No Other Qualified Bidder Exists to Preclude Going Sole-Source? “Duh?” Says COFC

From 2004-2009 the United States Air Force contracted with Harris IT Services Corporation for support services for the Air Force’s Command Man-Day Allocation System (“CMAS”). (The GAO said it found the history of this contract “somewhat obscure”.) Under the 2004 contract, the Air Force needed to recompete the contract by March 31, 2010. Starting in 2009, Innovation Development Enterprises of America, Inc. (“IDEA”), a competitor and former subcontractor to Harris, repeatedly asked the Air Force to be notified of the upcoming procurement.

 

By April 1, 2010, the Air Force had taken no steps to procure a follow-up contract. Two weeks later, on April 15, 2010, the Air Force issued a “bridge” contract to Harris along with an RFP for a sole-source award to Harris. The Air Force did not notify IDEA or other potential offerors of the solicitation. Harris’s proposal ultimately increased the cost of the contract by 95%. Not until May 21, 2010 did the Air Force post an award notice of the sole-source contract on FedBizOps.
IDEA protested this decision to the agency and then the GAO, but both protests were dismissed on timeliness grounds. This protest to the Court of Federal Claims followed. IDEA argued, and the COFC agreed that the sole-source procurement to Harris was significantly flawed and that IDEA was prejudiced.

 
The Air Force argued that there was only one qualified bidder for CMAS support services. The Court held that not only did the Air Force fail to publish a synopsis of the proposed contract on FedBizOps, but the Air Force had actual knowledge that IDEA was interested in competing for the contract. The administrative record demonstrated that IDEA had substantial CMAS experience and would have been able to provide the same number of workers as Harris. Moreover, the Air Force conducted no market research, as required by law, to conclusively establish that there were no other qualified bidders for the contract.

 
To further justify the sole-source award, the Air Force argued that there was a need to avoid “substantial disruption” to the CMAS contract, which could only have been achieved by using the incumbent contractor. The Air Force cited potential disruptions in service and additional costs as its rationale. Additionally, the Air Force argued that its sole-source contract was justified, because it was on a short time line to procure a contract. The COFC found that the material reason for these potential issues was the Air Force’s own lack of advance planning.
The Air Force erred in relying on both the “only one responsible source” and on the “unusual and compelling urgency” CICA exemptions to justify the sole-source award. As a legal matter, it is improper for an agency to rely on both of these justifications. Logically, an agency cannot rely on both because even if there were unusual and compelling circumstances, the contracting officer would still be required to solicit offers from as many sources as he is aware of before issuing a sole-source contract, whereas if there is only one responsible source, the contracting officer is exempt from this requirement. The Court held that the Air Force’s actions constituted a significant violation of CICA and that IDEA was prejudiced by the sole-source contract. Innovation Development Enterprises of America, Inc. v. The United States, No. 11-217 C (Ct. Cl. Jan. 29, 2013).

 

Practice Tip: More and more, contractors are becoming aware that COFC protests may succeed where agency and GAO protests have failed.  In appropriate situations, it is best for a contractor to consider going straight to COFC with its protest.

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