BNUMBER:  B-266326; B-266327
DATE:  February 5, 1996
TITLE:  JAFIT Enterprises, Inc.

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Matter of:JAFIT Enterprises, Inc.

File:     B-266326; B-266327

Date:     February 5, 1996

Quin B. Johnson for the protester.
Thomas T. Basil, Esq., Department of the Navy, for the agency.
Henry J. Gorczycki, Esq., and Guy R. Pietrovito, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision. 

DIGEST

Contracting agency violated the competition requirements of the 
Competition in Contracting Act of 1984 when it made sole-source awards 
for services to a non-profit agency serving people with severe 
disabilities, where the acquired services were not on the procurement 
list maintained by the Committee for Purchase From People Who Are 
Blind or Severely Disabled, as required by the Javits-Wagner-O'Day 
Act.

DECISION

JAFIT Enterprises, Inc. protests the sole source awards of purchase 
orders by the Department of the Navy to Goodwill Industries for 
administrative services at the Naval Air Warfare Center Training 
Systems Division, Orlando, Florida.  JAFIT protests that the Navy's 
noncompetitive procurement violates procurement laws and regulations.

We sustain the protests.

JAFIT, a small disadvantaged business, was the incumbent contractor 
performing these services under two contracts that were initially 
awarded in 1992 as total small business set-asides.  The contracts 
expired on September 30, 1995. 

Prior to the expiration of JAFIT's contracts, the Navy determined that 
it had insufficient time to conduct competitive procurements for 
follow-on contracts for these services.  In April and May of 1995, the 
contracting officer sought authorization to extend the terms of 
JAFIT's contracts for 1 year, pursuant to the authority of Federal 
Acquisition Regulation (FAR)  sec.  6.302-2, which allows noncompetitive 
awards where unusual and compelling urgency precludes full and open 
competition.  This request was denied.  In June and July, the 
contracting officer decided to noncompetitively award "bridge" 
purchase orders to Goodwill, pursuant to the Javits-Wagner-O'Day Act, 
41 U.S.C.  sec.  46-48c (1994), after JAFIT's contracts expired and until 
competition for these services could be conducted and new contracts 
awarded.  

The Navy notified JAFIT of the awards to Goodwill on August 30, and 
JAFIT protested to the Navy on September 8.  The Navy denied JAFIT's 
agency-level protests on September 18, and these protests to our 
Office followed on September 28.

The Competition in Contracting Act of 1984 (CICA), 10 U.S.C.  sec.  
2304(a)(1) (1994), generally requires contracting agencies to obtain 
full and open competition through the use of competitive procedures; 
however, noncompetitive procedures are authorized where a statute 
expressly authorizes or requires that the procurement be made through 
another agency or from a specified source.  10 U.S.C.  sec.  2304(c)(5).  
The Javits-Wagner-O'Day Act provides authority for noncompetitive 
acquisitions for specified supplies and services.  See FAR  sec.  
6.302-5(b)(2).  Specifically, the Act established the Committee for 
Purchase From People Who Are Blind or Severely Disabled (hereafter the 
"Committee") and granted it exclusive authority to establish and 
maintain a procurement list of goods and services provided by 
qualified nonprofit agencies for the blind or disabled.  See FAR 
Subpart 8.7.  Once an item or service has been added to the 
procurement list, contracting agencies are required to procure that 
item or service directly from a qualified workshop.  41 U.S.C.  sec.  
47(a), 48; 41 C.F.R.  sec.  51-1.2, 51-2.2 (1995); FAR  sec.  8.704; see 
Jantec, Inc., B-243192, Mar. 14, 1991, 91-1 CPD  para.  289.  

Here, the record establishes that the Navy's noncompetitive awards to 
Goodwill were not authorized by the Javits-Wagner-O'Day Act, as 
claimed by the Navy, because, at the time of the awards, the services 
acquired under the purchase orders were not listed on the Committee's 
procurement list.  Effective January 2, 1996, see 60 Fed. Reg. 61684 
(Dec. 1, 1995), the committee added to the procurement list 
"Administrative Services, Naval Air Warfare Center, Training Systems 
Division, Orlando, Florida."  In so doing,  the Committee stated,
 
     "[the Navy's] [a]ward of the current contract for these and other 
     services was not done under authority of the Committee's statute, 
     as the services were not on the Procurement List."  Id.

The Navy does not allege, nor do we find, any other statutory 
authority for its noncompetitive acquisition of these services.  
Accordingly, we conclude that the Navy violated CICA when it acquired 
these services noncompetitively from Goodwill prior to January 2, 
1996.

While we would normally recommend that the Navy terminate any 
outstanding purchase orders and conduct a competition for these 
services under applicable statutes and regulations, it appears that 
most if not all of the services covered by the purchase orders have 
been added to the Committee's procurement list.  Accordingly, we do 
not recommend the termination of any of the outstanding purchase 
orders for these services.  However, because the Navy violated 
procurement laws and regulations, we find that the protester is 
entitled to the
costs of filing and pursuing its protests, including attorneys' fees.  
4 C.F.R.  sec.  21.6 (d)(1)(1995).  The protester should submit its 
certified claim for costs to the contracting agency within 60 days 
after receipt of this decision.  4 C.F.R.  sec.  21.6(f)(1).

The protest is sustained.

Comptroller General
of the United States