B-218472, APR 19, 1985, 85-1 CPD 452
Highlights
SINCE THE PROTESTED SOLICITATION WAS ISSUED ON MARCH 15. AYDIN IS THE AWARDEE OF TWO RECENT LARGE CONTRACTS FOR ESSENTIALLY THE SAME ITEM. SINCE THE SUBJECT RFP WAS ISSUED ON MARCH 15. THERE IS NO AUTHORITY FOR THE AIR FORCE TO EXCLUDE AYDIN FROM THIS PROCUREMENT. THE PROTEST IS DISMISSED.
B-218472, APR 19, 1985, 85-1 CPD 452
CONTRACTS - NEGOTIATION - COMPLETION - EXCLUSION OF OTHER FIRMS DIGEST: GAO DISMISSES PROTEST CONTENDING THAT CIRCUMSTANCES JUSTIFY THE HEAD OF A PROCURING AGENCY'S EXCLUDING A PARTICULAR SOURCE FROM A PROCUREMENT AS AUTHORIZED BY 10 U.S.C. SEC. 2304(B)(1), AS AMENDED BY THE COMPETITION IN CONTRACTING ACT OF 1984, SINCE THE PROTESTED SOLICITATION WAS ISSUED ON MARCH 15, 1985, BUT SECTION 2304(B)(1) APPLIES ONLY TO SOLICITATION ISSUED AFTER MARCH 31, 1985.
MICROCOM CORPORATION:
MICROCOM CORPORATION PROTESTS THE TERMS OF REQUEST FOR PROPOSALS (RFP) NO. F09603-85-R-0190, ISSUED BY WARNER ROBINS AIR FORCE BASE, GEORGIA, ON THE GROUND THAT THEY PRECLUDE FULL AND OPEN COMPETITION. MICROCOM REQUESTS THAT THE AYDIN VECTOR CORPORATION, THE SOLE-SOURCE INCUMBENT CONTRACTOR, BE EXCLUDED FROM THIS COMPETITION. WE DISMISS THE PROTEST.
ACCORDING TO MICROCOM, AYDIN IS THE AWARDEE OF TWO RECENT LARGE CONTRACTS FOR ESSENTIALLY THE SAME ITEM, WHICH AFFORDS THE FIRM A SIGNIFICANT COMPETITIVE ADVANTAGE. MICROCOM CONTENDS THAT 10 U.S.C. SEC. 2304(B)(1), AS AMENDED IN THE COMPETITION IN CONTRACTING ACT OF 1984, PUB. L. NO. 98-369, SECS. 2723(A)(1), 98 STAT. 1187 (1984), AUTHORIZES AGENCY HEADS TO EXCLUDE A PARTICULAR SOURCE FROM A PROCUREMENT IN ORDER TO ESTABLISH OR MAINTAIN ALTERNATE SOURCES OF SUPPLY. MICROCOM ARGUES THAT THE GOVERNMENT COULD BOTH REDUCE COSTS AND EXPAND THE COMPETITIVE BASE BY TAKING SUCH ACTION HERE.
SECTION 2304(B)(1) PERMITS THE HEAD OF AN AGENCY TO EXCLUDE A PARTICULAR SOURCE UNDER CERTAIN CIRCUMSTANCES. HOWEVER, THIS AMENDED SECTION APPLIES ONLY TO SOLICITATIONS ISSUED AFTER MARCH 31, 1985. SEE THE COMPETITION IN CONTRACTING ACT OF 1984, SUPRA, SEC. 2751. SINCE THE SUBJECT RFP WAS ISSUED ON MARCH 15, 1985, THERE IS NO AUTHORITY FOR THE AIR FORCE TO EXCLUDE AYDIN FROM THIS PROCUREMENT.
MICROCOM HAS NOT STATED A VALID BASIS FOR PROTEST. THEREFORE, PURSUANT TO OUR BID PROTEST REGULATIONS, 4 C.F.R. SEC. 21.3(F)(1985), THE PROTEST IS DISMISSED.