United States Government Accountability Office 

Washington, DC 20548 

Comptroller General

of the United States

 

Decision 

Matter of: Alatech Healthcare, LLC 

File: B-400925; B-400925.2 

Date: March 9, 2009 

Robert S. Nichols, Esq., Amy Laderberg O’Sullivan, Esq., and James G. Peyster, Esq., 

Crowell & Moring LLP, for the protester. 

Diane A. Perone, Esq., United States Agency for International Development, for the 

agency. 

Scott H. Riback, Esq., and John M. Melody, Esq., Office of the General Counsel, GAO, 

participated in the preparation of the decision. 

DIGEST 

Government Accountability Office will not consider protest of an award of 

subcontract as “by” the government, where record shows that prime contractor had 

extensive involvement in conducting acquisition, including drafting of solicitation, 

receipt and evaluation of proposals and selection of successful concerns. 

DECISION 

Alatech Healthcare, LLC, of Dothan, Alabama, protests the decision of John Snow, 

Inc. (JSI), of Boston, Massachusetts, a prime contractor with the United States 

Agency for International Development (AID), not to award it a subcontract under 

request for proposals (RFP) No. RH-03-08, issued by JSI for a quantity of male 

condoms. 

We dismiss the protest. 

The agency has an ongoing requirement for male condoms in connection with 

various reproductive health and HIV/AIDS prevention programs administered by AID 

on a worldwide basis. Agency Report (AR), exh. 7, ¶ 2. The agency advises that, in 

2005 and 2006, in connection with responding to various high priority requirements, 

it determined that it could better meet its needs by awarding prime indefinitedelivery/indefinite-quantity contracts, under which it could acquire condoms, as well 

as other goods. Id., ¶¶ 5-7. Toward that end, AID awarded what is referred to as the 

DELIVER contract to JSI in 2006, under which JSI would, among other things, assist 

AID in meeting its requirements for male condoms through the award of one or more 

subcontracts. Id.; AR, exh. 3. 
AID is required to procure condoms consistent with certain statutory appropriations 

language. In this regard, the Consolidated Appropriations Act for 2008, Pub. L. 

No. 110-161, Sect. 6, Div. I, Title III, 121 Stat. 1844 (Dec. 26, 2007) provides: 

[T]o the maximum extent feasible, taking into consideration cost, 

timely availability, and best heath practices, funds appropriated in this 

Act or prior appropriations Acts that are made available for condom 

procurement shall be made available only for the procurement of 

condoms manufactured in the United States. 

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, ¶ 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, ¶¶ 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. ¶ 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, ¶¶ 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. ¶ 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. § 3551(1)(A) (2000). Pursuant to our 

Page 2 B-400925; B-400925.2 
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 ¶ 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.2 Compugen 

Ltd., B-261769, Sept. 5, 1995, 95-2 CPD ¶ 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 ¶ 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 ¶ 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 

 

1

 While Alatech refers to JSI as AID’s “purchasing agent” in several places in its 

pleadings, it made no express argument or showing that this was the case in its 

protest letter. Further, in its comments responding to the agency’s report, Alatech 

again did not present information, evidence or argument that such a relationship 

exists. See STR, L.L.C., B-297421, Dec. 22, 2005, 2006 CPD ¶ 11 at 3 n.2. 

2

 AID has not requested that we review protests of the award of subcontracts by its 

prime contractors. 

Page 3 B-400925; B-400925.2 
Page 4 B-400925; B-400925.2 

the awardee. See Kerr-McGee Chem. 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. 

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. 

Gary L. Kepplinger 

General Counsel