TITLE: B-296984; B-296984.2; B-296984.3; B-296984.4; B-296993; B-296993.2;, WorldWide Language Resources, Inc.; SOS International Ltd., November 14, 2005
BNUMBER: B-296984; B-296984.2; B-296984.3; B-296984.4; B-296993; B-296993.2;
DATE: November 14, 2005
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B-296984; B-296984.2; B-296984.3; B-296984.4; B-296993; B-296993.2;, WorldWide Language Resources, Inc.; SOS International Ltd., November 14, 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: WorldWide Language Resources, Inc.; SOS International Ltd.

   File: B-296984; B-296984.2; B-296984.3; B-296984.4; B-296993; B-296993.2; 
   B-296993.3; B-296993.4

   Date: November 14, 2005

   Richard D. Lieberman, Esq., McCarthy, Sweeney & Harkaway, PC, for
   WorldWide Language Resources, Inc.; Alison L. Doyle, Esq. and Jeniffer M.
   De Jesus, Esq., McKenna Long & Aldridge LLP, for SOS International Ltd.,
   the protesters.

   Thomas P. Barletta, Esq., Paul R. Hurst, Esq., and Michael C. Drew, Esq.,
   Steptoe & Johnson LLP, for Russian and Eastern European Partnership, Inc.,
   d/b/a Operational Support Services, an intervenor.

   Clarence D. Long, III, Esq., Paul D. Warring, Esq., and Edward N. Ramras,
   Esq., Department of the Air Force, for the agency.

   Edward Goldstein, Esq., and Christine S. Melody, Esq., Office of the
   General Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   1. Protests challenging agency's award of sole-source contract for
   bilingual-bicultural advisors utilizing other than competitive procedures
   based on unusual and compelling urgency are sustained where the agency
   initially attempted to place the requirement under an environmental
   services contract, which, on its face, did not include within its scope
   the bilingual-bicultural advisor requirement. This obvious error
   constituted lack of advance planning, which compromised the agency's
   ability to obtain any meaningful competition and directly resulted in the
   sole-source award.

   2. Justification and approval prepared in support of second sole-source
   award expanding the bilingual-bicultural advisor requirement was
   unreasonable where justification was premised on the conclusion that the
   awardee was the only responsible source, yet the capabilities of firms
   other than the awardee were not in fact considered.

   3. Agency's request for dismissal of protests as untimely on the ground
   that announcement of contract award on the Department of Defense's
   official website, www.DefenseLink.mil, placed protesters on constructive
   notice of the award and thus required the protesters to file their
   protests within 10 days of the announcement is denied since DefenseLink
   has not been designated by statute or regulation as the public medium for
   announcement of procurement actions.

   DECISION

   WorldWide Language Resources, Inc. and SOS International, Ltd. (SOSi)
   protest the Department of the Air Force's award of two sole-source
   contracts (Nos. FA7012-05-C-0003 and FA7012-05-C-0020) to Russian and
   Eastern European Partnership, Inc. (REEP) d/b/a Operational Support
   Services (OSS), for individuals performing services as
   bilingual-bicultural advisor/subject matter experts (BBA-SME) in Iraq.
   WorldWide and SOSi argue that: (1) the Air Force did not have the claimed
   unusual and compelling urgency justifying the noncompetitive awards to
   OSS; (2) to the extent there were urgent requirements, the urgency was the
   result of the Air Force's lack of advance planning; (3) the Air Force
   unreasonably concluded that OSS was the only firm capable of meeting the
   BBA-SME requirements; and (4) the Air Force failed to obtain competition
   to the maximum extent practicable as required by statute and regulation.

   We sustain the protests.

   Background

   The protests concern two sole-source contracts, contract No.
   FA7012-05-C-0003 (with an estimated value of $10.7 million) and No.
   FA7012-05-C-0020 (with an estimated value of $35.5 million), awarded to
   OSS on December 3, 2004 and on July 29, 2005, respectively, both of which
   were to support the mission of the Multinational Forces-Iraq (MNF-I),
   particularly the Civil Affairs Command (CAC). The December contract
   required OSS to provide 50-75 bilingual-bicultural advisor-subject matter
   experts (BBA-SME), who were described as follows:

   Western oriented individuals of Iraqi background who speak both English
   and Iraqi-dialect Arabic or Kurdish and who are committed to a democratic
   Iraq to act as advisors to Iraqi units of government and non-government
   organizations . . . . The advisory services required include, but are not
   limited to, advising government ministers, planning for and implementation
   of elections, drafting of constitutional documents, advising neighborhood,
   municipal and national councils and public services, training of security
   forces and details, translation and interpretation of conversations,
   documents and cultural matters in support of democratic objectives.[1]

   Contract No. FA7012-05-C-0003, Performance Based Work Statement at 2.

   The period of contract performance was 1 year, ending on December 2, 2005.

   The July contract effectively increased to 200 the total number of
   BBA-SMEs that OSS was required to provide through December 2005 and also
   extended the period of performance through July 2006 (OSS was required to
   provide an additional 150 BBA-SMEs from July through the end of OSS's
   December contract, which expired on December 2, and then provide a total
   of 200 BBA-SMEs through July 2006).

   The BBA-SME requirement had its genesis in a program established by the
   Office of the Secretary of Defense (OSD) in 2003, known as the Iraqi
   Reconstruction and Development Council (IRDC). The IRDC was composed of
   approximately 150 individuals of Iraqi heritage from the world-wide exile
   community who provided assistance to the Coalition Provisional Authority
   with stabilizing and maintaining a civil government in Iraq. Agency Report
   (AR), Tab 15, Declaration of Victor A.D. Rostow, Special Assistant to the
   Under Secretary of Defense for Policy, Sept. 12, 2005, at 2. Some members
   of the IRDC were selected for their professional experience (i.e.,
   lawyers, physicians, engineers, information technology specialists), while
   others were selected for family and/or social contacts with ethnic and
   tribal groups. The services provided by these individuals were obtained
   through a contract awarded to the firm Science Applications International
   Corporation (SAIC).[2] Id.

   When the Coalition Provisional Authority dissolved in June 2004, the IRDC
   program also came to an end. In the timeframe between June and July,
   however, the Deputy Secretary of Defense "determined that the success of
   the United States war effort required the services of experts in
   reconstruction and governance in the period leading up to the
   establishment of a constitutional Iraqi government," AR, Tab 15, supra, at
   1, and sought a way to "support some 50-75 of [the IRDC] individuals who
   can operate independently throughout Iraq in support of MNF-I/CAC
   activities." AR, Tab 16h, e-mail from Victor A.D. Rostow, Subject: Iraqi
   Contractor Help, Nov. 18, 2004. As a consequence, the Deputy Secretary of
   Defense tasked Mr. Victor Rostow, Special Assistant to the Under Secretary
   of Defense for Policy, who had organized and managed the IRDC program,
   with establishing a program to hire Iraqis of Western orientation who were
   capable of assisting the Civil Affairs Command. AR, Tab 15, supra, at 1.

   In a hearing held by our Office concerning the issues in this case,[3] Mr.
   Rostow explained that the program "was to be in place and functioning when
   the Iraqi elections occurred in January [2005]." Hearing Transcript (Tr.)
   at 135. While the immediate need was to address the elections, the
   program's underlying purpose was to address the needs of the Iraqi
   community (e.g., their medical, energy, and agricultural needs) and
   thereby create "a nudge toward democracy." Tr. at 136. According to Mr.
   Rostow, OSD wanted "to get the program started" and considered it to be "a
   demonstration grant" whereby OSD would fund the program for an initial
   period of 1 year and the military commands, i.e., Central Command or
   Southern Command, would then continue funding the program "because they've
   seen this as a function that works in the military." Tr. at 138-39.
   According to OSD, the Civil Affairs Command mission is expected to
   increase as the war-fighters draw down; the Civil Affairs Command is
   suffering from staffing shortages; and the BBA-SME program is designed to
   augment this staffing shortage. AR, Tab 15, supra, at 5.

   In mid-August 2004, Mr. Rostow began working on a statement of work for
   the program and contacted the Air Force with the requirement sometime
   between mid-August and mid-September. The Air Force's Center for
   Environmental Excellence (AFCEE) initially took responsibility for the
   BBA-SME acquisition.[4] Tr. at 133, 140. After speaking with Mr. Rostow
   and receiving the scope of work for the BBA-SME requirement, the AFCEE
   decided to compete the BBA-SME requirement among the multiple contract
   holders of AFCEE's global engineering, integration, and technical
   assistance (GEITA) contract. The GEITA contract was to provide advisory
   and assistance services in support of AFCEE's "continued excellence in the
   world environmental stewardship market," including support for AFCEE's
   programs involving environmental restoration, compliance, pollution
   prevention, conservation and planning, fuel facility engineering, base
   realignment and closure activities, and military family housing
   initiatives, to include privatization and outsourcing activities. See
   GEITA Contract, Statement of Work, at 3, 4-5.[5]

   On October 27, 2004, AFCEE issued a solicitation for the BBA-SME
   requirement to the holders of the GEITA contract. AR, Tab 14, Declaration
   of Chief of Acquisition for the Air Force District of Washington, at 3.
   However, in early November, the BBA-SME solicitation and the plan to place
   the BBA-SME requirement under the GEITA contract were canceled after the
   director of contracting for AFCEE, with the concurrence of the Office of
   the Secretary of the Air Force, determined that the BBE-SME requirement
   was not within the scope of the GEITA contract. In an e-mail message to
   the Air Force's Deputy Assistant Secretary for Contracting, he wrote:

   Evidently Mr. Rostow called a Technical Division Chief at AFCEE directly
   on his cell phone and asked if they could do this. That started the ball
   in motion and no one (technical or contracting) really stopped for a
   sanity check on this until yesterday . . . . Bottom line -- Does not fit
   within AFCEE's charter, does not fit within scope of GEITA without really
   stretching way out there, there were some over zealous AFCEE personnel on
   both the technical and contracting sides that were leaning way forward in
   the saddle and trying to support a customer that called with a request for
   support based on AFCEE previous success in Iraq, AFCEE is not in the habit
   of saying no to anyone.

   AR, Tab 16.ss., Nov. 10, 2004, e-mail, Subject: RE: GEITA Services for
   Bilingual-Bicultural Support to Iraq.

   Unable to use the GEITA contract and with OSD expecting a contract in
   place by mid-November,[6] the Air Force looked to other avenues to assist
   OSD with the BBA-SME acquisition and on November 10 the Air Force's
   Associate Deputy Assistant Secretary for Contracting contacted the
   Commander for the 11th Contracting Squadron, Bolling Air Force Base,
   Washington, to provide assistance with the procurement.

   Experiencing what it perceived to be significant pressure from OSD to
   quickly satisfy the BBA-SME requirement,[7] the 11th Contracting Squadron,
   the contracting activity, first considered the possibility of placing the
   BBA-SME requirement under an existing contract, specifically considering
   its two contractors for language instruction, one of which was OSS.
   However, after concluding that the BBA-SME requirement would not fit
   within the scope of the contracts it administered, the contracting
   activity decided to pursue a sole-source contract for the BBA-SME
   requirement "[b]ecause there was no way to competitively go out and get
   that effort done in a way that probably wouldn't result in a minimum four
   to six month slip of the schedule, maybe longer . . . ." Tr. at 27. When
   the contracting activity sought a potential contractor for its expected
   sole-source award, it focused exclusively on OSS. After initial inquiries
   regarding OSS's capabilities and a November 18 meeting between OSS, OSD,
   and the Air Force, it was determined that the BBA-SME requirement should
   be awarded on a sole-source basis to OSS.

   In early December, the Air Force executed a justification and approval
   (J&A) for other than full and open competition in support of the initial
   award to OSS. The December J&A, which cites 10 U.S.C. sect. 2304(c)(2)
   (2000) and Federal Acquisition Regulation (FAR) sect. 6.302-2 (unusual and
   compelling urgency) as the authority for the award to OSS, states that
   "OSS is the only known contractor who is in the position to provide
   deployed BBAs to Iraq in time to support the Iraqi national elections in
   January 2005." AR, Tab 1b.2, J&A, December 1, 2004, at para. 5. Describing
   OSS's "unique qualifications," the J&A noted that OSS is the largest
   provider of foreign language immersion training to the U.S. government;
   the firm's staff features former military specialists; OSS maintained a
   database of nearly [deleted] linguists, trainers, translators, and
   interpreters; and OSS had staff in Iraq. Id.

   Under the heading "Market Survey," the J&A stated that "OSD could not
   locate an existing contract vehicle to support [the BBA-SME] requirement"
   and that because the AFCEE contracting option was cancelled, "there was
   not sufficient time to compete the requirement and meet the . . . 1
   December 2004 deadline for contract award . . . ." Id. at para. 9.
   Moreover, the J&A highlighted the fact that OSS's cost of beginning
   operations in Iraq was reduced since OSS had [deleted] as well as the fact
   that OSS was [deleted]. Id. The J&A further provided that the requirement
   was expected to last for only 12 months and that a follow-on procurement
   was not anticipated, but that if similar requirements arose in the future,
   market research would be performed and the effort would be competed. Id.
   at para. 11. On December 3, 2004, the Air Force awarded contract No.
   FA7012-05-C-0003 to OSS.

   In late January or early February 2005, after OSS had begun performance,
   the MNF-I identified a requirement for approximately 275 BBA-SMEs and
   conveyed this information to OSD. Tr. at 170-71. At the end of March, Mr.
   Rostow discussed the possibility of expanding the BBA-SME program with the
   Deputy Secretary of Defense based on positive feedback from Iraq regarding
   the program. Tr. at 170. According to Mr. Rostow, during the discussion of
   expansion, the Deputy Secretary of Defense requested "a paper that makes a
   recommendation, which I did probably about the middle of April." Tr. at
   170. On May 2, 2005, the Deputy Secretary of Defense formally approved
   expansion of the BBA-SME program to 200 individuals and extension of the
   contract period through June 2006. See AR, Tab 1.d., Memorandum for Deputy
   Secretary of Defense, Subject: BBA-SME Project: Increasing Numbers and
   Money, Apr. 27, 2005.

   In discussions with the contracting activity regarding the option of
   expanding the BBA-SME program, OSD initially sought an award date in June
   2005, with the contract running through June 2006. Tr. at 195, 244. The
   contracting activity explained that it would not be possible to meet a
   June 2005 award date if the requirement was subject to full and open
   competition because a competitive award would take a minimum of 6-8 months
   to coordinate and conduct the source selection. AR, Tab 12.b., e-mail,
   Subject: OSS-BBA Extension 4-22-05, Apr. 22, 2005. The contracting
   activity explained that the only option for an expedited contract was a
   sole-source award and indicated that OSD would be required to "conduct
   adequate market research to certify that only one source [in accordance
   with [FAR sect.] 6.302-1 can provide the required service without
   significant duplication of cost and loss of schedule." Id.

   On July 11, 2005, the Air Force approved a J&A for other than full and
   open competition in support of the award of a contract to OSS with a
   1-year performance period, plus one 3-month option, for expansion of the
   BBA-SME program.[8] While initial discussions between OSD and the Air
   Force concerned justifying a sole-source award to OSS under FAR sect.
   6.302-1 (only one responsible source and no other supplies or services
   will satisfy agency requirements), the July J&A, like the prior one, cited
   10 U.S.C. sect. 2304(c)(2) and FAR sect. 6.302-2 (unusual and compelling
   urgency) as the authority for the sole-source award to OSS. The J&A
   explained that the BBA-SME requirement was critical for the Civil Affairs
   Command and that without the BBA-SME program "numerous CAC missions cannot
   be performed." AR, Tab 1.b.1, J&A, July 11, 2005, at para. 5. It stated
   that "OSS is the only contractor who is capable of meeting the
   government's requirement in the unusual and compelling timeframe
   required." Id. at para. 2. According to the J&A, the "critical need date"
   for the expanded BBA-SME requirement was July 1, 2005, and the national
   security interests of the government would be "seriously harmed" unless
   the agency was permitted to proceed with a sole-source award of the
   requirement. Id. at paras. 4 and 5. The J&A further stated that OSS was

   the only provider of subject matter experts with the requisite cultural
   competences and linguist skills. While there are a number of other
   providers of linguists (Titan Corp.) and linguists with security
   clearances, none of these providers have mined the Iraqi heritage
   community with a view to finding and deploying individuals with skills
   required by the MNF-I CAC. . . . They are the only provider having
   [deleted]. They are the only provider that can perform the contract
   without significant additional start-up costs and recruitment delays.

   Id. at para. 5.

   The J&A also indicated that the requirement was expected to last for only
   15 months and that a follow-on contract was not expected. Id. at para. 11.
   On July 29, 2005, the Air Force awarded contract No. FA7012-05-C-0020 to
   OSS.

   Analysis

   As an initial matter the Air Force argues that the challenges relating to
   the December 2004 sole-source award to OSS should be dismissed as
   untimely.[9] The agency maintains that the award was announced on December
   6, 2004 on the official website for the Department of Defense, referred to
   as DefenseLink--http://www.defenselink.mil/--and that the protesters
   should have challenged the award within 10 days of this announcement, yet
   they waited more than 6 months to file their protests.[10] In essence, the
   Air Force argues that the award announcement on DefenseLink placed the
   protesters on constructive notice of the sole-source award and that the
   timeliness of their protests should be measured from this date. We
   disagree.[11]

   Our Bid Protest Regulations contain strict rules for the timely submission
   of protests. These rules require that a protest based on other than
   alleged improprieties in a solicitation be filed no later than 10 calendar
   days after the protester knew or should have known its basis for protest,
   whichever is earlier. 4 C.F.R. sect. 21.2(a)(2).

   In support of its contention that the protesters were on constructive
   notice by virtue of the DefenseLink posting, the Air Force points to our
   decisions holding that publication in the Commerce Business Daily (CBD) or
   on the FedBizOpps website (which has replaced the CBD) placed protesters
   on constructive notice of an agency's contract actions. For example, we
   have recognized that publication in the CBD of an agency's intent to enter
   into a sole-source contract constitutes constructive notice of that
   proposed contract action. See Fraser-Volpe Corp., B-240499 et al., Nov.
   14, 1990, 90-2 CPD para. 397 at 3; S.T. Research Corp., B-232751, Oct. 11,
   1988, 88-2 CPD para. 342 at 1. Similarly, we have held that publication on
   the FedBizOpps website places prospective contractors on constructive
   notice of contract awards, such that protests of the awards must be filed
   within 10 days of publication. CBMC, Inc., B-295586, Jan. 6, 2005, 2005
   CPD para. 2 at 2.

   These cases, however, are inapposite. The doctrine of constructive notice
   creates a presumption of notice in law that cannot be rebutted. See, e.g.,
   Townsend v. Little and Others, 109 U.S. 504, 511 (1883) ("constructive
   notice is defined to be in its nature no more than evidence of notice, the
   presumption of which is so violent that the court will not even allow of
   its being controverted"). By definition the doctrine imputes knowledge to
   a party without regard to the party's actual knowledge of the matter at
   issue. Given the severity of such a rule, our decisions holding protesters
   to constructive notice of information published in the CBD and now on
   FedBizOpps have been premised on the fact that first the CBD and now
   FedBizOpps have been expressly designated by statute and regulation as the
   official public medium for providing notice of contracting actions by
   federal agencies. See Herndon & Thompson, B-240748, Oct. 24, 1990, 90-2
   CPD para. 327 at 3 (protesters are charged with constructive notice of
   contents of procurement synopsis published in the CBD since it is the
   official public medium for identifying proposed contract actions); see
   also 15 U.S.C. sect. 637(e)(2)(A) (2000); 41 U.S.C. sect. 416(a)(7)
   (2000); FAR sect. 2.101 (designating FedBizOpps as the governmentwide
   point of entry (GPE), "the single point where Government business
   opportunities greater than $25,000, including synopses of proposed
   contract actions, solicitations, and associated information, can be
   accessed electronically by the public").

   In this case, the Air Force did not publish its intent to enter into a
   sole-source contract with OSS, [12] nor did it provide notice of the award
   on FedBizOpps; rather, the Air Force announced the December award solely
   on DefenseLink. While the agency maintains that DefenseLink is "as widely
   known as FedBizOpps and as eagerly perused," AR, Tab 2.a., Agency's
   Request for Dismissal at 2, DefenseLink has not been designated by statute
   or regulation as an official public medium for providing notice of
   contracting actions. As a consequence, and in view of the sometimes harsh
   consequences of application of the doctrine, we do not treat posting on
   DefenseLink as giving rise to constructive notice.

   Moreover, we note that the agency was required to provide notice of the
   award on FedBizOpps, but failed to do so. Pursuant to FAR sect. 5.301(a),
   agencies are required to synopsize, through FedBizOpps, contract awards
   exceeding $25,000 that are either: (1) covered by the World Trade
   Organization Government Procurement Agreement or a Free Trade Agreement;
   or (2) "likely to result in the award of any subcontracts." FAR sect.
   5.301(a). It is the second prong that applied to the December 2004 award,
   and thus required the Air Force to provide notice of the award through
   FedBizOpps.[13]

   When the Air Force and OSD met with OSS on November 18 to discuss OSS's
   capabilities, OSS attended the meeting with the "team" that it intended to
   use in performance of the BBA-SME requirement. Agency's Response to GAO
   Questions for the Record at 2. Thus, not only was it "likely" that the
   award to OSS would result in the award of subcontracts, the award of
   subcontracts was anticipated by the Air Force with certainty. While the
   Air Force argues that it did not anticipate that OSS would use any
   subcontractors other than those with which it had already teamed, this
   argument is of no consequence, since under the regulation an agency is to
   consider whether an award is likely to result in "any" subcontracts. Since
   OSS clearly planned to utilize subcontractors upon award of the BBA-SME
   requirement, the Air Force should have synopsized the award on the
   GPE.[14] Having failed to comply with the applicable notice provisions,
   the Air Force cannot now complain that the protesters should have filed
   their protests in a more timely manner.[15]

   We next consider the protesters' arguments that the December 2004 and July
   2005 sole-source awards to OSS were improper. The protesters argue that to
   the extent the awards to OSS were justified based on urgency, the urgent
   circumstances were the result of the Air Force's lack of advance planning.
   They argue that the J&As prepared in connection with the awards are not
   adequately justified and that the Air Force failed to request offers from
   as many potential sources as practicable.[16]

   The Competition in Contracting Act (CICA) requires agencies to conduct
   their procurements using "full and open competition." 10 U.S.C. sect.
   2304(a)(1)(A). CICA, however, permits noncompetitive acquisitions in
   specified circumstances, such as when the agency's need for the services
   is of unusual and compelling urgency. 10 U.S.C. sect. 2304(c)(2).
   Specifically, the exception provides as follows:

   The head of an agency may use procedures other than competitive procedures
   only when . . . (2) the agency's need for the property or services is of
   such an unusual and compelling urgency that the United States would be
   seriously injured unless the agency is permitted to limit the number of
   sources from which it solicits bids or proposals.

   Id.; see also FAR sect. 6.302-2(a)(2).

   This exception only allows an agency to "limit the number of sources"; an
   agency may not simply ignore the potential for competition. The mandate
   for agencies to effect some modicum of competition is reiterated in 10
   U.S.C. sect. 2304(e), which provides that when an agency utilizes other
   than competitive procedures based on unusual and compelling urgency, the
   agency "shall request offers from as many potential sources as is
   practicable under the circumstance." See also FAR sect. 6.302-2(c)(2). In
   addition, CICA provides that under no circumstances may noncompetitive
   procedures be used due to a lack of advance planning by contracting
   officials or concerns related to the amount of funds available to the
   agency. 10 U.S.C. sect. 2304(f)(5); see also FAR sect. 6.301(c).

   With regard to the requirement for advance planning, our Office has
   recognized that such planning need not be entirely error-free or
   successful. See, e.g., HEROS, Inc., B-292043, June 9, 2003, 2003 CPD para.
   111 at 6; New Breed Leasing Corp., B-274201, B-274202, Nov. 26, 1996, 96-2
   CPD para. 202 at 6; Sprint Communications Co., L.P., B-262003.2, Jan. 25,
   1996, 96-1 CPD para. 24 at 9. As with all actions taken by an agency,
   however, the advance planning required under 10 U.S.C. sect. 2304, must be
   reasonable. In enacting CICA, Congress explained: "Effective competition
   is predicated on advance procurement planning and an understanding of the
   marketplace." S. Rep. No. 50, 98th Cong., 2d Sess. 18 (1984), reprinted in
   1984 U.S.C.C.A.N. 2191. The Senate Report also quoted with approval the
   following testimony regarding the need for advance planning:

   Opportunities for obtaining or improving competition have often been lost
   because of untimely, faulty, or the total lack of advance procurement
   planning. Noncompetitive procurement or inadequate competition also has
   resulted many times from the failure to develop specifications . . . . By
   requiring effective competition, Congress will serve notice on the
   agencies that they will need to do more than the minimum to comply with
   the statute.

   Id. at 19, reprinted in 1984 U.S.C.C.A.N. 2192.

   Based on this legal framework we sustain the protesters' challenges to
   each of the two sole-source awards to OSS for BBA-SME services, albeit on
   separate and distinct grounds.

   December 2004 Sole-Source Award

   Based on the factual context presented with regard to the December 2004
   award to OSS, it is evident that the agency's efforts--as described and
   explained by the agency itself--were so fundamentally flawed as to
   indicate an unreasonable level of advance planning, which directly
   resulted in the sole-source award to OSS. In responding to the protesters'
   challenges to the December sole-source award, the Air Force suggests that
   its actions and the justification underpinning the sole-source
   determination should be evaluated based on the circumstances faced by the
   contracting activity in November 2004 when it received the requirement and
   took steps to expeditiously procure the required BBE-SME services. For
   example, the Air Force highlights the fact that when the J&A was prepared
   in support of the award to OSS, the government was faced with the dilemma
   of needing BBA-SME services in place to support the January 2005 elections
   in Iraq--then only 2 months away--and it did not have a contractor to
   provide the services. AR, Tab 13, Supplemental Legal Memorandum at 15; AR,
   Tab 1.b.2, J&A para. 3.

   We recognize the abbreviated contracting schedule faced by the contracting
   activity in its efforts to obtain a contract vehicle for the BBA-SME
   requirement--a schedule driven by expectations and mandates from higher
   echelons within the Department of Defense. The record, however, clearly
   reflects the fact that this narrow procurement window was the direct
   result of unreasonable actions and acquisition planning by the Air Force
   and the Department of Defense, to the extent these entities engaged in any
   acquisition planning at all.

   Specifically, 2-3 months[17] were lost as a result of the initial plan to
   place the BBA-SME requirement under the GEITA contract--even though the
   requirement was clearly outside the scope of the GEITA contract. As noted
   above, the GEITA contract was for advisory and assistance services in
   support of AFCEE's "continued excellence in the world environmental
   stewardship market," including support for AFCEE's programs involving
   environmental restoration, compliance, pollution prevention, conservation
   and planning, fuel facility engineering, base realignment and closure
   activities, and military family housing initiatives, to include
   privatization and outsourcing activities. AR, Tab 17, GEITA Contract,
   Statement of Work, at 3, 4-5. The BBA-SME requirement, however, was for
   Western-oriented individuals of Iraqi background, who were committed to a
   democratic Iraq, and who would provide services in Iraq such as advising
   government ministers, planning for and implementing elections, drafting
   constitutional documents, advising neighborhood, municipal, and national
   councils, and training security forces and details. The plan to use the
   GEITA contract was unreasonable on its face, given how widely it diverged
   from the BBA-SME requirement. In fact, as indicated above, a senior member
   within the Air Force, responsible for acquisition, characterized the plan
   as requiring a "sanity check" and indicated that it was the result of
   individuals "leaning way forward in the saddle" in an effort to support a
   customer because they were "not in the habit of saying no to anyone." AR,
   Tab 16.ss., E-mail, Subject: RE: GEITA Services for Bilingual-Bicultural
   Support to Iraq, Nov. 10, 2004. It was this gross error that directly
   resulted in the Air Force's determination to pursue a sole-source award
   for the BBA-SME requirement. After the Air Force cancelled the GEITA plan,
   it initiated discussions with OSD regarding the option of making a
   sole-source award based on urgency. See AR, Tab 16.kk., E-mail, Subject:
   Iraqi Contracting Debacle, Nov. 12, 2004 (stating "[the Air Force] has
   assured me that [it] should have a contracting solution by COB today or
   Monday . . . specifically mentioned `sole-sourcing' and `urgent and
   compelling' as options on any new contract").

   July 2005 Sole-Source Award

   Turning to the July 2005 sole-source award to OSS for expansion of the
   BBA-SME requirement, we find that the agency's J&A in support of the
   sole-source award to OSS was flawed because it was premised on the
   unsupported conclusion that OSS was the only contractor capable of meeting
   the BBA-SME requirement in a timely and cost-effective manner. We
   therefore sustain the protesters' challenge to this second sole-source
   award as well.[18]

   The July 2005 J&A, which nominally cited "unusual and compelling urgency"
   as the justification for the sole-source award to OSS, was in fact
   prepared based on the exception to full and open competition set forth in
   10 U.S.C. sect. 2304(c)(1), which applies when the agency concludes that
   required services are only available from one responsible source.
   Specifically, the contracting officer testified with regard to the July
   J&A as follows: "I wrote this J&A, believing that I was going to use one
   responsible source. . . . I think the situation in Iraq is urgent, but it
   was written for [`only] one responsible source'." Tr. at 277. Moreover,
   the reasoning set forth in the J&A is consistent with the "only one
   responsible source" exception. The J&A expressly asserts that OSS is "the
   only provider [deleted]. They are the only provider that can perform the
   contract without significant additional start-up costs and recruitment
   delays." AR, Tab 1.b.1., J&A at para. 5.

   The record further reflects that the contracting officer sought support
   from OSD in preparing the J&A for "only one responsible source," pursuant
   to 10 U.S.C. sect. 2304(c)(1) and FAR sect. 6.302-1, and expressly
   informed OSD that it would be required to conduct market research
   certifying that OSS was the only responsible source capable of providing
   the BBA-SME requirement without significant duplication of cost and loss
   of schedule. AR, Tab 12.b., E-mail, Subject: OSS-BBA Extension 4-22-05,
   Apr. 22, 2005. In support of this contention the contracting officer
   maintained that OSD conducted market research, considered the capabilities
   of other firms, and certified that OSS was the only capable source. For
   example, the contracting officer testified:

   Q.    Did OSD provide market research certifying only one source can
   provide the required service?

   A.     Yes, they did.

   Q.    Who provided that market research?

   A.     Victor Rostow.

   Q.    Do you know what he did in terms of his market research?

   A.     . . . I know he had looked at existing contracts, he looked at the
   uniqueness of this requirement -- because at this point in time it had
   never occurred to me to do two follow-on unusual and compelling [urgency]
   J&As. It's hard just to justify. So we were looking at who was the one
   vendor who would be able to fulfill this requirement without having a gap
   in the deploying of vetted trained security-cleared BBA subject matter
   experts in country. . . .

   Q.    Do you know what other contractors he looked to in his market
   survey?

   A.     I do know that he looked at some other contractors . . . .

   Tr. at 237-40.

   Contrary to this testimony of the contracting officer, Mr. Rostow
   testified that he had not considered the capabilities of other contractors
   and he did not know whether the Air Force had considered other
   contractors. Tr. at 178-79. In addition, regarding the question of whether
   he had provided the contracting officer with market research in support of
   the J&A, Mr. Rostow testified:

   Q.    You did not provide [the contracting officer] with market research
   in support of the J&A ultimately?

   A.     I did not go out and look at other contractors. I feel comfortable
   saying that this is the contractor, that this contractor can provide the
   services and I don't believe there are other contractors who can do it
   without loss of time and money. But I can't - - I didn't go out and look
   for other contractors.

   Tr. at 185.

   We conclude from this inconsistency that, contrary to the understanding of
   the contracting officer, firms other than OSS and their capabilities were
   simply not meaningfully considered. This was a critical error given that
   the J&A was premised on the notion that the capabilities of other firms
   had in fact been considered, and, as a consequence, we believe that the
   J&A's conclusions supporting the sole-source decision in this regard were
   unreasonable.

   Moreover, the actions associated with the J&A were inconsistent with the
   requirements of the "unusual and compelling urgency" justification
   ultimately relied upon by the agency as the basis for the sole-source
   award to OSS. When relying on the urgency justification, as noted above,
   an agency is required to obtain competition to the maximum extent
   practicable. However, as a consequence of the agency's focus on the
   capabilities of OSS to the exclusion of all others, the agency failed to
   take any steps to obtain any competition for the expanded BBA-SME
   requirement.[19] For example, in testimony before our Office regarding the
   consideration of other contractors, the Air Force indicated that due to
   the short time frame to fulfill the requirement, transition issues, and
   because OSS was "performing admirably," the Air Force determined that OSS
   "was uniquely qualified to be the source on this follow-on." Tr. at 65.
   The record shows that the expanded BBA-SME requirement was formally
   approved by the Under Secretary of Defense on May 2, 2005 and OSS's
   sole-source contract was ultimately awarded in late July--but during that
   entire period no effort was apparently made to identify other firms,
   consider their capabilities or provide for any degree of competition, even
   on a limited basis.[20] In addition, while it may be the case that OSS's
   customers in Iraq were pleased with OSS's performance, their satisfaction
   did not provide a basis for disregarding the requirement to seek
   competition to the maximum extent practicable. See TeQcom, Inc., B-224664,
   Dec. 22, 1986, 86-2 CPD para. 700 at 5 (agency's satisfaction with
   performance of incumbent contractor did not justify the use of
   non-competitive procedures). As a consequence, we sustain the protesters'
   challenge to the second sole-source award to OSS.

   Recommendation

   In crafting our recommendation in this case, we are sensitive to the
   pressing needs associated with the military's mission in Iraq. In view of
   the fact that OSS's initial sole-source contract is now substantially
   complete, and recognizing the agency's asserted need for the services at
   issue, we do not recommend termination of this contract.[21] With regard
   to the second sole-source award, however, we recommend that the agency
   promptly obtain competition for the requirement, or prepare a properly
   documented and supported J&A in support of the expanded BBA-SME
   requirement, and, if necessary, promptly obtain competition to the maximum
   extent practicable. If, as a result of any recompetition, an offeror other
   than OSS is in line for award, we recommend that the agency terminate
   OSS's contract. We also recommend that the agency reimburse the
   protesters' reasonable costs of filing and pursuing the protests,
   including reasonable attorneys' fees. 4 C.F.R. sect. 21.8(d)(1). The
   protesters should submit their certified claim for costs, detailing the
   time expended and costs incurred, directly to the contracting agency
   within 60 days after the receipt of this decision. 4 C.F.R.
   sect. 21.8(f)(1).

   The protests are sustained.

   Anthony H. Gamboa

   General Counsel

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

   [1] The original requirement for "Western oriented individuals of Iraqi
   background" was changed, after contract award, to Iraqis with U.S.
   citizenship. See Contracting Officer's (CO) Statement of Facts at 3.

   [2] The SAIC contract for providing the 150 members of the IRDC was a
   sole-source award. The award and administration of this contract were the
   subject of reports by the Office of the Inspector General of the
   Department of Defense and GAO. See Contracts Awarded for the Coalition
   Provisional Authority by the Defense Contracting Command-Washington
   (D-2004-057, Mar. 18, 2004); Rebuilding Iraq: Fiscal Year 2003 Contract
   Award Procedures and Management Challenges (GAO-04-605, June 1, 2004).

   [3] At the hearing, our Office heard testimony from the contracting
   officer, the commander of the Air Force's 11th Contracting Squadron, and
   Mr. Rostow.

   [4] The record indicates that Mr. Rostow contacted the Air Force as a
   result of a conversation with the Chief of Staff for the Deputy Secretary
   of Defense. Tr. at 133, 143.

   [5] Our Office requested a copy of the GEITA contract and the Air Force
   provided a web address with a link to the requested information,
   http://www.afcee.brooks.af.mil/pkv/GEITA/default.asp?CID=53&folder=GEITA.

   [6] See, e.g., AR, Tab 16.b., e-mail from OSD to Office of the Secretary
   of the Air Force, Subject: Bilingual, Bicultural Support, Nov. 15, 2004
   (stating "a mid-December contract award is simply not soon enough").

   [7] See, e.g., AR, Tab 16.e., e-mail, Subject: Bilingual, Bicultural
   Support, Nov. 16, 2004 (stating "OSD is putting a lot of pressure on the
   [Air Force] to get this done").

   [8] The original target date of June passed due to efforts to obtain
   further approvals and confirmation of funding for the requirement. Tr. at
   244.

   [9] The Air Force also sought dismissal on the basis that the protesters
   are not interested parties because they are not capable of fulfilling the
   BBA-SME requirement. See Bid Protest Regulations, 4 C.F.R. sect. 21.0(a)
   (2005). The Air Force's contention that the protesters are not interested
   parties is premised on its review of the protesters' capabilities, as
   described on the General Services Administration website, after the
   protest was filed. In essence, the Air Force asserts that the protesters
   are primarily linguist contractors and that they have not previously
   provided the BBA-SME requirement, which differs from a linguist contract.
   This argument is unpersuasive, given that prior to its initial sole-source
   award, OSS was primarily a contractor for linguist services, and had never
   provided BBA-SMEs. Moreover, both protesters have expressly indicated
   their interest in the requirement, and set forth their capabilities, which
   appear consistent with a capability to perform the BBA-SME requirement.

   [10] Aside from providing general information about the Department of
   Defense and current news information, DefenseLink also announces at 5 p.m.
   each business day all Department of Defense contract awards valued at $5
   million or more. See http://www.defenselink.mil/contracts/.

   [11] The protesters state that they learned of the December 2004
   sole-source award only after they learned of the second sole-source award
   in July 2005. Notice of the July award was published on both FedBizOpps
   and the DefenseLink website.

   [12] As a general matter, an agency is required to synopsize, through the
   GPE, proposed contracting actions, to include a solicitation for a
   sole-source award. See FAR sect. 5.201. An agency, however, is not
   required to publish notice of a proposed sole-source award where it has
   decided to limit competition under 10 U.S.C. sect. 2304(c)(2) (unusual and
   compelling urgency), and determined that the government would be seriously
   injured if it complied with the specified notification time periods. See
   FAR sect. 5.202 Because the December 2004 sole-source award was made
   pursuant to 10 U.S.C. sect. 2304(c)(2), the Air Force did not provide
   notice of the intended sole-source award through the GPE, FedBizOpps.

   [13] Under FAR sect. 25.401(b), "services purchased in support of military
   services overseas" are excluded from coverage of the World Trade
   Organization Government Procurement Agreement and Free Trade Agreements.
   The BBA-SME services in support of the Civil Affairs Command in Iraq
   clearly fall within this exclusion, so this prong does not apply.

   [14] Unlike the December award, Air Force did synopsize the July
   sole-source award to OSS through FedBizOpps. In explaining the different
   treatment, the Air Force stated that "[t]he Contracting Officer who
   handled the second contract award felt that publication in FedBizOpps was
   required . . . ." Agency's Response to GAO Questions for the Record at 3.

   [15] To the extent the Air Force argues that by filing their protests more
   than 6 months after the award to OSS the protesters failed to diligently
   pursue their grounds for protest, we fail to see how they could have been
   aware of any basis for protest to pursue given that the agency did not
   synopsize the intended sole-source award to OSS, and also failed, as
   required, to synopsize the award on the GPE.

   [16] WorldWide also argues that the Air Force did not analyze OSS's prices
   for reasonableness and failed to obtain reasonable pricing under the
   contracts. The record, however, does not support the protester's
   contentions in this regard.

   [17] As noted above, in mid-August 2004, Mr. Rostow began working on a
   statement of work for the BBA-SME requirement. Mr. Rostow testified that
   between the end of August and the beginning of September, he provided
   AFCEE with a copy of the actual statement of work. Tr. at 140. It was not
   until approximately 2-3 months later, on November 10, the Air Force's
   Associate Deputy Assistant Secretary for Contracting contacted the
   Commander for the 11th Contracting Squadron for assistance with the
   procurement.

   [18] In reaching our decision, we need not address the question of whether
   the July 2005 sole-source award, an expansion of OSS's December 2004
   award, was rendered inherently unlawful as a consequence of the defects in
   the December 2004 sole-source award.

   [19] As argued by the Air Force, we have held that an agency has the
   authority under the urgency exception to full and open competition to
   limit the procurement to the only firm it reasonably believes can properly
   perform the work in the available time. See, e.g., Total Industry &
   Packaging Corp., B-295434, Feb. 22, 2005, 2005 CPD para. 38 at 2; McGregor
   Mfg. Corp., B-285341, Aug. 18, 2000, 2000 CPD para. 151 at 6. In these
   cases, unlike the case at hand, however, we have upheld the agency's
   decision to limit the procurement to a single source only where the
   decision was made after considering the capabilities of other firms and
   the agency reasonably decided to exclude them from the competition based
   on their capabilities.

   [20] In fact, the period during which additional sources could have been
   considered was apparently even longer, thus further undermining the
   argument that extreme urgency precluded considering other firms. The MNF-I
   had identified a requirement for approximately 275 BBA-SMEs in January
   2005, and it was only the formal approval for expansion by OSD which
   occurred on May 2, so that the agency had at least 4 months between
   identification of the requirement and the date by which a contract had to
   be in place. Moreover, we note that while OSD was initially aiming to have
   an award by June 1, this date was obviously not met and OSD characterized
   the J&A's "critical need date" of July 1 as "arbitrary." Tr. at 178.

   [21] Citing FAR sect. 33.104(c), the agency notified our office of its
   decision to continue with contract performance notwithstanding the
   protests challenging the awards to OSS based on the finding that
   "performance is in the best interests of the United States and that urgent
   and compelling circumstances" would not permit waiting for a decision from
   our Office. AR, Tab 11, Continuation of Contract Performance.