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Sole Source Award of Shelter Systems Violated CICA

A protest of a sole source contract award for bare base shelters systems was sustained by the Court of Federal Claims because the government solicited an offer only from the awardee and delayed posting notice of the award until the contract was almost fully performed. The need for the shelter systems arose from the government's deployment of troops to Afghanistan. The government learned of the requirement on April 1, obtained a price quotation from the awardee on April 2, and awarded the contract on April 27. According to the protester, the government violated the Competition in Contracting Act by failing to consider sources other than the awardee.

Only Awardee Solicited

The court found the need for the shelter systems constituted an unusual and compelling urgency under CICA, which justified the use of sole source procedures. However, this exception to the requirement for full and open competition also requires the government to "request offers from as many potential sources as [was] practicable under the circumstances." Here, the government obtained a price quotation from the awardee just one day after learning of the requirement despite being aware of other shelter system manufacturers. The record did not explain why the government did not contact other sources just as quickly. The 26-day period between notice of the requirement and contract award afforded "ample opportunity" to obtain price quotations from other sources. By failing to request offers from as many sources as practicable, the government violated 10 USC 2304(e) and FAR 6.302-2(c)(2). The court also concluded the justification for the award was improper because the government never determined whether the anticipated cost would be fair and reasonable, as required by 10 USC 2304(f)(3)(C) and FAR 6.303-2.

Posting Intentionally Delayed

Further, the government's delay in posting timely notice of the award was arbitrary and capricious because the delay was intentional and for the purpose of avoiding a bid protest. 10 USC 2304(l)(1)(B) and FAR 6.305(b) allow the government 30 days to post notice of a sole source contract award based on unusual and compelling urgency, and here, the government posted the justification and approval on www.fedbizopps.com 7 days after contract award. However, internal government e-mails showed the government intentionally waited until it knew the contract was almost fully performed before posting the J&A. Even though the posting was technically within the 30-day period allowed by FAR 6.305(b), "the [g]overnment's actions were calculated to obstruct the interests of those who might object to the sole source award." FAR 1.102-2(c) requires the government to "conduct business with integrity, fairness, and openness," and to thereby "[maintain] the public's trust." The government's conduct could not "be condoned in any reputable procurement system." (California Industrial Facilities Resources, Inc. v. U.S., et al., FedCl, 55 CCF ¶79,619)

(The news featured above is a selection from the news covered in the Government Contracts Report Letter, which is published weekly and distributed to subscribers of the Government Contracts Reporter. )

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