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