B-224277, B-224277.2, JAN 8, 1987, 66 COMP.GEN. 195

B-224277, B-224277.2, JAN 8, 1987, 66 COMP.GEN. 195

PROCUREMENT - NONCOMPETITIVE NEGOTIATION - CONTRACT AWARDS - SOLE SOURCES - JUSTIFICATION - PROCEDURAL DEFECTS A SOLE-SOURCE AWARD BASED ON DETERMINATION THAT ONLY ONE RESPONSIBLE SOURCE WOULD SATISFY AGENCY NEEDS IS IMPROPER WHERE THE RECORD INDICATES THE AGENCY FAILED TO SYNOPSIZE THE CONTRACT ACTION IN THE COMMERCE BUSINESS DAILY AS REQUIRED UNDER THE COMPETITION IN CONTRACTING ACT OF 1984, 41 U.S.C. 253(C)(1) AND (F)(1)(C) (SUPP. III 1985), AND THUS INTERESTED PARTIES SUCH AS PROTESTING FIRMS WERE NOT GIVEN OPPORTUNITY TO SUBMIT OFFERS.

WORLD-WIDE SECURITY SERVICE, INC.; PHILIPS ELECTRONIC INSTRUMENTS, INC.:

WORLD-WIDE SECURITY SYSTEMS, INC. (WSS), AND PHILIPS ELECTRONIC INSTRUMENTS, INC. (PHILIPS), PROTEST THE AWARD OF A SOLE-SOURCE CONTRACT TO ASTROPHYSICS RESEARCH CORPORATION (ARC) ISSUED BY THE UNITED STATES MARSHALS SERVICE (USMS), DEPARTMENT OF JUSTICE, UNDER REQUEST FOR PROPOSALS (RFP) NO. 86-7038 FOR 100 X-RAY SECURITY SCREENING SYSTEMS.

WSS PROTEST USMS' ACTION IN CONDUCTING A SOLE-SOURCE PROCUREMENT WHICH PRECLUDED WSS FROM COMPETING FOR THE PROCUREMENT, EVEN THOUGH, AS WSS CONTENDS, FOR SEVERAL MONTHS PRIOR TO THE AWARD, IT HAD REQUESTED AN OPPORTUNITY TO COMPETE FOR THIS PROCUREMENT. PHILIPS PROTESTS THAT THE MANNER IN WHICH USMS DETERMINED TO ACQUIRE THESE SYSTEMS ON A SOLE SOURCE BASIS WAS IMPROPER AND CONTRARY TO COMPETITIVE BIDDING PROCEDURES.

WE SUSTAIN THE PROTESTS.

ON JUNE 9, 1986, A REQUEST FOR CONTRACT ACTION, ACCOMPANIED BY A RECOMMENDED JUSTIFICATION FOR OTHER THAN FULL AND OPEN COMPETITION, DATED JUNE 4, 1986, WAS ISSUED BY THE COURT SECURITY DIVISION SECURITY SPECIALIST FOR SCANRAY LINESCAN SYSTEM 4 X-RAY SCREENING SYSTEM MANUFACTURED BY ARC.

THE RECOMMENDATION, WHICH WAS REFERRED TO THE CONTRACTING OFFICE, LISTS THE FEATURES AND CHARACTERISTICS OF THE ARC SCANRAY LINESCAN SYSTEM 4 AS THE "TECHNICAL REASONS" WHY IT WAS EXCLUSIVELY SELECTED FOR USE BY THE AGENCY.

THE RECOMMENDATION GENERALLY CONCLUDES, WITH RESPECT TO THE DECISION TO REQUEST A SOLE-SOURCE AWARD TO ARC, THAT "BASED ON THE SECURITY SPECIALIST'S INTERVIEWS WITH TECHNICAL SECURITY SPECIALISTS" FROM SEVERAL INTELLIGENCE AND SECURITY AGENCIES, HE IS "PERSUADED BY THE BODY OF TECHNICAL INFORMATION AND EVIDENCE TO STANDARDIZED THE SCANRAY SYSTEM-4, X -RAY SECURITY INSPECTION SYSTEM, THROUGHOUT THE USMS."

ON JULY 28, 1986, THE AGENCY ADOPTED THE SECURITY DIVISION'S RECOMMENDATION AND ISSUED AN RFP FOR THE SUPPLY OF DIGITAL X-RAY SCREENING SYSTEMS, LINESCAN SYSTEM 4 UNITS. ACCORDING TO THE ACCOMPANYING JUSTIFICATION FOR THE SOLE-SOURCE AWARD REQUIRED BY 41 U.S.C. 253(F) (SUPP. III 1985), THE USMS, CITING 41 U.S.C. 253(C)(1) AS ITS AUTHORITY, STATED ITS INTENTION TO CONTRACT ON A SOLE-SOURCE BASIS WITH ARC FOR THE REQUIREMENT BECAUSE ARC'S SYSTEM IS THE ONLY EQUIPMENT THAT CAN MEET THE AGENCY'S MINIMUM NEEDS "IN THE AREA OF X-RAY SCREENING SYSTEMS FOR DETECTING WEAPONS AND EXPLOSIVES BEING BROUGHT INTO FEDERAL COURTHOUSES AND FEDERAL BUILDINGS."

THE JUSTIFICATION FURTHER STATES:

"THE LINESCAN SYSTEM FOUR X-RAY SCREENING SYSTEM IS CONSIDERED BY EXPERTS IN THE FIELD TO BE SUPERIOR TO ALL OTHER X-RAY SCREENING SYSTEMS ON THE MARKET. ATTACHED IS DOCUMENTATION FROM SPECIALISTS WITHIN THE JUSTICE DEPARTMENT, CUSTOMS, SECRET SERVICE, ETC. WHICH INDICATES THAT THE LINESCAN SYSTEM IS THE BEST ... SYSTEM FOR IDENTIFYING WEAPONS AND EXPLOSIVE DEVICES ...." /1/

USMS AWARDED THE CONTRACT TO ARC ON AUGUST 29. WSS FILED A PROTEST WITH OUR OFFICE ON SEPTEMBER 2; PHILIPS' PROTEST WAS FILED HERE ON SEPTEMBER 4. SUBSEQUENT TO THE FILING OF THE SUBJECT PROTESTS, THE AGENCY HEAD DETERMINED THAT SUSPENSION OF CONTRACT PERFORMANCE WOULD ADVERSELY AFFECT USMS' ABILITY TO CARRY OUT ITS MISSION AND, THEREUPON, AUTHORIZED PERFORMANCE OF THE CONTRACT, NOTWITHSTANDING THE PROTESTS.

UNDER THE PROVISIONS OF 41 U.S.C. 253(C)(1), EXECUTIVE AGENCIES ARE AUTHORIZED TO USE OTHER THAN COMPETITIVE PROCEDURES WHEN THE PROPERTY OR SERVICES NEEDED ARE AVAILABLE FROM ONLY ONE RESPONSIBLE SOURCE AND NO OTHER PRODUCTS WILL SATISFY THE AGENCY'S NEEDS. THE AUTHORITY GRANTED BY THIS PROVISION IS CIRCUMSCRIBED BY THE REQUIREMENTS OF 41 U.S.C. 253(F), WHICH INCLUDES CERTAIN STIPULATIONS FOR THE WRITTEN JUSTIFICATION. THE JUSTIFICATION MUST DEMONSTRATE A REASONABLE BASIS FOR THE CONCLUSION THAT THERE IS ONLY ONE RESPONSIBLE SOURCE AND DESCRIBE THE MARKET SURVEY CONDUCTED BY THE AGENCY OR STATE WHY SUCH A SURVEY CONDUCTED BY THE AGENCY OR STATE WHY SUCH A SURVEY WAS NOT CONDUCTED. 41 U.S.C. 253(F)(3)(B) AND (D). MOREOVER, THE CONTRACTING AGENCY IS, IN NO INSTANCE, TO USE OTHER THAN COMPETITIVE PROCEDURES DUE TO ITS LACK OF ADVANCE PLANNING. U.S.C. 253(F)(5).

UNDER 41 U.S.C. 253(1), AN EXECUTIVE AGENCY MAY NOT AWARD A CONTRACT USING PROCEDURES OTHER THAN COMPETITIVE PROCEDURES UNLESS THE JUSTIFICATION IS APPROVED BY THE DESIGNATED AGENCY APPROVING AUTHORITY, SEE 41 U.S.C. 253(F)(1)(B) (SUPP III 1985), AND:

... NOTICE OF THE INTENDED CONTRACT ACTION HAS BEEN PUBLISHED IN THE COMMERCE BUSINESS DAILY ... AND ALL BIDS OR PROPOSALS RECEIVED IN RESPONSE TO SUCH NOTICE HAVE BEEN CONSIDERED BY SUCH EXECUTIVE AGENCY. 41 U.S.C. 253(F)(1)(C) (SUPP. III 1985).

ALTHOUGH THE WRITTEN JUSTIFICATION FOR THE SOLE-SOURCE AWARD WAS APPROVED, THE RECORD DOES NOT INDICATE THAT THE CONTRACT ACTION WAS PUBLISHED IN THE COMMERCE BUSINESS DAILY AS REQUIRED UNDER CICA. THE ACT PROVIDES THAT UNLESS WAIVED BY THE AGENCY HEAD, A SOLE-SOURCE AWARD BASED ON THE "ONLY ONE RESPONSIBLE SOURCE" JUSTIFICATION CANNOT BE MADE WITHOUT THE AGENCY'S PUBLICATION OF ITS CONTRACT ACTION IN THE COMMERCE BUSINESS DAILY.

THE RECORD FAILS TO SHOW THAT THE SYNOPSIS REQUIREMENT WAS WAIVED AS PERMITTED UNDER 41 U.S.C. 416(C)(3). THIS PROVISION PROVIDES THAT THE NOTICE REQUIREMENT SHALL NOT APPLY WHERE THE HEAD OF THE EXECUTIVE AGENCY, AFTER CONSULTATION WITH THE ADMINISTRATOR FOR FEDERAL PROCUREMENT POLICY AND THE ADMINISTRATOR OF THE SMALL BUSINESS ADMINISTRATION, MAKES A WRITTEN DETERMINATION THAT IT IS NOT APPROPRIATE OR REASONABLE TO PUBLISH A NOTICE. ALSO, WE NOTE THAT WHILE THE SYNOPSIS REQUIREMENT IS NOT APPLICABLE WHERE THE "URGENCY" EXCEPTION IS USED TO JUSTIFY A NONCOMPETITIVE AWARD, SEE 41 U.S.C. 253(F)(1), USMS' JUSTIFICATION FOR NONCOMPETITIVE AWARD IS BASED ON THE "ONE RESPONSIBLE SOURCE EXCEPTION" WHICH DOES REQUIRE PUBLISHED NOTICE OF THE CONTRACT ACTION.

SINCE THE AGENCY FAILED TO SYNOPSIZE THIS CONTRACT ACTION, WE SUSTAIN THE PROTEST ON THIS GROUND WITHOUT DECIDING WHETHER OR NOT THE WRITTEN SOLE- SOURCE JUSTIFICATION ITSELF WAS ADEQUATE.

THE PROTESTS OF USMS' AWARD ON A SOLE-SOURCE BASIS TO ARC ARE SUSTAINED. AS DISCUSSED ABOVE, USMS DETERMINED THAT PERFORMANCE OF THE CONTRACT NOTWITHSTANDING THE PROTESTS WAS IN THE BEST INTERESTS OF THE GOVERNMENT (SEE 4 C.F.R. 21.4(B)91)). ALTHOUGH INITIAL DELIVERIES ARE SCHEDULED TO COMMENCE IN LATE JANUARY, CICA REQUIRES THAT WHERE, AS HERE, THE AGENCY RECEIVES NOTICE OF THE PROTEST WITHIN 10 DAYS AFTER THE CONTRACT AWARD BUT JUSTIFIES CONTINUING WITH CONTRACT PERFORMANCE ON THE BASIS THAT THE GOVERNMENT'S BEST INTERESTS SO REQUIRE, THIS OFFICE RECOMMEND CORRECTIVE ACTION WITHOUT REGARD TO ANY COST OR DISRUPTION FROM TERMINATING RECOMPETING OR REAWARDING THE CONTRACT. WE THEREFOR RECOMMEND THAT USMS TERMINATE ITS CONTRACT WITH ARC AND CONDUCT THIS PROCUREMENT IN ACCORDANCE WITH CICA. SEE BIEGERT AVIATION, INC., B-222645, OCT. 10, 1986, 86-2 CPD 419. ALSO, SINCE THE PROTESTERS HAVE SUCCESSFULLY CHALLENGED AN IMPROPER SOLE-SOURCE AWARD, THEY ARE ENTITLED TO RECOVER THE COSTS OF FILING AND PURSUING THE PROTEST, INCLUDING ATTORNEYS' FEES. SEE 4 C.F.R. 21.6(E) (1986); WASHINGTON NATIONAL ARENA LIMITED PARTNERSHIP, 65 COMP.GEN. 25 (1985), 85-2 CPD 435.

/1/ NO SUCH DOCUMENTATION WAS ATTACHED TO THE JUSTIFICATION, AND WE WERE INFORMALLY ADVISED, UPON OUR INQUIRY, THAT THIS REFERENCE TO ATTACHED DOCUMENTATION IS A MISSTATEMENT IN THE REPORT. WE NOTE THAT BASED ON THE RECORD BEFORE US, IT APPEARS THAT THE DECISION TO USE THE ARC SYSTEM WAS BASED UPON ORAL ADVISE SOUGHT AND OBTAINED FROM CERTAIN INVESTIGATIVE AND SECURITY AGENCIES.