Link: GAO Opinion
Agency: Department of the Army
Disposition: Protest denied in part, dismissed in part.
1. Protest that agency improperly withheld source approval for protester is denied where protester did not submit a source approval request for the items being procured and failed to diligently pursue the information necessary to obtain source approval.
2. Where protester is not an approved source for items requiring source approval, protester is not an interested party to challenge the award of a contract for those items.
General Counsel P.C. Highlight:
SBG first protests that the agency’s failure to provide approval for the complete windshield kits reflects bias and/or unreasonable action by the agency. GAO states that 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. There are various exceptions to this requirement, including a situation where only one responsible source is able to meet the agency’s requirements. In this regard, when a contracting agency restricts a contract to an approved product or source, and uses a qualification requirement, it must give other potential offerors a reasonable opportunity to qualify; however, there is no requirement that an agency delay a procurement in order to provide an offeror an opportunity to demonstrate its qualifications.
Here, the record is clear that the complete windshield kit was comprised of more than the two component assemblies for which SBG sought source approval. Accordingly, even if SBG had been properly approved to supply those components, such approval would not qualify SBG to supply the complete windshield kit for which the agency contracted. SBG’s CEO expressly acknowledged that SBG did not submit a SAR for the complete windshield kit due to SBG’s uncertainty as to the elements comprising that kit. Although SBG initially sought to obtain the necessary information, through acquisition of a sample kit and reverse design engineering, SBG did not diligently pursue that information, waiting more than five months after being advised that a kit was available to actually obtain the kit. On the record, GAO finds no merit in SBG’s assertion that its failure to qualify as an approved source for the items being procured is attributable to the agency. To the contrary, SBG’s failure to submit a SAR for the complete windshield kit, due to its lack of knowledge coupled with its own inaction, was the basis for its failure to obtain approval. To the extent SBG’s protest is based on assertions that the agency improperly withheld source approval for the procured items, the protest is denied.
SBG’s protest also challenges various other matters in connection with award of the BAE contract. However, only an interested party is authorized to protest a federal procurement. Among other things, a protester must be an actual or prospective bidder or offeror whose direct economic interest would be affected by the award of a contract or the failure to award a contract. More specifically, a protester is not an interested party to protest award to an approved source where the protester would not be eligible for award because it is not, itself, an approved source for the item. SBG is not an approved source for the windshield kits at issue in this procurement. Accordingly, SBG does not qualify as an interested party to further challenge the agency’s actions. The protest is denied in part and dismissed in part.