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) |