Protest of Sole-Source Reprocurement

A firm protested a sole-source reprocurement resulting in the award of a contract. The protester contended that: (1) the sole-source award was improper because the procuring agency knew that the protester was able to perform at a much lower price; and (2) the award resulted from improper action by a former agency employee, now employed by the awardee. The procuring agency explained that, at the time of the reprocurement award, the awardee was the only firm capable of meeting its urgent requirements and that there was no evidence of improper action by the former employee. The reprocurement followed the termination for default of the protester's contract for the identical items. Because the protester was unable to meet the delivery terms of the contract, the agency decided to terminate the contract and reprocure from the only other known source. The protester argued that, because of its advice to the agency that it was willing and able to perform, the agency's automatic exclusion of the protester from consideration on the reprocurement violated regulations requiring competitive procurement, the action was tantamount to an improper and premature nonresponsibility determination, and the agency breached its duty to mitigate damages when assessing excess reprocurement costs. The agency reported that it did not learn that the protester was ready and willing to perform the contract until the day after the reprocurement award. It also stated that the completion of the contract was urgently needed to replace rapidly deteriorating equipment. The agency noted that the awardee delivered the requirement 10 days after the award. In prior decisions GAO has found that, in a reprocurement situation, award of a contract to the second low bidder under the original procurement is legitimate. A sole-source procurement is justified where the Government's minimum needs can be satisfied by only one firm which, as here, could reasonably be expected to make a timely delivery. Thus, the agency had a reasonable basis to turn to the awardee as the only known source of timely supply. GAO did not find that the protester was improperly excluded on a nonresponsibility basis. GAO does not consider protests contending that a procurement action is inconsistent with the Government's duty to mitigate damages resulting from default. GAO found no convincing evidence of conflict of interest on the part of the former employee. Accordingly, the protest was denied in part and dismissed in part.