Wednesday, February 6, 2013


Judge Lynn Bush of the Court of Federal Claims (COFC) recently entered judgment for the protester in a sole source procurement of a bridge contract by the Air Force. "The violations of procurement regulations in the sole-source award to Harris are numerous, troubling and prejudicial to IDEA," she said.  "These were not technical errors."  Although there was no indication of bad faith, regulatory mandates were needlessly sacrificed, she concluded.  She then went through a litany of transgressions of which the Air Force was guilty, reminding all of us that the violation of rules has consequences.

The Air Force relied on FAR 6.302-1 and 6.302-2 which Judge Bush noted was misplaced since FAR 6.302-1(b) forbids reliance on FAR 6.302-1 when 6.302-2 is applicable.  She noted the court is unaware of any prior attempt to rely on both of these authorities for the same sole source award.  If a contracting officer is faced with a situation where unusual and compelling circumstances exist, it is impermissible to rely on the only one responsible source provision to justify a sole source award.  FAR 6.302-1(b) "forces the agency to solicit offers from as many sources as is practicable, in situations of unusual and compelling urgency, before resorting to soliciting offers from only a single source, in circumstances which may also present unusual and compelling urgency.  The goal is to obtain maximum competition.

Judge Bush went on to find the Air Force violated FAR Part 10 in that the Air Force did not conduct any significant market research.  She characterized this violation as serious.  Moreover, no contract synopsis was posted as required by FAR 5.207(c)(15)(ii) and FAR 6.302-1(d)(2).  Here there was no posting, no statement encouraging potential sources to submit proposals and no consideration by the Air Force of information received in response.  In addition, there was no explanation in the justification and approval (J&A) for the failure to post a synopsis and no citation to authority justifying such a failure as required by FAR 6.303-2(a)(6).

Finally, there was no mention of the protester's interest as required by FAR 6.303-2(a)(10).  A sole source justification requires a listing of contractors that have expressed an interest in the contract requirement.  The protester had repeatedly expressed an interest, in writing.  And the Air Force violated FAR 6.302-2(c)(2) by not making the required effort to solicit offers from as many sources as practicable. Judge Bush pointed out that GAO has repeatedly sustained protests where an agency has made only minimal efforts to expand its consideration of potential sources beyond an incumbent contractor.  The Air Force "neglected to look in its own files" to find the protester's interest.

The Air Force suggested the protester was not qualified.  Nonsense says Judge Bush.  Yes, there was one superior contractor.  "Superiority, however, is not adequate justification for a sole-source award."

Rule, rules, rules.  They are there for a purpose (taxpayers).  They will be enforced. They must be learned and followed.

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