B-296984; B-296984.2; B-296984.3; B-296984.4; B-296993; B-296993.2;, WorldWide Language Resources, Inc.; SOS International Ltd., November 14, 2005
DOCUMENT FOR PUBLIC RELEASE
The decision issued on the date below was subject to a GAO Protective Order. This redacted version has been approved for public release.
Decision
Matter of: WorldWide Language Resources, Inc.; SOS International Ltd.
File: B-296984; B-296984.2; B-296984.3; B-296984.4; B-296993; B-296993.2; B‑296993.3; B-296993.4
Richard
D. Lieberman, Esq., McCarthy, Sweeney & Harkaway, PC, for WorldWide
Language Resources, Inc.; Alison L. Doyle, Esq. and Jeniffer M. De Jesus, Esq.,
McKenna Long & Aldridge LLP, for SOS International Ltd., the protesters.
Thomas
P. Barletta, Esq., Paul R. Hurst, Esq., and Michael C. Drew, Esq., Steptoe
& Johnson LLP, for Russian and Eastern European Partnership, Inc., d/b/a
Operational Support Services, an intervenor.
Clarence
D. Long, III, Esq., Paul D. Warring, Esq., and Edward N. Ramras, Esq.,
Department of the Air Force, for the agency.
Edward Goldstein, Esq., and Christine S. Melody, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision.
DIGEST
1. Protests challenging agency’s award of sole-source contract for bilingual-bicultural advisors utilizing other than competitive procedures based on unusual and compelling urgency are sustained where the agency initially attempted to place the requirement under an environmental services contract, which, on its face, did not include within its scope the bilingual-bicultural advisor requirement. This obvious error constituted lack of advance planning, which compromised the agency’s ability to obtain any meaningful competition and directly resulted in the sole-source award.
2. Justification and approval prepared in support of second sole-source award expanding the bilingual-bicultural advisor requirement was unreasonable where justification was premised on the conclusion that the awardee was the only responsible source, yet the capabilities of firms other than the awardee were not in fact considered.
3. Agency’s request for dismissal of protests as untimely on the ground that announcement of contract award on the Department of Defense’s official website, www.DefenseLink.mil, placed protesters on constructive notice of the award and thus required the protesters to file their protests within 10 days of the announcement is denied since DefenseLink has not been designated by statute or regulation as the public medium for announcement of procurement actions.
DECISION
WorldWide Language Resources, Inc. and SOS International, Ltd. (SOSi) protest the Department of the Air Force’s award of two sole-source contracts (Nos. FA7012‑05‑C-0003 and FA7012-05-C-0020) to Russian and Eastern European Partnership, Inc. (REEP) d/b/a Operational Support Services (OSS), for individuals performing services as bilingual-bicultural advisor/subject matter experts (BBA-SME) in Iraq. WorldWide and SOSi argue that: (1) the Air Force did not have the claimed unusual and compelling urgency justifying the noncompetitive awards to OSS; (2) to the extent there were urgent requirements, the urgency was the result of the Air Force’s lack of advance planning; (3) the Air Force unreasonably concluded that OSS was the only firm capable of meeting the BBA-SME requirements; and (4) the Air Force failed to obtain competition to the maximum extent practicable as required by statute and regulation.
Background
The protests concern two sole-source contracts, contract
No. FA7012-05-C-0003 (with an estimated value of $10.7 million) and No.
FA7012-05-C-0020 (with an estimated value of $35.5 million), awarded to OSS on
December 3, 2004 and on July 29, 2005, respectively, both of which were to
support the mission of the Multinational Forces-Iraq (MNF-I), particularly the
Civil Affairs Command (CAC). The
December contract required
Western oriented individuals of
Iraqi background who speak both English and Iraqi-dialect Arabic or Kurdish and
who are committed to a democratic
Contract No. FA7012-05-C-0003, Performance Based Work Statement at 2.
The period of contract performance was 1 year, ending on
The July contract effectively increased to 200 the total number of BBA-SMEs that OSS was required to provide through December 2005 and also extended the period of performance through July 2006 (OSS was required to provide an additional 150 BBA-SMEs from July through the end of OSS’s December contract, which expired on December 2, and then provide a total of 200 BBA-SMEs through July 2006).
The BBA-SME requirement had its genesis in a program
established by the Office of the Secretary of Defense (OSD) in 2003, known as the
Iraqi Reconstruction and Development Council (IRDC). The IRDC was composed of approximately 150
individuals of Iraqi heritage from the world-wide exile community who provided
assistance to the Coalition Provisional Authority with stabilizing and maintaining
a civil government in
When the Coalition Provisional Authority dissolved in June
2004, the IRDC program also came to an end.
In the timeframe between June and July, however, the Deputy Secretary of
Defense “determined that the success of the United States war effort required
the services of experts in reconstruction and governance in the period leading
up to the establishment of a constitutional Iraqi government,” AR, Tab 15, supra,
at 1, and sought a way to “support some 50-75 of [the IRDC] individuals who can
operate independently throughout Iraq in support of MNF-I/CAC activities.” AR, Tab 16h, e-mail from Victor A.D. Rostow,
Subject: Iraqi Contractor Help,
In a hearing held by our Office concerning the issues in this case,[3] Mr. Rostow explained that the program “was to be in place and functioning when the Iraqi elections occurred in January [2005].” Hearing Transcript (Tr.) at 135. While the immediate need was to address the elections, the program’s underlying purpose was to address the needs of the Iraqi community (e.g., their medical, energy, and agricultural needs) and thereby create “a nudge toward democracy.” Tr. at 136. According to Mr. Rostow, OSD wanted “to get the program started” and considered it to be “a demonstration grant” whereby OSD would fund the program for an initial period of 1 year and the military commands, i.e., Central Command or Southern Command, would then continue funding the program “because they’ve seen this as a function that works in the military.” Tr. at 138-39. According to OSD, the Civil Affairs Command mission is expected to increase as the war-fighters draw down; the Civil Affairs Command is suffering from staffing shortages; and the BBA-SME program is designed to augment this staffing shortage. AR, Tab 15, supra, at 5.
In mid-August 2004, Mr. Rostow began working on a
statement of work for the program and contacted the Air Force with the
requirement sometime between mid-August and mid-September. The Air Force’s Center for Environmental
Excellence (AFCEE) initially took responsibility for the BBA-SME acquisition.[4] Tr. at 133, 140. After speaking with Mr. Rostow and receiving
the scope of work for the BBA-SME requirement, the AFCEE decided to compete the
BBA-SME requirement among the multiple contract holders of AFCEE’s global engineering, integration, and
technical assistance (GEITA) contract.
The GEITA contract was to provide advisory and assistance services in
support of AFCEE’s “continued excellence in the world environmental
stewardship market,” including support for AFCEE’s programs involving
environmental restoration, compliance,
pollution prevention, conservation and planning, fuel facility engineering,
base realignment and closure activities, and military family housing
initiatives, to include privatization and outsourcing activities. See GEITA Contract, Statement of Work,
at 3, 4-5.[5]
On
Evidently Mr. Rostow called a Technical Division Chief at AFCEE
directly on his cell phone and asked if they could do this. That started the ball in motion and no one
(technical or contracting) really stopped for a sanity check on this until
yesterday . . . . Bottom line -- Does not fit within AFCEE’s charter,
does not fit within scope of GEITA without really stretching way out there,
there were some over zealous AFCEE personnel on both the technical and
contracting sides that were leaning way forward in the saddle and trying to
support a customer that called with a request for support based on AFCEE
previous success in Iraq, AFCEE is not in the habit of saying no to anyone.
AR, Tab 16.ss.,
Unable to use the
GEITA contract and with OSD expecting a contract in place by mid-November,[6]
the Air Force looked to other avenues to assist OSD with the BBA-SME
acquisition and on November 10 the Air Force’s Associate Deputy Assistant
Secretary for Contracting contacted the Commander for the 11th Contracting
Squadron, Bolling Air Force Base, Washington, to provide assistance with the
procurement.
Experiencing what
it perceived to be significant pressure from OSD to quickly satisfy the BBA-SME
requirement,[7]
the 11th Contracting Squadron, the contracting activity, first considered the
possibility of placing the BBA-SME requirement under an existing contract,
specifically considering its two contractors for language instruction, one of
which was
In early December,
the Air Force executed a justification and approval (J&A) for other than
full and open competition in support of the initial award to
Under the heading
“Market Survey,” the J&A stated that “OSD could not locate an existing
contract vehicle to support [the BBA-SME] requirement” and that because the
AFCEE contracting option was cancelled, “there was not sufficient time to compete
the requirement and meet the . . .
In late January or
early February 2005, after
In discussions
with the contracting activity regarding the option of expanding the BBA-SME
program, OSD initially sought an award date in June 2005, with the contract
running through June 2006. Tr. at 195,
244. The contracting activity explained
that it would not be possible to meet a June 2005 award date if the requirement
was subject to full and open competition because a competitive award would take
a minimum of 6-8 months to coordinate and conduct the source selection. AR, Tab 12.b., e-mail, Subject: OSS-BBA
Extension
On
the only provider of subject matter experts with the requisite cultural
competences and linguist skills. While
there are a number of other providers of linguists (Titan Corp.) and linguists
with security clearances, none of these providers have mined the Iraqi heritage
community with a view to finding and deploying individuals with skills required
by the MNF-I CAC. . . . They are the
only provider having [deleted]. They are
the only provider that can perform the contract without significant additional
start-up costs and recruitment delays.
The J&A also
indicated that the requirement was expected to last for only 15 months and that
a follow-on contract was not expected.
Analysis
As an initial
matter the Air Force argues that the challenges relating to the
December 2004 sole-source award to
Our Bid Protest
Regulations contain strict rules for the timely submission of protests. These rules require that a protest based on
other than alleged improprieties in a solicitation be filed no later than 10
calendar days after the protester knew or should have known its basis for
protest, whichever is earlier. 4 C.F.R.
sect. 21.2(a)(2).
In support of its
contention that the protesters were on constructive notice by virtue of the
DefenseLink posting, the Air Force points to our decisions holding that
publication in the Commerce Business Daily (CBD) or on the FedBizOpps
website (which has replaced the CBD) placed protesters on constructive notice
of an agency’s contract actions. For
example, we have recognized that publication in the CBD of an agency’s intent
to enter into a sole-source contract constitutes constructive notice of that
proposed contract action. See Fraser-Volpe
Corp., B‑240499 et al., Nov. 14, 1990, 90-2 CPD para. 397
at 3; S.T. Research Corp., B-232751, Oct. 11, 1988, 88-2 CPD para. 342 at 1. Similarly, we have held that publication on
the FedBizOpps website places prospective contractors on constructive notice of
contract awards, such that protests of the awards must be filed within 10 days
of publication. CBMC, Inc., B‑295586,
These cases,
however, are inapposite. The doctrine of
constructive notice creates a presumption of notice in law that cannot be
rebutted. See, e.g., Townsend
v. Little and Others, 109 U.S. 504, 511 (1883) (“constructive notice is
defined to be in its nature no more than evidence of notice, the presumption of
which is so violent that the court will not even allow of its being
controverted”). By definition the
doctrine imputes knowledge to a party without regard to the party’s actual
knowledge of the matter at issue. Given
the severity of such a rule, our decisions holding protesters to constructive
notice of information published in the CBD and now on FedBizOpps have been
premised on the fact that first the CBD and now FedBizOpps have been expressly
designated by statute and regulation as the official public medium for
providing notice of contracting actions by federal agencies. See Herndon & Thompson,
B-240748, Oct. 24, 1990, 90-2 CPD para. 327 at 3 (protesters are charged with
constructive notice of contents of procurement synopsis published in the CBD since
it is the official public medium for identifying proposed contract actions); see
also 15 U.S.C. sect. 637(e)(2)(A) (2000); 41 U.S.C. sect. 416(a)(7) (2000);
FAR sect. 2.101 (designating FedBizOpps as the governmentwide point of entry (GPE),
“the single point where
Government business opportunities greater than $25,000, including synopses of
proposed contract actions, solicitations, and associated information, can be
accessed electronically by the public”).
In this case, the Air Force did not publish its intent to
enter into a sole-source contract with
Moreover, we note that the agency was required to provide
notice of the award on FedBizOpps, but failed to do so. Pursuant to FAR sect. 5.301(a), agencies are
required to synopsize, through
FedBizOpps, contract awards exceeding $25,000 that are
either: (1) covered by the World
Trade Organization Government Procurement Agreement or a Free Trade Agreement; or (2) “likely to result in the award of any
subcontracts.” FAR sect. 5.301(a). It is the second prong that applied to the
December 2004 award, and thus required the Air Force to provide notice of
the award through FedBizOpps.[13]
When the Air Force and OSD met with
We next consider the protesters’ arguments that the
December 2004 and July 2005 sole-source awards to
The
Competition in Contracting Act (CICA) requires agencies to conduct their
procurements using “full and open competition.”
10 U.S.C. sect. 2304(a)(1)(A). CICA,
however, permits noncompetitive acquisitions in specified circumstances, such
as when the agency’s need for the services is of unusual and compelling urgency.
10 U.S.C. sect. 2304(c)(2). Specifically, the exception provides as
follows:
The head of an agency may use procedures other than
competitive procedures only when . . . (2) the agency’s need for the property
or services is of such an unusual and compelling urgency that the United States
would be seriously injured unless the agency is permitted to limit the number
of sources from which it solicits bids or proposals.
This
exception only allows an agency to “limit the number of sources”; an agency may
not simply ignore the potential for competition. The mandate for agencies to effect some
modicum of competition is reiterated in 10 U.S.C. sect. 2304(e), which provides
that when an agency utilizes other than competitive procedures based on unusual
and compelling urgency, the agency “shall request offers from as many potential
sources as is practicable under the circumstance.” See also FAR sect.
6.302-2(c)(2). In addition, CICA
provides that under no circumstances may noncompetitive procedures be used due
to a lack of advance planning by contracting officials or concerns related to
the amount of funds available to the agency. 10 U.S.C. sect. 2304(f)(5); see
also FAR sect. 6.301(c).
With regard to the requirement for advance planning, our
Office has recognized that such planning need not be entirely error-free or successful.
See, e.g., HEROS, Inc.,
B-292043, June 9, 2003, 2003 CPD para. 111 at 6; New Breed Leasing Corp.,
B-274201, B‑274202, Nov. 26, 1996, 96-2 CPD para. 202 at 6; Sprint
Communications Co., L.P., B‑262003.2, Jan. 25, 1996, 96-1 CPD para. 24 at
9. As with all actions taken by an
agency, however, the advance planning required under 10 U.S.C. sect. 2304, must be
reasonable. In enacting CICA, Congress
explained: “Effective competition is
predicated on advance procurement planning and an understanding of the
marketplace.” S. Rep. No. 50, 98th
Cong., 2d Sess. 18 (1984), reprinted in 1984 U.S.C.C.A.N. 2191. The Senate Report also quoted with approval
the following testimony regarding the need
for advance planning:
Opportunities for obtaining or improving competition have
often been lost because of untimely, faulty, or the total lack of advance
procurement planning. Noncompetitive
procurement or inadequate competition also has resulted many times from the
failure to develop specifications . . . . By requiring effective competition, Congress
will serve notice on the agencies that they will need to do more than the minimum
to comply with the statute.
Based on this legal framework we sustain the protesters’
challenges to each of the two sole-source awards to
December 2004 Sole-Source Award
Based on the factual context presented with regard to the
December 2004 award to OSS, it is evident that the agency’s efforts--as
described and explained by the agency itself--were so fundamentally flawed as
to indicate an unreasonable level of advance planning, which directly resulted
in the sole-source award to OSS. In
responding to the protesters’ challenges to the December sole-source award, the
Air Force suggests that its actions and the justification underpinning the
sole-source determination should be evaluated based on the circumstances faced
by the contracting activity in November 2004 when it received the requirement
and took steps to expeditiously procure the required BBE-SME services. For example, the Air Force highlights the
fact that when the J&A was prepared in support of the award to OSS, the
government was faced with the dilemma of needing BBA-SME services in place to
support the January 2005 elections in Iraq--then only 2 months away--and it did
not have a contractor to provide the services.
AR, Tab 13, Supplemental Legal Memorandum at 15; AR, Tab 1.b.2, J&A
para. 3.
We recognize the abbreviated contracting schedule faced by
the contracting activity in its efforts to obtain a contract vehicle for the
BBA-SME requirement--a schedule driven by expectations and mandates from higher
echelons within the Department of Defense.
The record, however, clearly reflects the fact that this narrow
procurement window was the direct result of unreasonable actions and acquisition
planning by the Air Force and the Department of Defense, to the extent these
entities engaged in any acquisition planning at all.
Specifically, 2-3 months[17] were lost as a result of
the initial plan to place the BBA-SME requirement under the GEITA
contract--even though the requirement was clearly outside the scope of the
GEITA contract. As noted above, the
GEITA contract was for advisory
and assistance services in support of AFCEE’s “continued excellence in
the world environmental stewardship market,” including support for AFCEE’s
programs involving environmental restoration,
compliance, pollution prevention, conservation and planning, fuel facility
engineering, base realignment and closure activities, and military family
housing initiatives, to include privatization and outsourcing activities. AR, Tab 17, GEITA Contract, Statement of
Work, at 3, 4-5. The BBA-SME
requirement, however, was for Western-oriented individuals of Iraqi background,
who were committed to a democratic Iraq, and who would provide services in Iraq
such as advising government ministers, planning for and implementing
elections, drafting constitutional documents, advising neighborhood, municipal,
and national councils, and training security forces and details. The plan to use the GEITA contract was
unreasonable on its face, given how widely it diverged from the BBA-SME
requirement. In fact, as indicated
above, a senior member within the Air Force, responsible for acquisition,
characterized the plan as requiring a “sanity check” and indicated that it was
the result of individuals “leaning
way forward in the saddle” in an effort to support a customer because they were
“not in the habit of saying no to anyone.” AR,
Tab 16.ss., E-mail, Subject: RE: GEITA Services for Bilingual-Bicultural
Support to
July 2005 Sole-Source
Award
Turning to the
July 2005 sole-source award to
The July 2005
J&A, which nominally cited “unusual and compelling urgency” as the
justification for the sole-source award to OSS, was in fact prepared based on
the exception to full and open competition set forth in 10 U.S.C. sect. 2304(c)(1),
which applies when the agency concludes that required services are only
available from one responsible source.
Specifically, the contracting officer testified with regard to the July
J&A as follows: “I wrote this
J&A, believing that I was going to use one responsible source. . . . I
think the situation in
The record further
reflects that the contracting officer sought support from OSD in preparing the
J&A for “only one responsible source,” pursuant to 10 U.S.C.
sect. 2304(c)(1) and FAR sect. 6.302-1, and expressly informed OSD that it would
be required to conduct market research certifying that OSS was the only
responsible source capable of providing the BBA-SME requirement without
significant duplication of cost and loss of schedule. AR, Tab 12.b., E-mail, Subject: OSS-BBA Extension 4‑22‑05,
Q.
Did OSD
provide market research certifying only one source can provide the required
service?
A.
Yes,
they did.
Q.
Who
provided that market research?
A.
Victor
Rostow.
Q.
Do you
know what he did in terms of his market research?
A.
. . . I
know he had looked at existing contracts, he looked at the uniqueness of this
requirement -- because at this point in time it had never occurred to me to do
two follow-on unusual and compelling [urgency] J&As. It’s hard just to justify. So we were looking at who was the one vendor
who would be able to fulfill this requirement without having a gap in the
deploying of vetted trained security-cleared BBA subject matter experts in
country. . . .
Q.
Do you
know what other contractors he looked to in his market survey?
A.
I do
know that he looked at some other contractors . . . .
Tr. at 237-40.
Contrary to this
testimony of the contracting officer, Mr. Rostow testified that he had not
considered the capabilities of other contractors and he did not know
whether the Air Force had considered other contractors. Tr. at 178-79. In addition, regarding the question of
whether he had provided the contracting officer with market research in support
of the J&A, Mr. Rostow testified:
Q.
You did
not provide [the contracting officer] with market research in support of the
J&A ultimately?
A.
I did
not go out and look at other contractors.
I feel comfortable saying that this is the contractor, that this
contractor can provide the services and I don’t believe there are other
contractors who can do it without loss of time and money. But I can’t - - I didn’t go out and look for
other contractors.
Tr. at 185.
We conclude from
this inconsistency that, contrary to the understanding of the contracting officer, firms other than
Moreover, the
actions associated with the J&A were inconsistent with the requirements of
the “unusual and compelling urgency” justification ultimately relied upon by
the agency as the basis for the sole-source award to
Recommendation
In crafting our
recommendation in this case, we are sensitive to the pressing needs associated
with the military’s mission in
The protests are
sustained.
Anthony H. Gamboa
General Counsel
[1]
The original requirement for “Western oriented individuals of Iraqi background”
was changed, after contract award, to Iraqis with
[2]
The SAIC contract for providing the 150 members of the IRDC was a sole-source
award. The award and administration of
this contract were the subject of reports by the Office of the Inspector
General of the Department of Defense and GAO.
See Contracts Awarded for the Coalition Provisional Authority
by the Defense Contracting Command-Washington (D-2004-057,
[3] At the hearing, our Office heard testimony from the contracting officer, the commander of the Air Force’s 11th Contracting Squadron, and Mr. Rostow.
[4] The record indicates that Mr. Rostow contacted the Air Force as a result of a conversation with the Chief of Staff for the Deputy Secretary of Defense. Tr. at 133, 143.
[5]
Our Office requested a copy of the GEITA contract and the Air Force provided a
web address with a link to the requested information, http://www.afcee.brooks.af.mil/pkv/GEITA/default.asp?CID=53&folder=GEITA.
[6]
See, e.g., AR, Tab 16.b., e-mail from OSD
to Office of the Secretary of the Air Force, Subject: Bilingual, Bicultural
Support,
[7]
See, e.g., AR, Tab 16.e., e-mail,
Subject: Bilingual, Bicultural Support,
[8]
The original target date of June passed due to efforts to obtain further
approvals and confirmation of funding for the requirement. Tr. at 244.
[9]
The Air Force also sought dismissal on the basis that the protesters are not
interested parties because they are not capable of fulfilling the BBA-SME
requirement. See Bid Protest Regulations, 4 C.F.R. sect. 21.0(a)
(2005). The Air Force’s
contention that the protesters are not interested parties is premised on its
review of the protesters’ capabilities, as described on the General Services
Administration website, after the protest was filed. In essence, the Air Force asserts that the
protesters are primarily linguist contractors and that they have not previously
provided the BBA-SME requirement, which differs from a linguist contract. This argument is unpersuasive, given that
prior to its initial sole-source award,
[10]
Aside from providing general information about the Department of Defense and
current news information, DefenseLink also announces at
[11] The protesters state that they learned of the December 2004 sole-source award only after they learned of the second sole-source award in July 2005. Notice of the July award was published on both FedBizOpps and the DefenseLink website.
[12] As a general matter, an agency is required to synopsize, through the GPE, proposed contracting actions, to include a solicitation for a sole-source award. See FAR sect. 5.201. An agency, however, is not required to publish notice of a proposed sole-source award where it has decided to limit competition under 10 U.S.C. sect. 2304(c)(2) (unusual and compelling urgency), and determined that the government would be seriously injured if it complied with the specified notification time periods. See FAR sect. 5.202 Because the December 2004 sole-source award was made pursuant to 10 U.S.C. sect. 2304(c)(2), the Air Force did not provide notice of the intended sole-source award through the GPE, FedBizOpps.
[13]
Under FAR sect. 25.401(b), “services purchased in support of military services
overseas” are excluded from coverage of the World Trade Organization Government
Procurement Agreement and Free Trade Agreements. The BBA-SME services in support of the Civil
Affairs Command in
[14]
Unlike the December award, Air Force did synopsize the July sole-source award
to
[15] To the extent the Air Force argues that by filing their protests more than 6 months after the award to OSS the protesters failed to diligently pursue their grounds for protest, we fail to see how they could have been aware of any basis for protest to pursue given that the agency did not synopsize the intended sole-source award to OSS, and also failed, as required, to synopsize the award on the GPE.
[16]
WorldWide also argues that the Air Force did not analyze
[17] As noted above, in mid-August 2004, Mr. Rostow began working on a statement of work for the BBA-SME requirement. Mr. Rostow testified that between the end of August and the beginning of September, he provided AFCEE with a copy of the actual statement of work. Tr. at 140. It was not until approximately 2-3 months later, on November 10, the Air Force’s Associate Deputy Assistant Secretary for Contracting contacted the Commander for the 11th Contracting Squadron for assistance with the procurement.
[18]
In reaching our decision, we need not address the question of whether the
July 2005 sole-source award, an expansion of
[19]
As argued by the Air Force, we have
held that an agency has the authority under the urgency exception to full and
open competition to limit the procurement to the only firm it reasonably
believes can properly perform the work in the available time. See, e.g., Total Industry
& Packaging Corp., B-295434,
[20] In fact, the period during which additional sources could have been considered was apparently even longer, thus further undermining the argument that extreme urgency precluded considering other firms. The MNF-I had identified a requirement for approximately 275 BBA-SMEs in January 2005, and it was only the formal approval for expansion by OSD which occurred on May 2, so that the agency had at least 4 months between identification of the requirement and the date by which a contract had to be in place. Moreover, we note that while OSD was initially aiming to have an award by June 1, this date was obviously not met and OSD characterized the J&A’s “critical need date” of July 1 as “arbitrary.” Tr. at 178.
[21] Citing FAR sect. 33.104(c), the agency notified our office of its decision to continue with contract performance notwithstanding the protests challenging the awards to OSS based on the finding that “performance is in the best interests of the United States and that urgent and compelling circumstances” would not permit waiting for a decision from our Office. AR, Tab 11, Continuation of Contract Performance.