Government Contracts Government Failed to Justify Sole-Source Bridge Contract
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Monday, April 19, 2021

Government Failed to Justify Sole-Source Bridge Contract

By Government Contracts Editorial Staff

The Court of Federal Claims enjoined continued performance of a sole-source bridge contract because the government did not do enough to justify the award under the exception for unusual and compelling urgency. The protester successfully challenged corrective action that terminated its contract to provide armed security services to the Federal Emergency Management Agency in Puerto Rico and awarded the contract to another offeror (65 CCF ¶82,061). The government then issued a sole-source contract to the subsequent awardee. Noting the government received notice of the CFC’s ruling on December 30, 2020, and the ruling required the government to end the awardee’s contract January 8, 2021, the justification and approval for the sole-source award stated that “due to extraordinary limitation in acquisition lead time, there [was no] portion of the work that [could] be segregated to allow for competition.” However, the court found the government’s premise—that the urgency for the sole-source bridge contract award was caused by the timing of the court’s decision—failed to take any responsibility for the government’s improper actions. Given the lengthy history of the procurement and the court’s concerns, the government should have prepared for a possible negative result and been in a better position to move forward appropriately.

Quick Award. The court also faulted the J&A for its focus on the urgency of a quick award, rather than why the sole source decision was proper under the urgency exception. The protester had represented it was ready to perform, and the fact the awardee was already “satisfactorily performing” did not justify the government’s failure to consider a proposal from the protester. The government did not explain how limiting the number of sources was necessary to prevent the “serious injury” referred to in 41 USC 3304(a) or why it did not consider other potential offerors as required by §3304(d). A modification shortened the bridge contract from 150 to 60 days, which suggested the J&A’s original time frame exceeded the time necessary “to meet the unusual and compelling requirements of the work to be performed under the contract” (§3304(c)). The government failed to comply with §3304’s notice requirements, and its reliance on the prior solicitation’s market research and pricing to meet the requirements of §3304(e)(2) was inconsistent with the government’s unwillingness to consider the protester’s proposal. The lack of a rational basis for the sole-source award prejudiced the protester because the prior solicitation process and previous protest demonstrated the protester would have had a substantial chance of award. (AGMA Security Service, Inc. v. U.S., et al., FedCl, 65 CCF ¶82,094)

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