Agency’s Urgent Requirement Justified Sole-Source Award, Comp. Gen. Says

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S U M M A R Y

The U.S. Comptroller General found that the Air Force reasonably awarded a sole-source contract for aircraft wash and corrosion control services using simplified acquisition procedures due to urgent requirements and insufficient time for a limited competition. The protest was dismissed, and the sole-source justification and approval were documented in accordance with regulations.

This document reports on a decision by the U.S. Comptroller General regarding a sole-source contract awarded by the Air Force for aircraft wash and corrosion control services. The Comptroller General found that the agency reasonably awarded the contract using simplified acquisition procedures due to urgent requirements and insufficient time for a limited competition. The protest was dismissed, and the sole-source justification and approval were documented in accordance with regulations.

64 No. 19 Government Contractor ¶ 146

Government Contractor | May 11, 2022

Volume 64, Issue 19

Advisory Board[*](#co_footnote_Iebc1c3a0d20011eca8578c43eaa)

The Government Contractor®

Decisions

¶ 146. Agency’s Urgent Requirement Justified Sole-Source Award, Comp. Gen. Says

Empire Aircraft Servs., Inc., Comp. Gen. Dec. B-420425, et al., 2022 CPD ¶ 92

An agency reasonably awarded a sole-source contract using simplified acquisition procedures where the agency reasonably determined there was insufficient time to conduct a limited competition to meet urgent requirements for aircraft wash and corrosion control services, the U.S. Comptroller General recently determined.

The Air Force originally issued a request for proposals set aside for small business firms seeking tow, wash, de-paneling, lubrication, and cleaning services for C-5 and C-17 aircraft at Dover Air Force Base. Four firms, including Starlight Corp. (the incumbent) and Empire Aircraft Services Inc., submitted proposals. The Air Force originally made award to Empire, and Starlight protested to the Government Accountability Office. The Air Force took corrective action, and the Comp. Gen. dismissed the protest as academic.

The Air Force again made award to Empire, and Starlight protested to GAO. In response, the Air Force suspended Empire’s performance. The Comp. Gen. sustained the protest, finding that the agency did not adequately document its relevancy evaluation for the offerors’ past performance information and improperly reduced one of Starlight’s ratings on a past performance questionnaire. Starlight Corp., Comp. Gen. Dec. B-420267.3, et al., 2022 CPD ¶ 65; 64 GC ¶ 119.

During the protest process, the Air Force sought to obtain services through an interim contract, while the Air Force revisited its needs for the long-term solicitation. The Air Force issued an RFP directly to Starlight for a six-month contract with two three-month options. The Air Force documented its sole-source justification and approval (J&A) to use simplified acquisition procedures, citing unusual and compelling urgency as its basis for award. The Air Force stated that “[n]ot having Aircraft Corrosion Control services … would significantly affect the National Security interests of the United States,” and that the “aircraft cannot fly without having scheduled Corrosion Control.”

The J&A summarized the Air Force’s market research and identified Starlight—the incumbent—as a potential source and indicated that “[d]ue to this being a bridge action while the protest is being processed, this effort will not be competed.” The J&A further indicated that no sources expressed an interest in the RFP in writing. The Air Force indicated that the estimated interim contract cost would be $567,000 including the options.

Empire attempted to contact the Air Force numerous times about the bridge contract, but the Air Force provided no information to Empire until the Air Force confirmed that it awarded Starlight the sole-source contract. Empire then protested to GAO.

Empire asserted that the Air Force violated the Federal Acquisition Regulation by failing to seek competition to the maximum extent practicable. Contracts must generally be awarded through full and open competition. 10 USCA § 2304(a)(1)(A). Agencies may use simplified procedures when acquiring goods or services below the simplified acquisition threshold. 41 USCA § 1901(a)(1) and (2). When using simplified acquisition procedures, agencies must promote competition to the maximum extent practicable. 41 USCA § 1901(c); FAR 13.104. But a contracting officer may solicit from one source if the CO determines that the contract action’s circumstances deem only one source to be reasonably available, for example through urgency, exclusive licensing, brand name, or industrial mobilization. FAR 13.106-1(b)(1)(i).

The Comp. Gen. found that given the then-pending Starlight protest, and subsequent performance stay, the Air Force reasonably limited competition due to its immediate needs for service. The Air Force’s J&A identified the corrosion control services as critical to the C-5 and C-17 maintenance and safety, and stated that two aircraft were scheduled for service the week of the interim contract award. The Air Force stated that grounding these aircraft would have a significant negative impact on national security.

Empire also argued that the J&A did not properly identify Starlight’s unique qualifications or vendor capabilities, and that the Air Force’s market research was misleading.

The Air Force argued that while the long-term RFP provided for award on a best-value basis with past performance more important than price, the interim contract RFP considered past performance to be equal to price. Accordingly, the agency found Starlight to be “the lowest-priced technically acceptable offeror with Satisfactory past performance in a recently completed contract for like services … and the Government did not have time to support a limited competition and meet the urgent need.”

Accordingly, to the extent the J&A included factual inaccuracies or insufficient documentation, the Comp. Gen. determined that Empire lacked competitive prejudice and denied the protest.

Footnotes

Dominique L. Casimir—Blank Rome LLP; John W. Chierichella—Chierichella Procurement Strategies LLC; C. Stanley Dees; Jay DeVecchio—Morrison & Foerster; Richard L. Dunn; Richard C. Loeb—University of Baltimore School of Law; Dhananjay S. Manthripragada—Gibson, Dunn & Crutcher LLP; James J. McCullough—Fried, Frank, Harris, Shriver & Jacobson LLP; David Nadler—Blank Rome LLP; Ralph C. Nash; Stuart B. Nibley—K&L Gates LLP; Neil H. O’Donnell—Rogers Joseph O’Donnell; Paul E. Pompeo—Arnold & Porter LLP; Michael J. Schaengold—Greenberg Traurig LLP; Michael J. Scheimer—Hogan Lovells US LLP; Robert Sneckenberg—Crowell & Moring LLP; Jeri K. Somers—The Potomac Law Group, PLLC; Steven N. Tomanelli—Steven N. Tomanelli & Associates; Carl L. Vacketta—DLA Piper US LLP; Joseph D. West—Gibson, Dunn & Crutcher LLP; Steven L. Schooner, Jessica Tillipman and Christopher R. Yukins—George Washington University.

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