The protester asserts that it was unreasonable for the agency not to have considered OVC for this contract award. The protester principally asserts that it has less work than Camel and that, accordingly, it also should have been considered for the award of a mobilization base sole-source contract, especially in view of the fact that this is the second such sole-source contract award that recently has been made to Camel. OVC also notes that Camel has three other production contracts with DLA (noted above), and asserts that Camel had another Army contract awarded to it in June, 2011. Finally, the protester directs our attention to certain anecdotal information that it suggests are evidence of Camel being at a high rate of production, such as various Camel job advertisements in local newspapers for experienced sewing machine operators, and undated but apparently recent photographs of numerous trailers in Camel's parking lot.

Agencies have authority to conduct procurements using other than full and open competition and may properly award sole-source contracts to a particular concern for purposes of establishing or maintaining industrial mobilization base sources of supply. 10 U.S.C. sect. 2304(c)(3); Magnavox Elec. Sys., Co.; Ferranti Techs., Inc., B-247316.2, B-247316.3, May 28, 1992, 92-1 CPD para. 475 at 4. Where a military agency makes a sole-source award for purposes of maintaining a particular supplier of an item, concern for maximizing competition is secondary to the agency's industrial mobilization needs. Outdoor Venture Corp., B‑279777, July 17, 1998, 98-2 CPD para. 27 at 2. Decisions as to which producers should be included in the mobilization base, and which restrictions are required to meet the needs of industrial mobilization, involve complex judgments that must be left to the discretion of the military agencies. We will question those decisions only if the evidence convincingly shows that the agency has abused its discretion. Ridgeline Industries, Inc., B-402105, Jan. 7, 2010, 2010 CPD para. 22 at 3. OVC's protest does not meet this standard.

OVC does not challenge Camel's participation in the relevant industrial base or assert that the agency's analysis of Camel's current MSR and business condition is unreasonable or incorrect. More importantly, although OVC contends that it also would benefit from the award of a contract, it nonetheless concedes that it is producing at its MSR production capacity. As noted, the record establishes that, without additional support, Camel may cease its operations which, the agency has determined, would seriously jeopardize the industrial base for MIL-SPEC tents. The record also shows that the agency gave specific consideration to whether OVC required additional work in order to maintain its production capability and concluded that it had adequate work at this time to maintain its MSR. On this record, we conclude that the agency reasonably exercised its discretion in making award to Camel and in deciding not to make award to OVC.  (Outdoor Venture Corporation, B-405423, October 25, 2011)  (pdf)

The protester argues that the agency improperly issued the short-term task order to Aquilent on a sole-source basis without allowing STG an opportunity to compete for the task order. Protest at 2.

The 4-month task order, which has a value of $1,958,752, was placed against Aquilent's Federal Supply Schedule (FSS) contract. Federal Acquisition Regulation (FAR) sect. 8.405-6[1] exempts orders placed under the FSS from the competition requirements of FAR Part 6, but requires that an ordering activity "justify its action when restricting consideration of . . . schedule contractors to fewer than required in [FAR sections] 8.405-1 or 8.405-2."[2] FAR sect. 8.405-6(a)(1). Circumstances justifying such a restriction include where an urgent and compelling need exists and following the ordering procedures would result in unacceptable delays. FAR sect. 8.405-6(b)(3). Where an ordering activity restricts competition on the basis of an urgent and compelling need, the contracting officer is required to document the circumstances in writing. FAR sect. 8.405-6(c), (f). Where the proposed order is over $550,000 but not over $11.5 million, the justification must be approved by the competition advocate of the activity placing the order. FAR sect. 8.405-6 (h)(2).

Here, the agency determined that it was critical that maintenance and support services for the eCMS remain uninterrupted and seamless during the time period in which the agency reviews its requirements and resolicits the procurement. Agency Report (AR), Tab 4, Urgency Statement, at 2. In support of this determination, the agency explained that interrupted service would have a "deleterious effect on the health and well being of Veterans" who receive "vital" services from procurement activities impacted by eCMS. Id. The agency concluded that "the only reasonable and viable solution" to avoid an interruption in the services was to award a short‑term task order, "which will be solely for maintaining, not updating eCMS," to the current incumbent, Aquilent, without competition, until a properly competed task order can be awarded. Id.

To this end, the agency executed a justification and approval (J&A) for a limited source award under the FSS on an urgent and compelling basis. The agency reiterated that uninterrupted eCMS maintenance and support was "critical to the [VA's] mission," and stated that the VA did not have the resources to provide these services "in-house" while conducting a competition that would likely take several months to complete. AR, Tab 7, J&A, at 2. The agency recognized that there were other sources available for this requirement, including STG, but the agency concluded that only Aquilent, the incumbent, possessed the specialized experience specific to eCMS and the VA's needs necessary to continue to provide the critical maintenance and support without a break in service. Id. at 3. The agency stated that any new contractor would most likely need to hire and train new employees, as well as obtain the required security credentials. Id. The agency also estimated that it would take a new contractor at least 1 month to begin learning the processes and the organization, a minimum of 2 weeks to provide new employees with access to the VA network, and another 2 weeks to train the new employees on eCMS and the various subsystems. Id. Based on this record, we find the issuance of a task order to Aquilent to be unobjectionable.

The protester disputes the agency's findings of "urgent and compelling" circumstances. Comments at 2. However, the protester has not shown that the agency's determination is unreasonable. As noted above, the record supports the agency's determination that conducting a competition for these interim services would result in interrupted services that are critical to the VA's mission. Furthermore, the agency has shown that, as the incumbent, Aquilent is the only contractor capable of providing immediate maintenance and support services. As noted above, FAR sect. 8.405-6(b)(3) specifically authorizes restricting competition where, as here, an urgent and compelling need exists and following the FSS ordering procedures would result in unacceptable delays. To the extent the protester is disputing the agency's judgment as to the time period required to conduct a competition for the interim services, a protester's mere disagreement does not show that the agency's judgment was unreasonable. Richard Bowers & Co., B-400276, Sept. 12, 2008, 2008 CPD para. 171 at 2.  (STG, Inc., B-405082; B-405082.2, July 27, 2011)  (pdf)

The Competition in Contracting Act (CICA), 10 U.S.C. sect. 2304(c)(2), permits an agency to use other than competitive procedures in acquiring goods or services where the agency's requirement is of such an unusual and compelling urgency that the government would be seriously injured unless the agency is permitted to limit the number of sources from which it solicits proposals. Moreover, while CICA requires that agencies solicit offers from as many potential sources as is practicable when using the unusual and compelling urgency exception to limit competition, 10 U.S.C. sect. 2304(e), an agency nonetheless may limit a procurement to the only firm it reasonably believes can properly perform the work in the time available. McGregor Mfg. Corp., B-285341, Aug. 18, 2000, 2000 CPD para. 151 at 6.

A military agency's assertion that there is a critical need that is related to human safety and affects military operations carries considerable weight. Id. at 7; Eclypse Int'l Corp., B-274507, Nov. 12, 1996, 96-2 CPD para. 179 at 3. Underlying this policy is the simple fact that under wartime conditions, the government must procure items quickly and urgently to meet compelling military needs. Jay Dee Militarywear, Inc., B-243437, July 31, 1991, 91-2 CPD para. 105 at 5. An agency need not risk injury to personnel or property in order to conduct a competitive acquisition. Signals & Sys., Inc., B‑288107, Sept. 21, 2001, 2001 CPD para. 168 at 10. Additionally, under circumstances involving a critical need of items related to human safety and affecting military readiness during wartime, the agency need only consider those sources which can immediately satisfy its requirements and not those which have the potential to do so. Jay Dee Militarywear, Inc, supra. The reasonableness of the contracting activity's judgments must be considered in the context of the time when they were made and the information that was available at that time. Equa Indus., Inc., B-257197, Sept. 6, 1994, 94-2 CPD para. 96 at 3 n.1.

The protester claims that it could "produce surveillance systems to meet the [USMC's] needs," arguing that it could "deliver G‑BOSS Lite systems" that "would not be different from, or incompatible with, existing fielded systems." Protester's Supp. Comments at 3. The protester also claims, apparently in the alternative, that it could produce "compatible units on an expedited basis," starting "with [DELETED]." Protester's Comments at 9. With regard to its capability to produce and deliver G‑BOSS Lite units, the protester has provided with its comments on the agency report on this protest a declaration from Argon's Director of Imaging Systems, stating that, "[b]ased on [this individual's] understanding of G‑BOSS Lite," Argon, starting "with [DELETED] which Argon is presently manufacturing," could modify these units "to the G‑BOSS Lite configuration" and deliver these units to "the Government within [DELETED] of contract execution." Protester's Comments, exh. 1, Declaration of Argon's Director of Imaging Systems (July 8, 2010), at 1. The protester provided with the declaration a "technical proposal" describing the similarity between the G‑BOSS Lite and [DELETED], and generally explaining how Argon would modify or manufacture units to be delivered to the agency. Protester's Comments, exh. 1, Technical Proposal. Argon adds in its protest that during the Industry Day it had informed the Navy that Argon "had been selected [by the Navy] to supply Cerberus Tactical Long Range Systems and were currently building units which are a very close variant to the [G‑BOSS Lite] system," and "[DELETED]." Protest at 4.

Based upon our review of the record, we find the agency's actions here to be reasonable. As an initial matter, there is no basis on which to question the agency's position that there is a critical and immediate need for additional G‑BOSS Lite units to be used by USMC personnel in Operation Enduring Freedom, and that this need is related to human safety and affects military operations. The record reflects, and the protester does not dispute, that at this time the agency does not have a technical data package for the G‑BOSS Lite that could be made available to Argon or any other firm for the manufacture of that system. Further, as reasonably explained by the agency, the manufacture of a fully functioning G‑BOSS Lite that is ready for use by the warfighter is more complex than a simple assembly of various components, and to date, ICx is the only vendor to have manufactured, tested and delivered G‑BOSS Lite units. Additionally, although Argon has provided a "technical proposal" with its comments on the agency report generally describing how it would manufacture "compatible units on an expedited basis," it conceded in describing its proposal that because the agency lacks a technical data package for G‑BOSS Lite, the proposal was prepared by Argon "without the benefit of even a basic description of G‑BOSS Lite." Protester's Comments at 9. Also, as pointed out by the agency, Argon has not manufactured and delivered either a G‑BOSS Lite unit or a Cerberus unit to the government. In this regard, the agency points out that Argon's contract with the Navy for Cerberus Tactical Long Range Systems, which Argon claims are a very close variant to the G‑BOSS Lite system, was terminated by the agency prior to the delivery or acceptance of any Cerberus units to agency.

In sum, while Argon claims that it could manufacture and deliver G‑BOSS Lite units or another "compatible" system that could meet the urgent needs of the warfighter, it has not shown that the agency's differing view was unreasonable. That is, at the time the J&A was executed as well as the time of award, ICx was the only source that had already successfully manufactured and delivered G‑BOSS Lite units and could move immediately into production upon contract award, whereas Argon had not demonstrated that it could provide the G‑BOSS Lite units to meet the urgent requirements but only claimed that it could do so. See FXC Corp., B-257697.2; B‑257973, Dec. 1, 1994, 94‑2 CPD para. 216 at 10.

Nor do we agree with Argon that the urgency of the requirement that resulted in the sole-source award to ICx for 34 G‑BOSS Lite units was the result of a lack of advance procurement planning. As Argon points out, CICA mandates that noncompetitive procedures not be used where agency contracting officials failed to perform advance procurement planning. 10 U.S.C. sect. 2304 (f)(4); RBC Bearings Inc., B-401661; B‑401661.2, Oct. 27, 2009, 2009 CPD para. 207 at 6. Our Office has recognized that the requirement for advance planning does not mean that such planning be completely error-free, but, as with all actions taken by an agency, the advance planning required must be reasonable. RBC Bearings Inc., supra.

The record demonstrates that the G‑BOSS Lite program is relatively new, and that the agency has been actively planning for the competitive acquisition of G‑BOSS Lite units since September 2009 and intends to issue an RFP in late 2010 providing for a awards on a competitive basis. Additionally, the record further reflects that the urgent need for the G‑BOSS Lite units was due to "unforeseen military requirements," that is, to provide additional G‑BOSS Lite units to USMC personnel "in support of protection of Forward Operating Bases in Afghanistan" at a date earlier than could be accommodated through a competitive procurement. AR, Tab 9, Joint Operational Needs Prior Approval Reprogramming Action (Feb. 2, 2010), at 1-2. Given the urgency of the unforeseen requirements being protested here, Argon's complaints that the agency should have developed a technical data package earlier or obtained one from ICx are insufficient to show that the agency did not engage in advance procurement planning under the circumstances present here.

The protester also argues that the J&A executed here is defective. For example, the protester contends that the J&A is inadequate because "it does not address when the G‑BOSS units are required by the Government or even when they are required to be delivered by ICx," and thus cannot justify an urgency requirement. Supp. Protest at 3. The protester adds here that "[a]lthough the J&A was executed on the basis of urgency, it confirms . . . that the requirement was in development for a very long time," pointing out that the USMC's urgent statement of need was executed in January 2010 and the J&A was executed in March 2010. The protester concludes here that "[d]espite the purported urgency, the Navy has been taking its time." Supp. Protest at 4.

Section 6.303-2 of the Federal Acquisition Regulation sets forth the required content of a J&A. This section does not require that a J&A based upon urgency specify the dates on which the items being acquired will be delivered, or the date on which the items are "required to be delivered," as asserted by the protester. As such, we fail to see why the statement in the J&A that the G‑BOSS Lite units are needed "as soon as possible" is inadequate or inconsistent with an urgent requirement. We also disagree with the protester that the agency, whose actions include the research, preparation, vetting, and execution of the J&A over a 2-month period, can reasonably be characterized as "taking its time." In this regard, we believe that the agency's actions, as well as those of ICx, support the characterization of the requirement as urgent, given that the delivery of the G‑BOSS Lite units commenced less than 7 months after the agency's receipt of the urgency requirement, and 4 months after the execution of the J&A, and will be completed shortly after this decision is issued.

Although the protester is correct, and the agency concedes, that the statement in the J&A that no other available surveillance system incorporates "ground sensors" is inaccurate, this error provides no basis on which to find the agency's actions unreasonable, given that the rest of the J&A reasonably supports the sole-source decision. The remainder of the alleged "errors" in the J&A as identified by the protester, such as the J&A's assertion that the acquisition of another system would "require retraining the warfighter" reflect, in our view, the protester's disagreement with the agency's judgment and not factual errors in the J&A. Thus, we find that the J&A reasonably supports the sole source determination.  (Argon ST, Inc., B-402908; B-402908.2, August 11, 2010)  (pdf)

Ridgeline argues that the sole-source justification is unreasonable because DLA did not consider Ridgeline for a contract, and because Ridgeline too is at risk of having to close its doors. Protest at 4. Ridgeline states that it has only a handful of key employees with the knowledge and skills to manufacture military specification tents, and is performing only one small contract, for tent floors. Protest at 5.

In response, DLA acknowledges that Ridgeline has produced military tent components (such as floors, liners, window sections, and ductwork sections), but distinguishes Ridgeline's experience producing tent components from the complete tent (or "tent system" in DLA's terminology). DLA produced records showing that Ridgeline last produced a complete military tent system, as opposed to components, in 1985. DLA states that only recently has Ridgeline even sought to compete under solicitations for complete tent systems. Accordingly, DLA argues that it appropriately did not consider Ridgeline as a part of the relevant industrial base. DLA argues its effort to maintain the existing industrial base does not require making award to a firm that wishes to become a new supplier of tent systems, such as Ridgeline. AR at 7.

In response, Ridgeline briefly asserts that DLA is incorrect, but provides no facts to support its contentions. Protester's Comments at 1-2. Thus, although Ridgeline argues that it should have been considered an active participant in the market for tent systems (as opposed to components), it has provided no factual basis upon which our Office could reach such a conclusion, given the detailed information submitted by DLA, which shows that Ridgeline is not an established supplier of tent systems.

Under the Competition in Contracting Act of 1984, agencies have authority to conduct procurements to establish or maintain sources of supply for a particular item in the interest of the national defense, see 10 U.S.C. sections 2304(b)(l)(B) and 2304(c)(3). Agencies need not obtain full and open competition where the procurement is conducted for industrial mobilization purposes and may use other than competitive procedures where it is necessary to award the contract to a particular source or sources. Decisions as to which producers should be included in the mobilization base, and which restrictions are required to meet the needs of industrial mobilization, involve complex judgments that must be left to the discretion of the military agencies. We will question those decisions only if the evidence convincingly shows that the agency has abused its discretion. Minowitz Mfg. Co., B‑228502, Jan. 4, 1988, 88-1 CPD para. 1 at 3.

In our view, Ridgeline has failed to meaningfully challenge the agency's explanation for limiting this award to Camel. In contrast with the factual support and reasoned explanation provided in the agency report, Ridgeline's comments responding to the agency report do not show that the sole-source justification was unreasonable.  (Ridgeline Industries, Inc., B-402105, January 7, 2010)  (pdf)

CDC challenges the sole-source justification, asserting that it manufactures equipment that meets the agency's requirements. Protest at 1. The protester asserts that, "Any systems can be made compatible with the existing ironing system at VAMC Canandaigua," id., and that it produces ironers that can meet or exceed the performance requirements of the Braun equipment. Protest at 1; Protester's Comments at 3. CDC indicates that it has supplied other VA medical centers with ironing systems that will communicate with applicable Braun equipment. Protest at 2; Protester's Comments at 1.

The agency asserts that its market research indicated that only an ironer manufactured by Braun could meet these requirements and that the sole-source therefore was properly justified by the contracting officer. AR at 3; Contracting Officer's Statement (COS) at 3.

As a general matter, the Competition in Contracting Act (CICA) mandates "full and open competition" in government procurements obtained through the use of competitive procedures. 41 U.S.C. sect. 253(c)(1) (2006). CICA, however, provides several exceptions, including when an agency's requirements can only be satisfied by one responsible source. 41 U.S.C. sect. 253(a)(1)(a). In this regard, we have recognized that an agency's legitimate need to standardize the equipment it uses may provide a reasonable basis for imposing restrictions on competition. See, e.g., Sperry Marine, Inc., B-245654, Jan. 27, 1992, 92-1 CPD para. 111 (procurement of particular radar system on sole-source basis was reasonable where record established need for same system used in training program).

Here, the protester does not challenge the agency's stated requirements for interoperability with installed Braun equipment at VAMC Canandaigua but, rather, asserts that it can supply equipment meeting those requirements. As a general matter, a protester challenging an agency's sole-source determination on the basis that its product meets the agency's needs has the burden of showing that this is the case. See, e.g., eFedBudget Corp., B‑298627, Nov. 15, 2006, 2006 CPD para. 159 at 7 (protest against sole-source acquisition denied where protester did not meet its burden of demonstrating that it could perform contract without access to source code and without violating licensing agreement).

CDC has not established that it can provide a flatwork ironer meeting the agency's needs. Although the protester asserts, generally, that its ironer can "be made compatible in that we have installed other Chicago Dryer ironing, folding and feeding systems with other ironing systems including GA Braun," Protester's Comments at 1, it has neither identified a model that can meet all of the agency's identified requirements nor provided product material that supports its assertions. Further, as the agency points out (unrebutted by CDC), while the protester generally asserts that it has provided equipment compatible with Braun equipment at other VA medical centers--CDC states that it has installed "equipment in concert with GA Braun" at the VA facility at Oklahoma City and has also "installed such systems at VA Perry Point," Protester's Supp. Comments at 2--it has not provided any specific reference to an actual customer for which it provided an ironer compatible with the existing Braun system. Supp. AR at 1. We conclude that the protester has not shown that it can supply a product that meets the agency's needs. See, e.g., Container Prod. Corp., B‑270360.2, June 11, 1996, 96-1 CPD para. 275 (protest challenging sole-source acquisition denied where protester's submissions included only general technical information and failed to identify exact equipment being offered). Consequently, there is no basis for us to question the issuance of the purchase order to Braun.  (Chicago Dryer Company, B-401888, December 8, 2009) (pdf)

The Competition in Contracting Act of 1984 (CICA) requires that an agency obtain full and open competition in its procurements through the use of competitive procedures. 10 U.S.C. sect. 2304(a)(1)(A). There are various exceptions to this requirement, including a situation where only one responsible source is able to meet the agency’s requirements. 10 U.S.C. sect. 2304(c)(1); HEROS, Inc., B-292043, June 9, 2003, 2003 CPD para. 111 at 6. In this regard, when a contracting agency restricts a contract to an approved product or source, and uses a qualification requirement, it must give other potential offerors a reasonable opportunity to qualify; however, there is no requirement that an agency delay a procurement in order to provide an offeror an opportunity to demonstrate its qualifications. Lambda Signatics, Inc., B‑257756, Nov. 7, 1994, 94-2 CPD para. 175 at 4; Advanced Seal Tech., B‑250199, Jan. 5, 1993, 93-1 CPD para. 9 at 3; see 10 U.S.C. sect. 2319(b).

Here, as noted above, the record is clear that the complete windshield kit was comprised of more than the two component assemblies for which SBG sought source approval. Accordingly, even if SBG had been properly approved to supply those components, such approval would not qualify SBG to supply the complete windshield kit for which the agency contracted. SBG’s CEO expressly acknowledged that SBG did not submit a SAR¹ for the complete windshield kit due to SBG’s uncertainty as to the elements comprising that kit. Although SBG initially sought to obtain the necessary information, through acquisition of a sample kit and reverse design engineering, SBG did not diligently pursue that information, waiting more than 5 months after being advised that a kit was available to actually obtain the kit.

On this record, we find no merit in SBG’s assertion that its failure to qualify as an approved source for the items being procured is attributable to the agency. To the contrary, SBG’s failure to submit a SAR for the complete windshield kit, due to its lack of knowledge coupled with its own inaction, was the basis for its failure to obtain approval. To the extent SBG’s protest is based on assertions that the agency improperly withheld source approval for the procured items, the protest is denied.  (Standard Bent Glass Corporation, B-401212, June 23, 2009) (pdf)

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¹ SAR - source approval request.

During the course of the procurement, the agency determined to limit competition as provided for under the National Defense Authorization Act for Fiscal Year 2008, Public Law (Pub. L.) 110-181. As relevant here, section 886 of this act states that, for products or services to be acquired in support of military operations or stability operations in Iraq or Afghanistan, the Secretary of Defense may determine that “it is in the national security interest of the United States to limit competition, use procedures other than competitive procedures, or provide a preference” because such limitation, procedure, or preference “is necessary to provide a stable source of jobs in Iraq or Afghanistan” and “will not adversely affect military operations or stability operations in Iraq or Afghanistan . . . .” Id. at sect. 886(a) and (b)(2).

In this regard, the Secretary of Defense is authorized to conduct a procurement in which, among other things, “procedures other than competitive procedures are used to award a contract to a particular source or sources from Iraq or Afghanistan.” (Emphasis added.) Id. at sect. 886(a)(2). A source is defined as being “from” Iraq or Afghanistan if it “is located in Iraq or Afghanistan” and “offers products or services that are from Iraq or Afghanistan.” Id. at sect. 886(c)(3). The regulations implementing these provisions, found at Defense Federal Acquisition Regulation Supplement (DFARS) sections 225-7703-1(a)(2) and (a)(3), allow for the use of “procedures other than competitive procedures to award a contract to a particular source or sources from Iraq or Afghanistan.” Id. at sect. 225-7703-1(a)(3). A written determination must be executed before competition may be limited. Id. at sect. 225‑7703-2.

On January 29, 2009, the Army prepared a determination and finding (D&F) to support its decision to meet the requirement through limited competition. The D&F states that the acquisition will be conducted under section 886 and that “other than competitive procedures” will be used “to award a contract to a particular source or sources from Iraq or Afghanistan.” Agency Request for Dismissal, encl. 7, D&F, at 1. The D&F also states, among other things, that using the described procedures is necessary to provide a stable source of jobs in Iraq, lists Iraqi sources that expressed interest in the solicitation, and states that, to implement the limited competition, the solicitation will contain DFARS sect. 252-225-7026, Acquisition Restricted to Products or Services from Iraq or Afghanistan. Id. at 1. The solicitation, issued on February 17, contained this clause, which states that “the contractor shall provide only products or services from Iraq” (as defined in section 886(c)(1) and (2)). RFP at 41. 

The Army provided the solicitation to several firms, but not to the protester because it was aware that KLG is not an Iraqi company, but a Kuwaiti company based in Kuwait. Agency Request for Dismissal, encl. 1, at 1. KLG argues that it should have been permitted to compete under the RFP. In this regard, KLG cites the language of DFARS sect. 252-225-7026, included in the solicitation, which requires only that contractors use services or products from Iraq or Afghanistan in the performance of a contract, not that the contractor be an Iraqi company. KLG also contends that the statutory language “a particular source or sources from Iraq” should be read to include firms “operating” in Iraq. Protester’s Supplemental Response to Agency’s Dismissal Request at 1. KLG concludes that, since it “operates” in Iraq and intends to utilize Iraqi products and services, it meets the requirements of DFARS sect. 252-225-7026, and thus should be permitted to compete. Protester’s Response to Dismissal Request, at 2.

The Army maintains that it was authorized by the act to limit the competition to Iraqi firms, and that the record clearly shows that it intended to do so. In this regard, the Army contends that the plain language of section 886 of Pub. L. 110-181 and DFARS sect. 225‑7703-1(a)(3) authorizes it to limit competition to Iraqi companies, and cites the language in its D&F as establishing its intent to invoke this authority to make award to a source “from Iraq.” Agency Supplemental Dismissal Request, at 3.

We agree with the protester that the language in the solicitation does not expressly exclude non-Iraqi firms from competing; the only provision incorporated in the solicitation to limit competition--DFARS sect. 252-225-7026--requires that the contractor provide Iraqi products and services, but does not address the origin of the contractor. This conclusion notwithstanding, we find no basis to object to the agency’s actions, since we think the act confers authority to limit competition to Iraqi companies, and the record shows that the agency intended to do so. In this regard, as noted, under the act a source is “from Iraq” if it is “located in Iraq” (and offers products or services from Iraq). The agency interprets this language as referring only to Iraqi companies, and we agree with this interpretation. First, it is consistent not only with the plain language of the act, but also with its underlying purpose--because of its permanent connection to Iraq, an Iraqi company reasonably may be viewed as more likely than a non-Iraqi company to provide a stable source of jobs in Iraq. See Pub. L. 110-181, sect. 886(a) and (b)(2). Moreover, the protester’s alternative interpretation--that “from Iraq” and “located in Iraq” refer to sources operating in Iraq--is based on a term--“operating”--that does not appear in the act. If this was the intent underlying the act, it easily could have been expressed by use of this term or other similar language. See, e.g., AlliedBarton Sec. Servs. LLC, B‑299929 et al., Oct. 9, 2007, 2007 CPD para. 175 (the Stafford Act establishes preference for firms “residing or doing business primarily in the area affected . . . .”).

Accordingly, we conclude that the agency properly determined that KLG is ineligible to compete because it is not a source from Iraq. Requiring the agency to amend the solicitation to make KLG’s exclusion clearer would serve no purpose; KLG would remain ineligible for award. We will not recommend such a useless act. See Arrow Eng’g, Inc., B-215585, Dec. 26, 1984, 84-2 CPD para. 702 at 3.  (Kuwait Leaders General Trading & Contracting Company, B-401015.2, May 21, 2009)  (pdf)

When an agency uses noncompetitive procedures, it must execute a J&A with sufficient facts and explanation to support the use of the specific authority. See 10 U.S.C. sect. 2304(f). Our review of an agency’s decision to conduct a sole-source procurement focuses on the adequacy of the rationale and conclusions set forth in the J&A. When the J&A sets forth reasonable justifications for the agency’s actions, we will not object to the award. Turbo Mechanical, Inc., B-231807, Sept. 29, 1988, 88-2 CPD para. 299 at 3-4. The protester’s disagreement with the agency’s rationale does not provide a basis to sustain the protest; rather, the protester must show that the agency’s position is unreasonable. Allied-Signal Inc., B-247272, May 21, 1992, 92-1 CPD para. 461 at 10.

As stated above, the statutory exception relied on here is 10 U.S.C. sect. 2304(c)(1). Specifically, the agency asserts that it reasonably determined that only LM MS2 could successfully perform the 5110 hardware contract, and that only LM MS2 could successfully develop and integrate the four new Aegis functions that are the subject of solicitations 5121 and 5123. The sole-source procurements are unobjectionable if the Navy reasonably found that award to any source other than LM MS2 would likely result in either substantial duplication of cost to the government that is not expected to be recovered through competition, or unacceptable delays in fulfilling the agency’s requirements. 10 U.S.C. sect. 2304(d)(1)(B); FAR sections 6.302-1(a)(2)(ii), (iii). Because either basis is sufficient and, as discussed below, we find that the Navy reasonably determined that acquisition from Raytheon IDS (or any source other than LM MS2) would likely cause unacceptable delays, we will not address the question of duplication of costs. Magnavox Elec. Sys., Co., B-258076.2, B-258076.3, Dec. 30, 1994, 94-2 CPD para. 266 at 7.

In certain circumstances, it is reasonable for an agency to determine that overall knowledge of all of the critical components of a system is essential. Kearfott Guidance & Navigation Corp., B-292895.2, May 25, 2004, 2004 CPD para. 123 at 6. In procurements where the agency lacks a complete data package, a contractor’s familiarity with the work to be performed may justify a limited competition, because award to a firm that lacks that experience may result in unacceptable delay in fulfilling the agency’s requirements. Univox Cal., Inc. et al., B-225449.2 et al., Dec. 9, 1987, 87-2 CPD para. 569 at 8-9. This is the case when hands-on experience is needed to augment an existing, inadequate TDP in order for the contractor to meet the agency’s needs within the time prescribed. Id.

Where an agency does not possess a TDP adequate for competition, the agency may procure its requirement on a sole-source basis from a contractor whose prior experience reduces the risk to the agency that its needs will not be timely met. Kollsman, A Div. of Sequa Corp.; Applied Data Tech., Inc., B-243113, B-243113.2, July 3, 1991, 91-2 CPD para. 18 at 8. This is so, even where, given less stringent deadlines, other contractors might as ably perform. Id. Where the protester is at a technical disadvantage to the proposed sole-source recipient, and the record shows that the protester could not remedy its technological deficit and meet the time frame established by the agency, we will not object to the proposed sole-source award. Id. at 9; Tri-Ex Tower Corp., B‑239628, Sept. 17, 1990, 90-2 CPD para. 221 at 5. As discussed below, the record supports the agency’s position that Raytheon IDS has not shown that it can perform these contracts without risk that the Navy’s needs will not be timely met.  (Raytheon Company-Integrated Defense Systems, B-400610; B-400618; B-400619, December 22, 2008) (pdf)

The protester argues that this sole source procurement--as originally proposed, and as modified--is improper because TLC could have provided equivalent equipment had it been asked, and because, in TLC’s view, the old fire alarm system could have been repaired for half the cost of purchasing the new Monaco system. Protest at 1; Protester’s Comments at 1. The protester also appears to challenge the agency’s original procurement of the central Monaco receiver and individual fire alarm transmitters that the agency procured several years ago. Protester’s Comments at 1. As set forth below, we think the Army’s sole-source award was properly justified, and was a reasonable exercise of its discretion to make such awards.

The overriding mandate of the Competition in Contracting Act (CICA) is for “full and open competition” in government procurements, which is obtained through the use of competitive procedures. 10 U.S.C. sect. 2304(a)(1)(A) (2008). Where an agency’s needs are of such an unusual and compelling urgency that the government would be seriously injured if the agency is not permitted to limit the number of sources from which it solicits bids or proposals, the agency may use noncompetitive procedures pursuant to the authority set forth at 10 U.S.C. sect. 2304(c)(2). All Points Int’l, Inc., B‑260134, May 22, 1995, 95-1 CPD para. 252 at 3. This authority is limited by 10 U.S.C. sect. 2304(e), which requires agencies to request offers from as many sources as practicable. An agency may limit a procurement to only one firm if it reasonably determines that only that firm can properly perform the work in the available time. Lundy Technical Ctr., Inc., B‑243067, June 27, 1991, 91-1 CPD para. 609 at 3. We will object to the agency's determination only where the decision lacks a reasonable basis. Datacom, Inc.--Protests and Request for Costs, B‑274175 et al., Nov. 25, 1996, 96-2 CPD para. 199 at 7.

As described in the facts above, and as referenced in the J&A, immediate replacement of the failed fire alarms at Fort Meade was necessary to prevent potential loss of life and/or property due to undetected fires. In addition, despite TLC’s claims to the contrary, the Army concluded that it would not be able to repair the old system, as replacement parts for that system were no longer being made. We see no basis in this record to question that judgment. Moreover, because the testing of the Monaco system had already been completed, and the Monaco central receiver had already been installed, the Army concluded that replacing the failed fire alarms with Monaco alarms was necessary to achieve compatibility within its fire alarm system. As a final matter, we note that in response to this protest the agency reasonably elected to limit the size of the current sole-source award to cover only the number of fire alarms needed to replace those that had failed on June 11.

Given the severity of the potential harm if the government did not replace the failed fire alarms, and the fact that, under these exigent circumstances, where time was of the essence, only the Monaco alarms could be immediately installed to work with the central receiver without additional, and possibly extended, testing, we think that the agency’s sole-source purchase of 51 fire alarms was properly justified, and a reasonable exercise of its discretion to justify such awards.  (T-L-C Systems, B-400369, October 23, 2008)  (pdf)

Eisenhower filed an agency-level protest of the proposed sole-source award to the incumbent claiming that, since Eisenhower has an acceptable alternative property, it was unreasonable for the agency to conclude that only one source exists that will satisfy the agency’s requirements. In responding to that protest, the agency explained to the protester that it decided to award a sole-source lease to the incumbent based on the results of the cost-benefit analysis which was performed pursuant to the GSA regulations (GSAR) regarding succeeding leases, 48 C.F.R. subpart 570.4. Specifically, under GSAR sect. 570.402-5(b), “if the cost-benefit analysis indicates that the Government cannot expect to recover relocation costs and duplication of costs through competition, [the agency is to] prepare a justification for approval in accordance with FAR 6.3 and 506.3.” The agency further explained that a justification for the proposed sole-source award was prepared pursuant to the exception to full and open competition requirements at Federal Acquisition Regulation (FAR) sect. 6.302-1 (which provision references as statutory authority, the Competition in Contracting Act (CICA), 41 U.S.C. sect. 253(c)(1)), since the cost-benefit analysis showed that only one responsible source will meet the agency’s needs. Agency Report in Response to Agency-Level Protest, Nov. 1, 2007, at 2, 4. The agency-level protest official dismissed the protest as an untimely challenge to the terms of the presolicitation notices, and, to the extent the protest questioned the proposed sole-source award of a succeeding lease to the incumbent, denied the protest on the basis that the agency had complied with the requirements of GSAR sect. 570.402-1(b)(2) for a cost-benefit analysis prior to making the sole-source determination for the lease.

(Sections Deleted)

We have reviewed each of Eisenhower’s challenges to the cost-benefit analysis and find that none of them provides a basis to conclude the cost-benefit analysis lacks a reasonable basis. For instance, Eisenhower initially alleges that its rental rate is [deleted] per RSF lower than the rate paid by GSA under the incumbent’s current lease; the protester estimates that this difference gives it an almost [deleted] million advantage in terms of cost savings to the government. The agency reports, however, that Eisenhower’s initial rental rate of [deleted] is in fact higher than the rates paid under the incumbent’s lease, and that the subsequent rate information provided by the two firms showed their properties are indeed comparable in terms of rent. The record supports the agency’s position. The protester next argues that since its expression of interest noted that the firm would like to discuss paying for the [deleted] costs, it should have received credit against the [deleted] costs amount in the cost-benefit analysis. The record supports the reasonableness of the evaluation, however, since, despite the firm’s failure to quantify its claimed credit for such costs, or confirm that it would pay all such costs rather than just a portion, the agency applied an industry standard amount for such costs [deleted]; the protester has not shown that the standard amount is unreasonable. Moreover, Eisenhower has not shown in any way that, given the substantial relocation and duplication costs assessed against it in the cost-benefit analysis, even if the full amount of the [deleted] costs calculated here (approximately [deleted] million) had been credited to the firm in the analysis, it would have made any material change to the outcome of the analysis. 

Eisenhower also claims that its lease location should be viewed as presenting additional benefits exceeding the agency’s stated minimum requirements, thus warranting cost credits in the comparison of the expressions of interest; examples include the ability to provide [deleted]; providing space in a newly refurbished building capable of supporting state-of-the-art equipment the agency may choose to purchase for its new space; providing a convenient location, accessible by highways and Metrorail, with more generous setback distances; and the ability to design the layout of the space to consolidate office space or accommodate growth. As a preliminary matter, to the extent that the protester asserts that the value of the additional intangible benefits its location allegedly offers was not quantified by the agency, the protester itself has provided no support for the dollar value associated with the claimed benefits. Further, to the extent Eisenhower suggests that the alleged benefits were ignored by the agency, as the agency reports, these elements, while not quantified, were considered in the cost-benefit analysis. For instance, while the agency noted that Eisenhower could provide additional [deleted], it considered the current amount [deleted] at the incumbent location acceptable as it met the agency’s actual needs. While Eisenhower asserts that the incumbent’s parking presents a greater security risk because of its below-building location, Eisenhower is essentially disagreeing with the agency’s judgment that there is sufficient security at the incumbent site. Similarly, while the protester’s location offers newly refurbished space, the record shows that the agency’s space and equipment needs are met at its current upgraded location. Regarding the claimed convenience associated with the protester’s location, the agency points out that the incumbent’s location is also accessible by highways and Metrorail. As to the additional setback distance for the protester’s property, since the incumbent’s property has been government-approved for setbacks and apparently otherwise meets the agency’s security requirements, we do not find persuasive the protester’s general contention that the shorter setback distance at DEA’s current location presents a security risk, or one that has not been resolved through other effective security measures. In short, there is no showing in the record that the cost-benefit analysis challenged by the protester was unreasonable.  (Eisenhower Real Estate Holdings, LLC, B-310941, March 18, 2008) (pdf)

Brinkmann objects to the proposed sole-source award to Mettler principally on the ground that its own autotitrator, the Metohm 809 Titrando, which it claims is less expensive than the Mettler autotitrator, is also technically and functionally equivalent or superior to the Mettler unit. Accordingly, Brinkmann contends that the Navy is required to compete the autotitrator requirement.  As a general matter, CICA mandates “full and open competition” in government procurements obtained through the use of competitive procedures. 10 U.S.C. sect. 2304(a)(1)(A). CICA, however, provides several exceptions to this requirement, including when an agency’s requirements can only be satisfied by one responsible source. 10 U.S.C. sect. 2304(c)(1). When, as here, an agency invokes this exception, it is required to execute a written J&A with sufficient facts and rationale to support the use of the cited authority. Our review of an agency’s decision to conduct a sole-source procurement focuses on the adequacy of the rationale and conclusions set forth in the J&A; where the J&A sets forth a reasonable justification for the agency’s actions, we will not object to the award. Chapman Law Firm, B-296847, Sept. 28, 2005, 2005 CPD para. 175 at 3. In this regard, our Office has held that an agency’s legitimate need to standardize the equipment it uses may provide a reasonable basis for imposing restrictions on competition. See, e.g., Advanced Med. Sys., Inc., B-259010, Jan. 17, 1995 (agency’s need to standardize fetal monitors in order to maximize patient care was reasonable); Sperry Marine, Inc., B-245654, Jan. 27, 1992, 92-1 CPD para. 111 (sole-source acquisition of particular radar system was reasonable where agency needed to utilize the same radar system it had already deployed at training school). Based on our review of the record, we conclude that the Navy had a reasonable basis for the sole-source award to Mettler. The record shows that the ability of the Brinkmann autotitrator to meet the Navy’s onboard technical requirements was not an issue. Rather, the Navy’s justification for the sole-source award to Mettler is based upon, among other things, a reasonable need for standardization. As explained by the Navy, the accuracy and reliability of the chemical analyses by the autotitrators is essential for the safe operation of a submarine’s nuclear reactor plant and having a standard unit allows Navy personnel to operate the autotitrator equipment without regard to the specific submarine to which they are assigned. AR, Tab E, J&A at 2. Maintaining the operational continuity of the autotitrators across submarines is especially important since Navy personnel operating the units are not professional chemists and there is “constant turnover” of personnel between submarines. AR, Tab A, Declaration of Director, Fleet Readiness Division, Naval Nuclear Propulsion Program, Aug. 28, 2007, at 1. Because no other autotitrator is “directly interchangeable in form fit and function” with the currently fielded Mettler unit, AR, Tab E, J&A at 2, introducing a different unit would undermine the advantage of having Navy personnel operate a single standard unit, thereby “increas[ing] the risk of incorrect chemical analyses,” and in turn increasing the risk to the safety of Navy personnel and equipment. AR, Tab A, Declaration of Director, Fleet Readiness Division, Naval Nuclear Propulsion Program, Aug. 28, 2007, at 1. (Brinkmann Instruments, Inc., B-309946; B-309946.2, October 15, 2007) (pdf)

As noted, this exception only allows an agency to “limit the number of sources,” so that an agency may not simply ignore the potential for competition. See Worldwide Language Res., Inc.; SOS Int’l Ltd., B‑296984 et. al., Nov. 14, 2005, 2005 CPD para. 206 at 11. The mandate for agencies to effect some modicum of competition is reiterated in 41 U.S.C. sect. 253(e), which provides that when an agency utilizes other than competitive procedures based on unusual and compelling urgency, the agency “shall request offers from as many potential sources as is practicable under the circumstance.” See also FAR sect. 6.302‑2(c)(2). In addition, CICA provides that under no circumstances may noncompetitive procedures be used due to a lack of advance planning by contracting officials or concerns related to the amount of funds available to the agency. 41 U.S.C. sect. 253(f)(5)(A); see also FAR sect. 6.301(c). The agency has not demonstrated that it had a reasonable basis to make the sole‑source orders here. While at least with respect to the VAMC Albany facility, the agency has demonstrated that it had an urgent need to replace the equipment due to the fact that patients were getting eye infections as a result of the use of the faulty medical equipment,[3] the agency has not reasonably demonstrated why it could not have opened the requirement up to an expedited limited competition among those firms that had expressed interest in the acquisition. There is no evidence in the record that the agency ever considered whether the cataract medical equipment proposed by B&L, or any other firm, would meet its urgent requirements. Moreover, B&L has responded in detail to the agency’s sole-source justification by noting that its Millennium equipment is “state of the art” cataract surgery equipment and enjoys a significant market share, and by providing many technical details as to why its equipment is the best equipment available to meet VA’s requirements. While VA was invited to respond to B&L’s comments, it has provided no response to B&L’s detailed comments as to why its equipment would satisfy VA’s requirements. (Bausch & Lomb, Inc., B-298444, September 21, 2006) (pdf)

Generally, our Office will not question an agency’s implementation of a statutory procurement requirement unless the record shows that the implementation was unreasonable or inconsistent with congressional intent--a matter best determined by the words of the statute itself, or by the statute’s legislative history. See Harris Corp. Broadcast Div., B-255302, Feb. 10, 1994, 94-1 CPD para. 107 at 6. With respect to statutory procurement preferences, we have held that where a statute does not specify a particular way to give a provided preference to a class of potential contractors, agency acquisition officials have broad discretion in selecting the way to effectuate the statutory mandate. American Multi Media, Inc.--Recon., B-293782.2, Aug. 25, 2004, 2004 CPD para. 158 at 5 (preference for nonprofit institutions concerned with the blind and other physically handicapped persons); HAP Constr., Inc., B‑280044.2, Sept. 21, 1998, 98-2 CPD para. 76 at 4 (preference for firms doing business in a disaster area under the Stafford Act); Appalachian Research Council, B-256179, May 20, 1994, 94-1 CPD para. 319 at 15-16 (preference for agencies with demonstrated experience with the needs of youth in outreach contracts under the Job Training Partnership Act); and U.S. Def. Sys., Inc., B-251544 et al., Mar. 20, 1993, 93-1 CPD para. 279 at 4-5 (preference for U.S. firms in the award of contracts for guard services at overseas embassies). As we noted in our decision in HAP Constr., and as we have seen again here, neither the language of the statute, nor the legislative history of the Stafford Act, defines the terms “preference,” “feasible,” or “practicable.” HAP Constr., Inc., supra, at 5. Without specific definitions to guide our review, we look to whether the agency’s interpretation is contradicted by the plain meaning of the words used in the statute. In our view, it is not. The primary meaning of the word “preference” in Black’s Law Dictionary 1217 (8th Ed. 2004) is “[t]he act of favoring one person or thing over another….” Our review of the bid protest decisions above, and other materials, shows that agencies have used a continuum of possible preferences to implement statutes that provide one class of contractor a preference over others. For example, in the U.S. Def. Sys., Inc. decision, cited above, the agency provided a preference in the form of five evaluation points to be added to an offeror’s technical evaluation. In contrast, FEMA has opted to implement the provision of the Stafford Act under review here by providing a 30 percent price preference. 48 C.F.R. sect. 4452.217-70. While we have not previously seen a protest involving an agency decision to implement a preference using a set-aside, we think a set-aside can be viewed as, in effect, an absolute preference, located at one end of the continuum of possible preferences an agency might adopt. In our view, we have no basis for questioning the broader definition of “preference” inherent in the agency’s position in this case. Moreover, we think AshBritt misses the point when it argues that some form of preference short of a set-aside also implements the Stafford Act’s preference for using local businesses to clean up disaster-related debris. The question here is not whether some lesser form of preference might have satisfied the Act’s intent, but whether the preference chosen was an abuse of agency discretion. Since the language in the statute does not specifically restrict the application of the preference, and since the use of a set‑aside is consistent with the statutory goal of assisting firms in the affected area, we do not view the Corps’s decision to implement the Stafford Act preference with a set‑aside as an abuse of the agency’s discretion to implement this statutory scheme. See id. at 6; Appalachian Research Council, supra, at 16. We turn next to AshBritt’s contention that the Stafford Act does not envision providing a preference (in this case, a set-aside) only to firms doing business in a particular state, to the exclusion of firms located in other states affected by the same natural disaster. As an initial matter, it is fair to note that AshBritt’s interpretation of the geographic reach of 42 U.S.C. sect. 5150 appears to be supported by the portion of the statute that requires this preference be provided to firms “residing or doing business primarily in the area affected by such major disaster or emergency.” To conclude, however, that the Corps abused its discretion by limiting the competition here to firms within a single state would require us to ignore the overall scheme of the Stafford Act, the legislative history of the Act explaining what Congress was trying to accomplish with this provision, and the simultaneously enacted title of the preference provision in the Act (which is now reflected in the U.S. Code). While we think an agency reasonably might elect not to adopt the kind of restriction used in this procurement, see, e.g., HAP Constr., Inc., supra, we do not agree that the Corps acted improperly here by limiting this competition to Mississippi firms. The entire scheme of the Stafford Act contemplates a process by which states interact with, and seek assistance from, the federal government; this interaction does not cross state lines. For example, federal assistance under the Stafford Act is triggered by a governor’s finding that a major disaster has overwhelmed the state’s ability to provide aid, assistance, and emergency services, and to reconstruct and rehabilitate devastated areas. 42 U.S.C. sections 5121, 5170. When a governor presents such a finding to the President, and the President agrees, the President declares that a major disaster exists. 42 U.S.C. sect. 5170. This declaration identifies the specific areas within the state eligible for disaster relief, and specifies the type of relief available. 44 C.F.R. sect. 206.40; see also AR, Tabs 5a, 6a, 7a, and 8a. In addition, the statute, on its face, identifies the limits of federal cost-sharing available to the state for different types of relief activities. See, e.g., 42 U.S.C. sections 5170b(b), 5170c(a), 5173(d). Moreover, as shown by the record in this protest, there are separate Presidential declarations for each state, see AR, Tabs 5a (Florida), 6a (Louisiana), 7a (Mississippi), and 8a (Alabama); there is no unified disaster declaration addressing all damage done by Hurricane Katrina, which would be more along the lines of the scheme AshBritt posits. (AshBritt Inc., B-297889; B-297889.2, March 20, 2006) (pdf)

The Competition in Contracting Act (CICA), 10 U.S.C. sect. 2304(c)(2), permits an agency to use other than competitive procedures in acquiring goods or services where the agency’s requirement is of such an unusual and compelling urgency that the government would be seriously injured unless the agency is permitted to limit the number of sources from which it solicits proposals. Moreover, while CICA requires that agencies solicit offers from as many potential sources as is practicable when using the unusual and compelling urgency exception to limit competition, 10 U.S.C. sect. 2304(e), an agency nonetheless may limit a procurement to the only firm it reasonably believes can properly perform the work in the time available. McGregor Mfg. Corp., B-285341, Aug. 18, 2000, 2000 CPD para. 151 at 6. In this regard, a military agency’s assertion that there is a critical need that is related to human safety and affects military operations carries considerable weight. Id. at 7. The reasonableness of the contracting activity’s judgments must be considered in the context of the time when they were made and the information that was available at that time. Equa Indus., Inc., B-257197, Sept. 6, 1994, 94-2 CPD para. 96 at 3 n.1. Meggitt asserts that the agency improperly failed to engage in adequate advance planning. In this regard, Meggitt asserts that, after obtaining the responses to the RFI, the agency essentially did nothing for a period of approximately 6 months before eventually making its sole-source award to KDS. Meggitt maintains that, among other things, the agency declined its offer, included in its response to the RFI, to perform testing of its product at the firm’s own expense, AR, exh. 8, at 5, and also unreasonably declined its offer, in an April 28 e-mail, to update its RFI response in April. AR, exh. 35, at 1. Although the record shows that the agency did not respond to Meggitt’s April 28 e‑mail, the agency’s Chief of the Marine Corps Program Division testified that this was because, due to the lack of funding at that time, the agency did not think it was appropriate to cause any of the respondents to expend further effort in preparing materials or information. Tr. at 63. In a similar vein, he testified that he never specifically declined Meggitt’s offer to perform testing at its own expense, but that, again, the agency was reluctant to encourage additional expenditures by Meggitt or other concerns in the absence of program funding. Tr. at 109-11. We find nothing unreasonable in the agency’s actions. Simply stated, the agency acted in a manner that was prudent under the circumstances, since there were no funds available and no firm basis for the agency to conclude that it would be able to perform the upgrade. As noted, the question for our Office is whether the contracting activity’s judgments, considered in the context of the time when they were made and the information that was available at that time, appear reasonable. Equa Indus., Inc., supra. Further, regarding Meggitt’s offer to perform testing at its own expense, in the absence of agency direction not to perform such testing, there is no basis to find that the agency somehow unreasonably precluded Meggitt from conducting such testing. Meggitt has not shown why it could not have performed such testing at its own expense (and provided the agency with its results), and thereby possibly positioned itself differently with respect to the agency’s urgent requirement. In effect, Meggitt’s decision to refrain from such testing was a matter of its own business judgment, not improper agency action. We note that the agency’s witness testified that he would have at least considered the results of such testing. Tr. at 116‑17. (Meggitt Safety Systems, Inc., B-297378; B-297378.2, January 12, 2006) (pdf)

Based on the factual context presented with regard to the December 2004 award to OSS, it is evident that the agency’s efforts--as described and explained by the agency itself--were so fundamentally flawed as to indicate an unreasonable level of advance planning, which directly resulted in the sole-source award to OSS. In responding to the protesters’ challenges to the December sole-source award, the Air Force suggests that its actions and the justification underpinning the sole-source determination should be evaluated based on the circumstances faced by the contracting activity in November 2004 when it received the requirement and took steps to expeditiously procure the required BBE-SME services. For example, the Air Force highlights the fact that when the J&A was prepared in support of the award to OSS, the government was faced with the dilemma of needing BBA-SME services in place to support the January 2005 elections in Iraq--then only 2 months away--and it did not have a contractor to provide the services. AR, Tab 13, Supplemental Legal Memorandum at 15; AR, Tab 1.b.2, J&A para. 3. We recognize the abbreviated contracting schedule faced by the contracting activity in its efforts to obtain a contract vehicle for the BBA-SME requirement--a schedule driven by expectations and mandates from higher echelons within the Department of Defense. The record, however, clearly reflects the fact that this narrow procurement window was the direct result of unreasonable actions and acquisition planning by the Air Force and the Department of Defense, to the extent these entities engaged in any acquisition planning at all. Specifically, 2-3 months were lost as a result of the initial plan to place the BBA-SME requirement under the GEITA contract--even though the requirement was clearly outside the scope of the GEITA contract. As noted above, the GEITA contract was for 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. AR, Tab 17, GEITA Contract, Statement of Work, at 3, 4-5. The BBA-SME requirement, however, was for Western-oriented individuals of Iraqi background, who were committed to a democratic Iraq, and who would provide services in Iraq such as advising government ministers, planning for and implementing elections, drafting constitutional documents, advising neighborhood, municipal, and national councils, and training security forces and details. The plan to use the GEITA contract was unreasonable on its face, given how widely it diverged from the BBA-SME requirement. In fact, as indicated above, a senior member within the Air Force, responsible for acquisition, characterized the plan as requiring a “sanity check” and indicated that it was the result of individuals “leaning way forward in the saddle” in an effort to support a customer because they were “not in the habit of saying no to anyone.” AR, Tab 16.ss., E-mail, Subject: RE: GEITA Services for Bilingual-Bicultural Support to Iraq, Nov. 10, 2004. It was this gross error that directly resulted in the Air Force’s determination to pursue a sole-source award for the BBA-SME requirement. After the Air Force cancelled the GEITA plan, it initiated discussions with OSD regarding the option of making a sole-source award based on urgency. See AR, Tab 16.kk., E-mail, Subject: Iraqi Contracting Debacle, Nov. 12, 2004 (stating “[the Air Force] has assured me that [it] should have a contracting solution by COB today or Monday . . . specifically mentioned ‘sole-sourcing’ and ‘urgent and compelling’ as options on any new contract”). (WorldWide Language Resources, Inc.; SOS International Ltd., B-296984; B-296984.2; B-296984.3; B-296984.4; B-296993; B-296993.2; November 14, 2005) (pdf)
 

Although the overriding mandate of the Competition in Contracting Act of 1984 (CICA) is for full and open competition in government procurements obtained through the use of competitive procedures, 10 U.S.C. sect. 2304(a)(1)(A) (2000), CICA permits noncompetitive acquisitions in certain circumstances, such as when the services needed are available from only one responsible source or when the agency’s need for the services is of such an unusual and compelling urgency that the agency would be seriously injured unless permitted to limit the number of sources solicited. 41 U.S.C. sections 253(c)(1), (c)(2) (2000). When an agency uses noncompetitive procedures under sect. 253(c)(1) or (c)(2), it is required to execute a written J & A with sufficient facts and rationale to support the use of the cited authority. See 41 U.S.C. sect. 253(f)(1)(A), (B); Federal Acquisition Regulation (FAR) sections 6.302-1(d)(1), 6.302‑2(c)(2), 6.303, 6.304. Our review of an agency’s decision to conduct a sole‑source procurement focuses on the adequacy of the rationale and conclusions set forth in the J & A; where the J & A sets forth a reasonable justification for the agency’s actions, we will not object to the award. Global Solutions Network, Inc., B‑290107, June 11, 2002, 2002 CPD para. 98 at 6. However, noncompetitive procedures are not justifiable where the agency created the need for the sole-source award through a lack of advance planning. 41 U.S.C. sect. 253(f)(5)(A). The justification for the sole-source award here is reasonable, and there is no basis for finding a lack of advance planning. As described in the facts above, and as referenced in the J & A, Chapman’s protest of the award led to the stay of contract performance. This stay prevented Greenleaf from transitioning into contract performance as MCB’s contract approached the end of its transition period, as had been reasonably contemplated under the procurement scheme. Consequently, the agency would shortly have no contractor performing the M & M services. These circumstances together with the agency’s determination that Chapman lacked the readiness to perform the services, and not a lack of advance planning, led to the agency’s decision to award the sole-source bridge contract. (Chapman Law Firm Company, LPA, B-296847, September 28, 2005) (pdf)

Total protests that the agency's award of the four contracts on a noncompetitive basis for sandbags was improper. The Competition in Contracting Act of 1984 (CICA) provides for the use of noncompetitive procedures where an agency's need for the property or services is of such an unusual and compelling urgency that the United States would be seriously injured unless the agency is permitted to limit the number of sources from which it solicits proposals. 10 U.S.C. 2304(c)(2) (2000). Although CICA requires that the agency request offers from as many potential sources as is practicable under the circumstances, 10U.S.C. 2304(e); see Federal Acquisition Regulation (FAR) 6.302(c)(2), an agency may still limit the procurement to the only firm it reasonably believes can properly perform the work in the available time. McGregor Mfg. Corp. , B-285341, Aug. 18, 2000, 2000 CPD 151 at 6; Hercules Aerospace Co. , B-254677, Jan. 10, 1994, 94-1 CPD 7 at 3. We will object to the agency's determination only where the decision lacks a reasonable basis. Signals & Sys., Inc. , B-288107, Sept. 21, 2001, 2001 CPD 168 at 12. In this regard, a military agencys assertion that there is a critical need related to human safety and which affects military operations carries considerable weight. McGregor Mfg. Corp. , supra , at 7. The reasonableness of the contracting officers judgments must be considered in the context of the time when they were made and the information that was available at that time. Equa Indus., Inc. , B-257197, Sept. 6, 1994, 94-2 CPD 96 at 3 n.1. We find the contracting officer had a reasonable basis for the noncompetitive awards. The basic undisputed facts known to the contracting officer at the time he decided that it would be necessary to make noncompetitive awards, providing for delivery of the sandbags in March 2005, were: (1) the demand for sandbags had increased over the past year in support of Operations Enduring Freedom and Iraqi Freedom, (2) sandbags that were being used in Iraq were deteriorating at an unexpectedly fast rate, (3) the contractor that had received the largest share of the award under the previous contract for sandbags--that is, Total--was delinquent in its deliveries and its performance had been suspended because of concerns about the compliance with the contracts HUBZone and domestic manufacturing requirements, and (4) prior awards for this item were set aside 100 percent for HUBZone firms by the SBA. In view of the fact that the sandbags were reasonably found critical to successful military operations, the contracting officer reasonably determined that the requirement was urgent and that the procurement process must be expedited through the multiple noncompetitive awards. Total claims that the urgency-based noncompetitive contracts were caused by a lack of advance procurement planning and by the agency's decision to obtain these sandbags only from HUBZone manufacturers. The record does not establish that a lack of advance procurement planning was the cause of this urgent requirement; instead, the record shows that the urgency of the requirement was caused by the unexpected rapid deterioration of sandbags, increased demand for sandbags in Iraq, and the performance problems on Totals current contract. The record also does not show that the urgency here was caused by the agency's determination that the sandbag requirement should be set aside for certified HUBZone firms, given that four HUBZone firms have been found that are able to satisfy the agencys urgent delivery requirements. In any case, FAR 19.1306 provides express authority to make noncompetitive awards to HUBZone concerns. (Total Industrial & Packaging Corporation, B-295434, February 22, 2005) (pdf)

Our review of the agency's decision to conduct a sole-source procurement focuses on the adequacy of the rationale and conclusions set forth in the J&A. When the J&A sets forth a reasonable justification for the agency's actions, we will not object to the award. Global Solutions Network, Inc., supra, at 6; Diversified Tech. and Servs. of Virginia, Inc., B-282497, July 19, 1999, 99-2 CPD P: 16 at 3. Our review of the record shows that several of the agency's reasons for concluding that only IA's system can meet its needs constitute a reasonable justification for the agency's decision to procure this system on a sole-source basis.  (McKesson Automation Systems, Inc., B-290969.2; B-290969.3, January 14, 2003)  (txt version)

The agency’s actions here were reasonable. First, there is no evidence of a general lack of advance planning. As noted, the agency initiated this procurement 18 months ago, and anticipated acquiring the halfway-house services before the end of 2001.  This planning was thwarted by delays in the evaluation, the filing of two protests, and the termination of the awarded contract due to irregularities in the procurement.  Thus, while the agency’s planning ultimately was unsuccessful, this was due to unanticipated events, not a lack of planning.  (Bannum, Inc., B-289707, March 14, 2002; (pdf); (Exception 2))

Protest that agency improperly awarded requirement on a sole-source basis because it determined that only one firm could meet its requirements is sustained where record shows that another potential vendor was given an incorrect understanding of the agency's requirements; agencies are required to provide potential sources an opportunity to demonstrate their ability to meet the agency's requirements based on an accurate portrayal of the agency's needs.  (Lockheed Martin Systems Integration--Owego, B-287190.2; B-287190.3, May 25, 2001)

In this regard, a military agency's assertion that there is a critical need related to human safety and which impacts military operations carries considerable weight. Id. at 3; see also BlueStar Battery Sys. Corp., B-270111.2, B-270111.3, Feb. 12, 1996, 96-1 CPD para. 67 at 3. Here, the Army reasonably determined that it had an urgent need for 273 deswirl ducts and reasonably limited the procurement to GE, the only firm the Army believed could fulfill the requirement within the available time.  (McGregor Manufacturing Corporation, B-285341, August 18, 2000)

Protest that agency purchase order was, in effect, an improper sole-source award is sustained where the record shows that the Federal Supply Schedule contract against which the agency attempted to place its order had expired, and no replacement contract was in place at the time of the order.  (DRS Precision Echo, Inc., B-284080; B-284080.2, February 14, 2000)

In our view, the J&A provides an adequate rationale and conclusions to support the 3-month contract extension with six 1-month options at issue. Although Diversified argues that the agency has been moving too slowly and that its current situation was caused by a lack of advance planning, the record demonstrates that the delays have, in fact, been caused in part by the agency's efforts to plan for the long term rather than to opt for a short-term "fix."  (Diversified Technology & Services of Virginia, Inc., B-282497, July 19, 1999)