B-400479, Smith & Wesson, Inc., November 20, 2008
Decision
Matter of: Smith & Wesson, Inc.
John
G. Stafford, Esq., Richard L. Moorhouse, Esq., and David Goodwin, Esq., Greenberg
Traurig, LLP, for the protester.
John F. Renuzzi, Esq., Renuzzi Law Firm, LLP, for Glock, Inc., the intervenor.
Vera Meza, Esq., and Caridad Ramos, Esq., Department of the Army, for the
agency.
Kenneth Kilgour, Esq., and Christine S. Melody, Esq., Office of
the General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Protest of sole-source
solicitation is denied where the record shows that the agency complied with statutory
requirements by executing a justification and approval authorizing the use of
other than full and open competition procedures, based on the agency’s
reasonable conclusion that there is only one responsible source that will
satisfy the agency’s requirement.
DECISION
Smith & Wesson, Inc. of Springfield,
Massachusetts protests as unreasonable the justification and approval (J&A)
offered by the U.S. Army Tank-Automotive and Armaments Command (TACOM) to
support the award of a sole-source contract to Glock, Inc. of
This procurement is to supply additional pistols for use
by
Although the overriding mandate of the Competition in
Contracting Act of 1984 (CICA), 10 U.S.C. sect. 2304(a)(1)(A) (2000), is for full
and open competition in government procurements, obtained through the use of
competitive procedures, it permits noncompetitive acquisitions in certain
circumstances. 10 U.S.C. sect. 2304(c). The agency’s J&A cites one of the exceptions
to the mandate that competitive procedures be used, namely, that there is only
one responsible source and no other supplies or services will satisfy the agency’s
requirements. J&A, citing 10
U.S.C. sect. 2304(c)(1). The J&A must
contain sufficient facts and rationale to support the use of the chosen exception.
See 10 U.S.C. sect. 2304(f)(1)(A),
(B); Federal Acquisition Regulation (FAR) sections 6.302-1(d)(1), 6.303, 6.304; Marconi
Dynamics, Inc., B-252318,
We conclude that the rationale advanced by the agency in
the J&A--in essence, the critical benefits from weapon standardization--is
sufficient to support the decision to procure the Glock pistol on a sole-source
basis. Specifically, the agency asserts
that prior wide use of the Glock pistol by the fighting forces mentioned above
has created “a baseline of standardization of operations and support that is
critical to be continued.” J&A at
1. Procuring more of the same pistol
would lessen the logistical burden on the Pakistan Army, the agency states, in
part by reducing the effort required for spare parts administration; retraining
the various forces also would be unnecessary if the same pistol were
procured.
In its challenge to the agency’s rationale, the protester points
out that the J&A does not support a conclusion that the Pakistanis cannot
effectively defend themselves if they procure a pistol other than the Glock
that they use now. The protester also maintains
that the disassembly and cleaning of the Glock and the proposed Smith &
Wesson firearms are identical; that, given its worldwide popularity, there is
no shortage of spare parts for the protester’s pistol; and that personnel are
typically trained to service and repair or replace the parts for many different
types of semi-automatic weapons. The
protester also asserts that the difference between the trigger pulls of the two
weapons--the protester’s pistol has a heavier trigger pull and a longer trigger
travel--are at best minor distinctions that would have no impact on the war
fighting capabilities of the Pakistani forces.
As an initial matter, to the extent that the protester
argues that the J&A is inadequate because it does not show that the Glock
pistol is indispensable to the forces who would use it, its argument is based
on a flawed premise. As discussed above,
the standard is not whether the item being procured is indispensable, or even
whether the Glock performs better than the selected pistol, but whether the
agency has offered sufficient facts and rationale to support the decision to
procure it on a sole- source basis. The
protester’s claim that many organizations with armed personnel train them on
several different firearms is unpersuasive; what is at issue here is the level
of training received by the Pakistani fighting forces and not, as in one
example offered by the protester, the training regimen of metropolitan cities
in this country. There is nothing in the
record to suggest that the forces that would be supplied with a different
pistol than the current Glock would easily adapt to a change in firearms.
It is undisputed that the parties using these weapons do
so under extremely hazardous and unstable conditions. Under these circumstances, we conclude that the
benefits to the fighting forces cited in the J&A from procuring the same
pistol currently in use, such as avoiding the need for retraining on a
different model or the need to stockpile spare parts for different models, are sufficient
to support the agency’s decision to procure the pistols on a sole-source basis.
The protest is denied.
Gary L. Kepplinger
General Counsel
[1]
The original protest challenged TACOM’s intent to award on a sole-source basis,
under the foreign military sales (FMS) program, contracts for the purchase of
Glock pistols for security forces in
[2]
The protester disputes the agency’s claim that the Glock is the only pistol
currently in use by the fighting forces in