TITLE: B-296206; B-296206.2, Research Analysis & Maintenance, Inc., July 12, 2005
BNUMBER: B-296206; B-296206.2
DATE: July 12, 2005
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B-296206; B-296206.2, Research Analysis & Maintenance, Inc., July 12, 2005

   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.

   Decision

   Matter of: Research Analysis & Maintenance, Inc.

   File: B-296206; B-296206.2

   Date: July 12, 2005

   William L. Walsh, Jr., Esq., Benjamin A. Winter, Esq., and Peter A.
   Riesen, Esq., Venable, Baetjer and Howard, for the protester.

   Helaine G. Elderkin, Esq., and Carl J. Peckinpaugh, Esq., for Computer
   Sciences Corporation, an intervenor.

   John W. Klein, Esq., and Kenneth Dodds, Esq., Small Business
   Administration.

   Raymond M. Saunders, Esq., and Capt. Peter G. Hartman, Department of the
   Army, for the agency.

   David A. Ashen, Esq., and John M. Melody, Esq., Office of the General
   Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Protest against sole-source award of contract for maintenance and
   operation of foreign threat systems is denied where agency reasonably
   determined that protester's performance under its current contract was
   unacceptable, and that protester had not adequately addressed the
   unacceptable performance, casting protester's ability to satisfactorily
   perform new contract into doubt.

   DECISION

   Research Analysis & Maintenance, Inc. (RAM) protests the award by the
   Threat Systems Management Office (TSMO), Department of the Army, of a
   sole-source contract to Computer Sciences Corporation (CSC) for
   maintenance and operation of foreign threat systems. RAM asserts that TSMO
   improperly failed to consider RAM, the incumbent contractor, as a
   potential source.

   We deny the protest.

   BACKGROUND

   TSMO is responsible for providing realistic threats during the testing of
   weapon systems and during training and other exercises. Specifically, TSMO
   is tasked with the assembly of intelligence information and the design,
   development, procurement, operation and maintenance of operational
   hardware simulations of threat systems. In addition, TSMO is responsible
   for operating and maintaining a significant inventory of actual foreign
   ground and aviation systems. The foreign weapon systems in TSMO's
   inventory represent over a 40-year span of technology dating as far back
   as from the early 1950s. Statement of Work (SOW) sect. C.1.1, Contract
   No. W9124Q-04-C-0158.

   In 1997, RAM was awarded a contract for the operation and maintenance of
   foreign ground and aviation systems in support of TSMO. In 2003, TSMO
   conducted a competition for a follow-on contract. When, in July 2003, TSMO
   awarded the follow-on contract to Northrop Grumman Technical Services, RAM
   filed a protest with our Office, challenging the evaluation and asserting
   that the agency had failed to take into account an alleged organizational
   conflict of interest (OCI) that would be created if Northrop Grumman
   performed the contract. We dismissed RAM's protest as academic after the
   agency proposed corrective action in the form of reopening the competition
   (B-292587, Aug. 15, 2003).

   After conducting negotiations with offerors, TSMO again selected Northrop
   Grumman for award, and RAM again protested to our Office. In our decision
   Research Analysis & Maint., Inc.; Westar Aerospace & Def. Group, Inc.,
   B-292587.4 et al., Nov. 17, 2003, 2004 CPD para. 100, we sustained RAM's
   protest, primarily based on our finding that the agency had misled RAM
   into proposing a staffing approach--involving a significant reduction in
   core staffing from the historical staffing, reliance on extensive
   cross-training, and use of surge staffing to perform a significant portion
   of the operational requirement--that the agency viewed as essentially
   unacceptable. After amending the solicitation and obtaining revised
   proposals, TSMO again made award to Northrop Grumman. RAM again protested
   to our Office. In response, TSMO canceled the award and determined to
   resolicit, leading to our dismissal of the protest (B-292587.10, Mar. 18,
   2004). On April 17, 2004, TSMO awarded RAM a bridge contract for continued
   performance through September 30, 2004. This contract was later extended
   through March 31, 2005 under the authority of Federal Acquisition
   Regulation (FAR) sect. 52.217-8, Option to Extend Services.

   On March 8, 2005, the contracting office administering RAM's contract
   synopsized on the Federal Business Opportunities website its intention to
   negotiate and issue a sole-source modification to extend RAM's contract
   through September 30, 2005. According to the synopsis, RAM was "the only
   source available with the technical expertise to allow for effective and
   efficient continuation of effort pending award of a competitive follow-on
   contract." Federal Business Opportunities. Mar. 8, 2005. On March 21,
   however, TSMO officials met with the contracting officer and her
   supervisor to advise them that RAM's performance had been unacceptable in
   several areas. Hearing Transcript (Tr.) at 662-64.[1] Contracting
   officials then advised RAM of the specific areas of concern with its
   performance in a telephone call to its chief operating officer (COO) on
   March 21 and in an e-mail on the following day, and afforded RAM an
   opportunity to respond. E-mail from Director of Contracting, White Sands
   Missile Range to RAM COO, Mar. 22, 2005 (Default Notice). Specifically,
   the agency advised RAM that its performance was viewed as unacceptable in
   four respects: (1) RAM had failed to make progress in reworking to current
   standards the modernization work orders (MWO) supporting modifications
   that had been made to TSMO's foreign aircraft; (2) there was a hostile
   work environment attributable to RAM's program manager; (3) RAM had failed
   to furnish a satisfactory property management plan for the management of
   government property under RAM's control; and (4) RAM had failed to furnish
   an adequate number of pilots to support mission requirements.
   Determination and Findings (D&F), Determination of Nonresponsibility. In
   its response, RAM maintained that it was not in default of its obligations
   under the contract, and asserted that its performance instead had been
   "very good." According to the protester, some of the areas of concern
   raised by the agency, such as the backlog in reworking the MWOs to current
   standards and the presence of a hostile work environment, in fact were
   attributable to TSMO rather than to RAM. RAM (Second) Response to Default
   Notification, Apr. 4, 2005.

   TSMO concluded that RAM's response did not furnish an acceptable plan for
   correction of the problems under the contract, and thereupon determined
   RAM to be nonresponsible. Given its immediate need, beginning April 6, for
   a contractor to furnish foreign threat systems in support of scheduled
   training and testing by other agencies, TSMO turned to the offerors that
   had submitted acceptable proposals in the prior, canceled competition.
   Although Northrop Grumman's proposal had received the highest
   technical/management score, the agency determined that there remained
   unresolved OCI issues that precluded an immediate award to that firm.
   CSC--in fact, the predecessor company purchased by CSC--had submitted a
   proposal that received the next-highest technical/ management score (after
   Northrop Grumman and RAM). Justification and Approval (J&A) for Other Than
   Full and Open Competition. In addition, CSC already was familiar with
   TSMO's mission through its support of other TSMO functions. Accordingly,
   after determining that the scheduled TSMO missions for the next 6 months
   would not create an OCI for CSC, on April 5 TSMO awarded CSC a sole-source
   bridge contract for operation and maintenance of TSMO's foreign threat
   systems through September 30, 2005, based on the unusual and compelling
   urgency exception to the requirement for full and open competition. Id.
   RAM thereupon filed this protest with our Office.

   PROTEST OVERVIEW

   RAM generally asserts that the sole-source award to CSC was improper
   because RAM in fact was capable of meeting the agency's needs. In this
   regard, RAM specifically disputes the agency's determination that RAM's
   performance under its contract was unacceptable.

   While the overriding mandate of the Competition in Contracting Act of 1984
   (CICA) is for "full and open competition" in government procurements
   through the use of competitive procedures, 10 U.S.C. sect. 2304(a)(1)(A)
   (2000), CICA does permit noncompetitive acquisitions in specified
   circumstances, such as when an agency's need for the services is of such
   an unusual and compelling urgency that the agency would be seriously
   injured unless permitted to limit the number of sources solicited. 10
   U.S.C. sect. 2304(c)(2); Federal Acquisition Regulation (FAR) sect.
   6.302-2(a)(2). Although the agency must request offers from as many
   sources as practicable under the circumstances, 10 U.S.C. sect. 2304(e),
   FAR sect. 6.302-2(c)(2), it nevertheless may limit the procurement to the
   only firm it reasonably believes can properly perform the work in the
   available time. National Aerospace Group, Inc., B-282843, Aug. 30, 1999,
   99-2 CPD para. 43 at 5; Hercules Aerospace Co., B-254677, Jan. 10, 1994,
   94-1 CPD para. 7 at 3.

   When using noncompetitive procedures pursuant to 10 U.S.C. sect.
   2304(c)(2), such as here, agencies are required to execute a written J&A
   with sufficient facts and rationale to support the use of the cited
   authority. See 10 U.S.C. sect. 2304(f)(1)(A), (B); FAR sections
   6.302-1(d)(1), 6.302-2(c), 6.303, 6.304. Our review of an agency's
   decision to conduct a noncompetitive procurement focuses on the adequacy
   of the rationale and conclusions set forth in the J&A. National Aerospace
   Group, Inc., supra; Marconi Dynamics, Inc., B-252318, June 21, 1993, 93-1
   CPD para. 475 at 5; Dayton-Granger, Inc., B-245450, Jan. 8, 1992, 92-1 CPD
   para. 37 at 4.

   Based on our review of the record, we find that RAM's assertions furnish
   no basis to question the sole-source award to CSC. Specifically, we find
   that, contrary to RAM's assertions, TSMO reasonably determined that RAM's
   performance under its contract to operate and maintain TSMO's foreign
   threat systems was unacceptable, and that RAM's plans to correct the
   unacceptable performance had been inadequate, such that RAM's ability to
   satisfactorily perform a new contract for those services was in question.
   (In reaching our conclusions, we look only to whether the agency had a
   reasonable basis for determining that RAM was not a viable source for
   performance of the bridge contract; we make no determination as to RAM's
   ultimate rights and responsibilities under the contract.) We discuss RAM's
   principal arguments below.[2]

   MWO BACKLOG

   As noted above, the determination that RAM was nonresponsible was based in
   part on the agency's determination that RAM had failed to make progress in
   reworking to current standards the MWOs supporting modifications that had
   been made to TSMO's foreign aircraft. In this regard, aircraft that are
   modified must be certified airworthy before being flown; the engineering
   substantiation required in order for the modified aircraft to be certified
   airworthy is included in an MWO package. The MWO backlog consisted of MWOs
   supporting prior aircraft modifications that had been prepared while the
   Army Test and Evaluation Command (ATEC) had airworthiness authority over
   TSMO's foreign aircraft. This ultimate airworthiness authority
   subsequently was transferred to the Army Aviation and Missile Command
   (AMCOM), at which time AMCOM discovered that a number of MWOs that had
   been approved under ATEC lacked adequate engineering substantiation. These
   backlog MWOs were reported to number approximately 188 as of August 2004.
   While AMCOM nevertheless delegated airworthiness authority to TSMO and
   permitted the affected aircraft to continue flight operations, it required
   that TSMO revise the deficient MWOs to the satisfaction of AMCOM's
   Aviation Engineering Directorate (AED) within a period of 12 months,
   beginning in September 2004. Tr. at 14-28, 55-64, 159-63, 291-94, 534-38,
   1024-28. TSMO understood that, in the event that it failed to make
   satisfactory progress in reworking the backlog MWOs, AMCOM might revoke
   its airworthiness authority. Tr. at 58-64, 159-63, 291-94, 538. Indeed, an
   AED official specifically cautioned TSMO in March 2005 that the lack of
   progress in reworking the backlog created a risk that its airworthiness
   authority would be withdrawn. E-mail from AED Team Leader to Director of
   TSMO, Mar. 22, 2005; Tr. at 278, 302-03. Withdrawal of TSMO's
   airworthiness authority could result in the agency's foreign aircraft
   being grounded for some period of time, and disruption of planned
   operations. Tr. at 159-60, 294.[3] As of March 2005, only three MWOs
   (including two backlog MWOs) had been submitted by RAM to TSMO and
   forwarded to AED for approval, and none of these had yet been approved by
   AED. Tr. at 22-23, 262. RAM nevertheless disputes TSMO's determination
   that RAM consequently had not adequately addressed the MWO backlog.

   Scope of Contract

   As an initial matter, RAM seems to suggest that the terms of its contract
   did not encompass rework of the backlog MWOs. However, we find that the
   agency reasonably proceeded on the basis of its contrary view. (Again, we
   make no finding as to the actual scope of RAM's contract, a matter
   ultimately for resolution under the Contract Disputes Act.) In this
   regard, RAM was generally required under its contract to "operate aircraft
   [in accordance with] the applicable regulations, procedures, and GFR
   [government flight representative] directives," including TSMO Memo 70-62,
   Flight Release Qualification of TSMO Foreign and Non-standard Aircraft
   Systems. SOW sections C.5.4.9, C.6.1. In addition, RAM was specifically
   required under its contract to "perform engineering analysis [in
   accordance with] TSMO Memo 70-62 and as required by applicable regulations
   and publications," with the "[e]ngineering analysis [to] be used to
   determine the airworthiness condition of all aircraft assigned or attached
   and all aircraft modifications needed in the normal course of testing and
   training." SOW sect. C.5.4.5.[4] Further, we note (as does the agency)
   that RAM itself implicitly recognized that reworking the backlog MWOs was
   within the scope of its contract when it noted in its September 2004
   proposal for contract extension that the "cost of the catch-up engineering
   work to support the Air Worthiness Releases documentation" was included in
   the estimated cost plus fixed fee for aviation systems core support, one
   of the contract line items. E-mail from RAM COO to TSMO Contracting
   Officer, Sept. 20, 2004.

   Moreover, the record confirms TSMO's position that, not only did TSMO
   specifically task RAM to rework the backlog MWOs within 12 months, but RAM
   understood the tasking to include this work and in fact commenced
   performing the work. In this regard, RAM's COO specifically acknowledged
   in an August 25 letter to TSMO that "RAM was tasked to devise a final
   approach for accomplishing the total updating of all MWOs and completion
   reports required to support the Air Worthiness Releases over a
   twelve-month period consistent with TSMO's stated priorities." Letter from
   RAM COO to TSMO Division Chief for Operations, Aug. 25, 2005; see RAM
   In-Process Review (IPR) July 13, 2004, Action Items; RAM IPR Aug. 10,
   2004, Backup Slide; E-mail from TSMO Government Flight Representative
   (GFR) to RAM Project Manager, Aug. 19, 2004; E-mail from RAM COO to TSMO
   Division Chief for Operations, Mar. 11, 2005; Tr. 29-32, 36-39, 703-05;
   cf. Tr. at 1042-44.

   In response to TSMO's tasking RAM to address the backlog MWOs, RAM offered
   TSMO two options. RAM proposed as one option that the rework be
   subcontracted to another contractor at a cost of $[DELETED] and with a
   completion date of 6 months after award. The second option, as described
   in RAM's July and August IPRs and presented at RAM's September IPR
   briefing, called for the purchase of Solidworks modeling software and
   RAM's increasing its engineering staff and performing the work itself.
   RAM's COO advised TSMO with respect to this latter, in-house option, that
   "[t]he cost estimate for accomplishing this additional effort over [Fiscal
   Year] 2005 has been estimated to be approximately $[DELETED] that covers
   two full-time, well versed senior engineers and one technician in support
   of this effort." Letter from RAM COO to TSMO Division Chief for
   Operations, Aug. 25, 2005; see RAM July 13, 2004 IPR Briefing, Action
   Items; RAM August 10, 2004 IPR Briefing, Action Items; TSMO Memorandum for
   Record, Feb. 25, 2005; TSMO Default Analysis, Apr. 4, 2005; Tr. at 29-32.
   RAM recommended the second (in-house) option on the basis that, at the
   completion of the effort, there would be additional engineers on staff
   that would be available to deal with the anticipated growth in TSMO's
   operations. The record indicates that TSMO accepted RAM's recommendation.
   RAM July 13, 2004 IPR Briefing, Action Items; RAM Aug. 10, 2004 IPR
   Briefing, Action Items; TSMO Default Analysis, Apr. 4, 2005; Tr.
   at 29-32, 1042. Again, therefore, the record supports the view that RAM
   fully understood that the rework was encompassed by its contract, and
   proceeded based on that understanding.

   Authority to Proceed

   RAM asserts that it failed to make more progress in reworking the backlog
   MWOs because TSMO "never authorized RAM to administer to the backlog nor
   did it provide additional funding to support performance." RAM Hearing
   Comments, June 21, 2005, at 2.

   This argument is not supported by the record. First, TSMO maintains that
   it gave RAM verbal authorization to proceed at the September IPR, that is,
   at the time the agency selected RAM's proposed in-house option for
   reworking the backlog MWOs. Tr. at 705. In any case, inasmuch as the
   contract line items in RAM's contract under which the rework of the
   backlog MWOs was to be undertaken were of the cost-reimbursement type, we
   share TSMO's view that RAM already was authorized to expend funds in
   accomplishing the statement of work in this regard (at least up to the
   point where the costs the contractor expected to incur in the next
   60 days, when added to all costs previously incurred, would exceed 75
   percent of the estimated cost specified in the contract, at which point
   the contractor was obligated under the contract to furnish the contracting
   officer with a revised estimate of the total cost of performing the
   contract). See FAR Standard Clause 52.232-22, Limitation of Cost
   (incorporated in RAM's contract); cf. Contract Clause sect. H.2
   (contractor required to obtain advance approval for purchases exceeding
   $1,000). Indeed, RAM's COO conceded in his testimony that RAM did not need
   government approval in order to hire employees for the contract, so long
   as it operated within the funds allocated to the contract, Tr. at 1078-79,
   and the record indicates that RAM in fact hired employees for the contract
   without prior government approval. Tr. at 42-44.

   Moreover, the record indicates that RAM actually commenced the MWO rework
   process without receiving the additional authorization RAM asserts was
   necessary. The Solidworks modeling software was purchased and, according
   to TSMO and testimony by RAM's project manager, RAM added at least two
   engineers to address the backlog. In this regard, when asked "[w]hat else
   did you do with respect to ramping up or otherwise working to correct the
   backlog," RAM's project manager answered that:

   Sir, we hired [RAM's lead engineer] and we also hired [an engineer], who
   later went back to McDonnell Douglas. We also had shared on--between the
   ground and airborne systems-- . . . , another electrical engineer who was
   very talented and skilled and adept to help out. We rolled him over to the
   airborne systems side on a 50 percent basis to help us with this backlog.

   Additionally, we stood up ETOPS, Engineering Technical Operations
   Publications System, in order that we would have a focused approach to the
   engineering activity. This included draftsmen, this included technical
   writers and included sheet metal and the machine shop, and therefore, we
   had a focused effort in this area.

   Tr. at 975; see Tr. at 33-36, 869-77, 886-87, 901, 974-77. (RAM maintains
   that its corporate quality expert, allegedly at RAM's own expense, also
   contributed to preparing a standard format for the reworked MWOs. Tr. at
   868-69, 974-75.)

   In summary, based on our review of the record, we think the agency could
   reasonably conclude that RAM had sufficient authority to expend funds
   under the contract to rework the backlog MWOs, and understood this to be
   the case, as evidenced by its commencing performance of the rework.
   Nevertheless, as of March 2005, only two of the initially reported 188
   backlog MWOs had been submitted by RAM to TSMO and forwarded to AED for
   approval, and neither of these had yet been approved by AED.
   Tr. at 22-23, 262.

   Lack of In-House Engineering Expertise

   RAM also attributes its apparent lack of progress on the rework, in part,
   to its efforts in developing a standardized process for the work and to
   delays in coordinating this with TSMO. In this regard, RAM's COO advised
   TSMO in March 2005 as follows:

   Rather than having a disjointed, simultaneous effort by several engineers
   to assess and correctly document these MWOs one at a time according to
   whatever standard they felt appropriate, RAM stopped the process and
   worked to develop and implement both a systemic process and a standard
   format for each package.

   E-mail from RAM COO to TSMO Division Chief for Operations, Mar. 11, 2005.

   However, RAM's position is not supported by the record. Rather, it appears
   that the more fundamental cause for the lack of progress was RAM's lack of
   the engineering expertise required to implement the in-house option it had
   recommended to TSMO. In this regard, the record indicates that, when TSMO
   expressed concern to RAM at the February 23, 2005 weekly aviation meeting
   about the lack of progress, RAM's lead engineer responded that he was the
   only one on RAM's staff with the expertise required to perform the rework.
   RAM's lead engineer further advised that whoever had developed the rework
   options RAM had previously presented to the agency "didn't know what they
   were talking about"; according to RAM's lead engineer, reworking the
   backlog MWOs would require three to five additional engineers, and at
   least 2 years to complete, with even more time likely necessary.
   Memorandum for Record, TSMO Division Chief for Operations, Feb. 25, 2005;
   Tr. at 33-35.

   RAM's response to TSMO's March 2005 default notice further made clear its
   current lack of the engineering expertise required to complete the rework
   on a timely basis. Specifically, while RAM had proposed on August 25, 2004
   to complete the rework of the backlog MWOs over the course of fiscal year
   2005 with just two senior engineers and one technician, Letter from RAM
   COO to TSMO Division Chief for Operations, Aug. 25, 2005, on March 30, RAM
   estimated that under its status quo staffing it could complete only five
   MWOs per year. RAM went on to recommend that staffing be increased by
   adding two teams, each comprised of a stress engineer, general or
   aerospace engineer, and a computer-aided design technician. According to
   RAM, the recommended two-team approach would result in completion of the
   substantiation packages for 55 backlog MWOs per year. As noted by the
   agency, while RAM had also estimated that the number of items to be
   reworked (then estimated at a potential 200 items) could be reduced by at
   least 25 percent by eliminating obsolete items and combining similar
   items, RAM's recommended approach nevertheless appeared likely to take
   several years to complete, rather than the 12 months the agency required.
   RAM Refined Engineering Plan for MWO-Backlog Stabilization and Recovery,
   Mar. 30, 2005.

   Conclusion

   In sum, the record indicates that TSMO tasked RAM to undertake the rework
   of the backlog MWOs, a process that needed to be completed on a timely
   basis (originally established as September 2005) in order to avoid the
   risk that TSMO's airworthiness authority over its foreign aircraft would
   be withdrawn and TSMO's operations disrupted. TSMO reasonably determined
   that the required rework effort was within the scope of RAM's contract and
   that RAM had in fact commenced work on this project. RAM failed to make
   timely progress toward completing the rework due largely to the lack of
   adequate in-house engineering expertise, and actually acknowledged, as
   reflected in its recommended approach, that completion of the rework would
   be delayed for several years. In these circumstances, we find that TSMO
   reasonably determined that RAM was not a viable source to perform the
   bridge contract.

   HOSTILE WORK ENVIRONMENT

   In addition to our conclusion above, we find that TSMO reasonably
   determined that RAM was responsible for creating a hostile work
   environment, and that this also called into question RAM's ability to
   perform. In this regard, TSMO's aviation safety officer wrote to RAM on
   March 16, 2005 to express "safety concerns" in regard to "the turmoil and
   tension between RAM's contractor management/leadership and TSMO Aviation
   government management/leadership." Memorandum from TSMO Aviation Safety
   Officer for RAM Safety Officer, Mar. 16, 2005. According to TSMO's
   aviation safety officer:

   Government and contractor leadership have created an environment that
   infringes on the ability of pilots and mechanics to perform their missions
   safely. The threat of being fired from one party and the constant battle
   between the [government flight representative] and the contractor [program
   manager] in my opinion have created an unsafe environment psychologically
   for pilots and mechanics.

   Id. RAM conceded in its response to the agency's default notification that
   a hostile work environment existed. RAM asserted, however, that "the
   primary source of this hostility currently originates from [TSMO's
   government flight representative] with the tacit approval of TSMO
   leadership and maybe with some encouragement from the [White Sands Missile
   Range] Director of Contracting." RAM Response to Default Notice, Apr. 4,
   2005. TSMO, on the other hand, assigns responsibility for the hostile
   workplace environment to RAM, in particular, its program manager. In this
   regard, the Director of TSMO testified that much of the conflict was
   attributable to RAM's resistance to the government's efforts to ensure
   that RAM would comply with the contract requirements and the government's
   directives. The Director cited as one example RAM's conceded reluctance to
   comply with the contract requirement that its pilots undergo Army flight
   physicals when the contractor preferred the less stringent Federal
   Aviation Administration flight physicals. Tr. at 343-44, 833-34, 858-61.
   The Director further testified that, when he raised the issue of the
   contentious relationship between the agency and the contractor with RAM,
   the COO responded that "he had hired a pit bull [as its program manager]
   because he was trying to respond to what he considered to be unreasonable
   government requirements." Tr. at 343.

   The record includes testimony, declarations and contemporaneous memoranda
   from a number of government officials discussing incidents involving
   conflict or tension with RAM's program manager, as well as testimony from
   the program manager generally disputing the accounts or the interpretation
   given to the incidents. We need not resolve the discrepancies in the
   accounts and interpretations with respect to each incident, nor need we
   apportion responsibility for the overall tension between the government
   and the contractor here, since the record reasonably confirms the agency's
   position that, at the very least, the overall management approach of RAM
   and its program manager contributed to a potentially hazardous safety
   situation. In this regard, agency witnesses testified that a lack of free
   communication discourages personnel from raising issues, and that this is
   potentially hazardous to aviation operations, creating a safety of flight
   issue. Tr. at 323, 492-93. This is significant since the TSMO safety
   officer found, and testimony at the hearing confirmed, that the free flow
   of information necessary to ensure a safe flight environment was
   threatened by the reluctance of some RAM employees to be seen
   communicating with government employees or making comments with which
   RAM's program manager might disagree, for fear of management reprisal
   and/or termination of employment. Memorandum from TSMO Aviation Safety
   Officer for RAM Safety Officer, Mar. 16, 2005; Tr. at 87-88, 192, 323-24,
   513-16; see Tr. at 906-07; Government Flight Representative's Memoranda
   for Record, Feb. 2 and Mar. 4, 2005.

   Further, it is significant that, while RAM, in its response to the default
   notification, offered to assign its program manager to other duties for 30
   days while an independent review of the work environment was undertaken,
   RAM reaffirmed its commitment to retaining its program manager.
   Specifically, RAM informed the agency that "RAM is firmly committed to
   retaining [its program manager] in his present role as the Program Manager
   for this contract . . . ." RAM Response to Default Notice, Apr. 4, 2005.

   Given TSMO's reasonable determination that the actions and management
   style of RAM's program manager were contributing to a potentially
   hazardous aviation environment, and given RAM's stated unwillingness to
   replace the program manager, we find that the agency's concerns in this
   area lent further support to its determination that RAM was not a viable
   source for performance of the bridge contract.[5]

   The protest is denied.

   Anthony H. Gamboa

   General Counsel

   ------------------------

   [1] Our Office conducted a hearing in this matter.

   [2] RAM, a small business concern, also asserts that TSMO's determination
   to exclude RAM from consideration for the new bridge contract should have
   been referred to the Small Business Administration (SBA) for a certificate
   of competency review. However, where a contracting agency decides to
   satisfy an urgent requirement by limiting competition to firms it believes
   can perform satisfactorily, and thereby excludes a small business concern
   from the competition, the agency need not refer the decision to exclude
   the small business to the SBA. See McGregor Mfg. Corp., B-285341, Aug. 18,
   2000, 2000 CPD para. 151 at 9 n.10; DOD Contracts, Inc., B-250603.2,
   Mar. 3, 1993, 93-1 CPD para. 195 at 4; Jay Dee Militarywear, Inc.,
   B-243437, July 31, 1991, 91-2 CPD para. 105 at 6; Industrial Refrigeration
   Serv. Corp., B-220091, Jan. 22, 1986, 86-1 CPD para. 67 at 4.

   [3] In December 2003, when airworthiness authority was delegated to TSMO,
   the agency's foreign aircraft were temporarily grounded, and there was a
   disruption of planned operations. Tr. at 159-60.

   [4] Further, SOW sect. C.5.1.5 required the contractor to "provide
   engineering documentation support for establishing, maintaining, and
   updating engineering data, as-built drawings, and associated engineering
   drafting support to include aviation systems." Tr. at 555 (emphasis
   added).

   [5] Although RAM asserts that the sole source award to CSC will create an
   OCI and otherwise was improper, as discussed above, TSMO reasonably
   determined that RAM was not a viable source for performance of the new
   contract. RAM, therefore, is not an interested party to object to other
   aspects of the agency's sole source determination. 4 C.F.R. sect. 21.1(a)
   (2005).