The Court of Federal Claims sustained a protest of a sole-source bridge contract because the need for the contract was caused by a lack of advance planning, the justification and approval was unsupported, and the award violated multiple Federal Acquisition Regulation provisions. The government awarded the one-year bridge contract for software support services to the incumbent contractor after the incumbent completed performance of the prior five-year contract. According to the government’s J&A, the incumbent was the only responsible source for the services and there was an unusual and compelling urgency.
Lack of Advance Planning
However, the Competition in Contract Act provides that sole-source procurements may not be used when the circumstances justifying the award were due to the government’s own lack of advance planning (10 USC 2304(f)(4)(A); see also FAR 6.301 (c)(1)), and here, the time frame for the award was “entirely the result of a lack of advance planning on the part of the [government].” The government knew the predecessor contract was expiring, but the record showed no efforts at adequate market research or preparation for a competitive procurement. Much of the J&A relied on the long transition time required by a new contractor, and “[f]ailure to account for transition periods between an incumbent contractor and a new contractor is yet another form of lack of advance planning.”
Further, the government’s determination the incumbent was the only responsible source was unreasonable because there was no indication the government meaningfully considered the capabilities of other potential sources before drafting the J&A. Similarly, when explaining the “substantial duplication of costs” of a transition to a new contractor, the government stated the cost of a 6 to 10 month transition was $1.5 million, but the annual cost of the incumbent’s contract was just over $400,000. Since the government did not explain why it used these figures, its reliance on the calculations was arbitrary and capricious. Finally, the procurement violated FAR 5.207, FAR 6.302-1, FAR 6.302-2, FAR 10.001, and FAR 10.002. Although there was no indication the government conducted the procurement in bad faith, the record suggested “compliance with regulatory mandates was needlessly sacrificed so that a contract vehicle could be put in place with a minimum amount of effort. The cumulative effect of these regulatory violations was to frustrate full and open competition for the … requirement.” ( Innovation Development Enterprises of America, Inc. v. U.S., FedCl, 57 CCF ¶79,991).