J&J Colombia Services MV LTDA
B-299595.3, Jun 26, 2007
J&J Colombia Services MV LTDA protests the Department of the Army's sole-source award of an interim contract to PAE Colombia LTDA under request for proposals (RFP) No. W913FT-07-R-0018, for logistics support services required by the U.S. Military Group (USMILGP) located in Bogota, Colombia, and other government agencies throughout Colombia. J&J argues that the sole-source award was solely the consequence of the Army's lack of advance planning, and therefore was improper.
We deny the protest.
B-299595.3, J&J Colombia Services MV LTDA, June 26, 2007
DOCUMENT FOR PUBLIC RELEASE
The decision issued on the date below was subject to a GAO Protective Order. This redacted version has been approved for public release.
Protest that agency improperly awarded interim contract on sole-source basis is denied where award of long-term contract for same services was delayed by litigation and agency reasonably determined that only the incumbent contractor was in a position to perform urgently required services.
J&J Colombia Services MV LTDA protests the Department of the Army's sole-source award of an interim contract to PAE Colombia LTDA under request for proposals (RFP) No. W913FT-07-R-0018, for logistics support services required by the U.S. Military Group (USMILGP) located in
By way of background, one of the primary missions of the USMILGP in
On March 30, the Army prepared a justification and approval (J&A) citing Federal Acquisition Regulation (FAR) sect. 6.302-2, Unusual and Compelling Urgency, as justification for not seeking full and open competition for its requirements under the interim contract. The J&A indicated that continuity of the logistics support services was critical to the operation and performance of the USMILGP mission in
Due to the critical nature of the required services and the resulting disruption to its mission and increased costs associated with transitioning to other than the incumbent contractor, PAE, the Army concluded that there was no viable alternative to a sole-source contract with PAE for obtaining the required services during the period of the protest with our Office. In this regard, the Army expressly stated that:
there are no alternatives that would meet mission requirements without significant and critical interruptions to mission and a significant increase in cost given [the] time required to award and transition the logistics support and services requirements to another contractor. A bridge contract to the current contract is the ONLY alternative given the protest for the final Logistics Support and Professional Services Contract.
AR, Tab 7, J&A, at 3.
J&J timely protested the award of the interim contract to our Office. In its protest, J&J does not dispute the critical nature of the required services or argue that the services need not be performed while awaiting resolution of its protest. Rather, J&J argues that the need for a sole-source award was precipitated by the Army's lack of advance planning. According to J&J, the Army should have known in February, or by early March at the latest, before the expiration of PAE's incumbent contract, that there was going to be a need for a bridge contract and that the Army failed to adequately plan for this contingency.
As general matter, the Competition in Contracting Act of 1984 (CICA) requires agencies to conduct their procurements using full and open competition. 10 U.S.C. sect. 2304(a)(1)(A) (2000). CICA, however, permits noncompetitive acquisitions in specified circumstances, such as when the agency's need for the services is of unusual and compelling urgency. Specifically, the exception provides as follows:
An executive agency may use procedures other than competitive procedures only when . . . (2) 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 executive agency is permitted to limit the number of sources from which it solicits bids or proposals.
10 U.S.C. sect. 2304(c)(2); see also FAR sect. 6.302-2(a)(2). An agency, however, may not use noncompetitive procedures due to its lack of advance planning. 10 U.S.C. sect. 2304(f)(5)(A); see also FAR sect. 6.301(c).
Here, there is no basis to conclude the Army's decision to award a sole-source contract to PAE was the result of a lack of advance planning. In fact, the record shows that the award of the bridge contract to PAE was the result of the confluence of several factors with J&J's filing of its protest, which led to a stay of performance of the competitively awarded long-term contract. As described above, and as discussed in the Army's J&A, when J&J filed its protest of the long-term contract, thereby invoking the statutory stay of that contract under CICA, the agency was left without a contract vehicle to obtain the critical services it required since the incumbent contract was set to expire that same day. Given the associated transition period accompanying an award to other than the incumbent contractor, and the performance gap that would have occurred during such a transition, the Army reasonably concluded that award to other than the incumbent was not a viable alternative in light of the critical nature of the required logistics services.
While J&J contends that the Army should have recognized the need for a bridge contract much earlier since the incumbent contract was set to expire at the end of March and the procurement was not then complete, the fact remains that the actual requirement for the bridge contract did not arise until J&J filed its protest, a contingency which was outside the agency's control. Absent J&J's protest, there simply was no need for a bridge contract since the Army had awarded the long-term contract before the expiration of the incumbent contract. Given the imminent expiration of the incumbent contract, the gap in services associated with transitioning to a contractor other than the incumbent, and J&J's filing of its protest, the Army reasonably decided to award the bridge contract to PAE so that it could continue to perform the critical logistics services on an uninterrupted basis during the pendency of J&J's protest with our Office. See Chapman Law Firm Co., LPA, B-296847,
The protest is denied.
Gary L. Kepplinger
 The agency ultimately advised that it would take corrective action in that protest. Our Office therefore dismissed J&J's protest as academic on May 24.
 This protest filing triggered another automatic stay of the contract, which the Army subsequently overrode in accordance with FAR sect. 33.104(c)(2).
 In support of its allegation that the agency failed to engage in advance planning for the bridge contract, J&J relies on our decision in VSE Corp., Johnson Control World Servs., B-290452.3 et al.,