TITLE: B-299595.3, J&J Colombia Services MV LTDA, June 26, 2007
BNUMBER: B-299595.3
DATE: June 26, 2007
********************************************************
B-299595.3, J&J Colombia Services MV LTDA, June 26, 2007

   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: J&J Colombia Services MV LTDA

   File: B-299595.3

   Date: June 26, 2007

   John C. Dulske, Esq., and Joan K. Fiorino, Esq., Dulske & Fiorino, PC, for
   the protester.

   Michael F. Mason, Esq., Thomas L. McGovern III, Esq., and Michael D.
   McGill, Esq., Hogan & Hartson LLP, for PAE Colombia LTDA, an intervenor.

   Maj. Jayanth Jayaram, Department of the Army, 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

   Protest that agency improperly awarded interim 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 the
   incumbent contractor was in a position to perform urgently required
   services.

   DECISION

   J&J Colombia Services MV LTDA protests the Department of the Army's
   sole-source award of an interim contract to PAE Colombia LTDA under
   request for proposals (RFP) No. W913FT-07-R-0018, for logistics support
   services required by the U.S. Military Group (USMILGP) located in Bogota,
   Colombia, and other government agencies throughout Colombia. J&J argues
   that the sole-source award was solely the consequence of the Army's lack
   of advance planning, and therefore was improper.

   We deny the protest.

   By way of background, one of the primary missions of the USMILGP in
   Colombia is to support the overall U.S. strategy to defeat narcotics
   trafficking and narco-terrorism in Colombia. In cooperation with the U.S.
   Embassy, other U.S. agencies, and the government of Colombia, the USMILGP
   in Colombia provides security assistance and military-to-military contact
   in order to eliminate/reduce drug trafficking and narco-terrorism;
   strengthen Colombian military professionalism; conduct anti-drug
   operations; and eliminate the threat to Colombia's sovereignty and
   democracy.

   On December 29, 2006, the Army issued a competitive solicitation, RFP No.
   W913FT-07-R-0001, for the USMILGP's required logistics support services in
   Bogota, Colombia, which include supply support activities/warehouse
   operations, property book and unit supply support, transport and customs
   support, vehicle maintenance and repair parts support, and facilities
   administration. In response to the RFP, the Army received timely proposals
   from several offerors, including J&J and PAE. J&J was advised by letter of
   March 1, 2007 that it would be awarded the contract; however, a few days
   later, the Army advised J&J by letter that the award notice had been
   issued "prematurely and in error," and that discussions would be conducted
   with the competitive-range offerors. On March 26, the Army made award to
   PAE, the incumbent contractor. PAE had been performing under a previous
   competitively awarded contract, which had an expiration date of March 29,
   2007. J&J timely protested PAE's award to our Office on March 29.[1] As a
   consequence of J&J's protest, the Army was required to stay contract
   performance. See 31 U.S.C. sect. 3553(d)(3)(A) (2000). On that same day,
   the Army sent PAE the solicitation at issue in this current protest, RFP
   No. W913FT-07-R-0018, for the award of a sole-source interim contract to
   provide the same services as required under the contract that had been
   stayed due to the protest filed by J&J. The period of performance was 4
   months with one 6-month option period. The Army awarded PAE the interim
   contract on March 30.

   On March 30, the Army prepared a justification and approval (J&A) citing
   Federal Acquisition Regulation (FAR) sect. 6.302-2, Unusual and Compelling
   Urgency, as justification for not seeking full and open competition for
   its requirements under the interim contract. The J&A indicated that
   continuity of the logistics support services was "critical" to the
   operation and performance of the USMILGP mission in Colombia. Agency
   Report (AR) Tab 7, J&A, at 3. If the services were not maintained, the
   Army stated, its security assistance and cooperation efforts would be
   brought to "an almost complete standstill," and there would be a serious
   degradation of security and force protection. Id.; AR, Tab 14, Affidavit
   of Commander for the USMILGP Colombia, Apr. 27, 2007, at 2.

   Due to the critical nature of the required services and the resulting
   disruption to its mission and increased costs associated with
   transitioning to other than the incumbent contractor, PAE, the Army
   concluded that there was no viable alternative to a sole-source contract
   with PAE for obtaining the required services during the period of the
   protest with our Office. In this regard, the Army expressly stated that:

     there are no alternatives that would meet mission requirements without
     significant and critical interruptions to mission and a significant
     increase in cost given [the] time required to award and transition the
     logistics support and services requirements to another contractor. A
     bridge contract to the current contract is the ONLY alternative given
     the protest for the final Logistics Support and Professional Services
     Contract.

   AR, Tab 7, J&A, at 3.

   J&J timely protested the award of the interim contract to our Office. In
   its protest, J&J does not dispute the critical nature of the required
   services or argue that the services need not be performed while awaiting
   resolution of its protest. Rather, J&J argues that the need for a
   sole-source award was precipitated by the Army's lack of advance
   planning.[2] According to J&J, the Army should have known in February, or
   by early March at the latest, before the expiration of PAE's incumbent
   contract, that there was going to be a need for a bridge contract and that
   the Army failed to adequately plan for this contingency.

   As general matter, the Competition in Contracting Act of 1984 (CICA)
   requires agencies to conduct their procurements using "full and open
   competition." 10 U.S.C. sect. 2304(a)(1)(A) (2000). CICA, however, permits
   noncompetitive acquisitions in specified circumstances, such as when the
   agency's need for the services is of unusual and compelling urgency.
   Specifically, the exception provides as follows:

     An executive 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 Government would be
     seriously injured unless the executive agency is permitted to limit the
     number of sources from which it solicits bids or proposals.

   10 U.S.C. sect. 2304(c)(2); see also FAR sect. 6.302-2(a)(2). An agency,
   however, may not use noncompetitive procedures due to its lack of advance
   planning. 10 U.S.C. sect. 2304(f)(5)(A); see also FAR sect. 6.301(c).

   Here, there is no basis to conclude the Army's decision to award a
   sole-source contract to PAE was the result of a lack of advance planning.
   In fact, the record shows that the award of the bridge contract to PAE was
   the result of the confluence of several factors with J&J's filing of its
   protest, which led to a stay of performance of the competitively awarded
   long-term contract. As described above, and as discussed in the Army's
   J&A, when J&J filed its protest of the long-term contract, thereby
   invoking the statutory stay of that contract under CICA, the agency was
   left without a contract vehicle to obtain the critical services it
   required since the incumbent contract was set to expire that same day.
   Given the associated transition period accompanying an award to other than
   the incumbent contractor, and the performance gap that would have occurred
   during such a transition, the Army reasonably concluded that award to
   other than the incumbent was not a viable alternative in light of the
   critical nature of the required logistics services.

   While J&J contends that the Army should have recognized the need for a
   bridge contract much earlier since the incumbent contract was set to
   expire at the end of March and the procurement was not then complete, the
   fact remains that the actual requirement for the bridge contract did not
   arise until J&J filed its protest, a contingency which was outside the
   agency's control. Absent J&J's protest, there simply was no need for a
   bridge contract since the Army had awarded the long-term contract before
   the expiration of the incumbent contract.[3] Given the imminent expiration
   of the incumbent contract, the gap in services associated with
   transitioning to a contractor other than the incumbent, and J&J's filing
   of its protest, the Army reasonably decided to award the bridge contract
   to PAE so that it could continue to perform the critical logistics
   services on an uninterrupted basis during the pendency of J&J's protest
   with our Office. See Chapman Law Firm Co., LPA, B-296847, Sept. 28, 2005,
   2005 CPD para. 175.

   The protest is denied.

   Gary L. Kepplinger
   General Counsel

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

   [1] The agency ultimately advised that it would take corrective action in
   that protest. Our Office therefore dismissed J&J's protest as academic on
   May 24.

   [2] This protest filing triggered another automatic stay of the contract,
   which the Army subsequently overrode in accordance with FAR sect.
   33.104(c)(2).

   [3] In support of its allegation that the agency failed to engage in
   advance planning for the bridge contract, J&J relies on our decision in
   VSE Corp., Johnson Control World Servs., B-290452.3 et al., May 23, 2005,
   2005 CPD para. 103. J&J's reliance on this decision is misplaced, however,
   since, unlike in the case at hand, in VSE Corp., Johnson Control World
   Servs., the agency, after canceling its competitive solicitation,
   noncompetitively extended a contract that had been noncompetitively
   awarded 4 years earlier, without executing a J&A for the extension.
   Further, it was clear from the record that the contract extension, which
   the agency argued was justified due to transition concerns, was the direct
   result of the agency's unreasonable delay in deciding to cancel the
   competitive solicitation and thereby reflected the agency's lack of
   advance planning.