Contractor Excluded from a Sole Source Contract Wins Bid Protest

Contractor Excluded from a Sole Source Contract Wins Bid Protest

This case is a good checklist for contractors upset at being left out of a sole source procurement.

Innovation Development Enterprises of America, Inc. (IDEA) complained that the United States Air Force violated the Competition in Contracting Act when it issued a sole-source contract (the bridge
contract), to Harris IT Services Corporation (Harris) and filed a post-award bid protest.

The Court, in sustaining the protest, highlighted a laundry list of errors made by the agency.

1) Lack of Advance Planning by Agency — The Court held that sole source procurements may not be used when the circumstances justifying the award were due to the agency’s own lack of advance planning.

2) Arbitrary and Capricious Reasoning — The Court found many cases where the agency just acted arbitrarily. For example, the agency determined that Harris was the only responsible source for the services it needed. However, it also conceded that no market research was performed!

3) Multiple FAR Violations — The Court wrote “The violations of procurement regulations in the sole-source award to Harris are numerous, troubling and prejudicial to IDEA. These are not mere technical errors. Although there is no indication that the Air Force conducted this procurement in bad faith, the record suggests that 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 CMAS support services requirement.” Here is the list

A) The agency improperly relied on both FAR 6.302-1 and FAR 6.302-2 for sole source authorization — an agency cannot use both.

B) No market research was performed per FAR Part 10.

C) No contract synopsis was posted per FAR 5.207(c)(15)(ii) and FAR 6.302-1(d)(2) — As a general rule, a procuring agency must provide notice of upcoming contract actions. See FAR 5.201(c) (“The primary purposes of the notice are to improve small business access to acquisition information and enhance competition by identifying contracting and subcontracting opportunities.”). No justification for this was given.

D) No mention of IDEA as an interested source, as required by FAR 6.303-2(a)(10) — Another minimum requirement of a sole-source selection is a listing of contractors that have expressed an interest in the contract requirement. This requirement is set forth in FAR 6.303-2, which states in relevant part: “As a minimum, each justification shall include . . . [a] listing of the sources, if any, that expressed, in writing, an interest in the acquisition.” FAR 6.303-2(a)(10) (now found at 48 C.F.R. § 6.303-2(b)(10)). This regulation, too, was violated in the sole-source award to Harris. Here, it is undisputed that IDEA repeatedly expressed, in writing, an interest in the procurement.

E) Failure to solicit offers from as many sources as practicable, as required by FAR 6.302-2(c)(2).

The case is Innovation Development Enterprises of America, Inc. v. United States, 2013 U.S. Claims LEXIS 34 (January 29, 2013).

Albo & Oblon, L.L.P. are government contract attorneys and bid protest lawyers.

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