TITLE: B-296847, Chapman Law Firm Company, LPA, September 28, 2005
BNUMBER: B-296847
DATE: September 28, 2005
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B-296847, Chapman Law Firm Company, LPA, September 28, 2005

   Decision

   Matter of: Chapman Law Firm Company, LPA

   File: B-296847

   Date: September 28, 2005

   James S. DelSordo, Esq., Cohen Mohr LLP, for the protester.

   Margaret A. Dillenburg, Esq., for Michaelson, Conner and Boul, Inc., an
   intervenor.

   R. Rene Dupuy, Esq., Department of Housing and Urban Development, for the
   agency.

   Peter D. Verchinski, Esq., and John M. Melody, Esq., Office of the General
   Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Protest that agency improperly awarded "bridge 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 incumbent
   contractor was in a position to perform the services.

   DECISION

   Chapman Law Firm Company, LPA protests the Department of Housing and Urban
   Development's (HUD) sole-source award of a "bridge contract" to
   Michaelson, Conner and Boul, Inc. (MCB) under request for proposals (RFP)
   No. R-PHI-00947, for single family home management and marketing (M & M)
   services.[1] Chapman primarily alleges that the sole-source award was
   necessitated solely by a lack of advance planning by the agency, and
   therefore is improper.

   We deny the protest.

   On August 6, 2003, HUD issued an RFP for M & M services for single family
   homes throughout the United States. The RFP sought to award
   24 indefinite-delivery, indefinite-quantity contracts, each covering a
   different region of the country. The protest here concerns one of these
   contracts, for properties in Ohio and Michigan, which was awarded to
   Greenleaf Construction Company, Inc. on April 19, 2005. Chapman timely
   protested that award to our Office on May 2 (B-293105.15). In response to
   the protest, the agency issued a stay of contract performance. The stay
   resulted in continued performance by MCB, the incumbent, and prevented
   Greenleaf from beginning the transition period under its contract that was
   ultimately to lead to full contract performance. MCB, meanwhile, continued
   to perform in accordance with its contract, which provided for a
   transition period that was to end on June 29.

   On June 14, HUD published a presolicitation notice on the FedBizOpps
   website stating that it intended to negotiate with only one source (or a
   limited number of sources) in order to award MCB a short-term contract for
   the M & M services at issue. This contract was to be a 4-month bridge
   contract, with two 4-month option periods and a 60-day transition period.
   In order to justify the lack of full and open competition, the notice
   cited Federal Acquisition Regulation (FAR) sect. 6.302-1, which allows an
   agency to limit competition when there is only one responsible source that
   will satisfy its requirements. The notice also stated that the government
   would consider all proposals received within 10 days of publication to
   determine whether a competitive procurement was called for. On the same
   day, the agency prepared a written justification and approval (J & A)
   justifying the sole-source award on the basis that the short time frame
   before MCB's transition period expired did not permit a competition, an
   immediate need existed for these services--due to the stay in place at the
   time--and MCB was the only company that could fully provide the services
   without a transition period. Agency Report, Tab 3, at 3-4.

   By letter dated June 17, HUD announced that it would take corrective
   action in response to Chapman's GAO protest. The proposed corrective
   action would consist of terminating the contract awarded to Greenleaf, and
   awarding a contract to Chapman. We dismissed the protest as academic on
   June 22.

   Also on June 17, Chapman responded to the presolicitation notice for the
   bridge contract with the same proposal it had submitted in response to the
   original RFP, together with a cover letter that acknowledged the time
   frame for the bridge contract. On June 30, HUD informed Chapman that it
   had determined that the proposal did not demonstrate a readiness to
   provide the required services without the need for a transition period,
   and that it had determined that only MCB was able to perform these
   services immediately.[2] On July 1, the agency awarded the bridge contract
   to MCB. Also on July 1, Greenleaf challenged the agency's proposed
   corrective action in a complaint filed in the U.S. Court of Federal
   Claims. That litigation has been resolved in Chapman's favor but, as of
   the date of this decision, the agency has not made award to Chapman--and
   contract performance has continued under MCB's bridge contract--pending
   its determination of Chapman's responsibility.

   Chapman timely protested the award of the bridge contract to our Office.
   It alleges that the agency's poor planning led to the need for a
   sole-source award, and that the term of the contract exceeds the agency's
   minimum needs. [3]

   Although the overriding mandate of the Competition in Contracting Act of
   1984 (CICA) is for full and open competition in government procurements
   obtained through the use of competitive procedures, 10 U.S.C. sect.
   2304(a)(1)(A) (2000), CICA permits noncompetitive acquisitions in certain
   circumstances, such as when the services needed are available from only
   one responsible source or when the 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. 41
   U.S.C. sections 253(c)(1), (c)(2) (2000). When an agency uses
   noncompetitive procedures under sect. 253(c)(1) or (c)(2), it is required
   to execute a written J & A with sufficient facts and rationale to support
   the use of the cited authority. See 41 U.S.C. sect. 253(f)(1)(A), (B);
   Federal Acquisition Regulation (FAR) sections 6.302-1(d)(1),
   6.302-2(c)(2), 6.303, 6.304. Our review of an agency's decision to conduct
   a sole-source procurement focuses on the adequacy of the rationale and
   conclusions set forth in the J & A; where the J & A sets forth a
   reasonable justification for the agency's actions, we will not object to
   the award. Global Solutions Network, Inc., B-290107, June 11, 2002, 2002
   CPD para. 98 at 6. However, noncompetitive procedures are not justifiable
   where the agency created the need for the sole-source award through a lack
   of advance planning. 41 U.S.C. sect. 253(f)(5)(A).

   The justification for the sole-source award here is reasonable, and there
   is no basis for finding a lack of advance planning.[4] As described in the
   facts above, and as referenced in the J & A, Chapman's protest of the
   award led to the stay of contract performance. This stay prevented
   Greenleaf from transitioning into contract performance as MCB's contract
   approached the end of its transition period, as had been reasonably
   contemplated under the procurement scheme. Consequently, the agency would
   shortly have no contractor performing the M & M services. These
   circumstances together with the agency's determination that Chapman lacked
   the readiness to perform the services, and not a lack of advance planning,
   led to the agency's decision to award the sole-source bridge contract.

   Chapman also alleges that the term of the bridge contract exceeds the
   agency's minimum needs. The agency explains, however, that the 4-month
   term of the contract, with two 4-month option periods, was deemed
   necessary in light of the possibility that the litigation surrounding the
   requirement would become protracted. HUD notes in this regard that
   litigation surrounding the award of M & M services in other areas of the
   United States has lasted as long as 9 months. Given this history of
   litigation--and the absence of any evidence or substantive argument by
   Chapman refuting the agency's position--we find no basis for objecting to
   the term of the bridge contract; it did not exceed the agency's minimum
   needs at the time of the award.

   The protest is denied.

   Anthony H. Gamboa

   General Counsel

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

   [1] M & M services are an ongoing requirement for daily oversight of
   HUD-controlled housing, including inspections, security, and repairs, as
   well as sales, closings, and accounting activities.

   [2] Chapman does not challenge the determination that it lacks the
   readiness to perform.

   [3] This protest filing triggered another automatic stay of the contract,
   which HUD subsequently overrode in accordance with FAR sect. 33.104(c)(2).
   Chapman unsuccessfully challenged this override at the Court of Federal
   Claims.

   [4] Chapman asserts that HUD should have awarded the original contract to
   Chapman during the several days between our dismissal of its protest as
   academic and Greenleaf's filing with the Court of Federal Claims. While
   the agency could have proceeded in this manner, however, there simply was
   no requirement that it expedite the award to Chapman in this manner.
   Chapman does not provide a rationale for its position to the contrary.