Comptroller General

United States Government Accountability Office 

Washington, DC 20548 

of the United States

 

Decision 

Matter of: Vox Optima, LLC 

File: B-400451 

Date: November 12, 2008 

Darrell M. Allen, Esq., for the protester. 

Robert McMullen, Esq., Department of the Navy, 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 

1. Protest that agency improperly bundled acquisition is denied where record shows 

solicitation is for a new requirement, so that agency has not combined two or more 

smaller requirements that previously had been acquired from small businesses. 

2. Protest that agency improperly failed to set aside a portion of its requirement for 

exclusive small business participation is denied where record shows agency fully 

considered partial set-aside but was unable to identify any small business concerns 

that could perform full spectrum of tasks contemplated by solicitation, and protester 

has not rebutted agency’s position. 

DECISION 

Vox Optima, LLC, of Tijeras, New Mexico, protests the terms of request for proposals 

(RFP) No. N00189-08-R-Z051, issued by the Department of the Navy, Fleet Industrial 

Supply Command, for worldwide public communications and media support 

services. Vox asserts that the solicitation impermissibly bundles several 

requirements that could be performed by small businesses. 

We deny the protest. 

The RFP contemplates the award of multiple indefinite-delivery, indefinite-quantity 

(IDIQ) contracts on a cost-plus-fixed-fee basis, for a base year, with four 1-year 

options to perform a spectrum of public relations services on a worldwide basis for 

the office of the Navy Chief of Information (CHINFO). The RFP contemplates 

acquiring professional services in the areas of communication integration and 

strategy, media relations, community outreach/relations, visual information systems 
and imagery marketing, public affairs professional and community development,

capabilities integration development, communications information environment 

management and training, and public information materials development and 

production. RFP at 14. The agency estimates that the total level-of-effort for all 

years will be approximately 754,600 staff hours, starting with a 23,100 staff hour 

effort in the base year, and a gradually increasing level-of-effort throughout the 

option years. RFP at 9-10. 

Although the RFP was issued on a full and open competitive basis, it nonetheless

includes a small business subcontracting goal of 15 percent of the value of the 

contract, and advises that North American Industry Classification System code 

541820 applies, with a size standard of $6.5 million. Agency Report (AR) exh. 2. The 

RFP includes three evaluation factors--corporate experience, past performance 

(equal in importance), and socio-economic plan (significantly less important than the 

other two criteria individually). RFP at 62. For corporate experience, the 

solicitation requires that offerors demonstrate that they have performed, individually 

or in the aggregate, up to 5 contracts worth at least $5 million or that required 

40,000 billable hours of public affairs work.1

 

Vox argues that the RFP impermissibly bundles several separate requirements that 

could be performed by small businesses if the agency solicited them separately. 

According to the protester, it has been providing services to CHINFO in the areas of 

speechwriting and executive communications for the agency’s senior personnel, 

long-term strategic communications planning and time and event-based tactical 

planning, large-scale trade show planning, custom publishing, writing and editing, 

video and multimedia production, and internal and external program promotion. 

The protester asserts that these services are being solicited under sections 2.1, 2.3 

and 5.3 of the RFP’s performance work statement, but are impermissibly bundled

with a host of other services. Vox, a service-disabled, veteran-owned small business, 

concludes that, since it previously provided these services, it is improper under the 

requirements of the Small Business Act for the agency to bundle these requirements 

with the other requirements of the RFP. (The protester also maintains that there are 

three other small business contracts for work that is subsumed under the current

solicitation.) 

The agency responds that this is a new requirement for which it has not previously 

contracted, either with a small or a large business. In this connection, the agency 

notes that, although it has acquired certain limited services from the protester, it did 

 1

 As originally issued, the RFP required offerors to demonstrate that they had a single 

reference showing that they had provided a minimum of $5 million or 40,000 billable 

hours of public affairs work annually. RFP at 56. The agency later relaxed this

requirement, allowing offerors to demonstrate this level of experience through an

aggregate of up to five contracts. AR, exh. 8, at 6. 

Page 2 B-400451 
so through a task order issued against a contract held by a different concern, the 

Cynergy Group of Baltimore, with which the protester has a subcontract. The 

agency also points out that the contract with Cynergy was entered into between the 

company and another Naval procuring activity, the Naval Sea Systems Command 

(NAVSEA). Moreover, according to the agency, while the solicitation includes a 

variety of individual tasks that might be required, the overarching requirement is for 

integrated use of the individual tasks together in connection with the agency’s 

overall requirement, which is for integrated, and at times worldwide, public affairs

campaigns. 

We find no merit to this aspect of Vox’s protest. The Small Business Reauthorization 

Act of 1997, Pub. L. No. 105-135, 111 Stat. 2592, 2617-20 (1997), amended the Small 

Business Act and provided that, “to the maximum extent practicable,” each agency 

shall “avoid unnecessary and unjustified bundling of contract requirements that 

precludes small business participation in procurements as prime contractors.” 

15 U.S.C. § 631(j)(3) (2000). Bundling, for purposes of the Small Business Act, as 

amended, means “consolidating 2 or more requirements for goods or services

previously provided or performed under separate smaller contracts into a 

solicitation of offers for a single contract that is likely to be unsuitable for award to a 

small-business concern.” 15 U.S.C. § 632(o)(2); see Federal Acquisition Regulation 

(FAR) § 2.101, “separate smaller contract” is defined as “a contract that has been 

performed by 1 or more small business concerns or was suitable for award to 1 or 

more small business concerns.” 15 U.S.C. § 632(o)(3); see FAR § 2.101. 

The record does not support the protester’s assertion that the agency has bundled 

two or more requirements that previously have been acquired from small businesses 

under smaller, separate contracts. Two of the contract actions identified by the 

protester--Cynergy’s task order under its NAVSEA contract, under which Vox 

performed as a subcontractor, and work performed by a second subcontractor under 

that same task order

2

--were under a contract executed by an entirely different

activity (NAVSEA), and the protester has submitted no evidence to show that the 

NAVSEA contract is for requirements similar to the requirements being solicited for 

CHINFO under the current RFP. Accordingly there is no basis for us to find that the 

earlier work performed by Vox and the other Cynergy subcontractor constituted 

 2

 As to the second Cynergy subcontractor, Vox has submitted an invoice prepared by 

that concern that the protester maintains was submitted to CHINFO in connection

with an earlier, sole-source, contract performed by that concern. Vox has produced 

no evidence beyond this invoice (such as a copy of the alleged sole-source contract) 

to show that, in fact, the agency actually entered into a separate contract with the 

second subcontractor, and concedes, moreover, that the work performed by the 

second subcontractor is included under the Cynergy task order. 

Page 3 B-400451 
separate, smaller contracts previously entered into by CHINFO with small 

businesses. AR, exh. 15.

3

 

The third contract action identified by the protester is a contract that was entered 

into between a Department of Defense contracting activity (as opposed to CHINFO) 

and was for performance of computer programming work, as opposed to public 

affairs work. Agency Letter, Sept. 25, 2008, attach. 3-7. As with the task order 

discussed above, this is a contract with a different contracting activity for work not 

contemplated under the current solicitation, and it therefore cannot be characterized 

as a smaller, separate contract entered into by CHINFO for services included under 

the subject RFP. Finally, Vox has identified a request for quotations that currently is

being competed that requires the preparation and publication of a DVD that the 

agency must submit to Congress. However, this cannot be said to be an earlier, 

smaller, contract previously entered into by the contracting activity, inasmuch as it is 

a solicitation for a future requirement. 

In sum, we conclude that the current solicitation does not combine two or more 

smaller requirements for which the agency had previously entered into contracts 

with small businesses. Accordingly, the RFP is not inconsistent with the Small 

Business Act requirements regarding bundling. See USA Info. Sys., Inc., B-291417, 

Dec. 30, 2002, 2002 CPD ¶ 224 at 3.4 

Vox asserts that the agency should issue the RFP as a partial small business

set-aside. According to the protester, since the solicitation contemplates the award 

of multiple IDIQ contracts, the requirement is necessarily severable into two or more 

lots, and thus is suitable for a partial set-aside. 

We find no merit to this aspect of Vox’s protest. Under FAR § 19.502-3, in relevant 

part, a portion of an acquisition must be set aside for exclusive small business 

participation when a total set-aside is not appropriate, the requirement is severable 

into two or more economic production runs or reasonable lots, and it is expected 

that one or more small business concerns will have the technical competence and 

 3

 Since we conclude that the work at issue under Vox’s and the other subcontractor’s

task orders was not work previously contracted for by CHINFO under separate, 

smaller contracts with small businesses, we need not decide the question of whether 

prior, smaller, subcontracts--as opposed to prime contracts--are contemplated under 

the statute’s coverage.

4

 We point out as well that, in response to a congressional inquiry prior to the filing 

of the current protest, the Small Business Administration (SBA) informally reviewed 

the agency’s actions and concluded that the RFP did not amount to bundling in

contravention of the requirements of the Small Business Act. AR, exh. 11. 

Page 4 B-400451 
productive capacity to satisfy the set-aside portion of the requirement at a fair 

market price. The determination as to whether a particular acquisition should be 

partially set aside is left to the discretion of the contracting officer, provided the 

determination is reasonable. Digital Sys. Group, Inc., B-258262.2, Jan. 20, 1995, 

95-1 CPD ¶ 30 at 7. 

Here, the record shows that the agency conducted market research in considering 

whether to set aside a portion of the requirement, but was unable to identify any 

small business concerns that could perform the full spectrum of tasks contemplated 

in connection with the requirement for full-service public affairs services on a 

worldwide basis. AR, exh. 3, at 2-3. The agency further explains that the various 

tasks contemplated under the RFP cannot be performed separately because of the 

interrelationship of the tasks: 

While the Performance Work Statement lists a variety of individual 

tasks to be performed at CHINFO and other commands, each of those 

tasks [has] an interrelationship with the others. In many cases these 

will be directly connected. For example, cross-functional meetings

may be required to develop a communication strategy and a 

communication plan for a community outreach campaign. In the 

execution of that campaign, it will be important to produce 

informational materials, monitor the news media, synchronize events, 

align the message internally, embark distinguished visitors or media on 

ships, conduct flyovers, market photos and video, post information on

a web site, involve a national organization such as the American Legion 

or Navy League, and make use of the Navy Public Affairs web portal pa-Net as a collaborative tool in the development of an assessment of 

the campaign, etc. 

AR, exh. 16, at 1. 

In response to the agency’s position, the protester does little more than repeat the 

underlying premise of its argument, namely, that because this is a multiple award 

IDIQ solicitation, the work necessarily must be severable into two or more lots. 

While this perhaps is true insofar as the agency’s various public affairs campaigns is

concerned--that is, the work could be divided on a per-campaign basis--Vox has

failed to rebut the agency’s position that, within the context of a single public affairs

campaign, there is not a small business capable of performing in an integrated 

fashion the full spectrum of tasks that might be necessary. Vox does not assert, 

much less demonstrate, that it is capable of performing all of the tasks that might be

necessary to properly perform one of the agency’s public affairs campaigns; indeed, 

it concedes in its initial protest that the work under its subcontract with Cynergy is

confined to tasks enumerated in sections 2 and 5.1.2 of the performance work 

statement. Under the circumstances, we find that the agency has reasonably 

demonstrated that its requirement is for integrated, full-spectrum public affairs

services, and that it reasonably determined not to set aside a portion of the work 

Page 5 B-400451 
under the subject RFP for small businesses because there are no firms capable of

performing the full-spectrum services required by the agency. 

In its initial protest, Vox argued that the solicitation’s corporate experience 

requirement unduly limited competition because it called for offerors to have at least 

one reference showing that the firm had performed a contract for at least $5 million 

or 40,000 annual billable hours in public affairs work. In responding to the protest,

the agency advised our Office that the RFP had been amended so that firms could 

demonstrate the required level of experience by showing that they had up to five 

references which, individually or in the aggregate, satisfied the $5 million/40,000 

billable hour requirement. 

In responding to the agency report, the protester does not maintain that the revised 

corporate experience requirement is unduly restrictive, but asserts only that the RFP 

as amended is not clear. While the agency could perhaps have drafted the 

amendment differently, we find that, as issued, it adequately conveys the revised 

corporate experience requirement. The amendment provides as follows: 

To demonstrate its corporate experience, the offeror shall identify up

to five (5) of its most relevant contracts or efforts within the past five

(5) years, and provide any other information the offeror considers 

relevant to the requirements of the solicitation. . . . The references will 

be evaluated in the aggregate in order to allow offerors who may not 

have the entire scope, magnitude and complexity of the requirement

under one individual contract to still be considered acceptable if

experience with the full scope, magnitude and complexity of the 

requirement can be demonstrated within the allotted number of

references as described above. 

AR, exh. 8, at 6. It is clear from this provision, as revised, that the experience 

requirement may be met by aggregating an offeror’s relevant contracts. This 

adequately responds to the protester’s argument that the requirement as originally 

stated was restrictive.5

 

(continued...) 

5

 In its initial protest, Vox asserted that the RFP included information in the

performance work statement that was proprietary to the firm. The agency 

responded to this aspect of the protest in its report, and in its comments responding 

to the agency report, Vox made no further mention of this aspect of its protest. 

Thereafter, the agency submitted a supplemental report to our Office in which it

maintained that any aspect of Vox’s protest relating to the agency’s use of the firm’s 

allegedly proprietary information should be considered abandoned. In responding to 

the agency’s supplemental report, the protester stated, without elaboration, that it

had not abandoned any aspect of its protest. We dismiss this aspect of Vox’s protest

as abandoned, since the firm’s initial comments did not respond to the agency’s 

rebuttal on this issue. To the extent that Vox’s supplemental filing makes mention of

Page 6 B-400451 
The protest is denied. 

Gary L. Kepplinger 

General Counsel 

 

(...continued) 

its earlier, abandoned, assertion, it does not provide a substantive response to the 

agency’s position and, in any case, is untimely. See Israel Aircraft Indus., Ltd.--

TAMAM Div., B-297691, Mar. 13, 2006, 2006 CPD ¶ 62 at 6-7. 

Page 7 B-400451