Agency: Department of the Air Force
Disposition: Protest Dismissed
Decided: August 11, 2017
Keywords: Interested Party
General Counsel P.C. Highlight:
In order to file or continue with a protest, the challenger must be an interested party, meaning, the protestor is an actual or prospective offeror whose “direct economic interest would be affected by the award of a contract or failure to award a contract.” Where facts or circumstances change during the protest process, this can impact one’s ability to continue to protest.
Summary of Facts
The timeline of events has critical bearing on the outcome of this case.
On May 2, 2017, the Air Force issued a pre-solicitation, indicating an intent to award a sole source purchase order to Aardvark, who is the sole distributor of TASER products for federal agencies. The Air Force noted the only Conducted Electrical Weapons (CEW) approved for use was the Taser X26P. The Air Force intended to proceed under Federal Acquisition Regulation (FAR) 6.302-1 “Only one responsible source and no other supplies or services will satisfy Agency requirements.”
On May 3, 2017, Bluehorse filed a protest, arguing the notice was unduly restrictive of competition, and asserting a failure by the Air Force to conduct adequate market research. Bluehorse further argued they should have had the chance to become an approved source. Bluehorse does not offer TASER products, but does offer PhaZZer Products, which Bluehorse represented were compatible with TASER products.
On May 23, 2017, the Air Force requested dismissal as the Air Force intended to cancel the procurement and reassess their strategy. The Air Force noted some of the items they sought to purchase could be procured in other ways, and the Air Force consequently decided they would re-evaluate the items listed on a sole source basis.
On July 21, 2017, the United States District Court, Middle District of Florida issued a permanent injunction against PhaZZer and those working with PhaZZer, prohibiting the sale of PhaZZer Enforcer CEW and cartridges.
On July 25, 2017, in light of this ruling, the Air Force filed a request for dismissal, arguing Bluehorse no longer was an interested party, based on the Middle District Court’s injunction.
Basis for the Request for Dismissal
The Air Force argued the Middle District’s prohibition on PhaZZer CEW sales altered Bluehorse’s status, in that they were no longer an interested party, as they had no chance of receiving an award for CEW products.
Bluehorse countered, arguing they remain an interested party, as they offer TASER compatible holsters, which are accessories, and the PhaZZer accessories were not subject to the injunction.
The GAO notes the acquisition at issue sought both CEWs and accessories in a single award. Had they been sought separately, there may have been a different result, however, in the case at issue, given the terms and the Middle District Court’s ruling, Bluehorse was not capable of furnishing the requisite items. Consequently, because it could not receive the award, it was not and is not an interested party. Thus, Bluehorse is not in a position to challenge the procurement.