Washington Business Journal by Lee Dougherty, Attorney, General Counsel PC
Date: Friday, November 18, 2011, 11:34am EST
In yet another example of an exception to the requirement for full and open competition, the Government Accountability will typically put first the safety of men and women in uniform and the need to move ahead with military operations.
Post-Mortem: In response to a growing threat in Afghanistan of roadside bombs, the Navy awarded in 2010 a sole source award for the purchase of disposable explosive detection devices, arguing that only one manufacturer met its requirements. In August 2011, the Navy announced it was buying more – again through a sole source award to the same manufacturer – justifying the decision this time with the legal definition of “unusual and compelling urgency.” When the award was protested, the Navy executed a memorandum overriding the standard automatic stay of contract performance, saying it was in the “best interest of the United States” to move ahead.
So what about Mistral Security, which argued that it too could have satisfied the Navy’s requirements, had the agency just taken the time to solicit bids? The Government Accountability Office decided that didn’t matter – at least not enough to stall the award. Although the government should solicit offers from as many potential sources as practicable, GAO stated, the agency may award a sole source contract if it reasonably believes that only one firm can perform the work in the time available. At the same time, the military did not have sufficient time to properly evaluate whether the protester’s devices would meet the agency’s needs.
As I noted in a previous WBJ article, the GAO is not going to sustain a protest of a sole source award where the actions of the government are both reasonable and permissible under the law; that is especially true when the safety of men and women in uniform and the success of military operations are at stake.