Although the overriding mandate of the Competition in Contracting Act of 1984 (CICA), 10 U.S.C. sect. 2304(a)(1)(A) (2000), is for full and open competition in government procurements, obtained through the use of competitive procedures, it permits noncompetitive acquisitions in certain circumstances. 10 U.S.C. sect. 2304(c). The agency’s J&A cites one of the exceptions to the mandate that competitive procedures be used, namely, that there is only one responsible source and no other supplies or services will satisfy the agency’s requirements. J&A, citing 10 U.S.C. sect. 2304(c)(1). The J&A must contain sufficient facts and rationale to support the use of the chosen exception. See 10 U.S.C. sect. 2304(f)(1)(A), (B); Federal Acquisition Regulation (FAR) sections 6.302-1(d)(1), 6.303, 6.304; Marconi Dynamics, Inc., B-252318, June 21, 1993, 93-1 CPD para. 475 at 5. 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., B‑290107, June 11, 2002, 2002 CPD para. 98 at 6; Diversified Tech. and Servs. of Virginia, Inc., B‑282497, July 19, 1999, 99-2 CPD para. 16 at 3.

We conclude that the rationale advanced by the agency in the J&A--in essence, the critical benefits from weapon standardization--is sufficient to support the decision to procure the Glock pistol on a sole-source basis. Specifically, the agency asserts that prior wide use of the Glock pistol by the fighting forces mentioned above has created “a baseline of standardization of operations and support that is critical to be continued.” J&A at 1. Procuring more of the same pistol would lessen the logistical burden on the Pakistan Army, the agency states, in part by reducing the effort required for spare parts administration; retraining the various forces also would be unnecessary if the same pistol were procured.

In its challenge to the agency’s rationale, the protester points out that the J&A does not support a conclusion that the Pakistanis cannot effectively defend themselves if they procure a pistol other than the Glock that they use now. The protester also maintains that the disassembly and cleaning of the Glock and the proposed Smith & Wesson firearms are identical; that, given its worldwide popularity, there is no shortage of spare parts for the protester’s pistol; and that personnel are typically trained to service and repair or replace the parts for many different types of semi-automatic weapons. The protester also asserts that the difference between the trigger pulls of the two weapons--the protester’s pistol has a heavier trigger pull and a longer trigger travel--are at best minor distinctions that would have no impact on the war fighting capabilities of the Pakistani forces.

As an initial matter, to the extent that the protester argues that the J&A is inadequate because it does not show that the Glock pistol is indispensable to the forces who would use it, its argument is based on a flawed premise. As discussed above, the standard is not whether the item being procured is indispensable, or even whether the Glock performs better than the selected pistol, but whether the agency has offered sufficient facts and rationale to support the decision to procure it on a sole- source basis. The protester’s claim that many organizations with armed personnel train them on several different firearms is unpersuasive; what is at issue here is the level of training received by the Pakistani fighting forces and not, as in one example offered by the protester, the training regimen of metropolitan cities in this country. There is nothing in the record to suggest that the forces that would be supplied with a different pistol than the current Glock would easily adapt to a change in firearms.

It is undisputed that the parties using these weapons do so under extremely hazardous and unstable conditions. Under these circumstances, we conclude that the benefits to the fighting forces cited in the J&A from procuring the same pistol currently in use, such as avoiding the need for retraining on a different model or the need to stockpile spare parts for different models, are sufficient to support the agency’s decision to procure the pistols on a sole-source basis.  (Smith & Wesson, Inc., B-400479, November 20, 2008)  (pdf)

Turning to the July 2005 sole-source award to OSS for expansion of the BBA-SME requirement, we find that the agency’s J&A in support of the sole-source award to OSS was flawed because it was premised on the unsupported conclusion that OSS was the only contractor capable of meeting the BBA-SME requirement in a timely and cost-effective manner. We therefore sustain the protesters’ challenge to this second sole-source award as well. The July 2005 J&A, which nominally cited “unusual and compelling urgency” as the justification for the sole-source award to OSS, was in fact prepared based on the exception to full and open competition set forth in 10 U.S.C. sect. 2304(c)(1), which applies when the agency concludes that required services are only available from one responsible source. Specifically, the contracting officer testified with regard to the July J&A as follows: “I wrote this J&A, believing that I was going to use one responsible source. . . . I think the situation in Iraq is urgent, but it was written for [‘only] one responsible source’.” Tr. at 277. Moreover, the reasoning set forth in the J&A is consistent with the “only one responsible source” exception. The J&A expressly asserts that OSS is “the only provider [deleted]. They are the only provider that can perform the contract without significant additional start-up costs and recruitment delays.” AR, Tab 1.b.1., J&A at para. 5. (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)

Turning to the propriety of the sole-source bridge contract with EG&G, we first find that the sole-source award was improper because it is not supported by a written J&A. In this regard, when an agency uses noncompetitive procedures, such as 41 U.S.C. 253(c)(1) (2000), which authorizes the use of noncompetitive procedures when the property or services are available from only one responsible source, the contracting officer is required to execute a written justification with sufficient facts and rationale to support the use of the authority, certify its accuracy and completeness, and obtain approval of the action from the cognizant agency official prior to making an award. See 41 U.S.C. 253(f)(1)(A), (B), (C); Federal Acquisition Regulation (FAR) 6.303, 6.304. The only exception to this requirement is where the agency uses noncompetitive procedures because the agency's need for the property or services 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 bids or proposals. See 41 U.S.C. 253(c)(2), (f)(2). Here, the agency did not execute a J&A prior to awarding the letter contract, as required by the statute. While a draft J&A has been provided during the course of our consideration of this protest, the agency advises that this document is only the agency's "deliberative processes" until a final document is issued. See Agency Letter, Apr. 1, 2003, at 1. In fact, despite our requests, the agency still has not provided an executed and approved J&A. Thus, the agency's letter contract award to EG&G constitutes an improper sole-source award. See Saltwater, Inc.--Recon. and Costs , B-294121.3, B-294121.4, Feb. 8, 2005, 2005 CPD 33 at 3. (VSE Corporation; Johnson Controls World Services, Inc., B-290452.3; B-290452.4; B-290452.5, May 23, 2005) (pdf)

When an agency uses noncompetitive procedures under 10 U.S.C. § 2304(c)(1), it is required to execute a written J&A with sufficient facts and rationale to support the use of the cited authority, and publish a notice to permit potential competitors an opportunity to challenge the agency’s decision to procure without full and open competition. See 10 U.S.C. § 2304(f)(1)(A), (B); Federal Acquisition Regulation §§ 6.302-1(d)(1), 6.303, 6.304; Marconi Dynamics, Inc., B-252318, June 21, 1993, 93‑1 CPD ¶ 475 at 5. 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., B-290107, June 11, 2002, 2002 CPD ¶ 98 at 6; Diversified Tech. and Servs. Of Virginia, Inc., B‑292497, July 19, 1999, 99-2 CPD ¶ 16 at 3. Here, based on our review of the record, we find no basis to question SSP’s overall determination that only Draper could satisfy the agency’s need for the establishment and certification of an ISF for the MK 6 guidance system. As documented in its J&A justifying award to Draper, SSP determined that only Draper could establish and certify the ISF SSP because, while individual ISCs were familiar with their particular individual subsystems, only Draper, as the design and development agent for the MK 6 guidance system, as well as for the fleet ballistic missile guidance systems generally, had (1) “comprehensive knowledge” of “all critical elements unique to the guidance system’s performance,” and (2) “comprehensive knowledge” of “the interrelationships of these elements with the entire Trident II weapon system.” J&A at 2. SSP concluded that Draper’s “overall systems engineering knowledge and technical expertise in the MK 6 guidance system is unmatched as a result of over forty years as sole design and development agent on the [fleet ballistic missile] guidance systems.” Id. We conclude that SSP reasonably determined that Draper’s overall knowledge of all of the critical components of the MK 6 guidance system, including the IMU, electronic assembly/IMUEs, and 10-PIGA, was essential in view of the broad scope of the requirement to establish and certify the ISF. (Kearfott Guidance & Navigation Corporation, B-292895.2, May 25, 2004) (pdf)

As explained below, the J&A and its supporting documentation, as well as the agency's submissions prepared in response to this protest and the testimony of the agency representatives at the hearing held at our Office in connection with this protest, contain so many inconsistencies and inaccuracies that they cannot reasonably justify the agency's intended award of a sole-source contract to Rolls-Royce. Specifically, the J&A inaccurately describes the overhaul services to be acquired, the dollar value of the services to be acquired, and the length of time for which the services will be needed. Additionally, the record does not support the J&A's statement that only Rolls-Royce is capable of providing either the engineering or overhaul services, and similarly, fails to support the agency's position, as reflected in the J&A and argued by the agency during this protest, that the engineering and overhaul services must be performed by the same contractor (Rolls-Royce).  (Sabreliner Corporation, B-288030; B-288030.2, September 13, 2001)

Agency's justification for sole-source procurement is inadequate where the documentation does not reasonably show that only this exact product will satisfy the agency's needs, and does not show that the agency's need for the item is of unusual and compelling urgency that was not created by a lack of advance planning.  (National Aerospace Group, Inc., B-282843, August 30, 1999)