Link: GAO Opinion
Agency: Defense Logistics Agency
Disposition: Protest sustained.
Protest of a sole-source contract award justified on the basis of urgency is sustained where the protester’s pursuit of source approval to compete for purchases of helicopter swashplate bearings for more than 9 years, combined with continuing requirement for these parts, show that the urgent need to limit competition here was caused by a failure of advance planning.
General Counsel P.C. Highlight:
RBC argues that the sole-source procurement is improper. 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. Exceptions to this general requirement are provided in the statute where there is only one responsible source able to meet the agency’s requirements, or the requirement is of unusual and compelling urgency. Since DLA took corrective action in response to the initial protest here, and thus, no longer justified this procurement on a conclusion that there is only one responsible source for these bearings, the remaining issue in this protest is DLA’s reliance on urgency to justify its reduced requirement for swashplate bearings.
As RBC points out, CICA mandates that noncompetitive procedures may not be used because agency contracting officials failed to perform advance planning. GAO has recognized that the requirement for advance planning does not mean that such planning must be completely error-free, but, as with all actions taken by an agency, the advance planning required under 10 U.S.C. sect. 2304 must be reasonable. In addition, when a contracting agency restricts a contract to an approved product or source, and uses a qualification requirement, it must give other potential sources a reasonable opportunity to qualify. Failure to act upon a potential offeror’s request for approval within a reasonable period of time deprives the requester of an opportunity to compete and is inconsistent with the CICA mandate that agencies obtain full and open competition through the use of competitive procedures.
GAO finds that the actions of DLA have unreasonably deprived RBC of an opportunity to compete for a contract to provide these bearings. While GAO does not question the urgency or necessity of obtaining the six bearings at issue here, it nevertheless concludes that DLA has failed to adequately plan for a requirement that was foreseeable and therefore the agency has failed in its statutory duty to perform adequate advance planning and to promote competition. In this regard, GAO views the earlier sole-source solicitations as confirming the foreseeability of a continuing requirement for significantly larger quantities of swashplate bearings than are covered by this procurement. In the face of these continuing requirements, RBC has sought source approval from DLA or the Army since February 2000, i.e., for almost 10 years prior to the date of this decision. GAO finds the facts amply establish a failure to conduct adequate and reasonable advance planning, as required under CICA. 10 U.S.C. sect. 2304(f)(4). Thus GAO concludes that the sole-source procurement here was not properly justified. The protest is sustained.