Government Contracts Government Properly Used Sole-Source Procedures for FMS Award
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Tuesday, September 22, 2020

Government Properly Used Sole-Source Procedures for FMS Award

By Government Contracts Editorial Staff

The Comptroller General denied a protest of a proposed sole-source foreign military sales contract award because the protester failed to demonstrate it could meet the buyer’s requirements. The aerostat systems acquisition was conducted on behalf of the Kingdom of Saudi Arabia under the Arms Export Control Act (22 USC 2751 – 2799aa-2), which authorizes the Department of Defense to enter into contracts for purposes of resale to foreign countries or international organizations. After conducting extensive market research, the government concluded only the awardee was capable of fulfilling the requirement and announced its intent to acquire the aerostat systems on a sole-source basis from the awardee. The government found the protester not capable of performing the requirement because it was an integrator that would have to purchase the systems from another source, not an original equipment manufacturer of the systems. The protester maintained it could have entered into a teaming arrangement with the awardee or another firm and the government should have allowed it to compete for the requirement.

No Viable Teaming Partner. However, there was no support for the protester’s assertion it had a viable teaming partner. The record showed there were three potential OEM firms that manufactured aerostat systems. The first was the awardee, and it advised the government that it intended to pursue the requirement as a prime contractor and would not consider a teaming arrangement with the protester. The second OEM told the government it had decided to exit the relevant market, so it was effectively no longer a capable OEM that could potentially serve as a subcontractor. Finally, the third OEM manufactured five commercial aerostat systems, but none of these systems met the buyer’s altitude or payload requirements. The lack of evidence demonstrating the protester’s capabilities was consistent with the express finding in the government’s market research report that the protester was “shown to be a high risk based on the lack of understanding and approach of the KSA total package approach” and failed to “provide any substantiating evidence to accomplish the production and manufacturing of the KSA system requirements.” (Bravura Information Technology Systems, Inc., 35 CGEN ¶116,919)

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