 5, citing Pub. L. No. 111-5, sect. 1554, 123 Stat. 302.[5] Baron also argues that the expenditure of government funds and the determination of which supplies or services are to be procured and at what cost are inherently governmental functions that must be performed by the agency. See id. at 6. In this regard, the protester notes that title to the radars passes directly to the government, that the Battelle agents involved in the procurement use “.gov” email extensions, and that the solicitation bears DOE’s official seal. Id., n.3 at 3.

In response, DOE states that it did not have a substantial role in the procurement and that no federal employees were involved in receipt of proposals and the selection process. Dismissal Request at 2. In this regard, DOE has provided a declaration from its contracting officer and affidavits from two Battelle employees who state that (1) DOE did not receive, review, or evaluate any proposals submitted in response to the RFP, (2) DOE did not participate in the selection of the awardee, and (3) Battelle had the sole responsibility for determining the evaluation criteria and the extent of information that was to be included in the RFP. See DOE’s Response to Opposition to Dismissal Request, Tab 8, Declaration of DOE Contracting Officer; Tab 9, Affidavit of Battelle Evaluation Panel Chairperson; and Tab 10, Affidavit of Battelle Contracts Specialist. DOE states that its only participation in the solicitation involved reviewing the RFP and approving its issuance.

The record shows that Battelle, and not DOE, handled all the meaningful aspects of this procurement, including preparing the subcontract solicitation and evaluation criteria, evaluating the offers, and selecting the awardee. DOE’s approval of the issuance of the RFP does not demonstrate that DOE took over the procurement. See, e.g., Alatech Healthcare, LLC, supra, at 1-3 (agency review, comment, and discussion of RFP with prime contractor did not show that procurement was “by” the government, where the contractor was responsible for significant aspects of the procurement); see also STR, L.L.C., B-297421, Dec. 22, 2005, 2006 CPD para. 11 at 3 (government involvement in evaluation/selection process not enough to make procurement by government). Nor does the fact that Battelle posted the RFI and RFP on the FedBizOpps website and used DOE’s agency seal on the FedBizOpps postings, and that Battelle employees at PNNL use .gov email addresses demonstrate that DOE handled substantially all substantive aspects of the procurements, given that it was Battelle, and not DOE, that prepared the RFP, received and evaluated proposals, and selected Advanced Radar’s proposal for award. See Compugen, Ltd., supra, at 2 (prime contractor’s use of Commerce Business Daily for subcontract solicitation). We also do not find significant here that DOE would obtain title to the radars in accordance with the terms of Battelle’s prime contract. See Merrick Eng’g, Inc.--Recon., B-247334.2, May 14, 1992, 92-1 CPD para. 444 at 2-3 (government acquisition of title to property purchased under a subcontract does not establish that procurement was conducted by or for the government).

We also do not agree with Baron that the subcontract procurement of the radars by Battelle under its prime contract was an inherently governmental function, which meant that DOE had to conduct the procurement. See Opposition to Dismissal Request at 6. The FAR specifically recognizes that prime contractors may award subcontracts to obtain supplies and services for the performance of the prime contract. See, e.g., FAR Part 44, Subcontracting Policies and Procedures. There also is no merit to Baron’s arguments that this subcontract procurement was necessarily by the government because of the requirements of the American Recovery and Reinvestment Act and the use of funds under this Act. As noted by Baron, section 1554 of the Act provides that “[t]o the maximum extent possible, contracts funded under this Act shall be awarded as fixed-price contracts through the use of competitive procedures.” Included in Battelle’s prime contract is a specific clause, “Special Provisions Relating to Work Funded under American Recovery and Reinvestment Act of 2009,” which is required to be flowed-down to first-tier subcontractors and which includes a number of requirements, including the segregation of obligations and expenditures related to funding under the Act, and otherwise complying with all requirements of the Act. See Battelle Contract, sect. H.38, at H-51 -- H-53. Here, Battelle awarded a fixed-price subcontract competitively.

In sum, the record shows that Battelle’s involvement in the procurement is more than that of a mere conduit for the government, and we therefore find that this procurement was not conducted by the government.  (Baron Services, Inc., B-402109, December 24, 2009) (pdf)

The record shows that the agency issued a task order to JSI under its DELIVER contract to, among other things, conduct a procurement for male condoms. AR, exh. 4; exh. 7, para. 21. Consistent with the terms of the task order, JSI prepared the RFP that is the subject of the current protest. AR, exh. 5. AID reviewed the RFP and provided comments to JSI concerning various provisions, informed JSI of AID’s interpretation of the above-quoted statutory language, and discussed revisions to the RFP that it viewed as necessary to reflect AID’s interpretation of that language. AR, exh. 7, paras. 21-22. After the RFP was issued, AID assisted JSI in responding to vendor questions relating to the RFP and, specifically, provided the response to a question relating to implementation of the statutory language. Id. para. 24. Beyond these activities, AID’s involvement with the acquisition was limited. JSI prepared and issued the RFP, received and evaluated proposals, presented AID with the results of its evaluation, and advised the agency of its selection decisions; AID reviewed JSI’s proposed subcontractor selections, requested clarifying information, and approved the selections. AR, exh. 7, paras. 25-29.

The record shows that an AID employee with no management role in connection with JSI’s prime contract observed JSI’s proposal evaluation panel’s deliberations as a non-voting member. According to the agency, her role was to observe JSI’s conduct of the evaluation to ensure that the agency’s requirements received due attention, and that its interpretation of the statutory language noted above was implemented. Id. para. 25.

AID requests that we dismiss the protest as beyond our jurisdiction because the acquisition was conducted by a prime contractor for the award of subcontracts, rather than by a federal agency. The protester asserts that AID essentially directed JSI in its implementation of the statutory requirement, and that this aspect of the acquisition therefore essentially was conducted “by” AID through JSI. Alatech concludes that we have jurisdiction to consider the protest to the extent that it challenges the agency’s implementation of the statutory language.

We agree with the agency that the procurement at issue is not subject to our jurisdiction. Under the Competition in Contracting Act of 1984 (CICA), our Office has jurisdiction to resolve bid protests concerning solicitations and contract awards that are issued “by a Federal agency.” 31 U.S.C. sect. 3551(1)(A) (2000). Pursuant to our authority under CICA, we initially took jurisdiction over subcontract awards by prime contractors to the federal government where, as a result of the government’s involvement in the award process, or the contractual relationship between the prime contractor and the government, the subcontract, in effect, was awarded on behalf of‑-i.e., “by or for”--the government, and federal procurement laws and regulations otherwise would apply. See, e.g., St. Mary’s Hosp. and Med. Ctr. of San Francisco, Calif., B-243061, June 24, 1991, 91-1 CPD para. 597. However, in its decision U.S. West Communications Servs., Inc. v. United States, 940 F. 2d 622 (Fed. Cir. 1991), the court of appeals construed statutory language basically identical to that applicable to our Office as not conferring on the General Services Administration’s Board of Contract Appeals jurisdiction over subcontract procurements conducted “for” a federal agency, in the absence of a showing that the prime contractor was a procurement agent, as defined by the Supreme Court in United States v. New Mexico, 455 U.S. 720 (1982) and the court of appeals in United States v. Johnson Controls, Inc., 713 F.2d 1541 (Fed. Cir. 1983).[1] We subsequently concluded that our jurisdiction generally does not extend to awards made by others “for” the government, and that, accordingly, in the absence of a request by the federal agency concerned, we would not take jurisdiction over such procurements. Compugen Ltd., B-261769, Sept. 5, 1995, 95-2 CPD para. 103 at 3-4.

We continue to take jurisdiction where we find that a subcontract essentially was awarded “by” the government. RGB Display Corp., B-284699, May 17, 2000, 2000 CPD para. 80 at 3. We have considered a subcontract procurement to be “by” the government where the agency handled substantially all substantive aspects--in effect, “took over”--the procurement, leaving to the prime contractor only the procedural aspects of the procurement, i.e., issuing the subcontract solicitation and receiving proposals. See St. Mary’s Hosp. and Med. Ctr. of San Francisco, Calif., supra, at 5-6; University of Mich.; Industrial Training Sys. Corp., B-225756, B-225756.2, June 30, 1987, 87-1 CPD para. 643 at 5-6. In such cases, the prime contractor’s role in the procurement was essentially ministerial, such that it was merely acting as a conduit for the government. On the other hand, we have found subcontractor procurements were not “by” the government where the prime contractor handled other meaningful aspects of the procurement, such as preparing the subcontract solicitation and evaluation criteria, evaluating the offers, negotiating with the offerors, and selecting the awardee. See Kerr-McGee Chem. Corp--Recon., B-252979.2, Aug. 25, 1993, 93‑2 CPD para. 120 at 4-6; ToxCo, Inc., B-235562, Aug. 23, 1989, 89-2 CPD para. 170 at 4-5.

Here, as discussed, JSI was responsible for virtually all significant aspects of the procurement. JSI prepared the solicitation, including the evaluation criteria (taking into consideration input from AID); evaluated and scored the proposals; engaged in discussions with the prospective subcontractors; performed responsibility determinations of the prospective awardees; and made award recommendation findings that were approved by AID. AR, exh. 8, at 3-4. AID’s assistance in implementing the statutory appropriations language and approving the award recommendations made by JSI was not sufficient to render this an acquisition conducted “by” AID; a procurement is only “by” the government where the agency controls the procurement process to such an extent that the contractor has no real input into substantive decisions. STR, L.L.C., supra at 5. That clearly was not the case here.

Moreover, we decline to adopt the view advanced by the protester--that the agency effectively conducted that aspect of the procurement relating to implementation of the statutory language--and therefore could be said to have effectively awarded the subcontract, at least in that respect. In considering whether a procurement was conducted “by” the government, we assess the totality of the circumstances, including the question of which party was responsible for the preparation of the solicitation, the receipt and evaluation of proposals, the conduct of discussions, the selection of a prospective awardee and the conduct of responsibility determinations. As reflected in our prior decisions in this area, we do not break the procurement into segments and consider the “by” question on a segment-by-segment basis. The protester has presented no information or argument that leads us to question the correctness of our approach in this regard. We conclude that our Office lacks jurisdiction to consider the propriety of the awards here.

The protest is dismissed.  (Alatech Healthcare, LLC, B-400925; B-400925.2, March 9, 2009) (pdf)

We continue to take jurisdiction where the subcontract is “by” the government. RGB Display Corp., B-284699, May 17, 2000, 2000 CPD para. 80 at 3. We have considered a subcontract procurement to be “by” the government where the agency handled substantially all the substantive aspects of the procurement and, in effect, “took over” the procurement, leaving to the prime contractor only the procedural aspects of the procurement, i.e., issuing the subcontract solicitation and receiving proposals. See St. Mary’s Hosp. and Med. Ctr. of San Francisco, Calif., supra, at 5-6; University of Mich.; Industrial Training Sys. Corp., B-225756, B-225756.2, June 30, 1987, 87-1 CPD para.643 at 5-6. In such cases, the prime contractor’s role in the procurement was essentially ministerial, such that it was merely acting as a conduit for the government. On the other hand, we have found subcontractor procurements were not “by” the government where the prime contractor handled other meaningful aspects of the procurement, such as preparing the subcontract solicitation and evaluation criteria, evaluating the offers, negotiating with the offerors, and selecting an awardee. See Kerr-McGee Chem. Corp--Recon., B-252979.2, Aug. 25, 1993, 93-2 CPD para. 120 at 4-6; ToxCo, Inc., B-235562, Aug. 23, 1989, 89-2 CPD para. 170 at 4-5. STR contends that SRA is acting merely as a conduit for the government here and that, accordingly, we should take jurisdiction over its protest. We do not agree with the protester that the government’s involvement in and control over the acquisition process here was so pervasive as to render the procurement essentially by the government.

First, contrary to STR’s contention, the RFI issued by SRA is not “nearly identical” to the solicitation issued by AID; as noted above, the two differ significantly in that the AID RFI did not include evaluation criteria, whereas the SRA solicitation did. Both the AID program manager and the SRA project manager report that SRA had primary responsibility for drafting the evaluation criteria.

Second, it is clear from the record that SRA personnel played a major role in the evaluation of proposals and selection of an awardee. In this connection, the evaluation team consisted of both government representatives and SRA employees, with the two subgroups providing differing types of substantive input into the evaluation/selection process. As explained by the AID program manager in the following excerpt:

The government team members represented various user stakeholders of the COTS system to include grants officers, program officers, financial analyst, policy analyst, and IT analyst. These representatives focused primarily on the requirements and the ability of the software to meet them from a users’ perspective, e.g., ease of use, intuitiveness, logical flow. Concurrently, SRA conducted in-depth technical and cost assessments and performed customer reference interviews. SRA analysis, from the integration perspective, included requirements, technical feasibility, implementation factors to configure the system, and the complexity of the integration points of the software from a risk and schedule impacts.

Declaration of AID Program Manager, Dec. 6, 2005, at 4-5. It is also clear from the record that the SRA team members were full participants in the deliberations that led to recommendation of the Infoterra product. While we recognize that it is apparent from the foregoing that government personnel, as well as SRA personnel, played major roles in the evaluation, government involvement in the evaluation/selection process is not enough to make the procurement “by” the government, Perkins-Elmer Corp.; Metco Div., B-237076, Dec. 24, 1989, 89-2 CPD para. 604 at 4; we consider a procurement to be “by” the government only where the agency controls the procurement process to such an extent that the contractor has no real input into substantive decisions, which was clearly not the case here.

Third, it is apparent from the record that administration of the contract is to be handled by SRA and that privity of contract will be between the SRA and Infoterra and not between the government and Infoterra. Declaration of AID Program Manager, Dec. 6, 2005, at 5; Declaration of SRA Project Manager, Dec. 6, 2005, at 3.  (STR, L.L.C., B-297421, December 22, 2005) (pdf)

We continue to take jurisdiction where the subcontract is “by” the government. RGB Display Corp., B-284699, May 17, 2000, 2000 CPD ¶ 80 at 3. We have considered a subcontract procurement to be “by” the government where the agency handled substantially all the substantive aspects of the procurement and, in effect, “took over” the procurement, leaving to the prime contractor only the procedural aspects of the procurement, i.e., issuing the subcontract solicitation and receiving proposals. See St. Mary’s Hosp. and Med. Ctr. of San Francisco, Calif., supra, at 5-6; University of Mich.; Industrial Training Sys. Corp., B-225756, B-225756.2, June 30, 1987, 87-1 CPD ¶ 643 at 5-6. In such cases, the prime contractor’s role in the procurement was essentially ministerial, such that it was merely acting as a conduit for the government. On the other hand, we have found subcontractor procurements were not “by” the government where the prime contractor handled other meaningful aspects of the procurement, such as preparing the subcontract solicitation and evaluation criteria, evaluating the offers, negotiating with the offerors, and selecting an awardee. See Kerr-McGee Chemical Corp.--Recon., B-252979.2, Aug. 25, 1993, 93-2 CPD ¶ 120 at 4-6; ToxCo, Inc., B-235562, Aug. 23, 1989, 89-2 CPD ¶ 170 at 4-5. (Addison Construction, Inc., B-293805, April 20, 2004) (pdf)

Under the Competition in Contracting Act of 1984 (CICA), our Office has jurisdiction to resolve bid protests concerning solicitations and contract awards that are issued "by a Federal agency." 31 U.S.C. sect. 3551(1)(A) (1994). Pursuant to our authority under CICA, we initially took jurisdiction over subcontract awards by prime contractors to the federal government where, as a result of the government's involvement in the award process, or the contractual relationship between the prime contractor and the government, the subcontract in effect was awarded on behalf of--i.e., "by or for"--the government, and federal procurement laws and regulations otherwise would apply. See Compugen, Ltd., B-261769, Sept. 5, 1995, 95-2 CPD para. 103 at 3-4. However, consistent with the holding in U.S. West Communications Servs., Inc. v. United States, 940 F.2d 622 (Fed. Cir. 1991), it now is our view that our jurisdiction generally does not extend to awards made by others but "for" the government; we therefore no longer review protests of such subcontract awards where, as here, the agency involved has not requested in writing that we do so. See 4 C.F.R. sect.sect. 21.5(h), 21.13(a) (2000); see also Compugen, Ltd., supra, at 4-5. We continue to take jurisdiction where the subcontract is "by" the government. See Peter Bauwens Bauunternehmung GmbH & Co. KG, B-277734 et al., Oct. 8, 1997, 97-2 CPD para. 98 at 2-3. Generally, we have reviewed subcontract procurements where the government's involvement in the award process was so pervasive that the subcontract in effect was awarded "by" the government. We have considered a subcontract procurement to be "by" the government where the agency handled substantially all the substantive aspects of the procurement and, in effect, "took over" the procurement, leaving to the prime contractor only the procedural or ministerial aspects of the procurement, i.e., issuing the subcontract solicitation and receiving proposals. See St. Mary's Hosp. and Med. Ctr. of San Francisco, California, B-243061, June 24, 1991, 91-1 CPD para. 597 at 5-6; University of Mich.; Industrial Training Sys. Corp., B-225756, B-225756.2, June 30, 1987, 87-1 CPD para. 643 at 5-6. In such cases, the prime contractor's role in the procurement was essentially ministerial, such that it was merely acting as a conduit for the government. On the other hand, we have found subcontractor procurements were not "by" the government, even where the agency effectively directed the subcontractor selections, where the prime contractor handled other meaningful aspects of the procurement. See Kerr-McGee Chemical Corp.--Recon., B-252979.2, Aug. 25, 1993, 93-2 CPD para. 120 at 4; ToxCo, Inc., B-235562, Aug. 23, 1989, 89-2 CPD para. 170 at 4-5.  (RGB Display Corporation, B-284699, May 17, 2000)  (pdf)

the United States Court of Federal Claims . . . shall have jurisdiction to render judgment on an action by an interested party objecting to a solicitation by a Federal agency for bids or proposals for a proposed contract or to a proposed award or the award of a contract or any alleged violation of statute or regulation in connection with a procurement or a proposed procurement.

28 U.S.C. § 1491(b)(1) (emphasis added).

There is no question that the contractors here are interested parties and not mere “disappointed subcontractors” without standing. To qualify as an “interested" party,” a protestor must establish that: (1) it was an actual or prospective bidder or offeror, and (2) it had a direct economic interest in the procurement or proposed procurement. See Rex Serv. Corp. v. United States, 448 F.3d 1305, 1307 (Fed. Cir. 2006). Assuming that the June RFI was part of the challenged procurement process, the contractors have established themselves as prospective bidders in that they submitted qualifying proposals in response and, according to their complaint, were prepared to submit bids pursuant to the anticipated Request for Quotation (RFQ) or Request for Proposal (RFP) that typically ensues after an RFI is issued. See Compl. ¶¶ 7, 9, 10, 19. The contractors also possess a direct economic interest in the government action at issue in that they were both deprived of the opportunity to compete for the provision of acquisition and assistance solutions for JAAMS. The contractors allege that, as a result of the government’s decision to forego the direct competitive process of procurement, they have collectively lost significant business opportunities amounting to approximately ten million dollars. Id. ¶ 6.

There is also no question that the contractors have alleged a number of statutory and regulatory violations by the government in choosing to forego the direct competitive procurement process and tasking SRA with the responsibility of selecting software vendors indirectly. These allegations include violations of the Competition in Contracting Act (CICA), 31 U.S.C. § 3551, et seq., the Small Business Act, 15 U.S.C. § 631(j)(3), and various Federal Acquisition Regulations (FAR). Though the government contests the merits of these allegations, it does not contend that any of these allegations are frivolous.

The only issue is whether the contractors’ protest is “in connection with a procurement or a proposed procurement” under the scope of § 1491(b). In RAMCOR Services Group, Inc. v. United States, 185 F.3d 1286, 1289 (Fed. Cir. 1999), we held that “the operative phrase ‘in connection with’ is very sweeping in scope.” The Tucker Act does not define the terms “procurement” or “proposed procurement.” Congress did, however, expressly define “procurement” in 41 U.S.C. § 403(2), a subsection of the statutory provisions related to the establishment of the Office of Federal Procurement Policy in the Office of Management and Budget. These provisions give overall direction for federal procurement policies, regulations, procedures, and forms. See 41 U.S.C. §§ 401-20; Pub. Warehousing Co. K.S.C. v. Def. Supply Ctr. Phila., 489 F. Supp. 2d 30, 38-39, 39 n.7 (D.D.C. 2007). Specifically, § 403(2) states “‘procurement’ includes all stages of the process of acquiring property or services, beginning with the process for determining a need for property or services and ending with contract completion and closeout.” 41 U.S.C. § 403(2) (emphasis added). We conclude that it is appropriate to adopt this definition to determine whether a “procurement” has occurred pursuant to § 1491(b). Cf. 10 U.S.C. § 2302(3) (Armed Services Procurement Act also defining “procurement” by reference to the definition employed in 41 U.S.C. § 403). We note that § 1491(b)(1) includes both actual procurements and proposed procurements.

Therefore, the phrase, “in connection with a procurement or proposed procurement,” by definition involves a connection with any stage of the federal contracting acquisition process, including “the process for determining a need for property or services.” To establish jurisdiction pursuant to this definition, the contractors must demonstrate that the government at least initiated a procurement, or initiated “the process for determining a need” for acquisition and assistance solutions for JAAMS.

The trial court was certainly correct that adding work to an existing contract that is clearly within the scope of the contract does not raise a viable protest under § 1491(b)(1). See AT&T Commc’ns, Inc. v. Wiltel, Inc., 1 F.3d 1201 (Fed. Cir. 1993). The government did not merely add work to an existing contract in this case. The government issued the June RFI which stated that, “The primary objective of this effort is to select and implement acquisition and assistance solutions that meet the unique functional requirements of both organizations . . . to research possible commercial off-the-shelf (COTS) Acquisition and Assistance (A&A) solutions for JAAMS . . . to determine if existing COTS A&A systems or combinations thereof can satisfy their requirements.” The government contends that, because the June RFI specified on its face that it was “for market research purposes only” and would “not result in a contract award,” it was not part of any procurement process. The contractors contend, on the other hand, that the June RFI represented “the beginning of the process for determining the type of software to be acquired” for JAAMS. In support, the contractors have identified statements in the government’s own declarations that the June RFI was used to determine the parameters of the eventual procurement of the software at issue. Opp’n Mot. to Dismiss at 15 (citing AR170). The government itself conceded during oral argument that it had considered the possibility of procuring the JAAMS software directly from vendors and therefore collected information from the vendors via the June RFI. Oral Arg. at 16:52-17:18, available at http://oralarguments.cafc.uscourts.gov/mp3/2007-5145.mp3. The government additionally conceded that the government determined that procurement responsibilities were within the scope of the PRIME 2.2 task order after reviewing the responses from the vendors or potential contractors for the June RFI. Id. at 17:36-48.

Here, unlike AT&T, the government used an RFI to solicit information from outside vendors, and then used this information to determine the scope of services required by the government. While the government ultimately decided not to procure software itself from the vendors, but rather to add that work to its existing contract with SRA, the statute does not require an actual procurement. The statute explicitly contemplates the ability to protest these kinds of pre-procurement decisions by vesting jurisdiction in the Court of Federal Claims over “proposed procurements.” A proposed procurement, like a procurement, begins with the process for determining a need for property or services. We conclude that the government had done as much in this case.  (Distributed Solutions, Inc., and STR, L.L.C., v. U. S., 2007-5145, August 28, 2008) (pdf)