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  • Question

    Can you award a bridge contract to anyone other than the incumbent contractor using the justification that, "...as the only vendor with the knowledge necessary to continue support of the services required under the bridge contract until the re-compete contract is awarded"?


    Answer

    There are in the GAO.gov Bid protest registry approximately 128 results.

    It appears that an agency must support their decisions using the Justification and Approval Process.  Limited Research in the GAO site, indicates that GAO is sympathetic to mission needs and well documented urgency of the requirement.
     
    GAO Decisions B-407332.4  B-407332-7 Dec 23, 2014
    The Competition in Contracting Act (CICA) permits an agency to use other than competitive procedures in acquiring goods or services where the agency’s requirement is of such an unusual and compelling urgency that the government would be seriously injured unless the agency is permitted to limit the number of sources from which it solicits proposals. See 10 U.S.C. § 2304(c)(2); Federal Acquisition Regulation (FAR) § 6.302-2. CICA requires that agencies solicit offers from as many potential sources as is practicable when using the unusual and compelling urgency exception to limit competition. 10 U.S.C. § 2304(e); FAR § 6.302-2(c)(2). As our Office has held, an agency nonetheless may limit a procurement to the only firm it reasonably believes can properly perform the work in the time available. Camden Shipping Corp., B 406171, B 406323, Feb. 27, 2012, 2012 CPD ¶ 76 at 6; McGregor Mfg. Corp., B-285341, Aug. 18, 2000, 2000 CPD ¶ 151 at 6.

    When using noncompetitive procedures pursuant to 10 U.S.C. § 2304(c)(2), such as here, agencies are required to execute a written J&A with sufficient facts and rationale to support the use of the cited authority. 10 U.S.C. §§ 2304(f)(1)(A), (B); FAR §§ 6.302-2(c)(1), (d)(3), 6.303, 6.304. Noncompetitive procedures may not properly be used where the agency created the urgent need through a lack of advance planning. 10 U.S.C. § 2304(f)(4)(A); FAR § 6.301(c)(1); Worldwide Language Resources, Inc.; SOS Int’l Ltd., B-296984 et al., Nov. 14, 2005, 2005 CPD ¶ 206 at 12.

    While an agency may not justify a noncompetitive award on the basis of urgency where the agency’s requirements have become urgent as a result of a lack of advance planning, such planning need not be entirely error-free or successful. Pegasus Global Strategic Solutions, LLC, B 400422.3, Mar. 24, 2009, 2009 CPD ¶ 73 at 9; Sprint Commc’ns Co., L.P., B 262003.2, Jan. 25, 1996, 96-1 CPD ¶ 24 at 8-9.  Our review of an agency’s decision to conduct a noncompetitive procurement focuses on the adequacy of the rationale and conclusions set forth in the J&A; where the J&A sets forth a reasonable justification for the agency’s actions, we will not object to the award. Research Analysis & Maint., Inc., B-296206, B-296206.2, July 12, 2005, 2005 CPD ¶ 182 at 4; Global Solutions Network, Inc., B 290107, June 11, 2002, 2002 CPD ¶ 98 at 6.
     
    The Acquisition Plan, Market Research and the documentation in the Justification and Approval if well documented should minimize any potential protest.  “From the Digest  Protest that the procuring agency improperly awarded a short-term  sole-source bridge contract is denied where the record shows that the agency had a reasonable basis for its decision to restrict the procurement to the ONLY source it viewed as able to meet that agency’s requirement to ensure interrupted services.

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