HOME  |  CONTENTS  |  DISCUSSIONS  DISCUSSION ARCHIVES  |  BLOG  |  QUICK-KITs|  STATES

Loading

FAR 6.302:  Exceptions to Full and Open Competition

Comptroller General - Key Excerpts

EBSCO protests that the J&A the Air Force executed is insufficient to justify the use of non-competitive procedures. Protest at 2-3. In this regard, EBSCO contends that its product was improperly excluded and that it can meet the statement of work’s requirements. Id. The protester alleges that the agency evaluated its product unreasonably, arguing that the agency misunderstood the wording in EBSCO’s submissions. Comments at 2-3.

The Air Force responds that EBSCO’s description of how its materials were developed did not meet the agency’s content creation requirements. Memorandum of Law (MOL), at 5-6. Among other findings, the Air Force concluded that EBSCO’s topics were written by “content domain experts,” and not “expert physicians in the specialty at issue.” Id. at 6. In this regard, the Air Force states that the protester’s database “offered far less medical certainty in its content” because it was neither created nor reviewed by expert physicians. Id. Because of this uncertainty, the Air Force contends EBSCO’s offering did not meet the minimum requirements of the statement of work. Id.

Generally, the Competition in Contracting Act (CICA) requires agencies to obtain full and open competition in their procurements, but permits the use of other than competitive procedures where there is only one responsible source able to meet the agency’s requirements. 10 U.S.C. §§ 2304(a)(1)(A), 2304(c)(1). Agencies are required to complete a written J&A including sufficient facts and rationale to support the use of noncompetitive procedures. 10 U.S.C. § 2304(f)(1)(A); FAR §§ 6.302-1(d)(1), 6.303, 6.304. Our review of an agency’s decision to use noncompetitive procedures focuses on the adequacy of the agency’s rationale and conclusions set forth in the J&A. Camden Shipping Corp., B-406171, B-406323, Feb. 27, 2012, 2012 CPD ¶ 76 at 6. Where the J&A sets out reasonable justifications for the agency’s actions, we will not object to the decision to limit competition. See Piedmont Propulsion Systems, LLC, B-410914.2, Mar. 17, 2015, 2015 CPD ¶ 119 at 13.

Here, the challenge to the rationale for using noncompetitive procedures centers on the agency’s consideration of EBSCO’s product’s ability to meet the agency’s stated requirements. Specifically, the Air Force required that the content of the database be written and reviewed by physician experts. AR, Tab 23, Special Notice, at 5. EBSCO’s own submissions indicate that the teams that write and maintain its materials do not necessarily include a physician. See AR, Tab 18, EBSCO Response, at 8; see also, AR, Tab 21, EBSCO Response to Notice of Intent to Award Sole-Source, at 9. Further, it is not clear from EBSCO’s submissions that experts in the field covering a particular topic are involved in the creation or review of content relating to that issue. As a result, we find that the agency reasonably concluded that EBSCO’s product will not meet the agency’s requirement, and that EBSCO has provided our Office no basis to object to this sole-source award.  (EBSCO Industries, Inc. B-414150: Mar 2, 2017)


VHSS contends that the VA has no rational basis for procuring this type of medical equipment on a sole‑source or brand name basis, and claims that VHSS can provide a comparable APC (manufactured by USMI) that will meet the VAMC’s needs at a much lower price. VHSS asserts that the agency has not presented scientifically reliable analyses or studies to support its assertion that standardizing its inventory of APCs is likely, or even necessary, to increase patient safety. VHSS argues that the J&A is deficient because it failed to identify any salient physical, functional, or performance characteristics for the APCs, contrary to FAR § 11.104. VHSS also argues that the agency’s reliance on non-competitive procedures reflects its failure to conduct reasonable advance planning, contrary to the Competition in Contracting Act of 1984 (CICA). VHSS complains that the J&A reflects nothing more than VAMC end‑users’ preference for the incumbent manufacturer’s equipment, and maintains that the agency did not meaningfully consider the capabilities of other APC brands.

The VA maintains that lack of consistency in the usage of medical devices is a very common source of human error, and argues that the need to minimize medical errors and enhance patient safety provides a reasonable (and compelling) justification for purchasing the same brand of APCs that is currently used by the VAMC’s medical staff. The VA states that the agency does not dispute that other manufacturers can meet its need for APCs generally, but asserts that only PROAIM can meet the VAMC’s legitimate need for APCs that are identical in function and user interfaces to its current inventory of ERBE brand APCs.

While CICA requires agencies to obtain full and open competition in its procurements through the use of competitive procedures, CICA permits an exception to use other than competitive procedures where there is only one responsible source able to meet the agency’s requirement. 41 U.S.C. §§ 3304(a)(1), 3306(a)(1) As a general matter, when an agency uses noncompetitive procedures, it is required to execute a written J&A with sufficient facts and rationale to support the use of the cited authority. 41 U.S.C. § 3304(e); FAR §§ 6.302-1, 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. Research Analysis & Maint., Inc., B-296206, B-296206.2, July 12, 2005, 2005 CPD ¶ 182 at 4. The adequacy of the agency’s justification is ascertained through examining whether the agency’s explanation is reasonable, that is, whether it can withstand logical scrutiny. Columbia Imaging, Inc., B‑286772.2, B‑287363, Apr. 13, 2001, 2001 CPD ¶ 78 at 2-3. 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 ¶ 98 at 6.

In our view, the VA’s rationale for standardizing medical equipment, to reduce medical errors and enhance patient safety, sets forth a reasonable basis for procuring APCs on a brand name basis under the circumstances here. The determination of the government’s needs and the best method of accommodating them is primarily the responsibility of the procuring agency, since its contracting officials are most familiar with the conditions under which supplies, equipment, and services have been employed in the past and will be utilized in the future. Columbia Imaging, Inc., supra, at 2. Where, as here, a requirement relates to human safety concerns, the agency has the discretion to set its minimum needs so as to achieve not just reasonable results, but the highest possible reliability and effectiveness. McKesson Automation Sys., Inc., B-290969.2, B-290969.3, Jan. 14, 2003, 2003 CPD ¶ 24 at 8.

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. Brinkman Instruments, Inc., B-309946, B-309946.2, Oct. 15, 2007, 2007 CPD ¶ 188 at 2-3 (agency’s proposed award of a sole-source contract for autotitrators to be used in nuclear submarines is unobjectionable where the agency reasonably determined that it needed to acquire the same autotitrator previously fielded on other nuclear submarines for purposes of standardization and safety across the submarine fleet); Advanced Med. Sys., Inc., B‑259010, Jan. 17, 1995, 1995 WL 29832 at 1-2 (agency need to standardize fetal monitors in order to maximize patient care was reasonable).

In response to the protest, the agency has provided a medical article--sponsored by the Agency for Healthcare Research and Quality, the Department of the Army, and the National Aeronautics and Space Administration--that asserts that medical device use errors are a common source of patient injury and death, and that there is a clear link between usability problems and user error. See Evaluating & Predicting Patient Safety for Medical Devices with Integral Information Technology, supra, at 324. The article, which is based on a comparison of several infusion pumps from two different manufacturers, focuses on identifying usability problems that might be potential triggers for medical errors. Id. at 323, 329. The authors of the article specifically address the impact of device features and user interfaces (such as auditory cues and warnings, display messages, key information, physical controls, specific wording and labels, and sequence of tasks) on the incidence of human errors. See id. at 331-32. The authors argue that medical device users should not have to wonder whether different words, situations, or actions mean the same thing across different devices. See id. at 327 (internal citations omitted).

VHSS does not substantively refute the article’s findings, but complains that the article is not identified anywhere in the contemporaneous record and was only provided by the VA during the course of this protest. Our Office generally considers post-protest explanations, such as the one presented here, where the explanations merely provide a detailed rationale for contemporaneous conclusions and fill in previously unrecorded details, so long as the explanations are credible and consistent with the contemporaneous record. See TaxSlayer LLC, B‑411101, May 8, 2015, 2015, CPD ¶ 156 at 8; Vinculum Solutions, Inc.--Recon., B‑408337.3, Dec. 3, 2013, 2013 CPD ¶ 274 at 3 n.2.

Notwithstanding the protester’s objections, we find no basis to disregard the VA’s reliance on this article, which affirms the agency’s rationale for using identical equipment for the same clinical use and is entirely consistent with the agency’s contemporaneous concerns in that regard. The record shows that the VAMC was concerned that its medical staff should not have to transition among different APCs. For example, the VAMC was concerned that its medical providers should not have to stop (while performing an endoscopy) to consider whether the APC’s knobs, switches, and other user interfaces operated differently than the equipment that the provider may have used the day before at another VAMC site. See AR, Tab B, NCO Contract Specialist-VAMC Admin. Officer Emails, July 13, 2015, at 1.

The VA’s market research supports such concerns. For example, with regard to operational differences between competitors’ models, the respondents variously answered: very different; all models would operate differently; no competing brand offers the same setting configuration or handpiece options; models are fundamentally different in both operation and patient outcomes; all brands operate differently; there is a significant difference in settings. See AR, Tab A, Market Research at 16, 18, 21, 29, 32-33, 35, 39. Indeed, USMI’s own CEO states that “APC manufacturers have unique, brand/model specific user interfaces and displays[.]” Protester’s Comments at 9, citing Exh. 12, Declaration of USMI CEO, at 2. Likewise, with regard to training, the respondents variously stated that training was required, recommended, included, and/or available for their specific models. AR, Tab A, Market Research at 12, 16, 18 (equipment requires some training with an in-service), 25, 29.

On this record, we find that the procurement process here was reasonable and reflects the contracting staff’s diligence in seeking to promote competition. The record shows that in response to the name brand purchase request, the NCO issued a sources sought notice, conducted broad market research, questioned the VAMC’s request for brand name equipment and presented the VAMC with alternative sources, sought further information from industry regarding device operability, and prepared a detailed market research report of the agency’s findings  (Veterans Healthcare Supply Solutions, Inc. B-411904: Nov 12, 2015)  (pdf)


In its report responding to the protest, the agency provided the protester and our Office with a copy of the J&A signed by the contracting officer on June 8, with the cemetery s estimate documentation attached. The J&A document, in a section providing a description of the supplies, refers to the procurement as a sole source acquisition. AR, Exh. 5. Further, in response to an inquiry by this office seeking clarification of the contracting officer's role in preparing the June 4 requisition request, the contracting officer again referred to the award to Green Wave as a sole source award, notwithstanding that the signed statement also indicated that the contracting officer solicited four vendors in connection with the requirement. The protester contends that the use of the phrase sole source in the J&A, and by the contracting officer in a clarification of the cemetery's estimate documentation, proves that the agency in fact limited the competition to Green Wave for a sole-source award without obtaining quotations from other vendors. We find that Phoenix s challenge provides an insufficient basis to sustain its protest.

As a general matter, an agency may use other than competitive procedures to procure goods or services where its needs are of such an usual 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 proposals. 41 U.S.C. 253(c)(2). When citing an unusual and compelling urgency, the agency is required to request offers from as many potential sources as is practical under the circumstances. 41 U.S.C. 253(e); FAR 6.302-2(c). An agency using the urgency exception may restrict competition to the firms it reasonably believes can perform the work in the available time. RSO, Inc., B-250785.2, B-250785.3, Feb. 24, 1993, 93-1 CPD 489. We will not object to the agency s determination to limit the competition based on an unusual and compelling urgency unless the agency s determination lacks a reasonable basis. Jay Dee Militarywear, Inc., B‑243437, July 31, 1991, 91-2 CPD 105, recon. denied, B-243437.2, Oct. 24, 1991, 91-2 CPD 366.

Our review of the record supports the reasonableness of the agency s determination, consistent with FAR 6.302-2(c), that urgent and compelling circumstances existed in terms of the costly deterioration of the turf at Florida National Cemetery and that the agency acted reasonably by limiting competition to four vendors that submitted quotes in response to the previously cancelled April 10 solicitation. To the extent the protester questions whether the agency in fact sought competition for the limited procurement, in its legal memorandum in support of the agency report, and in two signed statements by the contracting officer, the agency reports that on June 8 four vendors were solicited and provided verbal quotations. While the record also indicates that the agency has referred to the acquisition as a sole source, i.e., in the initial award announcement, the J&A and the contracting officer s clarification statement, we view such references to be administrative irregularities in light of the fact that the agency has clearly represented to our Office that a limited competition was held.

Moreover, the protester provides no basis for our Office to conclude that the agency acted unreasonably by limiting the competition to four vendors which had previously submitted quotes in response to the cancelled solicitation. Based on their prior quotes, the agency was able to conclude that the vendors had a demonstrated interest and capability to meet the limited immediate requirements of this urgent buy at reasonable prices. In contrast, since Phoenix did not submit a quote in response to the April 10 solicitation, the agency was unsure as to Phoenix s capability. Accordingly, Phoenix was not included in the limited competition. Id. In our view, the agency s actions reasonably satisfied the requirement of FAR 6.302-2(c) to solicit as many potential sources as practical under the circumstances to meet its urgent requirements.  (Phoenix Environmental Design, Inc. B-411678: Sep 28, 2015)  (pdf)


The Competition in Contracting Act (CICA) 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. See 10 U.S.C. § 2304(c)(2); Federal Acquisition Regulation (FAR) § 6.302-2. 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. § 2304(e); FAR § 6.302-2(c)(2). As our Office has held, an agency nonetheless may limit a procurement to the only firm it reasonably believes can properly perform the work in the time available. Camden Shipping Corp., B‑406171, B‑406323, Feb. 27, 2012, 2012 CPD ¶ 76 at 6; McGregor Mfg. Corp., B-285341, Aug. 18, 2000, 2000 CPD ¶ 151 at 6.

When using noncompetitive procedures pursuant to 10 U.S.C. § 2304(c)(2), such as here, agencies are required to execute a written J&A with sufficient facts and rationale to support the use of the cited authority. 10 U.S.C. §§ 2304(f)(1)(A), (B); FAR §§ 6.302-2(c)(1), (d)(3), 6.303, 6.304. Noncompetitive procedures may not properly be used where the agency created the urgent need through a lack of advance planning. 10 U.S.C. § 2304(f)(4)(A); FAR § 6.301(c)(1); Worldwide Language Resources, Inc.; SOS Int’l Ltd., B-296984 et al., Nov. 14, 2005, 2005 CPD ¶ 206 at 12. While an agency may not justify a noncompetitive award on the basis of urgency where the agency’s requirements have become urgent as a result of a lack of advance planning, such planning need not be entirely error-free or successful. Pegasus Global Strategic Solutions, LLC, B‑400422.3, Mar. 24, 2009, 2009 CPD ¶ 73 at 9; Sprint Commc’ns Co., L.P., B‑262003.2, Jan. 25, 1996, 96-1 CPD ¶ 24 at 8-9. Our review of an agency’s decision to conduct a noncompetitive 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. Research Analysis & Maint., Inc., B-296206, B-296206.2, July 12, 2005, 2005 CPD ¶ 182 at 4; Global Solutions Network, Inc., B‑290107, June 11, 2002, 2002 CPD ¶ 98 at 6.  (eAlliant, LLC B-407332.4, B-407332.7: Dec 23, 2014)  (pdf)


Asiel’s primary contention is that the Air Force’s justifications for procuring mission essential food services at Barksdale and Dyess without obtaining competition under CICA is not sufficiently compelling to support use of the public interest exception to CICA’s full and open competition requirements. Protest at 2; 10 U.S.C. § 2304(c)(7). Asiel argues, “the public interest exception is limited to circumstances that are truly beneficial to a vital public interest, which is something much more than a potential savings of money.” Id. In attacking various aspects of the agency’s determination, Asiel argues that none of the rationales set forth by the Air Force in the agency’s determination support limiting the competition for these services to Aramark or Sodexo, the two contractors selected by the [Air Force Mission Essential Feeding Fund] AFMEFF in connection with the MOA, at the two installations in question. Protest at 3-5.

As a general matter, CICA provides that when conducting procurements for property and services, agencies are required to obtain full and open competition through the use of competitive procedures, in accordance with statute and the FAR. 10 U.S.C. § 2304(a)(1)(A). One exception to this requirement for competition is if the head of the agency determines that it is necessary in the public interest to use other than competitive procedures in any “particular procurement.” 10 U.S.C. § 2304(c)(7). The authorizing official must make a written determination and finding supporting use of the public interest exception that “set[s] forth enough facts and circumstances to clearly and convincingly justify the specific determination made.” FAR §§ 6.302-7(c)(1), 1.704; Sikorsky Aircraft Corp., B-403471, B-403471.3, Nov. 5, 2010, 2010 CPD ¶ 271 at 4. 10 U.S.C. § 2304(c)(7) also has a second requirement. The head of the agency must “[notify] the Congress in writing of [the] determination not less than 30 days before the award of the contract.” 10 U.S.C. § 2304(c)(7)(B). Generally, our review of a D&F issued by an agency in support of the public interest exception to full and open competition addresses whether the D&F provides, on its face, a clear and convincing justification that the restricted competition furthers the public interest identified. We consider a protester’s arguments that the D&F relies on facts that have no relation to the stated public interest, or that the D&F relies on materially inaccurate information. We will not, however, sustain a protest based on the protester’s disagreement with the conclusions set forth in the D&F. Sikorsky Aircraft Corp., supra, at 5.

As noted above, in response to our prior decision, the Air Force executed a D&F justifying its [memorandum of agreement] MOA with the AFMEFF to implement the [Food Transformation Initiative] FTI under the public interest exception to CICA’s competition requirements. In doing so, the agency continues to rely on 10 U.S.C. § 2492 as its authority for entering into the agreement with the AFMEFF. The Air Force’s actions in this regard rest on two fundamental errors. First, the Air Force relies on section 2492, which our Office previously considered and rejected. Second, the Air Force improperly invoked CICA’s public interest exception, which under 10 U.S.C. § 2304(c)(7) is applicable to procurements, not a MOA as the Air Force is using here. The MOA is not a procurement vehicle to which CICA’s public interest exception would apply. An essential element of our prior decision was that absent authority under section 2492, the Air Force was required to procure mission essential food services in accordance with CICA; we did not recommend that the agency use CICA to justify the MOA. Contrary to our prior recommendation, the Air Force has not followed CICA, which by its terms contemplates a procurement and the award of a contract. Rather, the Air Force seeks to justify its continued use of the [Nonappropriated Fund Instrumentality] NAFI MOA, which the agency readily admits is not a contract.

In essence, the agency now asks us to reverse our decision in the prior protest, which we decline to do. We have considered the agency’s arguments in support of its interpretation of section 2492, and, as set forth below, we remain convinced that the agency’s interpretation of this statutory authority is inconsistent with the letter and the spirit of the statute. Further, because use of a NAFI MOA is not an appropriate method for the Air Force to obtain mission essential food services from the AFMEFF and because the Air Force cannot rely on this non-procurement agreement as the basis to invoke the public interest exception under CICA, the agency failed to properly implement our recommendation.

Section 2492 provides authority for agencies and instrumentalities that support the operation of the MWR system to enter into contracts and other agreements with other governmental entities that are beneficial to the efficient management and operation of that MWR system. Our review of the agreement leads us to conclude that it is not for the benefit of the [Morale, Welfare, and Recreation] MWR system, as the statute contemplates. Instead, the MOA between the Air Force and the AFMEFF provides for transferring appropriated funds to the AFMEFF to implement the Air Force’s mission essential feeding requirement. AR, Exh. 125. Feeding that is essential to the Air Force’s mission, by definition, is not part of the MWR system. Section 2492, by its terms, authorizes transactions that are beneficial to the MWR system, and is inapplicable to the transaction contemplated here.

The inapplicability of section 2492 to this transaction is even more apparent given the fact that under the NAFI MOA, the only required services are the mission essential feeding requirements. The non-essential feeding requirement, traditionally part of the MWR system, is only included as an option; an option which, according to the Air Force, will not be exercised at either Barksdale or Dyess. Tr. at 154-56, 206. Consequently, according to the Air Force, the non-essential food services at the two installations at issue in this protest will not be included in this transaction.

Rehashing an argument previously rejected by our Office, the agency contends that section 2492 authorizes the transaction contemplated by the NAFI MOA because the MWR system benefits from the agreement. Specifically, the agency asserts the benefits to the MWR system provided by FTI include: compensation to the AFMEFF of 1.5% of the amount of appropriated funds transferred under the MOA; integration of the mission essential feeding function and the non-essential feeding function, which allows for strategic planning, leading to greater efficiencies and cost savings; and an expanded customer base for the MWR system due to the expansion of essential mess card use to non-essential food establishments. Agency’s Post-Hearing Comments at 13-14. These arguments are essentially the same as those advanced previously. We continue to find these arguments unpersuasive.

In our prior decision we explained, “[w]hile section 2492 authorizes a NAFI such as the AFMEFF to enter into an agreement with the Air Force to provide services beneficial to the efficient management and operation of the MWR system, there is nothing to suggest that it authorizes an agreement between the NAFI and the Air Force for the provision of mission essential services on the theory that consolidating such activities under the MWR system may provide a benefit to the MWR system.” Asiel Enterprises, Inc., supra, at 5.

NAFIs under the MWR system have a historical basis and exist to help foster the morale and welfare needs of military personnel and their dependents. There is nothing to indicate that NAFIs were established to perform the primary mission needs of military departments. DoD recognizes the role of NAFIs as integral to MWR programs, which are designed to build healthy families and communities, to provide support services commonly furnished by other employers and governments, to encourage positive individual values, to aid in recruitment and retention of personnel, and to provide generally for the quality of life and well-being of service members and their families. DoDI 1015.10, July 6, 2009 at 2. Within DoD, food and beverage programs (the optional MWR component under FTI), are highly desirable programs that contribute to building a sense of community and enjoyment. Id. at Encl. 5. These activities are expected to be revenue generating and receive limited appropriated fund support. Id. The MWR non-essential food services function, as a community support program, serves as an adjunct to supplement the historical mission requirement to provide service members with subsistence, currently codified at 37 U.S.C. § 402 (basic allowance for subsistence) and 10 U.S.C. § 9561 (Air Force ration entitlement).

In the past, there have been concerns about the provision of appropriated funds to MWR programs. This has led to a general rule that appropriated funds are not available to MWR programs, except as authorized by Congress. See e.g., 27 Comp. Gen. 679 (1948) (Navy appropriations not available to hire full-time or part-time employees for recreational programs for civilian employees of Navy). Currently, however, there are instances where appropriated funds are made available to DoD MWR programs, particularly to mission sustaining programs. DoDI 1015.10 at Encl. 5. Specifically, 10 U.S.C. § 2241 provides statutory authorization for DoD to use operations and maintenance funds to support MWR programs. Further, 10 U.S.C. § 2491 authorizes DoD to treat these appropriated funds as nonappropriated funds when made available for MWR programs, under regulations prescribed by the agency. The unifying thread between these two statutes is that they are both part of a statutory scheme for agencies to utilize appropriated funds to support MWR programs. Neither of these statutory authorities, however, are available to the Air Force here because mission essential feeding is not a MWR program, and is not part of the MWR system.

As we explained in our prior decision, the Air Force’s interpretation of section 2492 would constitute a radical departure from the general understanding that MWR NAFIs engage in MWR-related activities, and it is with consideration of the above historical, statutory, and regulatory framework that we reach our conclusion regarding the scope of the statute. Because it is clear that the transaction established under the NAFI MOA is for the primary benefit of the Air Force in its performance of its essential mission (i.e., mission essential feeding), we do not view incidental benefits provided to the MWR system to authorize use of section 2492.

As we previously held, without authority under section 2492, the only way for the Air Force to transfer appropriated funds to the NAFI and then use the NAFI to assist the Air Force with its essential mission requirements, would have been through a competitive procurement. Asiel Enterprises, Inc., supra, at 6. Yet, despite our prior decision, the Air Force continues to utilize a NAFI MOA as the basis for implementing FTI.

In what appears to have been an effort to comply with our recommendation, the Air Force chose to justify its MOA under CICA’s public interest exception. However, this approach constitutes a misapplication of CICA’s public interest exception. The Air Force asserts that the MOA is not a contract. We note that a MOA is not a procurement method recognized by statute or under the FAR. Therefore, CICA’s competition requirements would not apply here as CICA only applies to procurements conducted by agencies. 10 U.S.C. § 2303. Consequently, the Secretary’s D&F cannot rationally justify use of the NAFI MOA for the simple reason that the D&F under CICA’s statutory exception to competition is only applicable to procurements, which the NAFI MOA is not.

To the extent the agency argues that it relied on our prior decision, its reliance is misplaced. Our prior decision was clear that obtaining mission essential food services at Barksdale and Dyess was only possible through a procurement, either utilizing competitive procedures, or by justifying a contract award on a sole-source basis. Consequently, we view the agency’s continued reliance on section 2492 and use of a NAFI MOA to implement FTI as sufficient grounds to sustain this protest.

Finally, in defending this protest, the record submitted by the Air Force largely focused on the implementation of FTI and its numerous benefits; not on the challenged contract awards at Barksdale and Dyess. For the record, we do not take issue with the Air Force’s implementation of FTI, or the stated benefits of the program set forth in the D&F, and explained during this protest. Indeed, the record supports the agency’s use of many of the performance-based contracting concepts underlying FTI, including the benefits and efficiencies identified by the agency. Our decision should not be read to mean that we think the Air Force is required to implement FTI through a competitive contract award to a NAFI. For instance, the agency could also retain responsibility for FTI, while contracting for the mission essential food services requirement. However, to the extent the Air Force has used the AFMEFF to perform the function of awarding contracts for the provision of mission essential food services at Barksdale and Dyess, the awards need to be made consistent with CICA and FAR.  (Asiel Enterprises, Inc., B-408315.2, Sep 5, 2013)  (pdf) 


In its protest, CSS asserts that the Aegir seal meets the Navy’s requirements and that the brand name restriction to Wartsila seals is therefore unjustified. In this regard, CSS points to the tests conducted on the Aegir seal in 2002 and 2009, in which, it asserts, the Aegir seal was found to be equivalent to the Wartsila seal. CSS also asserts that the Aegir seal is in use on commercial ships, including ships with the specific Wartsila 4AS system used on the T-AO oilers, as well as on four Navy ships.

The Competition in Contracting Act of 1984 requires full and open competition in government procurements except where otherwise specifically allowed by the statute. 10 U.S.C. § 2304(a)(1)(A) (2006). One exception to this competition requirement is where the agency’s requirements can be performed by only one or a limited number of sources. 10 U.S.C. § 2304(c)(1); Federal Acquisition Regulation (FAR) § 6.302-1. Where, as here, an agency uses non-competitive procedures it is required to execute a written J&A with sufficient facts and rationale to support the use of the cited authority. See 10 U.S.C. § 2304(f)(1); FAR § 6.302-1; Signals & Sys., Inc., B-288107, Sept. 21, 2001, 2001 CPD ¶ 168 at 9. Our review of the agency’s decision to conduct a procurement under the exceptions to full and open competition focuses on the adequacy of the rationale and conclusions set forth in the J&A. Pegasus Global Strategic Solutions, LLC, B-400422.3, Mar. 24, 2009, 2009 CPD ¶ 73 at 7. When the J&A sets forth reasonable justifications for the agency’s actions, we will not object to award on the basis of other than full and open competition. Turbo Mechanical, Inc., B-231807, Sept. 29, 1988, 88-2 CPD ¶ 299 at 3-4.

Here, we conclude that CSS has not shown that the agency’s brand name justification was unreasonable. The record indicates that the seals in question are critical ship equipment, the failure of which could have serious consequences for deployed military forces. J&A at 2. 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. Eclypse Int’l Corp., B-274507, Nov. 12, 1996, 96-2 CPD ¶ 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 ¶ 105 at 5.

Further, the record also indicates that the Navy did not acquire technical data rights or rights to manufacturing drawings and processes, specifications, and other technical data pertaining to the Wartsila seals. As a result, the agency determined that a lack of manufacturing and technical information made it impossible for the Navy to determine whether non-OEM components and replacement parts are equivalent to the OEM components, and whether non-OEM components will compromise the required reliability and effectiveness of the stern tube seal system as a whole. AR at 10; J&A at 4. In this regard, we have recognized that a proper basis for a sole-source award exists where adequate data is not available to the agency to conduct a competitive procurement. Aerospace Eng’g and Support, Inc., B-258546, Jan. 13, 1995, 95-1 CPD ¶ 18 at 4 (sole source justified where OEM, not government, has right to engineering data for aircraft part); Masbe Corp. Ltd., B-260253.2, May 22, 1995, 95-1 CPD ¶ 253 at 3-4 (sole source for aircraft engine part justified where adequate data is not available to permit conducting a competitive procurement).

Here, CSS has not shown to be unreasonable the agency determination that adequate data was not available to conduct a competitive procurement. While CSS refers to the 2002 tests on an Aegir seal as support for its claim of equivalence to the Wartsila seal here, CSS has not convincingly rebutted the agency’s determination that the earlier test was not relevant because it concerned an Aegir seal with a different formulation than the seal proposed here. See Comments at 8. Nor has the protester shown to be unreasonable the Navy’s determination, based on the results of the agency’s 2010 study, that the 2009 test referenced by CSS revealed differences in characteristics between the seals which resulted in superior operational performance on the part of the Wartsila seal. See Comparison at 1.

Finally, while it appears that Aegir seals have been installed in Wartsila tube seal systems, CSS has not shown the Navy to be unreasonable in concluding that significant differences in characteristics and usage bar its use here. As an initial matter, the four fleet ocean tugs cited by CSS as examples of Aegir seal installations are significantly smaller than the T-AO class oilers here, with the tugs having displacements of only 2,260 tons versus the 40,700 ton displacement of the oilers. U.S. Navy Fact File, Fleet Ocean Tugs, T-ATF; Fleet Replenishment Oilers, T-AO. The Navy discounts the significance of these installations as evidence of equivalence not only on the basis of a significant difference in size, but also because the tugs have a different, less critical mission than the oilers and, in any case, the tugs use a different stern tube seal system. AR at 8-9. As for the list provided by CSS of Aegir seals installed in Wartsila tube seal systems on commercial ships, the agency notes that none of the referenced seals appears to be the same size as the seals required for the Wartsila 4AS stern tube sealing system installed on the T-AO class oilers here. Supp. AR at 3-4. Furthermore, the agency emphasizes that CSS has furnished no operational data showing that the maintenance and replacement requirements, usage, and reliability of the Aegir seals installed in Wartsila tube seal systems on commercial ships match that expected and required with respect to the T-AO class oilers. Id. at 4. In the absence of an adequate showing that the expected reliability of the Aegir seals will match that of the OEM seals, we see no basis to question the brand name procurement here.

In sum, CSS has not shown to be unreasonable the Navy’s conclusion that it lacked adequate data to conduct a competitive procurement, and the agency’s resulting determination to undertake the brand name procurement of OEM seals, especially in light of the Navy’s claim that a failure of this equipment could have serious consequences for deployed military forces.  (Coastal Seal Services, LLC, B-406219, Mar 12, 2012)  (pdf)


Sole-Source Bridge Contract

Camden argues that the award of the second bridge contract to Seaward was improper. Protest (B-406171) at 1, 9. Camden asserts here that it is capable of performing the bridge contract, and that the agency “exaggerates” the time required to transition to a new “ship manager,” such as Camden. Protester’s Comments (B-406171) at 2, 18. Camden further argues that the urgency of the requirement that resulted in the sole-source award of the bridge contract to Seaward was the result of a lack of advance procurement planning.

The Competition in Contracting Act (CICA), 10 U.S.C. § 2304(c)(2) (2009), 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. Although 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. § 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 ¶ 151 at 6.

When using noncompetitive procedures pursuant to 10 U.S.C. § 2304(c)(2), such as here, agencies are required to execute a written J&A with sufficient facts and rationale to support the use of the cited authority. See 10 U.S.C. § 2304(f)(1)(A), (B); FAR §§ 6.302-1(d)(1), 6.302-2(c), 6.303, 6.304. Our review of an agency’s decision to conduct a noncompetitive 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. Research Analysis & Maint., Inc., B-296206, B-296206.2, July 12, 2005, 2005 CPD ¶ 182 at 4; Global Solutions Network, Inc., B-290107, June 11, 2002, 2002 CPD ¶ 98 at 6.

The J&A for this bridge contract explains that the “inability to operate the EPA vessel would prevent the agency from meeting the mission critical needs that the OSV BOLD provides,” including “two statutory mandates” stemming from the “Clean Water Act” and “The Marine Protection, Research, and Sanctuaries Act.” AR (B-406171), Tab 23, J&A (Oct. 21, 2011), at 2. The J&A adds here that the OSV BOLD supports “numerous other initiatives and agency priorities.” Id.

The J&A further explains that after the cancellation of RFP 10-2501, “there was not enough time to conduct a competition for a new contract, allow for transit time for the ship, conduct ship turnover requirements (which take a minimum of 45 days, with potentially more time needed), and allow for the new contractor to compile their crew.” Id. The J&A continues by noting that “[e]ven sole sourcing a contract to another vendor would mean an interruption of services, based on ship turnover and acquisition time.” Id. The J&A concludes that under the circumstances here, Seaward, the incumbent contractor, “is the only source that can provide the required services without interruption,” and notes that the agency is currently in the “acquisition planning stage” for a new RFP to be issued on an unrestricted basis. Id. at 2-3.

Based on our review of the record, we find no basis to question the sole-source award to Seaward. We first note that there is no basis on which to question the agency’s position that there is a critical and immediate need for the OSV BOLD to continue operations uninterrupted. Nor do we find the agency’s view that only Seaward, who is currently operating and maintaining the OSV BOLD, would be able to ensure the uninterrupted operation of the OSV BOLD. In this regard, we have no basis on which to question the agency’s explanation regarding what is required to transition the services to a new contractor, such as transiting the ship to port, compiling crew, and turning over the operations and maintenance services to the new contractor. Although the protester asserts that through its participation in the competition under RFP 10-2501 it is “positioned and able to assume the operations and maintenance management of the OSV [BOLD], essentially on a 30 day notice,” we cannot find the agency’s view to the contrary to be unreasonable. Protester’s Comments (B-406171) at 16.

Nor do we agree with Camden that the urgency of the requirement that resulted in the sole-source award of the second bridge contract to Seaward was the result of a lack of advance procurement planning. As described above and as pointed out by the agency, the record evidences that the agency has consistently tried to use the competitive process to award a contract for the services required here. In this regard, we find no merit in the protester’s assertion that the delays attributable to the successful size status challenges to Seaward (the incumbent contractor and awardee under RFP 10-2501), were the result of a lack of advance planning. Nor do we find merit in the protester’s view that a lack of advance planning resulted in the delay associated with Ocean Service’s successful protest to our Office. Finally, we cannot find that the delays associated with the successive rounds of discussions in order to allow the small business offerors opportunities to correct errors in their proposed pricing, or to propose pricing that the agency could determine fair and reasonable and permit an award under RFP 10-2501, to be the result of a lack of advance planning. In any case, while we find that the record here evidences few or no errors attributable to the agency in the conduct of this acquisition, we note that our Office has long 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., B-401661, B-401661.2, Oct. 27, 2009, 2009 CPD ¶ 207 at 6.  (Camden Shipping Corporation, B-406171,B-406323, Feb 27, 2012)  (pdf)


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)


Missouri Machinery argues that the Coast Guard's requirement that the vendor here must be an authorized Gould repair facility unduly restricts competition. The record shows that the Coast Guard limited competition to authorized repair facilities because it lacks the data necessary to assure that non-authorized repair facilities adequately perform the work, assumes that only authorized repair facilities will have access to OEM parts, and recognizes that only work completed by an OEM authorized repair facility will be warranted by Gould.

The Competition in Contracting Act of 1984 requires full and open competition in government procurements except where otherwise specifically allowed by the statute. 10 U.S.C. sect. 2304(a)(1)(A) (2006). One exception to this competition requirement is where the agency's requirements can be performed by only one or a limited number of sources. 10 U.S.C. sect. 2304(c)(1); FAR sect. 6.302-1. However, where, as here, an agency uses non-competitive procedures under 10 U.S.C. sect. 2304(c), it is required to execute a written J&A with sufficient facts and rationale to support the use of the cited authority. 10 U.S.C. sect. 2304(f)(1); FAR sect. 6.302-1; Signals & Sys, Inc., B-288107, Sept. 21, 2001, 2001 CPD para. 168 at 9. Our review of the agency's decision to conduct a procurement under the exceptions to full and open competition focuses on the adequacy of the rationale and conclusions set forth in the J&A. Pegasus Global Strategic Solutions, LLC, B-400422.3, Mar. 24, 2009, 2009 CPD para. 73 at 7.

Here, the record does not support the Coast Guard's decision to limit this competition to Gould authorized repair facilities.

Although the Coast Guard contends that it lacks the data to judge whether non‑authorized facilities, such as Missouri Machinery, can adequately perform the overhaul and repair work, the J&A also concedes that Missouri Machinery has in the past successfully performed overhaul and repair work for the agency on these Gould pumps. See AR, Tab 6, J&A, at 4. In this regard, Missouri Machinery points to numerous examples, where the firm has successfully repaired these pumps for the Coast Guard since 2003. See Protest at 1; Missouri Machinery Answers to GAO Questions, Sept. 30, 2010, at 1-4. Missouri Machinery states that these pumps, which have been on the market for many years, are not complex, high‑technology items that require proprietary data to perform repairs and overhaul. Comments at 2.

While the agency does not deny that Missouri Machinery has successfully performed past contracts to repair and overhaul these pumps, it suggests that Missouri Machinery will need more time to repair and overhaul pumps than would an authorized repair facility (allegedly 4 to 5 times the number of hours according to the contracting officer and 7 times according to the COTR). See CO's Statement at 4; COTR's Statement, Oct. 1, 2010, at 3. Even if this is true, the Coast Guard does not explain--and neither the RFQ nor the J&A indicate--any need for urgency. In this regard, the RFQ provides for a long time frame for repair and overhaul, and further states that the repaired pumps will be warehoused for as long as 2 years. See, e.g., RFQ at 12, 17. In addition, while a longer repair time may well cause Missouri Machinery's quote to be less likely to prevail in a competition--for example, by increasing its labor costs--this issue does not provide a basis for excluding the company before the competition is underway.

The Coast Guard also argues that it must limit this competition because it assumes that only a Gould authorized repair facility will be able to provide the required OEM parts. CO's Statement, at 3. Missouri Machinery does not dispute that OEM parts are needed, but argues that it is untrue that only authorized repair facilities can obtain them. In fact, the protester states that it used OEM parts in its past contracts for these pumps. Missouri Machinery Answers to GAO Questions, Sept. 30, 2010, at 5. Moreover, during the course of this protest, our Office asked the Coast Guard for confirmation of Gould's position vis-à-vis the OEM parts. In response, Gould stated that its authorized repair facilities will willingly sell replacement OEM parts to non‑authorized facilities. See COTR's Email to Agency Counsel, Sept. 29, 2010, at 1. Thus, the record shows that the assumptions underlying this reason for limiting competition are unfounded.

Finally, the Coast Guard argues that only work completed at a Gould authorized repair facility can receive a warranty from Gould.[4] Legal Memorandum, at 3. In this regard, we note that the RFQ requires vendors to provide a standard commercial warranty at no additional cost. See RFQ at 83. Missouri Machinery states that it warrants its service work in accordance with the warranty terms in the RFQ, and in the same way that a Gould authorized repair facility warrants this work. Missouri Machinery Response, Oct. 8, 2010. We see nothing about the warranty requirements here that justifies restricting this competition to Gould authorized repair facilities.

In short, none of the reasons set forth by the Coast Guard in the J&A justify the agency's decision to limit this competition to Gould authorized repair facilities. Therefore, we find that the agency's restriction of the competition to OEM authorized repair facilities is not reasonable, and we sustain Missouri Machinery's protest on this basis.  (Missouri Machinery & Engineering Company, B-403561, November 18, 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)

---------------------------------------

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)

Comptroller General - Listing of Decisions

For the Government For the Protester
EBSCO Industries, Inc. B-414150: Mar 2, 2017 Asiel Enterprises, Inc., B-408315.2, Sep 5, 2013  (pdf) 
Veterans Healthcare Supply Solutions, Inc. B-411904: Nov 12, 2015  (pdf) Missouri Machinery & Engineering Company, B-403561, November 18, 2010  (pdf)
Phoenix Environmental Design, Inc. B-411678: Sep 28, 2015  (pdf) Bausch & Lomb, Inc., B-298444, September 21, 2006 (pdf)
eAlliant, LLC B-407332.4, B-407332.7: Dec 23, 2014  (pdf) 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)
Coastal Seal Services, LLC, B-406219, Mar 12, 2012  (pdf) Signals & Systems, Incorporated, B-288107, September 21, 2001  (Exception 2)
Camden Shipping Corporation, B-406171,B-406323, Feb 27, 2012  (pdf) Lockheed Martin Systems Integration--Owego, B-287190.2; B-287190.3, May 25, 2001  (Exception 1)
Outdoor Venture Corporation, B-405423, October 25, 2011  (pdf) DRS Precision Echo, Inc., B-284080; B-284080.2, February 14, 2000
STG, Inc., B-405082; B-405082.2, July 27, 2011  (pdf)  
Argon ST, Inc., B-402908; B-402908.2, August 11, 2010  (pdf)  
Ridgeline Industries, Inc., B-402105, January 7, 2010 (pdf)  
Chicago Dryer Company, B-401888, December 8, 2009 (pdf)  
Standard Bent Glass Corporation, B-401212, June 23, 2009 (pdf)  
Kuwait Leaders General Trading & Contracting Company, B-401015.2, May 21, 2009  (pdf)  
Raytheon Company-Integrated Defense Systems, B-400610; B-400618; B-400619, December 22, 2008 (pdf)  
T-L-C Systems, B-400369, October 23, 2008  (pdf)  
Eisenhower Real Estate Holdings, LLC, B-310941, March 18, 2008 (pdf)  
Brinkmann Instruments, Inc., B-309946; B-309946.2, October 15, 2007 (pdf)  
AshBritt Inc., B-297889; B-297889.2, March 20, 2006 (pdf)  
Meggitt Safety Systems, Inc., B-297378; B-297378.2, January 12, 2006 (pdf)  
Chapman Law Firm Company, LPA, B-296847, September 28, 2005 (pdf)  
Total Industrial & Packaging Corporation, B-295434, February 22, 2005 (pdf)  
McKesson Automation Systems, Inc., B-290969.2; B-290969.3, January 14, 2003  (txt version)  
Global Solutions Network, Inc., B-290107, June 11, 2002 (pdf)    
Bannum, Inc., B-289707, March 14, 2002; (pdf); (Exception 2)  
McGregor Manufacturing Corporation, B-285341, August 18, 2000  (Exception 2)  
Parmatic Filter Corporation, B-283645; B-283645.2, December 20, 1999  (Exception 2)  
Diversified Technology & Services of Virginia, Inc., B-282497, July 19, 1999  (Exception 2)  

U. S. Court of Federal Claims - Key Excerpts

On March 28, 2014, the Air Force issued RFP No. FA2523-12-R-0006 to obtain operation, support, and maintenance services at Thule Air Base. The services include “supply and purchasing, fuels management, airfield and airport operations, air traffic and transportation management, water port operations, civil engineering operations, vehicle operations and maintenance, fire protection, environmental management, health services, food services, recreation and community services, and non-sensitive communication management.” AR 88- 5143. The statutory authority for the Solicitation included 10 U.S.C. § 2304(c)(4), limiting competition because of an international agreement,12 as implemented by provisions of the Federal Acquisition Regulations (“FAR”). See 48 C.F.R. [“FAR”] § 6.302-4.

(section deleted)

The eligibility criteria remained the same as those requirements recited in the draft solicitation:

L-3. OFFEROR ELIGIBILITY Participation in this acquisition is limited to Danish/Greenlandic enterprises. Enterprises must possess a corporation certificate (Selskabscertifikat m. oblat) verifying the company is registered as a business in the Kingdom of Denmark (Det Central Virksomhedsregister (CVR); Det Grønlandske Erhervsregister (GER); Skráseting Føroya (Skrás. Nr.)). NOTE: THE REGISTERED OFFICE OF THE ENTERPRISE SHALL BE IN THE KINGDOM OF DENMARK AND SHALL NOT BE REGISTERED AS A SUBSIDIARY OF FOREIGN COMPANY. Enterprises must produce a signed letter from an officer of a bank within the Kingdom of Denmark verifying the company conducts business with that institution. NOTE: ELECTRONIC FUNDS TRANSFER OF INVOICE PAYMENTS WILL ONLY BE MADE TO A BANK IN THE KINGDOM OF DENMARK. AR 88-5252 to 5253 (emphasis in original).

(sections deleted)

3. Arbitrary and capricious nature of the agency’s decision.

“It is blackletter law that a procuring agency may only accept an offer that conforms to the material terms of the solicitation.” Furniture by Thurston v. United States, 103 Fed. Cl. 505, 518 (2012); see also E.W. Bliss Co. v. United States, 77 F.3d 445, 448 (Fed. Cir. 1996) (“[A] proposal that fails to conform to the material terms and conditions of the solicitation should be considered unacceptable and a contract award based on such an unacceptable proposal violates the procurement statutes and regulations.”) (internal citations and quotation marks omitted). A provision in a solicitation is material “if failure to comply with it would have a non-negligible effect on the price, quantity, quality, or delivery of the supply or service being procured.” Furniture by Thurston, 103 Fed. Cl. at 518 (citing USfalcon, Inc. v. United States, 92 Fed. Cl. 436, 457 (2010) (in turn citing Centech Grp., 554 F.3d at 1038)). As previously discussed, a material term in the RFP required the awardee to be a genuine Danish or Greenlandic enterprise, and to that effect, prohibited foreign subsidiaries from competition. The Air Force awarded the Thule Contract to a company that is incorporated as a Danish entity, but one that undeniably is a subsidiary of a United States (foreign) company. See supra, at 15, 18; see also Exelis Services’ Cross-Mot. at 22 (acknowledging that “at the time of its registration, Exelis Services was a subsidiary of [Vectrus] Systems, an American corporation”). On these facts, the Air Force contravened federal procurement law when making an award based upon a proposal that failed to satisfy the material source restriction that limited competition to Danish or Greenlandic entities and not subsidiaries of foreign companies. Further, the government has neither “‘provided a coherent and reasonable explanation of its exercise of discretion’” in making the award to a Danish subsidiary of a non-Danish company, Impresa Construzioni, 238 F.3d at 1333 (quoting Latecoere Int’l, Inc. v. United States Dep’t of Navy, 19 F.3d 1342, 1356 (11th Cir. 1994)), nor has it articulated a “‘rational connection between the facts found and the choice made,’” Motor Vehicle Mfrs., 463 U.S. at 43 (quoting Burlington Truck Lines v. United States, 371 U.S. 156, 168 (1962)).

In short, the agency’s decision to award Exelis Services the Thule Contract was arbitrary and capricious and not in accord with federal procurement law. See 5 U.S.C. § 706(2)(A).  (Per Aarsleff A/S v. U. S. and Exelis Services A/S, Nos. 15-215C, 15-272C, and 15-330C,  June 5, 2015) (pdf)


CIFR argues that the Government violated the Competition in Contracting Act (CICA) by failing to consider other sources besides AKS. CICA requires, with certain exceptions, that the head of an agency conducting a procurement of property or services “obtain full and open competition.” 10 U.S.C. § 2304(a); FAR 6.101. Subsection (c) of the statute provides for exceptions from the competition requirement, including when “the 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 bids or proposals.” § 2304(c)(2). However, even when an agency limits the number of sources because of unusual and compelling urgency, CICA requires the agency to “request offers from as many potential sources as is practicable under the circumstances.” § 2304(e); see also FAR 6.302-2(c)(2). CICA requires that any justification for a sole source award include “a determination that the anticipated cost will be fair and reasonable.” § 2304(f)(3)(C); see also FAR 6.303-2(b)(7).

In the present case, the Court does not question that the Government’s need for shelter systems in Afghanistan was of an unusual and compelling urgency. Yet, the Government’s contracting officials were aware that there were other providers of shelter systems. The J&A stated that “[o]ther sources can provide bare base systems.” (AR 268.) See also Tr. Oral Arg., June 20, 2011, at 33 (Defendant’s counsel acknowledged “it is certainly viable from this record that these contracting officers were well aware of other tent providers.”) By April 2, 2011, one day after becoming aware of the shelter system requirement, the Government already had solicited a price quotation from AKS. There is no explanation in the Administrative Record of why the Government could not have contacted other shelter system manufacturers just as quickly. A 26-day period between notice of the requirement and contract award would have afforded an ample opportunity to obtain price quotations from other sources. Although the Government states in the J&A that contracting officials contacted DLA, GSA, and ADS, the distributor of AKS products, there is no evidence in the Administrative Record actually showing that these contacts were made. Even more importantly, there is no evidence that the Government contacted CIFR, API, or any other shelter system supplier, to obtain competitive price quotations. The failure to take these actions violated the requirement in 10 U.S.C. § 2304(e) and FAR 6.302-2(c)(2) that the Government request offers from as many sources as practicable.

Further, the sole source award to AKS lacked justification because the Government’s contracting officials failed to determine that the contract price was fair and reasonable. Although Captain Dewhurst certified on April 22, 2011 in the J&A that the price was “fair and reasonable” and stated that “prices for this equipment are known from public sources through current price lists, catalogs and advertisements,” (AR 268), TSgt Obermiller asked AKS’s Jimmy White on April 27, 2011 if AKS had a published price list for its products. (AR 273.) TSgt Obermiller did not request this information from AKS until after the price reasonableness already had been certified in the J&A and the contract award document had been sent to AKS for signature. The conclusion is inescapable that the Government had no real concern about the price it would pay to AKS, and simply was attempting to pad its file with supporting price data. The Government did not even request or review any price information available from other shelter system suppliers.

CIFR was prejudiced by the Government’s procurement errors. If given an opportunity, CIFR would have submitted a proposal for the shelter system procurement. CIFR asserts that it had the supplies on hand to provide sixteen bare base shelter systems. (Compl. Brooke Declaration ¶ 8.) In fact, the Government previously had awarded other shelter system contracts to CIFR on solicitations designated as “brand name or equal,” seeking AKS products or their equivalents. Id. ¶ 3, Ex. 2. CIFR also states that it could have provided the shelter systems at a lower price. Id. ¶¶ 6-7. The Court finds that, if the Government had complied with 10 U.S.C. § 2304(e) and FAR 6.302-2(c)(2), CIFR would have submitted a proposal for the shelter system procurement, and would have had a substantial chance of receiving the contract award.

D. Delay in Posting the J&A

CIFR also argues that the Government acted arbitrarily and capriciously by waiting until after contract performance to post the J&A on www.fedbizopps.gov to avoid a possible bid protest. Defendant’s counsel conceded at oral argument that if the contracting officials waited to post the J&A in order to evade review, it would be inappropriate:

THE COURT: Mr. Hoffman, would you agree with me that if there were any gamesmanship with the posting of the J&A even though it was less than 30 days, do you think that would be inappropriate?

MR. HOFFMAN: Your Honor, I think that if there was gamesmanship with the posting of the J&A and it was proven that it was to – that it was meant in order to ensure delivery and evade review, then, yes, I would think that that probably would fall under -- would be inappropriate.
(Tr. Oral Arg., June 20, 2011, at 45.)

The Court finds from the Administrative Record that the Government’s contracting officials intentionally waited until they knew the contract was almost fully performed before posting the J&A. On May 3, 2011, AKS’s logistics company, [ . . . ], provided LCDR Morris and TSgt Obermiller with flight shipping data, showing that most of the shelter systems would arrive in Afghanistan on May 5, 2011. (AR 329.) On May 4, 2011, the day of the J&A posting, [ . . . ] informed LCDR Morris and TSgt Obermiller that the trucks with the materials were on their way to the airport for flight build up. (AR 336.) LCDR Morris indicated that the delay until the day before the actual shipment was for the purpose of avoiding a bid protest. After API notified the Government that it would protest the procurement, LCDR Morris stated in an e-mail “I thought you guys would wait until the 29th day to post this.” (AR 345.) The following day, LCDR Morris sent an e-mail encouraging AKS to ship the remaining shelter systems immediately, stating “[r]ecent events dictate the importance of getting all material flowing out of NM as soon as possible.” (AR 347.) By the time work was stopped due to the filing of a bid protest, AKS had shipped 89 of 96 tents and all 96 environmental control units. (AR 349.)

The law permits an agency to post the public notice of a sole source award made because of unusual or compelling urgency within 30 days after contract award. 10 U.S.C. § 2304(l)(1)(B); FAR 6.305(b). In deciding when to post a J&A, the agency should not intentionally delay the posting, as it did here, as a means of avoiding potential bid protests. FAR 1.102-2(c) requires government officials to “conduct business with integrity, fairness, and openness,” and to thereby “[maintain] the public’s trust.” This provision comes into play in determining the reasonableness of government action when procuring officials engage in gamesmanship to avoid any review of an improper sole source award. In other circumstances, the application of FAR 1.102-2(c) to sustain a bid protest may be debatable. See Castle-Rose, Inc. v. United States, No. 11-163C, 2011 WL 255087, at *14-15 (Fed. Cl. June 23, 2011); FFTF Restoration Co., LLC v. United States, 86 Fed. Cl. 226, 237-38 (2009); Info. Scis. Corp. v. United States, 85 Fed. Cl. 195, 202 (2008). However, as a basic tenet of the FAR acquisition system, the Court is not inclined to ignore principles of integrity, fairness, and openness where they directly apply to government actions. The Court finds that, even though the posting of the J&A technically was within the 30-day period allowed by FAR 6.305(b), the conduct complained of was arbitrary and capricious, and cannot be condoned in any reputable procurement system.  (California Industrial Facilities Resources, Inc. v. U. S. and Alaska Structures, Inc., No. 11-299C, July 13, 2011) (pdf)


This case deals with one portion of a $1.678 billion foreign military sale (“FMS”) of F-16s and related services to Egypt.

(sections deleted)

C. Was the Sole Source Request Proper Under CICA?

Plaintiff first alleges that USAF’s decision to approve LM STS as the sole source of the simulator portion of the sale to Egypt was a violation of CICA, specifically 10 U.S.C. § 2304(a). Unless one of the exceptions applies, section 2304(a) requires an agency to “obtain full and open competition through the use of competitive procedures.” 10 U.S.C. § 2304(a)(1)(A). The relevant exception at issue here is 10 U.S.C. § 2304(c)(4), which provides:

The head of an agency may use procedures other than competitive procedures only when: . . .

(4) the terms of an international agreement or a treaty between the United States and a foreign government or international organization, or the written directions of a foreign government reimbursing the agency for the cost of the procurement of the property or services for such government, have the effect of requiring the use of procedures other than competitive procedures; . . . .

10 U.S.C. § 2304(c). While the parties agree that this is the exception at issue, they disagree as to its applicability.

Plaintiff argues that the plain language of the statute precludes Egypt from directing USAF to award a sole source contract to LM STS. Pl.’s Br. at 14-15. It contends that Egypt is not “reimbursing the agency” because the source of the funds to be used are United States funds, and not funds from Egypt’s treasury. Id.; Pl.’s Resp. to Def.’s and Intervenor’s Mots. J. on AR (“Pl.’s Reply”) at 6-7. Instead of using its own funds, Egypt is using “FMS Credit (Non- Repayable),” as per the Terms of Sale of the Letter of Offer and Acceptance. Pl.’s Br. at 15 n.7; see AR at 115. L-3 also argues that regardless of the source of the funds, as soon as they are put into a FMS Trust Account, they become funds of the United States. Pl.’s Reply at 6-9. Therefore, it contends, any procurement using funds from a FMS Trust Account would not be subject to the section 2304(c)(4) exception and would have to use competitive procedures. Id. From a policy perspective, L-3 argues that the strong presumption in CICA in favor of competition should be followed because it will ensure that the taxpayers’ money is well-spent. Pl.’s Br. at 13-16.

Defendant and Lockheed argue that this procurement falls within the § 2304(c)(4) exception. Mot. J. upon AR (“Def.’s Br.”) at 23-28; Intervenor’s Mot. J. on AR (“Intervenor’s Br.”) at 25-29. Chiefly, the government and intervenor make three arguments to support this contention. First, they argue that under the terms of the LOA, Egypt is required to make payments for the entire cost of the procurement in accordance with the payment schedule. Def.’s Br. at 20, 24-25 (citing AR at 129-30, 322-23); Intervenor’s Br. at 26 n.17. The source of those funds does not change Egypt’s status as a reimbursing country, particularly when the plain language of the statute requires reimbursement to the agency, not the United States. Def.’s Br. at 24-27; Intervenor’s Br. at 26-29. Second, they argue that while these funds initially come from the United States, they are essentially Egypt’s. According to the government and Lockheed, Egypt can use the funds for whatever procurements it desires; any unspent funds do not revert to the United States; and Egypt must pay any portion of a procurement that exceeds the available funds. Def.’s Br. at 23-24, 27-28; Intervenor’s Reply to Pl.’s Br. at (“Intervenor’s Reply”) at 8. Third, the government argues that requiring Egypt, or any foreign nation, to use competitive procedures could strain relations between that nation and the United States. Def.’s Br. at 28.

In interpreting any statute, the Court looks to the plain language to determine its meaning. Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 296 (2006) (“We have stated time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there.” (citation and quotation omitted)). If the text is clear, the Court’s role is to enforce the text unless it produces an absurd result. Id. at 296-97; Hartford Underwriters Ins. Co. v. Union Planters Bank, N.A., 530 U.S. 1, 6 (2000).

The main contention between the parties is whether Egypt qualifies as a “foreign government reimbursing the agency.” 10 U.S.C. § 2304(c)(4). To the Court, the plain meaning of § 2304(c)(4) supports defendant’s and LM STS’s view.6 Congress chose to exempt foreign governments reimbursing the agency. Congress could have chosen to exempt only those governments reimbursing the United States -- i.e., those governments using entirely non-United States funds -- but it did not. Since the statute says “reimbursing the agency” and not “reimbursing the United States,” as long as Egypt pays the USAF, it can qualify as a “foreign government reimbursing the agency” under section 2304(c)(4). This conclusion is bolstered by the fact that section 2304(c)(4) also does not distinguish between the source of the funds used for reimbursement -- Congress did not say that the foreign government was required to reimburse the agency with its own funds. This is the approach followed by the Government Accountability Office, which applies the exception even when grants or forgiven loans from the United States are the source of the funds used by the foreign nation. See, e.g., Goddard Indus., Inc., B-275643, 97-1 CPD ¶ 104 (Comp. Gen. Mar. 11, 1997); Optic-Elec. Corp., B-235885, 89-2 CPD ¶ 326 (Comp. Gen. Oct. 6, 1989); Int’l Logistics Grp., Ltd., B-214676, 84-2 CPD ¶ 314 (Comp. Gen. Sept. 18, 1984).

Here, Egypt is paying USAF for the costs incurred in the procurement. According to the LOA, Egypt must make timely payments even if they exceed the amounts estimated. AR at 177. The LOA had an estimated payment schedule which required an initial deposit of over $[XXXX] and repayment of the balance starting in June 2010 and ending in December 2015. AR at 129- 30. Approximately six months after the LOA was signed, the parties amended the LOA. AR at 115, 313. That amendment also contained an estimated repayment schedule. AR at 322-23. One difference between the two schedules is that the one in the amendment lists over $123 million as already received from Egypt, reflecting the initial deposit required by the LOA. AR at 322. This shows that Egypt has already started paying for the goods and services it has received. It is clear to the Court that Egypt, which is required to pay for the entirety of the costs and has already started paying, is reimbursing the USAF.

In order to invoke the exception to competitive procedures under § 2304(c)(4), a foreign government reimbursing the agency must provide “written directions . . . [that] have the effect of requiring the use of procedures other than competitive procedures.” 10 U.S.C. § 2304(c)(4). Here, Egypt several times requested that LM STS be the sole source for the simulator portion of the procurement. AR at 105, 106-07, 125-26, 172. At the least, the August 12, 2009 request was submitted for approval and approved by the USAF. AR at 108-14. Egypt has met the requirements to qualify for the § 2304(c)(4) exception from open and competitive procedures, and the USAF’s decision to allow LM STS to be the sole source of the simulator portion of the procurement is, therefore, not unlawful.  (L-3 Communications Corporation v. U. S. and Lockheed Martin Corp., No. 10-538C, May 20, 2011) (pdf)


A subtle distinction, however, must be drawn between the Army’s overall needs and the needs necessary to satisfy the current emergency. Although some leeway must be factored into the equation, the Army’s December 15, 2003, procurement must reflect its immediate emergency need and must be temporally limited. Filtration, 2004 WL 223988, at *5; Tri-Ex, B-239628, 90-2 CPD ¶ 221, at 5, 1990 WL 278490, at *4. Defendant has allocated funding for 80 “A kits” and 80 “B kits,” but defendant seeks to have the procurement ultimately yield 183 “A kits” and 150 “B kits.”46 While plaintiff maintains that the former quantity represents defendant’s true needs,47 defendant was statutorily prohibited from obligating an amount equivalent to the contract price. 10 U.S.C. § 2326(b) (setting a ceiling on the percentage of the contract price that can initially be obligated under an undefinitized contract). Defendant certainly cannot be faulted in this respect. The delivery schedule for the 183 “A kits” and 150 “B kits,” without accounting for minimal delays, extends from late March 2004 until July 2004. It does not appear, however, that funding has been allocated in excess of that necessary to procure the 183 “A kits” and 150 “B kits,” and consequently, there is no time frame in which those units are to be delivered. Unlike the current obligation of funds which must comply with 10 U.S.C. § 2326, there is no indication as to when the additional funds will be forthcoming. Similarly, a delivery schedule has not been implemented. In light of these uncertainties, the court is unwilling to condone an indefinite extension of the unusual and compelling urgency” exception. Such an endorsement would be inconsistent with the exception’s overt and inherent limitations. The court, therefore, holds that the Army through its actions has revealed that its current emergency situation encompasses only 183 “A kits” and 150 “B kits.”  (Filtration development Co, LLC, v. U. S.,  No. 03-2835C, Originally sealed April 13, 2004, Reissued April 27, 2004) (pdf)


Contrary to the assumptions underlying plaintiff’s argument, it is not the goal of the agency to advance a projected but yet indeterminate “one-stop” reservation system. Rather, the government has decided that the NRRS is its system of choice and, accordingly, the Secretary has determined that it is in the public interest to include as many recreational sites in the NRRS as early as practicable. Although the government has predetermined the NRRS as the system from which it intends to build a one-stop, single reservation system, that is not the same as a predetermination of “the winner of the competition for a consolidated system.” Any number of companies could presumably modify, operate, and maintain the NRRS in accordance with the terms of the anticipated 2004 solicitation. Intervenor, however, is the contractor currently operating the NRRS. It stands to reason, therefore, that the only way to consolidate non-NRRS sites into the NRRS prior to the anticipated 2004 solicitation is to modify intervenor’s contract on a sole source basis. Litigation has delayed the implementation of the modification, but at the time of the Secretary’s determination, it was estimated that consolidating the recreational sites at issue in this case would “advance the . . . Recreation One Stop initiative at least 16 months earlier than the competitively awarded contract.” On the basis of her reliance on these findings, and on other documents contained in the Administrative Record, the court holds that the Secretary was clearly and convincingly justified in making her determination that a sole source modification of intervenor’s contract was in the public interest. (Spherix, Inc. v. U. S. and ReserveAmerica Holdings, Inc., No. 03-2371C, November 17, 2004)  (pdf)

U. S. Court of Federal Claims - Listing of Decisions
For the Government For the Protester
L-3 Communications Corporation v. U. S. and Lockheed Martin Corp., No. 10-538C, May 20, 2011 (pdf) Per Aarsleff A/S v. U. S. and Exelis Services A/S, Nos. 15-215C, 15-272C, and 15-330C,  June 5, 2015) (pdf)
Spherix, Inc. v. U. S. and ReserveAmerica Holdings, Inc., No. 03-2371C, November 17, 2004 (pdf) California Industrial Facilities Resources, Inc. v. U. S. and Alaska Structures, Inc., No. 11-299C, July 13, 2011 (pdf)
Spherix, Inc. v. U. S. and ReserveAmerica Holdings, Inc., No. 03-2371C, November 3, 2004 (pdf) Filtration Development Co, LLC, v. U. S.,  No. 03-2835C, Originally sealed April 13, 2004, Reissued April 27, 2004 (pdf)
U. S. Court of Appeals for the Federal Circuit - Key Excerpts
In this government contract bid protest appeal, three unsuccessful bidders challenged the decision of the United States Department of the Air Force Space Command (“Air Force”) to award a contract to the successful bidder, Exelis Services A/S (“Exelis”), for the operation and maintenance of an Air Force base in Greenland. The United States Court of Federal Claims (“Claims Court”) granted the challengers’ motions for judgment on the administrative record and enjoined the Air Force from proceeding under the contract with Exelis. The Claims Court found the award to Exelis—a wholly-owned subsidiary of a U.S.-based company—was contrary to the terms of the bid solicitation, which required that bidders “not be registered as a subsidiary of [a] foreign [i.e., non-Danish] company.” Per Aarsleff A/S v. United States, 121 Fed. Cl. 603, 612 (2015) (capitalization omitted). Because we conclude Exelis satisfied the disputed eligibility term of the bid solicitation, as properly interpreted, we reverse.

(sections deleted)

III. Exelis Was Eligible Under the Terms of the Solicitation

Given that the eligibility provision, as clarified in the Air Force’s answer to a potential bidder’s question, refers to whether the [registered as a business in the Kingdom of Denmark] CVR facially indicates the company is a subsidiary of a foreign company, Exelis was eligible.

The Claims Court found, and the unsuccessful bidders do not contest, that Exelis’s

proposal included: (1) a certificate from the Danish Business Authority certifying Exelis Services as a legally registered public limited company in Denmark with a report documenting its registration; and (2) a letter signed by a Danish bank confirming a business relationship with Exelis Services and stating that the account was satisfactorily maintained.

Per Aarsleff, 121 Fed. Cl. at 617 n.21. These are the documents required under the eligibility provisions. See id. at 614. As the GAO correctly noted, although the unsuccessful bidders seek “to add the issue of ownership or control to the [solicitation], nothing in the solicitation provides for consideration of these criteria.” Per Aarsleff (GAO), 2015 WL 1004252, at *8. Critically, there is nothing in the CVR that facially indicates Exelis is a subsidiary of a foreign company because, as the three unsuccessful bidders concede, it was impossible for the CVR to facially indicate such status. See Copenhagen Arctic Br. 30–31; Greenland Contractors Br. 9; Per Aarsleff Br. 14.

While it is true that any company could meet the eligibility criterion by simply registering in Denmark, the record indicates the Danish Ministry of Foreign Affairs was aware of the relative ease of corporate registration. According to an email by [[name redacted]], a State Department employee, [[the Danish government was aware of the ease of corporate registration and its relevance to the bidder eligibility criteria]]. J.A. 111631. The unsuccessful bidders cite no authority suggesting that if eligibility criteria are easily met they are invalid. Accordingly, Exelis met the disputed eligibility criterion.  (Copenhagen Arctic A/S, Greenland Contractors I/S v U. S., Exelis Services A/S, 2015-5111, 2015-5112, 2015-5135, 2015-5143, JUne 26, 2016)  (pdf)

U. S. Court of Appeals for the Federal Circuit - Listing of Decisions
For the Government For the Protester
  Copenhagen Arctic A/S, Greenland Contractors I/S v U. S., Exelis Services A/S, 2015-5111, 2015-5112, 2015-5135, 2015-5143, June 26, 2016  (pdf)
Legal

Protests

Bona Fide Needs Rule
Public Laws
Legislation
Courts & Boards


Rules & Tools
Workforce
Reading

Small Business
 

   
 
 

ABOUT  l CONTACT